Contributed by Jonathon Hoag
An OSHA letter of interpretation was recently released announcing that non-union employees can select a union organizer to be the employee’s representative during OSHA inspections. This change is not the result of new or amended OSHA regulations.
The OSHA regulations have always clearly stated that the representative authorized by employees shall be an employee of the employer. The regulations explain that accompaniment by a third party who is not an employee should only be done when “good cause” is shown, such as when it is necessary to have an industrial hygienist or a safety engineer present. Notwithstanding that the regulations only allow third-party representatives in narrow circumstances, OSHA’s recent interpretation now provides that a third party is “reasonably necessary” as long as they make a positive contribution.
The presence of a union organizer during OSHA inspections presents obvious risks and detriments to the non-union company. To avoid the potential result of allowing union organizers to be a part of OSHA’s physical inspection, non-union employers should act now to make sure an employee representative is in place to participate in safety inspections and that the selected individual is trained and knowledgeable about safety and health issues. The interpretation letter might state that OSHA can allow third-party representatives when in its view the third party will make a “positive contribution,” but the regulations are clear that there must be “good cause” to allow a third-party representative. Employers must be prepared to illustrate to the OSHA inspector that the employees’ representative has more than sufficient knowledge and skill to participate in the physical inspection, especially compared to the knowledge and skill of the third-party representative.
In short, non-union employers should challenge any attempt to have a third-party representative by establishing that there is not “good cause” to permit a union representative to accompany the OSHA inspector during physical inspections.