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OSHA’s Walk-Around About-Face
The Occupational Safety and Health Administration (OSHA) recently reversed a controversial, albeit obscure, Obama-era policy that had opened the door for union organizers to accompany OSHA inspectors on visits to non-union workplaces. The reversal overturned the agency’s so-called “walk-around letter” from 2013 that had abrogated some four decades of accepted practice and caused angst for employers already beleaguered by an administration bent on using public policy to serve organized labor.
The Deputy Assistant Secretary for OSHA issued the walk-around letter to the Steelworkers union in response to an inquiry it had submitted. That inquiry came in the form a letter from the union asking “whether workers at a workplace without a collective bargaining agreement may authorize a person who is affiliated with a union or a community organization to act as their representative” during OSHA inspections.
While OSHA’s response acknowledged “that most employee representatives [on OSHA inspections] will be employees of the employer being inspected,” it obligingly explained that applicable regulations did “allow for participation by an employee representative who is not an employee of the employer when, in the judgment of the OSHA compliance officer, such a representative is ‘reasonably necessary to the conduct of an effective and thorough physical inspection.’”
The letter went on to say it was “OSHA’s view that [non-employee] representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.” In other words, the walk-around letter redefined “reasonably necessary” to mean just about anything.
The letter also set out some examples of what might prompt a non-employee representative to participate in an OSHA inspection, such as “the representative's experience and skill, for example because of experience evaluating similar working conditions in a different plant” or in “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…during the inspection.”
For good measure, the letter finally offered that “workers in some situations may feel uncomfortable talking to an OSHA [inspector] without the trusted presence of a representative of their choosing.” All of that, of course, was a thinly-veiled way of justifying the presence of a union organizer in order to facilitate unionizing efforts.
It did not take long for the business community to respond, which it did with a letter to OSHA of its own as well as a legal challenge in federal court. The Trump administration’s about-face on this issue has obviated the need for the lawsuit, which was withdrawn, and it removed one of the first of many anti-employer policies adopted over the last eight years. Hopefully there will be more to come.