Non-union employees may have union rep accompany OSHA inspector

Non-union employees can select anyone, including representatives of a union, to accompany an OSHA compliance officer during an inspection of their worksite, according to a recent interpretation letter issued by OSHA.

This marks a major departure in procedures for OSHA inspections and potentially provides an opening for union organizers to get a presence in a non-union workplace. As noted in an article by the Constangy Brooks & Smith law firm, the letter is provoking a backlash from employers.

The letter, released April 5, but dated Feb. 21, 2013, was in response to a request from Steve Sallman, a health and safety specialist with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

Sallman had asked whether workers at a non-unionized workplace could authorize a person affiliated with a union to act as their representative under the OSH Act. Richard Fairfax, Deputy Assistant Secretary of OSHA, responded in the interpretation letter that not only could a union representative be selected to go along on an inspection, but that workers had the right to choose anyone they pleased to act as a representative, including non-employees.

In addition, Fairfax said in the letter that employees in a workplace without a collective bargaining agreement may designate a union-affiliated individual to act as their personal representative. In this capacity, non-employee personal representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences, contest the abatement period in OSHA citations and participate in contest proceedings.

In my opinion, if OSHA goes forward with this policy, it is likely to result in employer litigation.