OSHA Issues Controversial Opinion Letter Concerning Union Presence During Inspections

Employers should be aware of a recent opinion letter issued by OSHA, the branch of the United States Department of Labor charged with enforcing federal law governing workplace safety and health. The opinion letter raises new challenges for employers, especially those seeking to remain non-union. OSHA inspections, which generally occur unannounced, can arise for any of a number of reasons such as in response to a workplace accident or injury or because the employer’s industry is being targeted by OSHA. Federal law provides that an employer representative and a representative on behalf of employees may accompany the investigator during an OSHA inspection. If an OSHA inspector finds good cause is shown why a non-employee third party is “reasonably necessary” to help facilitate the inspection, a third party may also accompany the investigator. Until now, a third party has usually been interpreted to mean someone such as an industrial hygienist or safety engineer who can make a positive contribution to a thorough and effective investigation. Now, for the first time, OSHA has interpreted the statute as permitting third party participation in an inspection by a union representative even in a non-unionized workplace. While OSHA explains in the opinion letter how it believes a union representative may make a “positive contribution” to an investigation in a non-unionized setting, OSHA’s justifications are largely unavailing. By interpreting the statute in such a broad manner, OSHA has provided unions with unprecedented access to non-unionized workplaces. This should raise many concerns for employers. For example, union representatives may use the opportunity for organizing purposes where they are otherwise prohibited from accessing businesses for such purposes. Union representatives may also gain the ability to custom-tailor an organizing campaign based on observations made or using information obtained during the inspection. OSHA also appears to have ignored other threats to employers by allowing union participation in safety inspections such as exposing outsiders to confidential and proprietary information. We will continue to monitor developments on OSHA’s interpretation. For more information on OSHA’s opinion letter and managing OSHA investigations, please contact Douglas E. Solomon, Esq. or Douglas J. Klein, Esq. in the Labor Law Practice Group.