OSHA’s ‘Union Walkaround Rule’ Heads Toward Finalization Following Comment Period

A recent proposed rulemaking from the US Occupational Safety and Health Administration (OSHA) seeks to make it easier for unions and other third parties to gain access to private worksites, creating steep consequences for employers—particularly with respect to labor organizing.

In its proposed rule Worker Walkaround Representative Designation Process (the walkaround rule), OSHA seeks to amend 29 CFR § 1903.8, Representatives of employers and employees, to empower OSHA Compliance Safety and Health Officers (OSHA inspectors) to designate union, community activist, or any other third-party representatives to accompany OSHA inspectors during an inspection of a workplace—simply on the basis of an employee request.

BACKGROUND

Under the proposed rule, OSHA inspectors could permit union representatives to participate in walkaround inspections even if the worksite is not unionized and the representative is not an employee of the employer.

In the proposed rule, OSHA seeks to significantly expand the current regulation, which presently states that the “representative(s) authorized by employees shall be an employee(s) of the employer.” The current regulation goes on to recognize a narrow “good cause” exception to the general rule prohibiting third parties from coming onsite when they are “reasonably necessary to the conduct of an effective and thorough inspection”—expressly citing “an industrial hygienist or a safety engineer” as examples.

In seeking to amend the current language, the proposed rule harks back to a now-rescinded Obama-era letter of interpretation, referred to as the Fairfax Memo, which provided that nonunion employees can authorize an individual affiliated with a union to act as their representative during inspections.

The Fairfax Memo attempted to rewrite four decades of OSHA’s own interpretation of the regulation, which stated that only union representatives who were recognized by the US National Labor Relations Board (NLRB) as the majority representative of the employer’s employees could be considered an “authorized employee representative” under Section 8(e) of the Occupational Safety and Health Act (the OSH Act) and its implementing regulation, 29 CFR § 1903.8.

While the Fairfax Memo was rescinded in 2017, OSHA now seeks to formalize it through rulemaking and fulfill US President Joseph Biden’s explicit promise to be the most pro-union administration.

According to the proposed rule’s preamble, it would allow for “a multitude of third parties who might serve as representatives authorized by employees for purposes of the OSHA walkaround inspection,” including “[w]orker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies.”

The preamble reveals that the proposed rule, which already is facially broader than the current version, will be interpreted by OSHA in a broad and sweeping manner that could open the door to third parties that previously lacked access to employers’ worksites.

OSHA’s proposed broad changes to the rule’s current narrow “good cause” exception—an exception that strikes a balance between allowing for only qualified expertise regarding workplace safety while also addressing employers’ property rights and their rights to protect proprietary and confidential information—threaten to swallow the rule.

OPEN QUESTIONS REMAIN

There are numerous unaddressed issues concerning the implementation of the proposed rule, including the following:

• The proposed rule does not restrict the number of representatives—whether union organizations, community activists, or other third parties—who may accompany the OSHA inspector. Where there are competing unions seeking to organize employees, OSHA will be placed in the middle of labor disputes between unions, employees, and their employer, which specifically contradicts OSHA’s Field Operations Manual (i.e., OSHA’s internal protocols for how it conducts inspections).
• OSHA’s proposed rule does not account for federal labor relations policy and the need for lawful recognition of a union as selected by the majority of the employees in a unit appropriate for such purposes through procedures set forth in the National Labor Relations Act (NLRA). Further, it does not contain guidance on how an OSHA inspector should grant or manage requests, and threatens to ignore employee voting preferences with regard to their own representatives (i.e., “workplace democracy”).
• The proposed rule does not contain restrictions on the conduct of nonemployee third parties (including union organizers) who, to employees, may appear during the inspection to be government officials. There are no restrictions on whether a third party can interact with employees or engage in union organizing activity, including soliciting employees or distributing material such as union authorization cards, or on the use of phones to take pictures. The proposed rule also gives no guidance on what happens if the conduct disrupts operations or production.
• Unlike the regulation for determining or assessing the credentials of an OSHA inspector and their conduct during an inspection, the proposed rule does not have a provision for verifying the qualifications of the nonemployee third-party representative to assess whether they are “necessary to the conduct of an effective and thorough inspection of the workplace.” 29 CFR § 1903.7(a) states “[a]t the beginning of an inspection, Compliance Safety and Health Officers shall present their credentials to the owner, operator, or agent in charge at the establishment”—yet, the proposed rule contains no similar provision for third-party representatives.
• The proposed rule does not address who will be responsible for the actions and safety of these individuals while they are on an employer’s premises. The rule is silent about who is liable for their actions if they act inappropriately, share trade secrets or confidential information, get hurt, deviate from the mission of the inspection, defame the employer, or harm persons or property.
• The proposed rule does not address safety training or the personal protective equipment (PPE) to be utilized by any nonemployee third party. It is unclear whether the third party, OSHA, or the employer will be required to provide and pay for PPE.

