The Chamber of Commerce is bored.
Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce, complained in recent newsletter that “Among the agencies at the U.S. Department of Labor, the Occupational Safety and Health Administration (OSHA), to some people’s surprise, has been fairly quiet and not getting much attention.”
This is a problem.
We’ve written about how OSHA’s lack of regulatory results has left workers poorly protected from unregulated hazards. But far more tragic, OSHA’s failure to finalize standards has left legions of highly paid corporate attorneys with too little to complain about and too few billable hours to send their kids to college.
Soon, however, much to the delight of Freedman, the Chamber of Commerce and the OSHA bar, things may be about to change. OSHA is about to make trouble again.
And that’s also good news for workers.
OSHA is expecting to soon issue a proposal for its “Worker Walkaround Representative Designation Process” regulation that will codify the ability of workers to choose their own “walkaround representatives” even if they work in a workplace with no union representation. Given that procedural regulations are much easier and faster to finalize than health and safety standards, it’s possible that this important regulation could be issued by the end of the Biden administration.
And hopefully before the Congressional Review Act deadline somewhere around mid-April. Going beyond that deadline would enable a newly elected Republican Congress and President to repeal the regulation after the 2024 election.
The origin of this regulatory activity is a “letter of interpretation” that OSHA issued in 2013, allowing workers — even non-union workers — to pick their own walkaround representatives. They may be representatives from a worker rights organization, an outside industrial hygienist or a union health and safety expert.
That interpretation was repealed by the Trump administration, and OSHA is now attempting affirm this right with a regulation that would be more difficult for a future anti-worker administration to rescind.
And although the regulation would help workers ensure the safety of their workplace, which was the intent of the OSHAct, according to Freedman and his allies, the the clarification of OSHA’s walkaround policy was simply a cynical pretext for help union organizers sow the seeds of unionizing by sneaking into a workplace under the guise of fake safety and health problems.
“Without question, if OSHA moves forward with this regulation, the agency will be making clear its agenda is no longer focused on improving workplace safety but on promoting organized labor.” — Marc Freedman, US Chamber of Commerce
The result: the sky will fall, unions will grow, the economy will implode and capitalism will collapse, taking the rest of Western Civilization with it.
Without question, if OSHA moves forward with this regulation, the agency will be making clear its agenda is no longer focused on improving workplace safety but on promoting organized labor.
Strong words. But I’m sure there’s lots of evidence for all of these accusations. Somewhere. Right?
“Without question.” Let’s question anyway — and explore why OSHA would perpetrate such a dastardly deed.
The World has Changed. OSHA Must Keep Up.
As I often point out, the Occupational Safety and Health Administration is a tiny agency with an enormous mandate. This huge discrepancy between the huge mission of the agency and the meagre resources at its disposal has resulted in an inspectorate that would take close to 200 years to inspect each workplace in the country just once, and a regulatory process that can take multiple years — even decades — to issue major standards to protect workers from well known hazards.
While the founders of OSHA — including the labor unions that made the Occupational Safety and Health Act (OSHAct) a reality — understood that OSHA alone would never be capable of ensuring safety in the workplace, they probably never anticipated that the agency would become as handicapped as it is today.
They did understand, however, even in those optimistic days or 1970, that to ensure safe workplaces, workers themselves would need the ability to participate in ensuring the safety of their workplaces. The OSHAct therefore provided workers with a number of important rights, including the right to file a complaint, receive information about exposures, injuries and illnesses at their workplace, and — one of the most important — the right to accompany or “walk around” with OSHA inspectors during inspections.
But when the OSHAct was passed in 1970, it was a very different world. Unions were in their heyday and many of the rights that workers possessed were written into the law with the underlying assumption that most workplaces that OSHA inspected would be represented by unions.
Today, life in these United States has changed and mechanisms for achieving walkaround representation have become more challenging. Not only are far fewer workers represented by unions, but the use of temporary and contract employees has increased drastically. Language barriers, which may impede worker communication with inspectors, have grown drastically due to the increasingly multilingual workforce.
What has not changed over the last 50 years, however, is the importance of worker participation in an OSHA inspection.
In addition, there are many other forms of worker representation today that barely existed 50 years ago, including community and faith-based groups as well as traditional unions.
What has not changed over the last 50 years, however, is the importance of worker participation in an OSHA inspection.
What Does the Law Say?
Section 8(e) of the OSHAct reads:
Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace. [emphasis added]
The phrase “a representative authorized by his employees” was never defined in the OSHAct, but the “authorized representative” was assumed to mean the union representative. And where there was no union, the OSHA inspector was directed to “consult with a reasonable number of employees.”
