On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of the Occupational Safety and Health Administration (“OSHA”) and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a Memorandum to the agency’s Regional Administrators notifying them of the withdrawal of its previous guidance, commonly referred to as the Fairfax Memorandum, permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during an OSHA workplace investigation.

The Lawsuit Challenging the Participation of Union Representatives in OSHA Inspections

Two days later, on April 27, 2017, the National Federation of Independent Business filed a  with the United States District Court for the Northern District of Texas, effectively declaring victory in their lawsuit challenging the issuance of the Fairfax Memorandum as being inconsistent with and unsupported by the Occupational Safety and Health Act, and the regulations issued under it allowing for the limited participation of third party experts during OSHA conducted workplace safety inspections.

For readers who have been following this issue and the litigation, the withdrawal of the Fairfax Memorandum and the plaintiff’s decision to discontinue their law suit should come as no surprise. This past February, the court denied OSHA’s motion to dismiss the lawsuit challenging the Fairfax Memorandum and OSHA’s decision to allow the participation of union representatives in non-union workplaces, finding that the plaintiff had “stated a claim upon which relief can be granted,” and that “the [Fairfax Memorandum] flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “must himself be an employee.”

OSHA and the DOL’s Decision to Withdraw the Fairfax Memorandum

Less than a week later, OSHA filed an Unopposed Motion For Extension of time to answer the complaint in the Federation’s lawsuit, explaining to the Court that “the extension of the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues.”

The Memorandum withdrawing the Fairfax Memorandum reiterates the requirements of 29 CFR 1903.8 (c) that an employee representative who accompanies an OSHA representative during a walkaround workplace inspection “shall be an employee of the employer,” and that the only exceptions in which a non-employee may participate is “where good cause is shown” and the participation of a non-employee, such as an industrial hygienist or a safety engineer” is “reasonably necessary to the conduct of an effective and thorough inspection of the workplace” in the judgment of the OSHA Compliance and Safety Health Officer conducting the examination. Notably, however, rather than actually stating that the Fairfax Memorandum was inconsistent with the provisions of the statute or the OSHA regulations, the April 25th memorandum simply refers to it as “unnecessary.”

What this Means for Employers

First and foremost, OSHA’s issuance of the April 25th memorandum makes clear that union representatives who are not the certified or recognized bargaining representative of the employees at a facility to be inspected by OSHA have no legal right to participate in such inspections.  Accordingly, it is equally clear that an employer faced with such an inspection at a facility that a union is seeking to organize should understand that the union’s representatives have no right to participate.

An important effect of the withdrawal of the Fairfax Memorandum will be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order denying OSHA’s motion to dismiss the Federation’s lawsuit in February, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.

No doubt with the confirmation of Secretary Acosta, leadership of the Department of Labor will continue to review and reassess positions and actions taken during the past eight years.

As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers.   We asked at the time whether the Trump Administration would continue to defend that change in policy.  This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.

On Monday February 13th, OSHA filed an Unopposed Motion For Extension of time, requesting an additional 30 days to file an answer to the complaint, which otherwise would have been due today, February 17th. As OSHA’s lawyers explained in the Motion, the agency stated that “the extension of the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues.”

While it may be risky to predict with assurance what the outcome will be of the incoming leadership’s assessment of the issues, there is a strong likelihood that the new leadership may abandon not only the defense of this legal challenge but that they will also return to the interpretation of the OSHA regulation allowing for an employee representative at such Safety Walkarounds until 2013. As OSHA’s own rules make clear, while employees have the right to an employee representative present, the “authorized representative(s) shall be an employee(s) of the employer,” unless “good cause is 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.”

With the new administration’s nomination of R. Alexander Acosta, it appears that the new incoming leadership may be taking shape at the Department of Labor.  No doubt, the question of union representation at OSHA safety walkarounds will be only one of many issues that the incoming leadership personnel at the United States Department of Labor will be taking time to reconsider.

A United States District Court in Texas has refused to dismiss a law suit challenging OSHA’s practice of allowing union representatives and organizers to serve as “employee representatives” in inspections of non-union worksites. If the Court ultimately sustains the plaintiff’s claims, unions will lose another often valuable organizing tool that has provided them with visibility and access to employees in connection with organizing campaigns.

The National Federation of Independent Business (‘NFIB”) filed suit to challenge an OSHA Standard Interpretation Letter (the “Letter”), which sets forth the agency’s position that an employee of a union that does not represent the workers at the site may accompany the OSHA representative conducting an inspection. The Federation argued on behalf of itself and one of its members because OSHA had permitted a representative of the Service Employees International Union (“SEIU”) to accompany him despite the fact the SEIU did not represent the workers at the facility. The lawsuit asserts that in allowing this, OSHA had violated its own rules and gave the union rights that it did not have under the law. In the Letter, issued in February 2013, OSHA gave a new definition of “reasonably necessary,” which supported its holding, for the first time, that a third party’s presence would be deemed “reasonably necessary,” if OSHA concluded that the presence of the third party “will make a positive contribution” to an effective inspection. The NFIB’s lawsuit contradicted both the OSHA statute itself and OSHA regulations issued in 1971 following formal rulemaking.

