The Occupational Safety and Health Administration (OSHA) has proposed a rule that would allow employees to request that a non-governmental third party—which could be a representative from a labor union—to join an OSHA safety inspection of a non-union employer’s facility.
In a separate development, OSHA and the National Labor Relations Board (NLRB) also announced that they have entered into a formal agreement to work together closely, coordinating their activities in a manner that promotes unionization of the workforce.
Commenting on the OSHA proposal to allow employees and agency inspectors to choose third parties, such as union representatives, to accompany the inspectors when they walk around employer facilities, Marc Freedman, vice president, employment policy for the U.S. Chamber of Commerce, said, “Without question, if OSHA moves forward with this regulation, the agency will be making clear its agenda is no longer focused on improving workplace safety but on promoting organized labor.”
In addition, he stressed that if the new rule is adopted as proposed, it would open the door to other parties with a grievance against the employer to be allowed in if an employee requested them. Think of environmental activists opposed to the use of fossil fuels seeking entry to a refinery, he suggested.
OSHA originally attempted to create this policy during the Obama administration, but it was later reversed when President Trump was in office. The Occupational Safety and Health Act (OSH Act), OSHA’s enabling law, allows a representative of the employer and a representative authorized by employees to join OSHA officials during a workplace inspection.
Although the law states that the employee-authorized representative shall be an employee of the employer, it also says the agency’s safety inspector can allow a third-party representative “such as an industrial hygienist or a safety engineer” to accompany the inspection if they determine good cause is shown that this is reasonably necessary, note attorneys Melanie Paul, Jonathan Spitz and Lorien Schoenstedt of the Jackson Lewis law firm.
The new proposed rule would amend the OSH Act to clarify that, “for the purpose of the walkaround inspection, the representative authorized by employees may be an employee of the employer, or, when they are reasonably necessary to aid in the inspection, a third party.” OSHA says the clarification will “ensure employees are able to select trusted and knowledgeable representatives of their choice, leading to more effective inspections.”
If its rulemaking proposal is adopted, OSHA explains that employees in workplaces without collective bargaining agreements will be able to designate a representative from “a worker advocacy group, community organization or labor union” to fulfill the role of being their representative in an OSHA inspection.”
The rule’s goal is to focus on the “knowledge, skills, or experience of the individual, rather than their professional discipline,” OSHA states. The proposed rule doesn’t cite union representatives as the only example of potential third-party representatives; others named by the agency include translators or representatives of local safety councils or worker advocacy organizations.
Under the rule, employers are still entitled to request that certain areas of the facility, particularly those containing trade secrets, be kept off-limits to designated employee representatives who do not work in that specific area of the workplace.
The proposed rule can be expected to generate sharp criticism from employers concerned with the extraordinarily broad range of third parties who might be allowed entry into their facilities during an OSHA inspection, point out the Jackson Lewis attorneys.
While the rule could provide an entry point for union representatives to organize workers, concerns also have been raised about the proposal leaving that kind of decision to the discretion of individual OSHA inspectors in the field.
When it is eventually adopted as a final rule—a process which could take a year or longer—it will apply only in those states where federal OSHA exercises direct jurisdiction over employers. In the 22 states that have their own state OSHA programs covering private employers, it will be up to them to decide whether they wish to adopt a similar rule. It seems likely that those states that are decidedly pro-union, like California, and Washington, will do just that.
OSHA and NLRB Link Up
In another development, OSHA and the NLRB reported entering into a Memorandum of Understanding (MOU) that further signals their commitment to promoting unionization through blending enforcement of safety and labor laws. As both agencies put it when they announced it, the agreement will “strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice.”
The NLRB already has signed off on a series of MOUs with other federal agencies , including the Federal Trade Commission and the Department of Labor’s Wage and Hour Division and the Office of Labor-Management Standards as part of its ongoing interagency coordination initiative to promote a whole-of-government approach to enforcement of labor laws, targeting nonunion employers.
NLRB General Counsel Jennifer Abruzzo and OSHA Chief Doug Parker suggested that this MOU is critical in bolstering protections needed for workers who choose to speak out about unsafe working conditions so they can do so without a fear of retaliation.
The MOU lays out protocols for the exchange of information between the agencies, as well as worker outreach, which includes OSHA providing potential victims of alleged unfair labor practices with the NLRB’s contact information. OSHA also will advise employees who file time-barred official complaints with the agency that they may still file an unfair labor charge with the NLRB for another six months.
Under the agreement, the NLRB will be sharing information with OSHA regarding workers who are currently or likely exposed to health or safety hazards, or to suspected violations of OSHA regulations, along with encouraging those workers to contact OSHA promptly. The MOU also includes provisions for protecting the confidentiality and information security of any data shared between the agencies.
What should be of special interest to employers is that the MOU envisions opportunities for the NLRB and OSHA to conduct coordinated investigations and inspections “in appropriate cases and to the extent allowable under law.” In cases where there are overlapping statutory violations at issue, the agencies agree to “explore and confer” regarding what enforcement actions are appropriate for each agency to undertake.
The MOU also does not provide for or require notice to an employer or other providing party when the information is shared, point out attorneys for the Littler Mendelson law firm. “Employers should assume that information provided to one agency is provided to the other.”
The agreement also describes in detail how each agency will provide reciprocal training and education to appropriate personnel from the other agency. For example, the NLRB will train OSHA personnel on what constitutes protected concerted activity by employees and what is considered an unfair labor practice (ULP) under federal labor law.
In turn, OSHA will train NLRB personnel on OSHA standards, recordkeeping and reporting regulations, the general duty clause, and employee rights under the OSH Act. Under the MOU, the agencies will also engage in joint public engagement, outreach and education in person and on social media regarding the laws that each agency enforces.
Although state OSHA plan agencies are not directly impacted by the terms of the MOU, the agreement suggests that they are expected to respond to referrals from the NLRB concerning potential violations of state OSHA plan regulations and will be encouraged to participate in the training and information-sharing activities developed and agreed to by the agencies.
The MOU went into effect immediately after it was made public on Oct. 31 and expires five years from the effective date unless it is superseded before then.
The Littler Mendelson attorneys warn employers that they should make sure their clients’ management is trained on the anti-retaliation provisions contained in the OSH Act and the National Labor Relations Act.
They also note that OSHA and NLRB signed a similar MOU in January 2017; however, we can expect increased activity under the agencies’ most recent MOU in light of the Biden Administration Task Force on Worker Organizing and Empowerment’s February 2022 report and executive order directing federal agencies to work together in supporting union organizing and collective bargaining efforts.