That “consult” option sounded good on paper, but was never a meaningful or effective substitute for an “authorized” representative. Workers represented by unions are generally more free to take action regarding health and safety problems than non-union workers who don’t have the protection from retaliation the unions provide.
The regulation governing walkaround rights, 29 CFR 1903.8, was based on the language in the law, and reads, in part:
The representative(s) authorized by employees shall be an employee(s) 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. [Emphasis added]
So an authorized union representative did not always have to be an actual employee of the employer being inspected. Often, in more complex cases, the local union might call on a professional health and safety official from the national union to walk around with the OSHA inspector. When I worked for AFSCME in the 1980s and 1990s, I often accompanied OSHA inspectors on inspections of our members’ workplaces, even though I wasn’t “an employee of the employer.”
Why Did OSHA Issue a New Walkaround Interpretation?
The controversy began in 2012 when United Steelworkers representative Steve Sallman sent a letter to OSHA asking whether “workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.
On February 21, 2013, OSHA responded:
Yes. The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.” 29 U.S.C. § 657(e). Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections.
And as you point out, there are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection. This could be because of the representative’s experience and skill, for example because of experience evaluating similar working conditions in a different plant. There are also many instances where non-English speaking workers want a representative who is fluent in both their own language and English, something that will facilitate more useful interactions with the CSHO during the inspection. Finally, workers in some situations may feel uncomfortable talking to an OSHA CSHO without the trusted presence of a representative of their choosing.
Republicans and business organizations, who are always accusing Democrats try to help unions, went berserk.
They are partially right of course. Democrats do support unions. And that’s not a bad thing.
Democrats, for example, are currently sponsoring bills like the Protecting the Right to Organize (PRO) Act that is designed to reduce the barriers that workers face when trying to form unions in the face of massive and often illegal employer resistance. And that’s not because Democrats are communists; it’s because that’s the law of the land. The National Labor Relations Act makes it clear that that it is the policy of the United States to encourage collective bargaining by protecting workers’ full freedom of association.
The goal of OSHA’s walkaround policy is not to aid union organizing, but to help workers come home alive at the end of the day. Especially workers who don’t have unions. Even where there is no union organizing campaign.
But Freedman is wrong about the new OSHA walkaround regulation. The goal of OSHA’s walkaround policy is not to aid union organizing, but to help workers come home alive at the end of the day. Especially workers who don’t have unions. Even where there is no union organizing campaign.
History of Non-Union Walkaround Reps
Although OSHA’s official interpretation letter was in response to a question from a union representative, it was not a union that first alerted OSHA to take note of the need to clarify the agency’s walkaround policy.
In August, 2011, 200 foreign students walked off their job at a plant that packs Hershey’s chocolates in Palmyra, PA. The warehouse was owned by Hershey, but operated by Excel Corporation. The students, from countries including China, Nigeria, Romania and Ukraine, had come to the United States on State Department J1 visas, “cultural exchange” program that allowed them to work for two months and then travel the country, learning English and experiencing life in the United States. Sounds nice.
But what these students actually experienced was horrendous working and living conditions. The students
expected a chance to see the best of this country, to make American friends and sightsee, with a summer job to help finance it all. Instead, many students who were placed at the packing plant found themselves working grueling night shifts on speeding production lines, repeatedly lifting boxes weighing as much as 60 pounds and financially drained by low pay and unexpected extra costs for housing and transportation. Their complaints to the contractor running the program on behalf of the State Department were met with threats that they could be sent home.
The students were working with the National Guestworker Alliance (NGA), an organization focused on defending the human rights and dignity of guestworkers in America. NGA filed an OSHA complaint on behalf of the students who requested that the NGA be able to serve as walkaround representatives. OSHA accepted the group’s request and warehouse management did not object. OSHA and DOL’s Wage & Hour division conducted inspections and OSHA proposed $288,000 in fines.
Another example, this one involving a union, came in 2012, where the Laborers International Union served as walkaround representatives at the request of the workers during an asbestos inspection in Washington DC.
By the time Sallman’s letter arrived at OSHA, it had long been clear that a clarification of walkaround participants would be helpful.
End of the World As We Know It
The business community went berserk, arguing that a worker representative could only be “authorized” if there was a labor union with a collective bargaining contract and accusing OSHA of helping unions organize. The business community also accused OSHA of using a “non-transparent” process to change “longstanding” OSHA policy because the agency issued a letter of interpretation (a common practice OSHA uses to clarify the meaning of standards and regulations), instead of going through lengthy notice-and-comment rulemaking.
