OSHA rescinds union walkaround memo

FROM THE JULY ISSUE: The U.S. Department of Labor has confirmed that an Obama administration OSHA memorandum permitting union or community organization representatives to take part in OSHA workplace.
By Ryan Funk | June 14, 2017

Heralding a shift at the Occupational Safety and Health Administration, the U.S. Department of Labor has confirmed that an Obama administration OSHA memorandum permitting union or community organization representatives to take part in OSHA workplace walkthroughs of nonunion employers has been rescinded. Following the announcement, the National Federation of Independent Businesses voluntarily dismissed a legal challenge to the memorandum.

The 2013 OSHA guidance memorandum interpreted Section 8(e) of the Occupational Safety and Health Act, which provides that “[s]ubject to the Secretary’s regulations, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace … for the purpose of aiding such inspection.” Previously, OSHA had allowed only certain third-party specialists such as industrial hygienists and safety engineers to accompany the inspector, and only when their presence was reasonably necessary. 

The 2013 memorandum responded to questions posed to OSHA by the United Steelworkers International Union, including: “May 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?” The agency found that a union representative could accompany an OSHA inspector, if the inspector thought the union representative would make a positive contribution to a more thorough and effective inspection. The memorandum suggested reasons the inspector might justify permitting a union representative to participate in the walkaround, including:

• The union representative brings experience and skill, for example because of experience evaluating similar working conditions in a different plant.

• Non-English speaking workers want a representative who is fluent in both their own language and English.

• Workers may feel uncomfortable talking to an OSHA [inspector] without the trusted presence of a representative of their choosing.

The memorandum did not illustrate any situations in which union representatives would not make a positive contribution to a more thorough and effective investigation. It also did not discuss the difficult subject of determining whether the union representative was authorized by the employees to serve as their representative. In practice, employees almost always disagree about whether they wish to be represented by a union. In another area of federal law, the National Labor Relations Board has an elaborate process and over 70 years of case law regarding how to determine employees’ wishes.

Some commenters and employer groups decried the OSHA memorandum as nothing more than a gift to unions seeking access to employees they might seek to organize. That access could be especially valuable to a union when it is framed in the context of scrutinizing and commenting upon an employer’s safety practices and alleged safety conditions. In practice, OSHA walkarounds can result in the employer taking corrective action. Even if the walkaround would have had the same result without the union representative present, a union might use its involvement as a step in an organizing effort.
The NFIB sued OSHA, claiming that:

• The guidance unlawfully evaded the Administrative Procedure Act’s requirements that an agency give the public notice and the opportunity to comment on such a change.

• OSHA exceeded the authority Congress had granted it. 

The U.S. District Court for the Northern District of Texas dismissed the second claim in an opinion issued Feb. 3. 

Despite its partial preliminary victory (and following the post-election change in administration), OSHA stopped trying to defend the memorandum. On April 27, the NFIB voluntarily dismissed its complaint, announcing to the court that OSHA had formally rescinded its 2013 memorandum.

Even though OSHA’s 2013 memorandum has been rescinded, this development should serve as a reminder to employers that a union might see alleged OSHA violations as a means of trying to secure a foothold in an employer facility. Because employee concerns about OSHA can become both a reason and vehicle for union organizing, employers must have a plan for directing OSHA-type complaints into the proper channels, and a plan to view such complaints from both safety and labor-relations angles.

Author: Ryan Funk
Associate, Faegre Baker Daniels
[email protected]

Contributing Author: Greg Dale
Partner, Faegre Baker Daniels