OSHA: Nonunion Workers May Select Anyone As Representative During Agency Inspections

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By Bruce Rolfsen


During safety inspections of nonunion workplaces, employees can be represented by anyone authorized by the site's workers, according to an interpretation letter released April 5 by the Labor Department's Occupational Safety and Health Administration.

The letter from Richard Fairfax, a deputy assistant OSHA secretary, explains that OSHA standard 29 C.F.R. § 1903.8(c), Representatives of Employers and Employees, allows workers at establishments without collective bargaining agreements to designate who will act on their behalf during inspections. The representative does not have to be a co-worker, Fairfax says.

The standard says the “representative(s) authorized by employees shall be an employee(s) of the employer.” However, if in the inspector's judgment “good cause has been shown why accompaniment by a third party who is not an employee” is necessary to conduct an inspection, a third-party representative may be present.

Fairfax's letter, dated Feb. 21, was in response to a request from Steve Sallman, a health and safety specialist with the United Steelworkers. Sallman told BNA April 5 that inconsistent practices by OSHA field representatives led to his request. In some cases, compliance officers conducting inspections refused to allow an outside person to represent workers or inspectors had sought permission from their supervisors before allowing a representative to participate, he explained.

Peg Seminario, safety and health director at the AFL-CIO, told BNA April 5 that Fairfax's letter confirmed what has been OSHA's policy for several years and brings OSHA practices into line with Mine Safety and Health Administration and other Department of Labor agency inspection rules.

Fairfax's letter also confirmed an OSHA inspector's right to “exercise discretion over who participates in workplace inspections” by declining to allow representatives to accompany the inspector if the representatives' presence would harm the inspection. Seminario said the AFL-CIO supports that policy.

Baruch Fellner, of the law firm Gibson Dunn & Crutcher LLP, in Washington, D.C., who represents employers in OSHA-related issues, said Fairfax's letter moves OSHA into supporting union-organizing efforts. “It is very important and it is very political,” Fellner commented about the letter.


Text of the interpretation letter is available at http://1.usa.gov/10Q1vzz.