New York Labor and Employment Law Report
OSHA States That Employees at Non-Union Workplaces May Bring Union Representatives Along During Inspections
April 29, 2013
The effect of an interpretation letter publicly released by the Occupational Safety and Health Administration ("OSHA") on April 5, 2013 is quite concerning. In that recent interpretation letter, OSHA states that employees at non-union workplaces may designate a union representative to accompany OSHA's Compliance Safety and Health Officer during inspections. This interpretation seems to be inconsistent with the specific language of the regulation governing designation of employer and employee representatives during OSHA inspections, and marks a significant change in the manner in which OSHA has historically applied that regulation.
The regulation addressed in the interpretation letter, 29 C.F.R. Section 1903.8, provides that "[a] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection." The regulation further provides that "[t]he representative(s) authorized by employees shall be an employee(s) of the employer." (emphasis added). There is one exception to this rule. If, in the judgment of OSHA's Compliance Safety and Health Officer, there is good cause to believe that the presence of a third party who is not an employee of the employer is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace," the Compliance Safety and Health Officer may permit the third party to be present during the inspection.
The examples cited in the regulation of third parties who may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace are industrial hygienists and safety engineers. Under appropriate circumstances, one can understand why a subject matter expert may be permitted to be present during an inspection. However, OSHA's recent interpretation letter goes far beyond the text of the regulation to state that "a person who is affiliated with a union" who is not an employee of the employer (i.e., a union organizer) may serve as the representative of the employees during an inspection even in a non-union workplace.
Based on the plain text of 29 C.F.R. Section 1903.8, a union organizer who is not employed by the employer should not be permitted to participate in an OSHA inspection at a non-union workplace. Thus, it appears that OSHA has gone far afield in its recent interpretation letter. Although the agency will enforce OSHA regulations according to its own interpretations of those regulations, courts have sometimes refused to adopt OSHA's interpretations of its regulations, either because those interpretations are at odds with the plain language of the regulations or because the interpretations are really new regulations that should have been subject to public notice and comment before promulgation. It remains to be seen whether this interpretation will be challenged in court.
