OSHA April 5 released an interpretation letter (dated Feb. 21) stating that nonunion employees can authorize an individual “affiliated with a union or a community organization” to act as their representative during agency-sanctioned inspections and other enforcement situations.

The letter, written by OSHA Deputy Assistant Secretary Richard Fairfax in response to a union clarification request, states that employees at worksites without collective bargaining agreements can designate an individual affiliated with a union or community organization to be their “personal representative” in enforcement-related matters during a workplace inspection, on OSHA inspection walkarounds.

OSHA’s letter also states that “most employee representatives will be employees of the employer being inspected,” but adds “there are times when the presence of an employee representative who is not employed by that employer [allows for] a more effective inspection.” Fairfax noted examples, including representatives who can communicate with non-English speakers, but also commented generally that non-employee representatives can be appropriate when workers simply feel uncomfortable talking to an OSHA compliance officer (CSHO). 

OSHA maintains this policy has been the practice of the agency for years, and added that agency letters of interpretation “do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances.” However, such a loose interpretation appears to contradict the agency’s field operations manual and its own regulations governing employee representatives, which suggest the “non-employee” exception was meant to include subject matter experts, such as industrial hygienists and safety engineers. 

The letter does maintain that CSHOs can still “exercise discretion over who participates in workplace inspections.” Furthermore, whenever the employee representative is not an employee, the CSHO must deem the representative to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” and that he/she “will make a positive contribution to a thorough and effective inspection.” 

Despite this reassurance, ABC is extremely concerned about the implications OSHA’s letter could have on nonunion employers and worksites in the construction industry—especially multiemployer sites and employers with established employee safety committees. 

ABC considers this letter of interpretation to be highly questionable as it goes against decades of precedent and is considering avenues to challenge this interpretation. Members that are confronted by an unwanted union affiliated person requesting to join an inspection may have an avenue to challenge its validity and are encouraged to contact ABC at regulatory@abc.org. ABC will continue to aggressively advocate for our members’ interests while monitoring this situation and will provide updates as they become available. 

For additional information on OSHA’s Interpretation Letter and how it can be challenged, click here