Professional Service Agreement

New Interpretation Allows Unions to Accompany OSHA During Inspection (Even if Your Facility is Union Free)

May 20, 2014

It is common in facilities with collective bargaining agreements in place for a union rep to accompany OSHA officials during safety inspections of their employer's worksite. It is an entirely different matter when a Union rep shows up with the OSHA inspector and the organization is non-union.

Evidence shows that an interpretation letter published by OSHA in 2013 is being used by unions as an attempt to gain access to facilities which are non-union. Many times when companies have multiple sites with some being union and others non-union the union pushers will do anything possible to attempt to penetrate non-union sites. What better way than to follow the OSHA inspector through the door. Unfortunately, OSHA has stated:

"The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by a representative authorized by [the employer's] employees." 29 U.S.C. § 657(e). Therefore, 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 so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary's regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections"

One would think that OSHA officers would challenge any representative that appears to have ulterior motives, but there is no guarantee. In particular, if the inspection is due to an employee complaint, and the company has a history of non-compliance, the officer could very well infer that union intervention may perhaps "improve" the situation.
So what can you do?

• Question what method was used by the employees of the company to authorize the Union rep's involvement? How did OSHA verify that the employees actually chose this individual to represent them? The company should always challenge this aspect, as it is very unlikely that the union has even met the employee population. They may have only contacted a few employees that have union loyalties, or are attempting to organize.

• What expertise in Safety and Health does this individual possess? In other words what does this person bring to the table that would assist in or improve the results of the inspection?

• Can the employees not speak for themselves? It is commonplace in most non-union facilities that members of Safety committees/teams accompany OSHA Inspectors during an inspection, not third parties.

The critical aspect is to have well defined safety policies and procedures and active employee involvement, re safety committees. If the OSHA Inspector sees that the employer has an active safety committee with resulting actions from meetings and walk-throughs that will always bode well for any inspection. In all cases employers should cooperate in good spirit with OSHA, but most definitely deny access to any third party representative. The warning signs of union activity normally would have already shown themselves before an incident such as this, but you must train your front line supervisors to recognize the signs. SESCO can help with this critical line of defense for your company.

Contact SESCO for guidance on all of your Labor Relations/Human Resources needs.