According to the Occupational Safety and Health Administration (OSHA), unions are welcome to participate in OSHA inspections and complaints, even at union-free work sites where they do not represent employees and there is no active organizing.

In a letter of interpretation dated Feb. 21 but not publically released until April 5, OSHA said that nonunion employees can select a union official or member of a community organization to act as their “personal representative” in filing complaints on the employees’ behalves, requesting workplace inspections, participating in informal conferences to discuss citations, and challenging the abatement period in citations being contested by an employer. The interpretation letter goes on to state that “a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative.”

The position taken in the letter is a clear departure from OSHA’s longstanding practice. Previously, union representatives have only been allowed to be the “employee representative” where the facility was unionized.

Although OSHA relied on the language of the Occupational Safety and Health Act of 1970 (OSH Act), the Secretary’s regulations implementing the OSH Act, and OSHA’s Field Operations Manual, this new interpretation is directly contrary to OSHA’s own regulation (29 C.R.R. §1903.8(c)), which requires the employee representative be an employee of the subject employer. While the regulation allows a third party who is not an employee, such as an industrial hygienist or safety engineer, to participate in inspections, this is only permitted where the OSHA compliance officer determines there is good cause. Arguably, the regulation limits third-party representation to those with expertise in safety and health matters and is not as broad as OSHA’s interpretation suggests. The regulation makes no mention of labor unions or groups as employee representatives.

OSHA’s new interpretation omits examples of safety and health experts provided in the regulation and also fails to explain when there would ever be “good cause” to allow a nonemployee union representative to represent nonrepresented employees during an OSHA inspection. Even if the nonemployee union official is a safety and health specialist, there is no legal or policy basis for OSHA to intercede on behalf of a union in an organizing campaign or otherwise by allowing union representatives the authority—and apparent power—to assist an OSHA compliance officer during an inspection.

This broad definition of “employee representative” in no way harmonizes with other definitions of “employee representative” contained in OSHA’s own regulations and fails to recognize the specific mechanisms for employees to designate a union as their representative under the National Labor Relations Act (NLRA). The letter seems to imply that one employee could request a union official as the walkaround representative either on the individual employee’s behalf or on behalf of the entire workforce, even over the objections of co-workers. This approach, however, allows a union to represent workers without a majority vote in an election certified by the National Labor Relations Board.

Beyond the practical issues this interpretation raises but fails to answer, OSHA’s policy may encourage unions to use OSHA complaints and inspections as organizing tools to gain access to an employer’s facility from which the outside union organizer ordinarily would be excluded. As important, the OSHA inspection would allow the union organizer to have personal contact with employees, which is often invaluable during organizing campaigns. As stated earlier, the presence of a union organizer accompanying an OSHA compliance officer could also convey a message to non-union employees that the union has real power beyond the control of the employer and that is therefore beneficial to their interests.

If a union organizer attempts to participate in an OSHA inspection, employers should consider taking the following steps:

  • Make clear to the OSHA compliance officer that the company will cooperate during the inspection, and that the compliance officer is welcome to enter the facility and start the inspection. At the same time, ask the compliance officer why the “employee representative” would be beneficial during the inspection, e.g. what special safety and health expertise does the representative have? 
  • If OSHA insists that the union organizer participate, the employer may refuse to allow the union organizer to enter the facility. This refusal may cause OSHA to seek a search warrant. To obtain a warrant, OSHA must contact its attorneys in the Office of the Solicitor. At this point, communication between the employer’s and OSHA’s counsel may be helpful. The employer should explain that OSHA is welcome to inspect, but that the compliance officer has failed to show that the union organizer will add value to the inspection.

If OSHA does obtain a warrant, the employer may move to quash it in federal district court. Given that OSHA’s position conflicts with its own regulations, the employer is likely to prevail.