This post was contributed by Andrew L. Levy, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Practice Group.

The Occupational Safety and Health Administration (“OSHA”) recently released a Letter of Interpretation authorizing employees at non-union workplaces to designate union organizers to act as their employee representative during an OSHA inspection. The following is an excerpt from the Letter of Interpretation, the full version of which is available here:

Question:         May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or community organization to act on their behalf as a walk around representative?

Answer:           Yes . . . [a] person affiliated with a union without a collective bargaining agreement or with a community organization can act on behalf of employees as a walk around representative so long as the individual has been authorized by the employees to serve as their representative.

Under the Occupational Safety and Health Act and OSHA regulations, an employee representative is given an opportunity to participate in an on-site OSHA inspection. For purposes of the on-site inspection, the OSHA Field Inspection Reference Manual has defined employee representatives to include: 

  1. a representative of the certified or recognized bargaining agent, or, if none,
  2. a member of a safety and health committee who has been chosen by the employees (employee committee members or employees at large) as their OSHA representative, or
  3. an individual employee who has been selected as the walk around representative by the employees of the establishment. 

OSHA’s recent Letter of Interpretation, however, represents a shift from the traditional definition of employee representative and now will allow non-employees (including union organizers) who do not currently represent the employees for purposes of collective bargaining to serve as the employee representative during the inspection. Obviously, if put into practice, OSHA’s position could not only make the OSHA inspection process more difficult and burdensome for the employer, but could also enable union organizers to get a significant "foot in the door" during an organizing campaign.

OSHA’s new interpretation allowing a third-party-outsider representative raises a host of legal issues concerning OSHA’s authority to conduct workplace inspections. For example: 

How will it be determined whether the employees really wish for a certain union to serve as a representative for purposes of an inspection? 

What role does the union organizer play and what authority does he or she have while onsite?

Where does OSHA derive its authority to compel an employer to allow third parties to enter its facilities? 

Whether OSHA area offices and compliance officers will adopt OSHA’s interpretation and how they will exercise the discretion provided to them in the Letter of Interpretation remains to be seen. In the meantime, non-union employers should be vigilant at the outset of OSHA inspections to obtain clarity with respect to whether an employee representative will participate in the inspection and, if so, who that individual will be. In the event that OSHA attempts to permit a third party who is not employed by the employer to serve as the employee representative during an inspection, non-union employers are well advised to immediately consult with counsel. Depending upon the circumstances, the employer might consider withholding consent to the inspection or, at the least, to involvement of the third party. It appears questionable whether OSHA could obtain a court-ordered search warrant requiring that an employer permit entry into its facilities by such an affiliated third party. 

Litigation challenging OSHA’s new interpretation could be forthcoming. Through this blog, we will keep you updated on any advancements in this area.