Writing on behalf of the Coalition for Workplace Safety (CWS), a Chamber of Commerce front organization, Freedman stated in 2013
The overwhelming consensus is that this will undermine the safety focus of these inspections and turn them into opportunities for unions or other parties with agendas contrary to the employer to enhance campaigns against the employer, gain entry to the employer’s premises to develop more information for the campaign, or even glean proprietary information. It will place OSHA in the middle of organizing drives or labor contract negotiations.
CWS members were allegedly worried about ensuring that the walkaround representative “does not present a risk to the safety or security of the facility, and does not have access to confidential business information.”
And they insist that the regulations are clear that the walkaround representative must be an employee of the employer (with small, rare exceptions for a industrial hygienist or safety engineer. )
They imagine organizers sneaking in under the guise of a health and safety representative, then when they’re in the plant, throwing off their disguise, passing out leaflets and strong-arming workers to sign union cards under the noses of helpless OSHA inspectors.
Or surreptitiously taking pictures of highly confidential business secrets and selling them to the highest bidder.
Or somehow helping workers win a strike.
The Real World
OSHA explained that the Sallman letter represented only a clarification of past practice, not a new policy. The regulation clearly states that the inspector may authorize a third party walkaround rep “such as” an industrial hygienist or safety engineer, but not limited to just those.
And OSHA also made clear that conducting inspections during labor disputes or organizing campaigns is an issue that OSHA is familiar with and prepared to address.
OSHA’s Field Operations Manual (FOM) instructs OSHA Area Directors to thoroughly assess the credibility and veracity of any complaint filed during a labor dispute and states that “During the inspection, CSHOs will make every effort to ensure that their actions are not interpreted as supporting either party to the labor dispute.”
Conducting inspections during labor disputes or organizing campaigns is an issue that OSHA is familiar with and prepared to address.
And in case the walkaround representative is disorderly, the FOM states that “Compliance Safety and Health Officers are authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection.” In addition, the FOM states that “The employee representative shall be advised that, during the inspection, matters unrelated to the inspection shall not be discussed with employees.”
In addition, the Mine Safety and Health Act, has a walkaround clause identical in relevant parts to language in the OSH Act, and several courts have recognized that the Mine Act allows miners to authorize non-employee representatives for walkaround purposes, even if those representatives are members of a union without a collective bargaining agreement at the mine. Furthermore, courts of permitted OSHA to use striking union members as walkaround representatives during labor disputes.
Following issuance of the Sallman letter, Republicans on the House Education and Workforce Committee wrote to OSHA in 2013, accusing the agency of a “dramatic change” in OSHA policy, “that raises questions as to the priorities of OSHA’s inspectorate and may create more confusion with respect to OSHA’s workplace inspections.” Senate Republicans also considered an appropriations rider that would have prohibited OSHA from implementing the interpretation. The National Federation of Independent Business filed a lawsuit in 2016 demanding that OSHA conduct notice and comment rulemaking to make the change, labeling the interpretation an underground regulation.
And in 2017, the Trump administration rescinded the letter.
Given the controversy and obvious Congressional interest in the issue — especially the way the interpretation was issued — Biden’s OSHA decided to reissue the policy — but this time through the notice-and-comment rulemaking process that the business community said it wanted.
What’s Next for Walkaround Rights?
Despite OSHA’s concession to going through a more acceptable notice and comment rulemaking process, Freedman and the Chamber are still not happy:
The presence of a union agent at a non-union workplace would immediately change the nature of the inspection from one focused on workplace safety to one driven by the union’s agenda. Unions already frequently use the OSHA complaint process as a weapon against employers, particularly in so-called corporate campaigns. Allowing the union agent into the workplace that is a union target would facilitate the union agent’s biased, non-workplace safety agenda, which is to find problems in the employer’s workplace that can be exploited for the purposes of organizing or pressuring the employer.
This would also inject OSHA into a labor dispute, something that OSHA’s Field Operations Manual advises against. OSHA should not take sides, or be perceived as taking sides, in promoting union organizing agendas to the detriment of management.
OSHA predicts that the formal proposal would be issued before the end of June. At this point, that date seems highly unlikely. Pretty much all DOL rulemaking has been suspended while the Senate continues to consider the nomination of Julie Su to be Secretary of Labor.
Once that proposal is issued, OSHA will announce a written comment period: most likely 60 or 90 days. We can then expect a storm of industry outrage, anger, shock, or indignation, hopefully accompanied by a strong defense by workers and worker organizations.
Unlike health and safety standards, there is no requirement for a public hearing. After analyzing the comments and White House review, OSHA will issue a final regulation, hopefully in early 2024, prior to the Congressional Review Act deadline that would enable an newly elected Republican Congress and White House to repeal the regulation.