OSHA withdraws controversial “union walkthrough” memo

Controversy remains over the phrase, ‘for the purposes of aiding’

Posted May 5, 2017

In 2013, OSHA issued a memorandum saying the Agency could allow a non-employee union representative to serve as the employee representative during an inspection of an employer that does not currently have any bargaining units, so long as the individual has been authorized by the employees to serve as their representative (at the discretion of the OSHA inspector).

That memo has been rescinded, following a lengthy legal battle.

OSHA will now refer back to the prior policy to enforce the explicit regulatory language regarding the issue. This likely means representatives that are not employees will only be allowed in unusual circumstances, and then likely not from a union representative not affiliated with a bargaining unit at the facility.

What the regulation actually says

The OSHA regulations (carrying out the language in the OSH Act) are in 29 CFR Part 1903 and say that “a representative of the employer and a representative authorized by … employees shall be given an opportunity to accompany” the OSHA inspector “for the purposes of aiding” the inspection.

On the other hand, the regulations also say that:

“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.”

Why the 2013 policy was questioned

The legal challenge to the 2013 memo centered on OSHA’s interpretation of the above requirement, questioning how a union representative (or other non-employee community representative) to accompany the inspector “aids” the inspection in the same way that a safety engineer or industrial hygienist (which the regulation specifically references) would. The fear for many employers was that this could allow union representatives into an employer’s facility when the employer and, perhaps, even the majority of employees are not on-board. Many arguments were presented ranging from OSHA’s authority based on the actual wording of the regulation to the way OSHA “changed” the policy without public comment, to labor laws and issues, as well as to the right of the employer to maintain control over the workplace.

OSHA maintained that the regulation allowed it some discretion to determine whether the representative could aid the inspection. OSHA said that these persons could make an important contribution to a “thorough and effective inspection.” This could be because of the representative's experience and skill, “for example because of experience evaluating similar working conditions in a different plant,” OSHA said. There are also many instances, according to OSHA, where non-English speaking workers want a representative who is fluent in both their own language and English, something that will facilitate more useful interactions with the OSHA inspector during the inspection. Finally, workers in some situations may feel uncomfortable talking to an OSHA inspector without the trusted presence of a representative of their choosing, OSHA said.

This article was written by Travis Rhoden of J. J. Keller & Associates, Inc.

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