{"id":7055,"date":"2023-09-06T13:18:53","date_gmt":"2023-09-06T17:18:53","guid":{"rendered":"https:\/\/employerdefensereport.com\/?p=7055"},"modified":"2023-09-06T13:18:53","modified_gmt":"2023-09-06T17:18:53","slug":"join-cmcs-employer-coalition-to-work-on-oshas-inspection-walkaround-rulemaking-expanding-union-access-to-non-union-workplaces","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/employer-defense-report\/join-cmcs-employer-coalition-to-work-on-oshas-inspection-walkaround-rulemaking-expanding-union-access-to-non-union-workplaces\/","title":{"rendered":"Join CMC\u2019s Employer Coalition to Work on OSHA\u2019s Inspection Walkaround Rulemaking (Expanding Union Access to Non-Union Workplaces)"},"content":{"rendered":"

By\u00a0Eric J. Conn<\/a>\u00a0and\u00a0Mark Trapp<\/a><\/em><\/strong><\/p>\n

We wanted to reach out to notify you about OSHA\u2019s latest gift to organized labor.\u00a0 Consistent with the Biden Administration\u2019s promise to be \u201cthe most labor-friendly administration in history,\u201d last week, OSHA revealed its\u00a0Notice of Proposed Rulemaking<\/strong><\/a>\u00a0about the \u201cWorker Walkaround Representative Designation Process<\/strong>.\u201d\u00a0\"\"<\/a>\u00a0Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is\u00a0the regulation governing the rights of third parties to participate\u00a0<\/strong>as employee representatives\u00a0<\/strong>in OSHA inspections<\/strong>. The NPRM for OSHA\u2019s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces.\u00a0 Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.<\/p>\n

History of Union Access to Workplaces During OSHA Inspections<\/u><\/strong><\/p>\n

As a reminder, The Obama\/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal\u00a0letter of interpretation<\/a>\u00a0in February 2013.\u00a0 The interpretation letter responded to this inquiry by a labor union: \u201cMay workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?\u201d<\/strong><\/em><\/p>\n

OSHA has an existing regulation at\u00a029 C.F.R. \u00a7 1903.8(c)<\/strong><\/a>\u00a0that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking.\u00a0 Here is the existing regulatory text:<\/span><\/p>\n

\u201cThe\u00a0<\/em>representative(s) authorized by employees shall be an employee(s) of the employer.<\/em><\/strong>\u00a0However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by\u00a0<\/em>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<\/em><\/strong>\u00a0of the workplace, such third party\u00a0<\/em>may accompany the Compliance Safety and Health Officer<\/em><\/strong>\u00a0during the inspection.\u201d<\/em><\/p><\/blockquote>\n

Notwithstanding that pretty clear regulatory limitation to third party inspection participation, OSHA responded to the union\u2019s interpretation request in the affirmative, explaining that:<\/p>\n

\u201cAlthough the regulation acknowledges that most employee representatives will be employees of the employer being inspected \u2026 it is OSHA\u2019s view that [non-employee] representatives are \u2018reasonably necessary\u2019 when they will make a positive contribution to a thorough and effective inspection.\u201d<\/em><\/p><\/blockquote>\n

While the regulatory text does grant OSHA some degree of latitude to include third parties in their inspections, it is pretty clear that the third party must have some type of technical area of specialization (e.g., engineer or industrial hygiene, or perhaps a language interpreter).\u00a0 But OSHA made the leap from the commonsense reading of the regulation that only allows participation by non-employees with technical expertise, to participation by anyone \u201creasonably necessary to the conduct of an effective and thorough physical inspection.\u201d \u00a0This interpretation invites the involvement of non-technical union representatives, even from unions that had not been elected to represent the workforce at the subject workplace.<\/p>\n

Industry representatives filed a legal challenge to the 2013 interpretation letter, asserting that it was so inconsistent with 29 C.F.R. 1903.8(c), that it effectively attempted to rewrite the regulation without formal APA notice-and-comment rulemaking.\u00a0 Ultimately, as the reigns at OSHA were handed over to the Trump Administration,\u00a0the controversial interpretation letter was rescinded<\/a>.\u00a0 Now, as with so many policies and regulations, the Biden Administration\u2019s OSHA is attempting to roll back the Trump rollback.\u00a0 This time around, to avoid a challenge to an interpretation letter as being a backdoor rulemaking, OSHA is attempting to make the change by way of a proper APA notice-and-comment rulemaking.<\/p>\n