While OSHA asked the Court to dismiss the lawsuit, claiming that the NFIB lacked standing to bring the lawsuit because it could not demonstrate that it had been harmed, and that the lawsuit was procedurally flawed for a number of other reasons as well, Judge Sidney A. Fitzwater denied the U.S. Department of Labor’s Motion to Dismiss, finding that “NFIB as stated a claim upon which relief can be granted,” and that “the Letter flatly contradicts a prior legislative rule as to whether the employee representative” in such a walk-around inspection “must himself be an employee.”

The rule Judge Fitzwater referred to, 29 U.S.C Section 1903.8(c) contained OSHA’s policies for what are referred to as “safety walk-arounds,” which are on site workplace inspections. The Letter gives employees in the workplace the right to have a representative present during such an inspection. OSHA’s own rules make clear that such “authorized representative(s) shall be an employee(s) of the employer,” but that when “good cause is 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.” (emphasis added)

If the ultimate outcome of the case, which seems likely, is a finding that OSHA does not have the authority to permit union representatives to participate in OSHA inspections of workplaces where they do not represent the workers, the effect would be to deny unions a potentially potent tool for organizing. As Judge Fitzwater described in his Memorandum and Order, unions such as the UAW in its ongoing organizing campaign at Nissan in Tennessee have come to rely upon participation in OSHA inspections as a valuable tool.

While it is too soon to say whether the Department of Labor will continue to defend the 2013 Letter and the position that OSHA has the right to permit union representatives to participate in safety and health inspections, Judge Fitzwater’s denial of the motion to dismiss raises serious doubt as to the long term viability of OSHA’s position.

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews an article about OSHA’s web-based “Worker Safety in Hospitals” guidance. The article is entitled “Hospitals’ Heavy Lifting: Understanding OSHA’s New Hospital Worker and Patient Safety Guidance” and is co-authored by our colleagues Eric Conn, James Frank, and Serra Schlanger. As Management Memo readers are aware, unions frequently use OSHA complaints as a tactic in corporate campaigns and OSHA has increased its cooperation with the NLRB in their enforcement mandates.  OSHA compliance is an important part of any union avoidance strategy. 

Following is an excerpt from the blog post:

The article, published in AHLA’s Spring 2014 Labor & Employment publication, summarizes OSHA’s new web-based “Worker Safety in Hospitals” guidance, explains how the guidance relates to OSHA’s existing regulatory framework, and details what OSHA considers necessary for an effective Safe Patient Handling Systems as well as an effective Safety and Health Management System.

To access the full blog post, please click here.

Our colleague Eric Conn, Chair of Epstein Becker Green’s OSHA Practice Group, will present a complimentary webinar on April 8, at 1:00 p.m. EDT: OSHA’s Temporary Worker Initiative. Topics include enforcement issues and data related to this work relationship, and recommendations and strategies for managing safety and health issues related to a temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the “Employer Mandate” kicks in, which will require employers with 50 or more workers to provide affordable coverage to employees who work at least 30 hours per week. With this anticipated increase in the use of temporary workers, along with recent reports of temporary workers suffering fatal workplace injuries on their first days on a new job, OSHA will make temporary worker safety a top priority in 2014 and has already launched a Temporary Worker Initiative.

This webinar is the first of a five-part series for employers facing the daunting task of complying with OSHA’s numerous federal and state occupational safety and health standards and regulations.

Read more about the webinar and the series, or click here to register.

By Paul H. Burmeister and Eric J. Conn

On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections. OSHA responded affirmatively.

29 C.F.R. 1903.8(c) provides:

“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.”

OSHA’s April 5, 2013 Interpretation Letter clarified its interpretation of the types of non-employees it considers to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” by stretching the meaning beyond what has historically been understood to include only individual’s with relevant technical expertise to aid in the inspection, such as those listed as examples in the language of the regulation; i.e., “an industrial hygienist or a safety engineer.” This interpretation moves away from that commonsense reading, and expressly invites the involvement of non-technical union representatives, even from unions who have not been elected to represent the workforce.

OSHA broke the question down into two parts. First, OSHA stated affirmatively that the OSH Act recognizes the role of an employee representative to represent employees’ interests in enforcement related matters. Specifically, the employee representative, OSHA asserts, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.

Second, OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act. However, the union representative must be duly authorized by the employee to act as his representative.

OSHA also noted under 29 CFR § 1903.8 that OSHA may exercise its discretion in allowing a non-employee representative, but generally would allow it when the non-employee representative may make a positive contribution to the inspection. For example, the letter specifically cites non-employee representatives who are skilled in evaluating similar working conditions or are fluent in another language that may be helpful.

OSHA tried to minimize the purported impact of this Interpretation, explaining that it was simply intended to clarify a position it had taken in an earlier March 7, 2003 Interpretation Letter regarding non-employees who file a complaints about a workplace. In that letter, which has now been archived, OSHA explained that non- or former employees do not necessarily have a right to participate in an OSHA inspection arising out of their complaints. OSHA distinguished the 2003 letter from the present interpretation by explaining that the 2003 letter did not address whether current employees may have a non-employee representative of their choosing present during an inspection.

This new Interpretation Letter may result in at least two new wrinkles from OSHA inspections. First, having an outside community or union activist in your worksite during an inspection may strain employers’ abilities to cast their workplaces in the most favorable light. Second, non-union employers should be prepared for the possibility that union representatives will gain, through participation in an OSHA inspection, useful knowledge or relationships to facilitate an organizing campaign.