The Occupational Safety & Health Reporter™ provides complete news coverage and documentation of federal and state occupational safety and health programs, standards, legislation, regulations, enforcement, and Review Commission decisions.
By Stephen Lee
A coalition of business groups and Republicans on the House Education and the Workforce Committee have requested that the Occupational Safety and Health Administration withdraw a recent letter of interpretation on walkaround inspections, calling it a naked attempt to promote a union agenda.
OSHA's Feb. 21 interpretation states that, under regulation 29 C.F.R. 1903.8(c), workers at an establishment without a collective bargaining agreement can designate the person they want to act on their behalf during an inspection, and that representative need not be an employee (43 OSHR 340, 4/11/13).
The person must be authorized by the employees to serve as their representative, according to OSHA's letter, but OSHA compliance officers are also allowed to exercise their discretion over who participates in an inspection.
The June 12 letter sent by the Coalition for Workplace Safety, a group of 57 industry associations, to OSHA chief David Michaels argues that the agency's policy will turn safety inspections into opportunities for unions or other groups to advance their agendas against the employer.
“It exposes OSHA's obvious bias and willingness to promote a union agenda, at the risk of legitimate health and safety concerns, because once you start talking about union reps being allowed in these inspections, you're no longer talking about these inspections being about workplace health and safety,” Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, one of the letter's signatories, told BNA. “You're talking about [inspections] becoming organizing tools. … OSHA inspections are not supposed to be part of organizing efforts.”
Freedman said the new interpretation allows anyone, such as a community organizer or a staffer from an environmental group, to insert himself or herself into an OSHA inspection.
Peg Seminario, safety and health director at AFL-CIO, pushed back against that charge, telling BNA that under the interpretation, OSHA inspectors still have the right to determine whether a person selected by the employees to be their representative should be allowed to take that role.
A June 13 letter from House Republicans, also addressed to Michaels, calls the interpretation a “dramatic change in OSHA practice” and “raises questions as to the priorities of OSHA's inspectorate.”
According to the coalition, OSHA's interpretation contravenes the regulation, which states that a representative “shall be an employee(s) of the employer,” except in cases in which the inspector judges that “good cause” has been shown to demonstrate why a non-employee is “reasonably necessary” to an effective and thorough inspection.
“That does not mean anybody who is a third-party, non-employee can be included,” Freedman said. “The [regulations] provide for a set of circumstances where this could happen. What OSHA is saying is, 'Damn the context, full speed ahead, and let's just blow the context out of the water and create the exception that's going to swallow the rule.' ”
Moreover, the agency's interpretation does not address the experience or qualifications of employee-designated representatives, wrote the lawmakers, Reps. John Kline (R-Minn.) and Tim Walberg (R-Mich.), chairs of the House Committee on Education and the Workforce and its Subcommittee on Workforce Protections, respectively.
The interpretation is also in “direct contrast” with language in the regulation suggesting that representatives should be safety engineers or industrial hygienists, Kline and Walberg wrote.
Seminario rejected those concerns, telling BNA that OSHA's interpretation aims only to give workers a voice.
In her view, the clarification expressed in the interpretation is needed because in many workplaces, workers may be intimidated, may not speak English, or may lack the knowledge about previous exposures or adverse health effects necessary to allow effective participation in inspections.
“In unionized workplaces, hopefully it's a different matter,” she said. “But as we have workplaces where there are fewer and fewer people represented by unions, the question is whether these employees have their rights under the OSH Act.”
The point of the statute is only to ensure that workers' voices are heard, Seminario said.
“This isn't about union organizing, or about spies coming in,” she said. “It's about how to have people fully involved in the inspection.”
Freedman also said OSHA's policy should have been issued through notice-and-comment rulemaking, not as an interpretation.
“[They] are substantively changing the regulations in these matters, and they're doing it in a way that none of us have had an opportunity to comment on,” he said. “And there's very little way for people to challenge this.”
The coalition letter further alleged that the interpretation was not reviewed by the secretary of labor, which Freedman said suggests that no one outside of OSHA approved it.
But Seminario said that because the interpretation is consistent with the OSH Act and regulation, as well as long-established agency practice, it does not constitute a significant shift in policy.
The coalition letter “misrepresents what OSHA has done, and is just trying to create a firestorm and whip up people politically on something that shouldn't be an issue,” Seminario said. “[The chamber] hates workers having any rights. They want the employer to control everything in the workplace, including workers' voice.”
Other signatories to the coalition letter included the American Chemistry Council, the National Association of Home Builders, and the National Association of Manufacturers.
The coalition letter was also sent to Kline, Walberg, Sens. Lamar Alexander (R-Tenn.) and Johnny Isakson (R-Ga.), ranking members on the Senate Health, Education, Labor, and Pensions Committee and its Subcommittee on Employment and Workplace Safety, and Dominic Mancini, acting administrator of the White House Office of Information and Regulatory Affairs.
Kline and Walberg, in their letter, requested that OSHA provide information by June 27 on how it reached its decision on the interpretation.
The Coalition for Workplace Safety's letter to the Occupational Safety and Health Administration is available at http://workingforsafety.com/wp-content/uploads/2013/06/CWS-letter-to-OSHA-on-LOI-and-walk-arounds-final.pdf.
The House Republicans' letter to the Occupational Safety and Health Administration is available at http://op.bna.com/env.nsf/r?Open=jstn-98tmlr.
The Occupational Safety and Health Administration's letter of interpretation is available at http://tinyurl.com/d4k65v8.
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