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In a departure from its previous guidance, the Occupational Safety and Health Administration (“OSHA”) recently released an interpretation letter that could potentially open the door to union organizing activity on employer property during OSHA inspections.  The new guidance authorizes non-unionized employees to select union agents as representatives and has been widely interpreted by unions to facilitate the use of OSHA inspections as an organizing tool. 

The interpretation letter, issued in February but released only recently, responds to a request for clarification from a safety specialist with the United Steelworkers union regarding whether individual workers may designate union representatives to act on their behalf for Occupational Safety and Health Act purposes even where there is no collective bargaining agreement in place and they have no official standing.  Deputy Assistant Secretary of Labor for Occupational Safety and Health Richard Fairfax responded in the affirmative, stating that union agents may serve as both personal and “walkaround” representatives during on-site inspections. 

Unionized employees have long been authorized to have a representative accompany an OSHA inspector on a workplace inspection.  However, for businesses where there is no employee representative authorized by a collective bargaining agreement, the regulations only permit an OSHA inspector to be accompanied by a third party if “good cause” is shown as to why the party may be necessary to conduct an effective and thorough inspection.  See 29 C.F.R. § 1903.8(c).  Section 1903.8(c) provides examples of proper third-party representatives that include industrial hygienists or safety engineers, and has long been interpreted by the agency to limit third-party representation to individuals with expertise in safety and health matters.  Unions are contending that OSHA’s new interpretation of these regulations to include union agents constitutes a vast expansion of the category of individuals who may serve as third-party representatives.

It is not clear at this point how OSHA will address contradictions between the new guidance and current regulations, including the definition of “employee representative” contained in other OSHA regulations.  OSHA’s regulations regarding cooperative agreements between the federal Occupational Safety and Health Administration and equivalent state agencies define an “employee representative” as “the authorized representative of employees at a site where there is a recognized labor organization representing employees.”  See 29 C.F.R. § 1908.2.  OSHA’s new guidance raises additional questions not addressed in the interpretation letter regarding how many employees are necessary to designate a third-party representative and what happens if some employees object to the selected representative.  However, regardless of how these issues are resolved, employers should be increasingly vigilant regarding the origin of OSHA complaints and whom their employees select to represent them.