OSHA Rescinds Union Walk Through Memo

In 2013, OSHA issued a memo stating the agency would allow a non-employee union representative to act as the employee representative during an inspection of a company that had no current bargaining units. This was only if the specific individual was authorized by the employees to act as the representative at the discretion of the inspector.

Memorandum Rescinded

That memorandum has been rescinded. OSHA will refer to the previous policy to enforce the regulatory language pertaining to this issue. This most likely means that non-employee representatives will be allowed in only certain unusual situations. Moreover, that person will not be from a union unaffiliated at the facility.

The Actual Wording of the Regulation

The OSHA regulations are in 29 CFR Part 1903 and say that “a representative of the employer and a representative authorized by … employees shall be given an opportunity to accompany” the OSHA inspector ‘for the purposes of aiding’ the inspection.”

The regulation also states:

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Why the 2013 Policy was Challenged

The legal challenge to the 2013 memorandum focused primarily on OSHA’s interpretation of the requirement above, which questioned how a union representative who accompanied an OSHA inspector “aids” the actual inspection. This also pertained to other non-employee community representatives. The presumption was that an industrial hygienist or safety engineer would provide more appropriate “aid.”

Employers feared this regulation because of the potential to allow union representatives into a facility when the employer and, perhaps most of the employees, were not agreeable. The arguments ranged from issues about OSHA’s authority based on the legal wording in the regulation to the method that OSHA used to change the policy without public comment, as well as other labor laws and issues. Employers argued they had a right to maintain control of the workplace.

OSHA held that the regulation did allow some discretion to decide whether a representative aided the inspection, and the agency maintained that these individuals could make significant contributions to an effective, thorough inspection. The agency also stated that the individual’s skill and experience might be similar to working conditions in a different facility. OSHA also pointed out that non-English speaking employees might want a representative fluent in their primary language, and that would facilitate effective communications during an inspection.

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