The New Rulemaking Initiated by Biden\u2019s OSHA<\/u><\/strong><\/p>\n

The NPRM issued by OSHA last week includes this specific proposed new regulatory text for\u00a029 C.F.R. \u00a7 1903.8(c)<\/strong>:<\/p>\n

\"\"<\/a>The representative(s) authorized by employees\u00a0may be an employee of the employer or a third party<\/strong>. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).<\/em><\/p><\/blockquote>\n

It is easy to see OSHA\u2019s intention here.\u00a0 Broadening the scope of individuals who can participate in these inspections provides an easy entry point for union representatives to access non-union workplaces.\u00a0 With that goal, this rulemaking looks more like a labor organizing rule masquerading as an OSHA regulation, than it is a bona fide safety regulation. \u00a0That is not just the paranoid view of a jaded defense lawyer.\u00a0 OSHA expressed this very intention in the Administration\u2019s Fall Regulatory Agenda:<\/p>\n

\u201cThis rulemaking will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process\/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.\u201d<\/em><\/p><\/blockquote>\n

The potential consequences of such a rule extend further than just allowing union representatives entry into the workplace. \u00a0Unions could use the OSHA inspection process as a front for organizing workplaces they might otherwise never be able to access.\u00a0 Further, nefarious third parties could uncover and expose trade secrets.\u00a0 The areas where OSHA is explicitly seeking feedback from interested stakeholders suggest that OSHA is in search of feedback that would justify OSHA\u2019s decision to lower the bar that union representatives must overcome to enter workplaces where they have not been elected as official employee representatives:<\/p>\n

    \n
  1. \n
      \n
    1. \u201cShould OSHA defer to the employees\u2019 selection of a representative to aid the inspection when the representative is a third party (i.e., remove the requirement for third-party representatives to be reasonably necessary to the inspection)? Why or why not?\u201d<\/em>\u00a0<\/em><\/li>\n
    2. \u201cShould OSHA retain the language as proposed, but add a presumption that a third-party representative authorized by employees is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace? Why or why not?\u201d<\/em>\u00a0<\/em><\/li>\n
    3. \u201cShould OSHA expand the criteria for an employees\u2019 representative who is a third party to participate in the inspection to include circumstances when the CSHO determines that such participation would aid employees in effectively exercising their rights under the OSH Act? Why or why not? If so, should OSHA defer to employees\u2019 selection of a representative who would aid them in effectively exercising their rights?\u201d<\/em><\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

      Employers OSHA Inspection Walkaround Rulemaking Coalition<\/u><\/strong><\/p>\n

      With that backdrop, we understand that employers have a strong interest in having a seat at the table for this rulemaking.\u00a0 Indeed, we have been contacted by several of our clients already inquiring whether Conn Maciel Carey\u2019s\u00a0OSHA Practice<\/a>\u00a0and\u00a0Labor Law Practice<\/a>\u00a0would be forming a coalition of employers and trade groups to work on this rulemaking.\u00a0 That is precisely what we intend to do.\u00a0 We are\u00a0organizing a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable possible fed OSHA regulation about third party participation in OSHA inspections<\/strong>.\u00a0<\/em>\u00a0<\/em><\/p>\n

      Those of you who have participated in any of our recent OSHA rulemaking coalitions know that together we have had a very positive impact on OSHA rulemakings over the last several years.\u00a0 We have submitted comprehensive written comments to the rulemaking record, testified at rulemaking hearings, advocated directly to OSHA and OMB in informal and formal stakeholder meetings.\u00a0 Through those prior rulemaking coalition initiatives, our input has resulted in direct changes to regulatory language and decisions by OSHA about the substance and policy direction of its regulations and standards. We intend to follow a similar approach with this rulemaking.\u00a0 We will be coordinating with our coalition members to:<\/p>\n