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The Occupational Safety and Health Administration (OSHA) was particularly active in April 2013. It kicked off the month by issuing a surprising interpretation letter granting unions and community organizers access to nonunion worksites during OSHA inspections and allowing employees to designate such organizations to act as their representatives during the course of an OSHA proceeding. That interpretation flies in the face of the prevailing interpretation for decades that permitted unions to participate in OSHA inspections only in settings where the union was the lawfully recognized representative of employees there. OSHA ended the month by launching an initiative intended to protect temporary or contract workers.

OSHA Recognizes Employees’ Right to Request Representation by Outside Union Officials During Inspections of Nonunion Workplaces

Creating the sort of “open door” policy no employer wants, OSHA released a letter on April 5, 2013, from Deputy Assistant Secretary Richard E. Fairfax interpreting the Agency’s regulations as the following: (1) allowing employees at a worksite without a collective bargaining agreement to designate a union or community organization to act on their behalf during the walkaround portion of an OSHA inspection; and (2) allowing one or more employees not represented by a union to designate a person, affiliated with a union or working for a community organization, to act as their “personal representative” for OSHA purposes. This development is yet another example of the current administration’s efforts to expand the opportunities for unions to flex their muscle and access nonunion worksites.

Employers with represented workforces have long understood that the union must be given a seat at the table, literally, at the opening conference and allowed to accompany the OSHA Compliance Safety and Health Officer (CSHO) as he or she conducts a walkaround inspection of the employer’s facility, whether as part of a programmed inspection or in response to a complaint.

Although OSHA maintains in the April 5 letter that employees have always possessed the right to have someone who is neither an employee of their company nor a member of their union serve as their representative, this interpretation breaks from past practice and will pose difficult challenges for employers. As many employers have experienced, labor unions can file, and frequently have filed, OSHA complaints against unrepresented employers as a tactic to assist in organizing. Effectively, the new OSHA interpretation could encourage unions to make greater use of that tactic to gain access to unrepresented workplaces. This appears in part to be what is intended. As Deputy Assistant Secretary Fairfax opines, outside representatives may add value because workers in some situations may feel uncomfortable talking to the CSHO without the trusted presence of a “representative” of their choosing.

This development underscores the need for employers to have a plan in place for responding to unannounced OSHA inspections. Until now, most employers have allowed OSHA access to their facility without requiring a warrant. While cooperation has its benefits, that may not always be the case going forward if there is reason to believe the “chosen representative” has an agenda that extends beyond the inspection at hand. It becomes even more important to ensure that the employer representative(s) tasked with managing the inspection understand where these outsiders should (and should not) be allowed in the facility, that the outsiders should be expected to adhere to the applicable safety rules, and that conversations with these outsiders should be avoided whenever possible and limited when necessary to a single individual, preferably counsel. Finally, employers should be careful to guard their confidential information and trade secrets if there is any concern that the outsider may be exposed to such information in the course of a walkaround inspection.

Employers should consider in advance how they may want to respond in the event a CSHO appears at a nonunion facility. At a minimum, an employer may and should ask that every member of OSHA’s inspection team present identification showing their affiliation. If the team includes a union representative, employers should keep a record of that person’s name and union affiliation and ask the CSHO to clarify the individual’s role on the team.

Then comes the harder choice, whether to permit an OSHA inspection that includes a union representative demanding access to a workplace where employees are not represented. Some nonunion employers may decide to allow the inspection even though it includes union representatives. If you make this choice, you have the right to accompany the inspectors other than during witness interviews, and may and should object to the CSHO if a union representative engages in conduct that appears to be inappropriate for an OSHA inspection. Do not simply allow the union representative to wander without escort.

Employers who have particular concerns about union organizing always have the option to request that OSHA either exclude the inspector or return with an inspection warrant. As noted above, most employers have declined to exercise that right so as not to unnecessarily antagonize the Agency. Nonunion employers who want to appear cooperative but not allow a union representative onto the property may want to try the intermediate path of offering the CSHO an opportunity to complete the inspection as long as the union representative remains outside. It remains to be seen whether OSHA will agree or will tie up its resources and delay inspections by refusing such an offer and then seeking a warrant. Remember, there are no citations or penalties associated with refusing an inspection without a warrant, and OSHA is prohibited from retaliating based on the exercise of those rights.

In the event a warrant is presented, an employer still has options. It may and should still accompany OSHA’s team. If there are particular concerns with the presence of union representatives that outweigh the costs, an employer also may decline to allow an inspection that includes a union representative and then challenge the warrant in court. It is likely that such challenges to OSHA’s new interpretation of its inspection power will be brought in the weeks ahead. We will keep you up to date on any developments in this area.

OSHA Launches Initiative to Protect Temporary/Contract Workers

On April 29, 2013, OSHA announced a new initiative to ensure that employers are properly training temporary and contract employees before exposing them to workplace hazards. Citing a number of recent workplace fatalities where contract workers were killed soon after starting work—in several cases on their first day—OSHA makes clear that employers must ensure that they are providing the required training to contract/temporary workers in a language and vocabulary they understand. According to OSHA, recent inspections have found a number of instances in which contract workers started work without the appropriate personal protective equipment or training on lockout/tagout protections.

As part of this enhanced effort to protect temporary/contract workers, OSHA is instructing its CSHOs to gather and track information relating to the temporary/contract workers they encounter in the course of an inspection or investigation. In addition to creating a new internal tracking code to identify temporary/contract workers who may be exposed to a violative condition, OSHA will require CSHOs to document the name of the workers’ staffing agency, the agency’s location and the supervising structure under which the workers are reporting.

Going forward, employers should anticipate that CSHOs will question the temporary/contract workers they encounter during inspections about the training they have received and the hazards they face. The CSHOs will also likely request training records for these workers and review them to determine if the workers have been placed in their positions without the required and appropriate training. As such, any employer who utilizes temporary/contract employees in positions that require safety training should make sure that those workers receive the same training that is provided to regular employees before they begin working.

If you have any questions about these OSHA initiatives or other workplace safety matters, please contact Aaron R. Gelb at +1 (312) 609 7844 in Chicago or Ayse Kuzucuoglu at +1 (415) 749 9512 in San Francisco. If you have any questions about union organizing, please contact Kenneth F. Sparks at +1 (312) 609 7877 in Chicago. You may also contact any other Vedder Price attorney with whom you work.

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Kenneth F. Sparks