Provided by: Judge Ruth B. Kraft 

In March 2013, OSHA issued an interpretation letter which is of concern to employer’s counsel.  It concludes that employees at non-union workplaces have the right to designate a union representative to accompany an OSHA Compliance Safety and Health Officer during inspections.  This marks a significant change in how OSHA has interpreted the regulation governing designation of employer and employee representatives.   That regulation, 29 C.F.R. Section 1903.8, provides that the representative authorized by employees shall be an employee of the employer except if, in the judgment of the OSHA Officer, there is good cause to believe that the presence of a third party non-employee is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.  I have always interpreted this to refer to specialists in industrial safety, which would be logical as workers themselves may not have the technical training to appropriately evaluate complex safety concerns.  But, the interpretation letter has stretched out far beyond the scope of the text to state that a person who is affiliated with a union who is not an employee of the employer (namely, a union organizer) may serve as the representative of the employees during an inspection although the workplace has not unionized.

OSHA’s interpretation may well be challenged in court.  However, at the current time, all employers should be aware of it and, in the event of an inspection at which a union representative appears in a non-union workplace, should immediately reach out to employment counsel for intervention and explanation of how best to preserve their rights.

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