IMPLICATIONS

A certain impact of the proposed rule will be potential opportunities for promoting union organizing and providing unions access to unrepresented employees at their worksites. And, in light of the unaddressed issues detailed above, the rule is primed to cause disruption at employer worksites across the nation.

Allowing anyone to be a representative—regardless of whether they are even tangentially related to employees, the worksite, or the inspection—could turn OSHA inspections into an opportunity for individuals or groups with grievances or an agenda against an employer to advance their interests by gaining physical access to the employer’s property. This might include environmental disputes, media campaigns against the company, or exploiting confidential or proprietary information.

Only where a union has been lawfully recognized after selection by a majority of employees pursuant to the NLRB process has OSHA treated the union as the authorized representative for inspection purposes. On the other hand, upon the commencement of an OSHA inspection where there is no union lawfully in place, OSHA has not recognized an “authorized representative” to walk around with the OSHA inspector during an inspection.

In such situations, OSHA has not usurped the NLRB’s authority and unilaterally chosen a representative—in fact, it is directed by Section 8(e) of the OSH Act to “consult with a reasonable number of employees concerning matters of health and safety in the workplace.”

The proposed rule, if enacted, could upend OSHA’s longstanding practice on “authorized representatives” in contradiction of the NLRA and the OSH Act’s language on the topic. Further, the proposed rule may corner employers into granting access to its property such that the employer is deemed to have provided unlawful support and assistance to a union, in violation of Section 8(a)(2) of the NLRA.

In addition, the proposed rule would infringe on an employers’ property rights where it would require private-sector employers to grant access to their private property to nonemployees and any other third parties simply on the basis of the person being requested (by an unknown number of employees) as a representative.

OSHA contends that its inspectors will restrict and regulate the rule through its power to decide whether the requested representative “is reasonably necessary to the conduct of an effective and thorough inspection of the workplace.” However, given the exceptionally expansive language in the preamble to the rule and the Biden administration’s explicit pro-union promises, it could be difficult for any inspector to conclude that a union request in a nonunion workplace is anything other than reasonably necessary.

Employers should also be aware of how the proposed rule could impact access to company trade secrets where nonemployees, who could even be employed by competitors, would be able to participate in worksite inspections. Similarly, the proposed rule may leave the door open to employee privacy breaches.

Other questions remain—for example, employers have a right to require that OSHA inspectors seek an inspection warrant before entering their establishment and may refuse entry in circumstances where a warrant has not been obtained. An exception to the warrant requirement is where a hazard can be observed in “plain view.”

In the proposed rule, it is unclear whether nonemployee representatives’ “expertise” and observations could satisfy the “plain view” exception. This would be problematic seeing as if OSHA inspectors’ findings are supplemented by third parties’ findings, it cannot be fairly said that the findings were in “plain view” of the investigator.

In short, the proposed rule has serious implications for employers and creates new burdens. Upon review of all submitted comments, OSHA will finalize and publish the rule, subject to any modifications. Once a final rule is published, a legal challenge to the rule by the employer community is expected. Morgan Lewis lawyers are poised to help employers navigate the impact of the rule on their workplaces.

See our recent LawFlash on the NLRB and OSHA’s Memorandum of Understanding regarding a partnership to work together to enhance information sharing and referrals, training, and outreach.

Morgan Lewis represents the US Chamber of Commerce on comments to the proposed rule, which were submitted to OSHA on November 13.