OSHA’s New Walkaround Rule Approaches. Be Afraid?

You probably didn’t know….

But a specter is haunting America business. The specter of mass unionization. And the tiny Occupational Safety and Health Administration is the vanguard of the approaching revolutionary orgy of organizing that will enable the union bosses to take over (and destroy) the American economy.

Don’t believe it? Then read recent posts and articles by business associations and anti-labor law firms.  As of May 31 (assuming there’s no legal injunction), we can expect wicked, villainous, and iniquitous. union organizers, environmental activists and other unaffiliated lefties to invade America’s factories, family farms and mom-and-pop stores, disrupting production, stealing trade secrets,  and generally causing widespread chaos — while at the same time seducing (or extorting) innocent workers into signing union cards under the watchful, but approving eye of deep state OSHA inspectors.

How can this be happening in the capitalist capital of the world? Because Joe Biden, in his effort to be the most labor-friendly President in U.S. history, has ordered OSHA to allow non-employees (union Trojan Horses) to accompany OSHA inspectors during workplace safety and health inspections as long as they can convince OSHA inspectors that their presence is “reasonably necessary to ensure an effective and thorough inspection.”

Biden is now allowing these Trojan Horses filled with union organizers to steal the souls of vulnerable workers who just want to be left alone to work their hazardous minimum wage jobs in peace.

Before this — when workers were submissive and bosses were bosses —  pretty much only employees of the employer in union shops were allowed to exercise their legal right to choose walkaround representatives — with maybe a few, rare, isolated exceptions allowing outside industrial hygienists and safety professionals to act as union walkaround representatives. In non-union workplaces, OSHA inspectors were just supposed to talk to a bunch of workers — assuming the workers felt confident enough to talk to OSHA without being retaliated against.

According to business types, this radical leftist union plot has nothing to do with safety and everything to do with promoting unions. In fact, it will actually make workplace much more dangerous. Because sadly — yet perhaps understandably, given karma and stuff —  many of these new third-party walkaround representatives will get hurt and die horrible deaths in the workplaces they are trying to infiltrate —  crushed or broken during these so-called “inspections” because they won’t be trained or equipped safely. They’ll be wandering aimless around the workplace, diving headfirst into operating machines and deep trenches, or tumbling off tall buildings attempting to get workers to sign union cards during the so-called OSHA “inspection.”

Walkaround: The Background

How has our country come to this point?

As I’ve described before (here, here and here), over fifty years ago, Congress passed the Occupational Safety and Health Act (OSHAct).  Even though OSHA’s Congressional founding fathers had no idea back then how small and underfunded OSHA would eventually become, they did fully understand that for the new Occupational Safety and Health Administration to succeed, workers had to have a strong role in enforcing the law. The OSHAct gave workers a number of rights, among them the right to file a complaint, call for an inspection — and accompany the OSHA inspector during the inspection.

Workers who were afraid of retaliation or needed more expertise were allowed to choose representatives to walk around with the inspector. Where there is no walkaround representative, the law directs OSHA inspectors only to “consult with a reasonable number of employees concerning matters of health and safety in the workplace.”  Although the law doesn’t specifically say, in practice — and under OSHA regulations issued early in OSHA’s history —  the right to choose a walkaround representative was mostly the privilege of workplaces represented by unions.  Workers in non-union shops, although theoretically having the right to talk to OSHA inspectors, were often afraid to talk to OSHA inspectors, fearing retaliation. Or weren’t able to communicate due to languages differences. Or in many cases, weren’t knowledgeable about how to abate hazards.

The previous regulation stated that walkaround representatives should be employees of the employer, but also allowed workers to choose outside parties, mention, as an example, industrial hygienists and safety professionals to accompany the inspector. And in practice OSHA also allowed non-employee safety experts from national unions to accompany inspectors in workplaces they represented.

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 and our current legal structure makes it difficult for employees to organize or negotiate a first contract. In addition, the use of temporary and contract employees has increased drastically.  Language barriers, which may impede worker communication with inspectors, have grown due to the increasingly multilingual workforce. Over 800 languages are spoken in New York City and over 200 are spoken in Los Angeles. Even in the American heartland, over 100 languages are spoken in Kansas City.

What has not changed over the last 50 years, however, is the importance of workers’ ability to choose a trusted representative to accompany OSHA inspectors.

