In previous Compliance Matters, we have cataloged how the Obama administration has been changing the rules regarding union organizing through the use of federal agency actions which don't require legislative approval. The Administration adopted this tack early in the President's first term when it became clear that the Administration simply didn't have sufficient votes in Congress to pass Mr. Obama's pro-union legislative agenda.

            A recent ruling by the federal Occupational Safety & Health Administration (OSHA) is yet another example where creative legal tinkering tips the delicate labor relations balance heavily in favor of unions. Capitalizing on a little know provision in OSHA workplace inspection regulations, agency officials recently approved the right of union officials and community organizers to accompany OSHA inspectors during OSHA worksite compliance inspections of non-union businesses.

            In a just released letter issued to the Steelworkers Union earlier this year, OSHA Deputy Assistant Secretary Richard Fairfax gave the green light to allowing union officials and community organizers to serve as the "employee representative" and thus accompany OSHA inspectors when doing inspections of non-union workplaces. We foresee unions using this new right of access as a potent organizing tool.

The OSHA Interpretation Letter

            Mr. Fairfax created this new access right by answering "YES" to the following two questions posed by a Steelworkers Union representative:

• May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or community organization to act on their behalf as a "walk around representative" during an OSHA on-site inspection? and
• May one or more workers (in a non-union company) designate a union official or community organizer to act as their "personal representative" for OSHA purposes?

As to latter question, OSHA added that in addition to walking around the entire facility with the OSHA inspector, this "representative" also may:

(1)  file complaints on behalf of employees;

(2)  request workplace inspections; and

(3)  "participate" in OSHA's official post inspection informal conferences to weigh in on how the citation is resolved, contest the citation abatement period and participate in citation appeal proceedings initiated by the employer.

            How did this happen? OSHA regulations provide that, during an OSHA inspection, both the employer and the employees at a worksite have a right to have their respective "representatives" accompany the inspector during the "walk around" portion of an inspection. While it has long been the thought that the employee representative needed to be an actual employee of the inspection target, OSHA has now said otherwise.

            Citing to the applicable regulations, the opinion letter says that the rules also authorize the presence of third parties "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.

            Although the regulation appears to contemplate that any such third party would be some sort of a technical expert, the new opinion letter debunks that limitation and thus opens the inspection process to virtually any community organizer or labor official who has been "authorized by the employees to serve as their representative."

            Though the compliance officer technically retains discretion to only admit those third parties whose participation is "reasonably necessary," the opinion letter goes on to state that OSHA will now take "a much broader view" as to the meaning of this term, stating that the requirement will be met if a person's presence will "make a positive contribution to a thorough and effective inspection." To that end, the opinion letter makes clear that very little will be needed to allow the union access to these inspections:

"[T]here are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection. This could be because of the representative's experience and skill, for example because of experience evaluating similar working conditions in a different plant. There are also many instances where non-English speaking workers want a representative who is fluent in both their own language and English, something that will facilitate more useful interactions with the [inspector] during the inspection. Finally, workers in some situations may feel uncomfortable talking to an OSHA [inspector] without the trusted presence of a representative of their choosing."

            Thus, the opinion letter suggests that all that will be required to show that the union's presence is "reasonably necessary to the conduct of an effective and thorough physical inspection" is for an employee to express discomfort at talking to the OSHA inspector without a union representative present or perhaps to act as a translator to the non-English speaking segments of the workforce. This broadened interpretation no doubt will encourage unions to use OSHA complaints and inspections to obtain access to employers' facilities and employees for purposes of organizing.

What Employers Should Do

• Vigorous compliance with federal and state safety standards is a must for any employer that is serious about remaining union free. Businesses that do not have a deeply ingrained safety culture make themselves easy targets for employee activism and union organizing. Indeed, Unions have been successfully using claims of unsafe working conditions as an important organizing tool for well over a century. Recently, we have seen a spate of union initiated safety complaints at area businesses, followed by a union solicitation to "protect" the employees from their employer.

• Be sure you have an up to date and effective written Injury and Illness Prevention Program, which is mandated for California employers by SB 198, and be sure all employees know and understand its contents.

• Audit your compliance with "right to know" regulations and be sure you have up to date Material Safety Data Sheets as required.

• Be sure that you can document all of the required safety training that goes with the use of any dangerous materials or equipment in the workplace and that all such training records are up to date.

• Do your own walk around inspection before the Cal/OSHA or OSHA inspector arrives. Fix any dangerous conditions. There are a number of qualified safety consultants and trainers that are available for this work. Your workers' compensation insurance carrier may offer preventative inspection assistance.

• Consider establishing employee safety committees. The ready availability of employees who are knowledgeable about worksite safety issues may reduce the likelihood that an OSHA inspector will see any "positive contribution" from the added presence of a union representative or community organizer with relatively little knowledge about these matters.

            While unions have shrunk in the private sector - representing 7.3% of the workforce as of 2012 - they are doing everything possible to proliferate and increase their saturation as long as they have a friend in the White House. In the past few years, we have seen organized labor literally reinvent itself as it tries to become relevant to the changing workplace and workforce demographics in the U.S. today. Their renewed focus on workplace concerns is just one example. Employers who don't take workplace safety seriously with a sustained, credible and visible safety initiative are simply inviting a union organizer to do it for them.