By Paul H. Burmeister and Eric J. Conn
On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections. OSHA responded affirmatively.
29 C.F.R. 1903.8(c) provides:
“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”
OSHA’s April 5, 2013 Interpretation Letter clarified its interpretation of the types of non-employees it considers to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” by stretching the meaning beyond what has historically been understood to include only individual’s with relevant technical expertise to aid in the inspection, such as those listed as examples in the language of the regulation; i.e., “an industrial hygienist or a safety engineer.” This interpretation moves away from that commonsense reading, and expressly invites the involvement of non-technical union representatives, even from unions who have not been elected to represent the workforce.
OSHA broke the question down into two parts. First, OSHA stated affirmatively that the OSH Act recognizes the role of an employee representative to represent employees’ interests in enforcement related matters. Specifically, the employee representative, OSHA asserts, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.
Second, OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act. However, the union representative must be duly authorized by the employee to act as his representative. OSHA also noted under 29 CFR § 1903.8 that OSHA may exercise its discretion in allowing a non-employee representative, but generally would allow it when the non-employee representative may make a positive contribution to the inspection. For example, the letter specifically cites non-employee representatives who are skilled in evaluating similar working conditions or are fluent in another language that may be helpful.
OSHA tried to minimize the purported impact of this Interpretation, explaining that it was simply intended to clarify a position it had taken in an earlier March 7, 2003 Interpretation Letter regarding non-employees who file a complaints about a workplace. In that letter, which has now been archived, OSHA explained that non- or former employees do not necessarily have a right to participate in an OSHA inspection arising out of their complaints. OSHA distinguished the 2003 letter from the present interpretation by explaining that the 2003 letter did not address whether current employees may have a non-employee representative of their choosing present during an inspection.
This new Interpretation Letter may result in at least two new wrinkles from OSHA inspections. First, having an outside community or union activist in your worksite during an inspection may strain employers’ abilities to cast their workplaces in the most favorable light. Second, non-union employers should be prepared for the possibility that union representatives will gain, through participation in an OSHA inspection, useful knowledge or relationships to facilitate an organizing campaign.