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The Occupational Safety and Health Act and standards promulgated thereunder allow an employee representative to participate in the filing of complaints, requesting workplace inspections, participating in workplace inspections, participating in informal settlement conferences, and contesting the abatement period related to inspections. For over forty years, those provisions were interpreted as requiring actual employee participation when there is no union presence.

On February 21, 2013, Richard Fairfax, the then Deputy Assistant Secretary of Labor, in one of his last acts in that position, authored letter of interpretation to an inquiry by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union concerning whether the definition of employee representative in non-union workplaces could include a person affiliated with a union or a community organization. Succinctly, that letter of interpretation stated that the employee representative for those workplaces not controlled by a collective bargaining agreement could be a representative of a union or community organization.

For years, Professional Janitorial Services (PJS) staved-off efforts by the Service Employees International Union (SEIU) to unionize its workforce. The intensity of the fight to unionize PJS was so great that a former SEIU representative gave deposition testimony that SEIU representatives made death threats against PJS. In its 26 year history, PJS had never been cited by OSHA for any workplace violation. On October 29 and November 5, 2013, PJS in Houston was inspected by OSHA a total of three times, with an SEIU accompanying the OSHA compliance officer performing the inspection, based upon a complaint that PJS was not providing appropriate protective eyewear.

Unions now can exert influence over a non-union employer in a number of ways, including:

  1. Threatening inspections if the employer does not submit to the union’s desire;
  2. Participating in employee interviews with compliance officers and using that time to discuss efforts to unionize the workplace;
  3. Insisting, as part of a settlement, that union representatives be given access to the worksite; and
  4. Making abatement impossible unless or until an employer agrees to the union’s demands.

Employers who have resisted efforts to unionize their labor forces are most likely to see this sort of effort to gather support for organizing the workforce.

OSHA does not enjoy an unfettered right to inspect workplaces. Employers can, though not without risk, require OSHA obtain a warrant before entering the workplace. Similarly, an employer could resist the effort to permit a union representative from entering the workplace, though that too involves risk.

Though this letter of interpretation and the inclusion of union representatives in the inspection process may not be consistent with history, precedent, or the law, employers should consult with counsel if faced with an inspection that involves a union representative functioning as an employee representative and before trying to resist allowing a compliance officer accompanied by a union representative from entering their workplace.