Union Reps Can Join OSHA Inspections

New Fed Rule to Take Effect Monday

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A new Occupational Safety and Health Administration (OSHA) rule will allow union reps to accompany agency inspections of worksites even if said worksite is non-union.

On a media call Thursday afternoon, Secretary for Occupational Safety and Health Doug Parker said the “clarification” being codified and to take effect Monday finally cleans up the results of a 2017 civil case regarding the ability of an employer and/or an employee to ask for a third party outside person to take part in jobsite safety inspections.

“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” said Parker. “The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended.”

Employee participation in the process, added Parker, “fosters trust” between worker and employer and is “crucial” to the process.

The final rule is a very slight tweak from the initial proposal and leaves in the phrase that anyone who accompanies a “walkaround” inspection be “must be reasonably necessary to conduct an effective and thorough inspection.”

But businesses worry that still leaves the door wide open to having a union representative being delegated by the employee of a non-union workplace as their walkaround “plus one.”  

The issue with a union rep as the floor is the possibility they will go beyond a “safety check” and be able to surreptitiously gain information about the non-union shop they may hope to unionize in the future or to even actually promote the union while on the shop floor, something they would not at all normally be allowed to do.

That exact scenario has occurred numerous times in the past, said Rep. Virgina Foxx, chair of the house Committee on Education and the Workforce.

Last year, Foxx wrote that the proposed changes have “absolutely nothing to do with keeping workers safe. OSHA giving the green light to union operatives and activists to infiltrate non-union worksites during safety inspection walkarounds is blatantly intended to give unions access to employer private property and aid in organizing efforts.”

While the clarification does imply the employee plus-one should have relevant knowledge about the specific inspection at hand, it still allows union reps access to properties they would not typically have.

Parker said Thursday that OSHA is “not in a position to read the minds and know the motivations” of the employee – or employer – accompaniment and the process of how exactly the skills and knowledge either third-party is not set in stone, though it appears to be left in the hands of the OSHA “compliance officer” doing the inspection itself.

This rule does not “change the (inspector’s) authority to determine whether an individual is a representative authorized by employees,” states the rule.

In other words, it is left up to the inspector alone to determine if a third-party is qualified and/or has relevant knowledge and skills to assist with the inspection.  While making sure to obtain the person’s contact information, the inspector is “not expected to obtain any additional information” from the third party, which obviously includes whether or not the person is affiliated with a union.

However, Parker added that neither third-party representative may “interfere with the conduct “ of the actual inspection and that “signing people up for a union” right then and there would be considered interference. “Straying” from the inspection itself, states the new rule, would also qualify as interference.

Business interests and other elected officials were not buying OSHA’s reasoning.

“OSHA inspections are crucial to protect workers’ safety and should never be co-opted to promote a political agenda,” said Sen. Bill Cassidy, (R-LA) and ranking member of the Senate Health. Education, Labor, and Pensions committee. “The union has a vested interest in harassing a non-union employer. Giving them the power to influence an inspection is a potential weapon against a workplace that has chosen to be non-union. This is wrong.”

The Associated Builders and Contractors industry group expressed similar concerns, adding the issue of potential workplace safety problems during inspections.

“Now, construction employees and employers could face serious safety concerns because the final rule has the potential to allow anyone on a jobsite,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development. “There simply is no business case for this final rule and no benefit during a compliance inspection.

Sizemore added that allowing a union rep to accompany a government official during an inspection strongly implies the government is helping and/or supporting the union’s efforts to potentially organize the workplace.

“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Sizemore. “This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them.”

San Francisco-based Workplace Policy Institute attorney Michael Lotito was a bit more blunt, also noting suspiciously that OSHA decided to drop the news of the new rule – seven years in the making -  on the first day – Good Friday – of a holiday weekend.

“The union rep will use any information gathered to try to unionize the company,” said Lotito.  “That’s what this is all about.”

And that would be in line with President Biden’s consistent claim to be the most “pro-union” president in history.

Or at least the most pro-California union toady president.  Parker’s boss in Acting Secretary of Labor Julie Su, formerly led California’s labor department where she oversaw the implementation of the repugnant AB5 bill and managed to lose up to about $40 billion to fraud while she was overseeing the unemployment agency, the EDD.

And Parker, prior to being tapped to head the federal version of OSHA, was in charge of CalOSHA during the first half of the pandemic response.  Besides everything else CalOSHA does, it stepped up workplace “covid” fines and penalties, issuing more than 2,000 fines and citations for such violations as not having trees far enough apart so that ag workers could remain ‘socially distanced” and in the shade on their break.   

And we wonder why the rest of the country hates California.

For those interested, here is the entire draft rule: https://www.federalregister.gov/public-inspection/2024-06572/worker-walkaround-representative-designation-process