How to React When a Union Rep Shows Up with OSHA

By Roy Maurer May 9, 2014
As SHRM Online previously reported, the Occupational Safety and Health Administration (OSHA) 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.

This caused an uproar in the employer community, where some 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.

Since then, Service Employees International Union representatives attempted to accompany OSHA inspectors on site visits in Houston.

So what should you do if OSHA arrives for an inspection at your nonunion worksite with a union representative in tow?

“When OSHA shows up with a union organizer or community activist, state that you will cooperate with OSHA, but need to understand why the third party needs to be involved,” said Melissa A. Bailey, a shareholder in the Washington, D.C., office of Ogletree Deakins.

Bailey said questions to ask could include:

  • With what organization is the third party affiliated?
  • Does OSHA claim that the person has relevant safety or health expertise? What is it?
  • How did employees select the third party to represent them during the inspection?
  • How does OSHA know that the employees actually chose this person to represent them?
  • Is the person here for language reasons? Can a bilingual employee translate instead?
  • Has OSHA determined that employees would not feel comfortable talking to OSHA alone? How?

Employers should take several preparatory steps before OSHA even shows up, Bailey said.

“Does the employer have a safety committee? If so, has that safety committee discussed who the employee representatives should be during an OSHA inspection?” she asked. Having an employee representative selected by the safety committee may blunt OSHA’s argument that employees have chosen a third-party representative. If there is a language issue, being able to offer a nonmanagement employee to translate may negate the need to involve a third party, she said.

Bailey advised that facility management be instructed to notify corporate officers as soon as OSHA appears for an inspection. If OSHA continues to insist on having the third-party representative participate, the employer may allow OSHA to inspect but refuse access to the third party. That is what happened in Houston. “It is important to make clear that the company is willing to let OSHA conduct the inspection as long as the third party does not participate,” she said.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy


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