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The content of an Occupational Safety and Health Administration (OSHA) 2013 letter of interpretation clarifying that union representatives may accompany federal safety inspectors on nonunion worksite inspections is more than just academic.
HR Manager Evelyn Meza, PHR, confirmed to SHRM Online that on three occasions in 2013, Service Employees International Union (SEIU) representatives accompanied OSHA inspectors on site visits to buildings where Professional Janitorial Service (PJS) employees are contracted to work. PJS is the largest nonunion janitorial service company in Houston and is currently suing SEIU for alleged slander.
Those inspections—in October and November 2013—resulted in fines for infractions related to hazard communication: not keeping certain safety data sheets, neglecting to post required notices and not providing proper training information on cleaning chemicals.
The union reps were denied access by the building owners each time, she said.
Former OSHA Deputy Assistant Secretary Richard Fairfax released an interpretation letter in April 2013 clarifying that nonunion employees can select anyone, including nonemployee union representatives, to accompany OSHA officials during safety inspections of their employer’s worksite.
The letter, dated Feb. 21, 2013, was in response to a request from Steve Sallman, a health and safety specialist with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.
Sallman had asked whether workers at a nonunionized workplace could authorize a person affiliated with a union to act as their representative under the Occupational Safety and Health Act. This would include “representing the employee(s) as a personal representative” and “accompanying the employee on an OSHA inspection” in a nonunionized workplace.
Fairfax responded affirmatively that employees in a workplace without a collective bargaining agreement may designate a union-affiliated individual to act as their personal representative. In this capacity, nonemployee personal representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences, contest the abatement period in OSHA citations and participate in contest proceedings.
As for nonemployees accompanying OSHA officials during inspections, the actual OSHA standard 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.”
Even though the standard makes no reference to union representatives, Fairfax interpreted this to mean that a person affiliated with a union without a collective bargaining agreement can act as a walkaround representative on behalf of employees provided that the employees authorized the individual to do so and the OSHA inspecting officer approved the arrangement.
Critics of labor overreach fear that the interpretation encourages unions to use OSHA complaints and inspections as an organizing tool to gain access to an employer’s facility and exposure to its employees.
Littler attorney Maurice Baskin, representing the Associated Builders and Contractors and the National Association of Manufacturers, told the House Subcommittee on Workforce Protections in February 2014 that OSHA’s interpretation letter contradicts the Occupational Safety and Health Act and the National Labor Relations Act.
By issuing the new interpretation, Baskin argued, OSHA is taking a side in labor-management relations. “By allowing outside union agents and community organizers access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law.”
Employers confronted with an OSHA inspector accompanied by an outside union agent are faced with a Hobson’s choice, Baskin added. “If they object to allowing the third-party agent into their facility, they may rightly fear retaliation by the OSHA inspector. If they allow the third-party outsider into the workplace, then they are giving up their private-property rights and allowing someone into their premises who does not have the company’s best interests at heart and who may actually want to do harm to the company.”
Labor-side attorney Randy Rabinowitz countered that the agency’s longtime practice in nonunion facilities has been to honor the employees’ choice of representative—whether a union representative or some other worker advocate—during an OSHA inspection.
“The [letter of interpretation] simply clarifies this long-standing policy,” she said. She explained that a mix of “nontraditional advocacy groups” may represent workers who do not belong to unions. “Nonemployee representatives can often help OSHA understand the complex employment relationships between staffing agencies, subcontractors and employers. They can help OSHA identify past accidents and common safety hazards. And they can help workers who do not speak English effectively or who are wary of government inspectors to communicate their concerns to OSHA.”
“This raised a red flag with me,” said Rep. Martha Roby, R-Ala., in a statement. “If workers wish to unionize, they have a right to. They also have a right not to be coerced into unionizing, which is why OSHA inspectors teaming up with labor reps is alarming.” She said she would bring the issue up in the House Appropriations Committee.
Michael J. Lotito, SPHR, a shareholder at Littler Mendelson, based in San Francisco, said employers should focus on proactive safety training and education programs to minimize employees’ resorting to third parties during inspections. Establishing safety committees is another good idea, he said. “Give the employees as many internal avenues for a voice as possible.”
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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