Howard Rubin and Don Stait,
The Daily Record Newswire
In an unprecedented and controversial move, the U.S. Occupational Safety and Health Administration (OSHA) last month released an interpretation letter explaining that the Occupational Safety and Health Act (the act) lets workers at establishments without collective bargaining agreements designate a non-employee to act on their behalf during inspections. Thus, the door is open for union representatives to accompany OSHA inspectors into non-unionized worksites.
The letter, written by Richard Fairfax, an OSHA deputy assistant secretary, contradicts the act’s standard that says, “representative authorized by employees shall be an employee of the employer.”
The act provides that where the employees are not represented by a union, the OSHA inspector “shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.” To that end, OSHA developed the following regulation:
The representative authorized by employees shall be an employee of the employer. However, if in the judgment of the compliance safety and health officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the compliance safety and health officer during the inspection.
This regulation has been consistently interpreted by OSHA to provide for accompaniment by a labor union only where the union was certified or recognized as representing the employees. At no point in any manual, or other guidance, has OSHA ever approved a non-employee union representative as a participant or observer in an on-site inspection of an employer.
OSHA’s new announcement — allowing non-representative union access to non-union worksites during OSHA inspections — fundamentally departs from the regulatory standard without legal authority to do so. While creating a near absolute right of a union to participate in its inspections, OSHA has attempted to set itself up as the sole arbiter of other organizations that may participate where there is no union that represents the workers at a worksite.
Finally, the new OSHA interpretation may be subject to a broader legal challenge because OSHA failed to conduct notice and comment rulemaking before apparently changing the applicable inspection standard.
However, OSHA emphasizes that letters of interpretation do not create new or additional regulations.
New OSHA initiative focuses on temporary workers
OSHA is taking a hard look at the safety and training of temporary workers. In an April 29 memorandum sent to regional administrators, OSHA outlined new procedures that its compliance safety and health officers should follow when they are inspecting a workplace to determine whether employers are adequately protecting temporary workers.
The new procedures include determining whether temporary workers are exposed to conditions in violation of OSHA rules, and whether the workers received safety and health training “in a language and vocabulary they understand.”
For this purpose, OSHA will consider the term “temporary workers” to include those who “work under a host employer/staffing agency employment structure.”
According to the memo, “recent inspections have indicated problems where temporary workers have not been trained and were not protected from serious workplace hazards due to lack of personal protective equipment when working with hazardous chemicals and lack of lockout/tagout protections, among others.”
A compliance safety and health officer who encounters temporary workers during an inspection is directed to “document the name of the temporary workers’ staffing agency, the agency’s location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency).”
NLRB quorum controversy update
Last month, the U.S. House of Representatives narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act by a vote of 219-209. The bill requires the National Labor Relations Board to suspend all activities that require a three-member quorum and prohibit the enforcement of any quorum-required action taken after President Obama made three January 2012 appointments to the NLRB.
As we reported in February, the U.S. Court of Appeals for the D.C. Circuit opened the door to invalidating virtually all of the NLRB decisions during 2012 when it found that the NLRB lacked a quorum based on Obama’s alleged “recess” appointments.
Obama has the authority to make necessary appointments to the NLRB when Congress is not in session. When it is not in recess, the Senate has to confirm presidential appointments to the NLRB.
On Jan. 12, the Senate was not recessed when the president used his recess appointment authority to seat three members of the NLRB. The Senate was merely holding shortened sessions, leading the D.C. Court of Appeals to observe that the president’s interpretation of “not in session” gives him “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.”
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Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or dstait@littler.com.