Finally, there are many other forms of worker representation today that barely existed 50 years ago, including worker rights groups, COSH Groups,  community and faith-based organizations, along with traditional unions.

What has not changed over the last 50 years, however, is the importance of workers’ ability to choose a trusted representative to accompany OSHA inspectors.

The new walkaround  regulation brings OSHA and workers’ rights into the 21st century, allowing workers — even in non-union workplaces — to choose third-party walkaround representatives as long as the non-employee representative is “reasonably necessary based upon skills, knowledge or experience, to the conduct of an effective and thorough physical inspection”  OSHA explained that such representatives are reasonably necessary when they will make a positive contribution to a thorough and effective inspection ” This experience may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection.

For anyone familiar with the workplaces of today, how power is exercised in workplaces and the hazards that workers commonly face at work, the OSHA clarification makes complete sense.

The Doomsayers: Something Evil This Way Comes

The last thing employers in hazardous workplaces want, obviously, is anything that would empower workers, or make it easier for OSHA inspectors to conduct an effective and thorough inspection that might gather the information needed find violations and make workplaces safer. As long as employers are the only ones able to talk, they’re OK. And they will use any argument, however inaccurate, to prove their point.

Below I’ve excerpted below some of the typical comments we’ve been hearing from industry associations and the (anti) OSHA law firms.

I’ve been around doing this work for a long time, but there have been few times in the past that the distortions and cynicism of the employer community has hit me so hard.

First, as you can see below, despite the fact that this regulatory clarification allows worker to choose any walkaround representatives, the business organizations and law firms raise the biggest, scariest bogeyman they can find: dreaded unions.  Concern about worker safety or the ability of workers to communicate their concerns safely? None. Just union, union, union!. That alone should be enough to scare any employer.

The new regulation lays clear that what employers fear most is not a union, but empowered workers who are able to communicate their concerns about their health and safety to OSHA.

But aside from the “union” red herring, the complete faux failure to recognize that the new clarification is simply an effort to give workers a voice is infuriating.  It lays clear that what employers fear most is not a union, but empowered workers who are able to communicate their concerns about their health and safety to OSHA.

Think I’m kidding about the predictors of apocalypse? Read on.

Let’s start with a few business associations, then move on to the anti-union law firms that promise (for a hefty fee) to help employers defend themselves against the coming onslaught. (My commentary is in italics.)

National Association of Manufacturers

The National Association of Manufacturers claims that the “New Walkaround Rule Exceeds OSHA’s Authority.” NAM Chief Legal Officer Linda Kelly writes that  “Forcing businesses to accommodate third parties with no safety expertise in their facilities infringes on employers’ property rights, invites new liabilities and introduces elements of chaos and disruption to safety inspections. This is another clear example of the federal regulatory onslaught—a proposal that upends settled precedent and ignores the reasoned decision-making required by the Administrative Procedure Act.”

Business associations are here very very concerned about “settled precedent,” at least until they want to overturn other settled precedents that allow OSHA to and other agencies to protect workplace safety, the environment and consumer protections. 

National Federation of Independent Businesses

Everyone is, of course VERY CONCERNED about small businesses and according to the NFIB, “The workplace inspection rule will hinder safety and small business operations.”

Parroting the familiar refrain,

“This rule is not about worker safety; it is about facilitating the intimidation of small business owners by allowing unions to initiate and participate in inspections of workplaces they wish to infiltrate,” according to Beth Milito, Executive Director of the NFIB Small Business Legal Center.  OSHA is just doing this “to suit the agenda of union leaders at the expense of small businesses.” 

Chamber of Commerce

The Chamber has one of the best headlines: “OSHA’s ‘Walk-Around’ Regulation Is Government-Imposed Trespassing”

They claim that third-party walkaround reps “would be there for reasons other than assisting OSHA inspectors.”

What would those other reasons be, you might ask? Let your imagination run wild:

Imagine you are a company in the middle of a contentious labor union organizing campaign. One day, one of the union organizers, wearing a bold t-shirt promoting the union, approaches the front gate of your workplace. He asks to come in and wander around, talk to some employees, take some pictures, and generally get an inside view of how your workplace operates. You would naturally, and with various legal reasons on your side, prohibit him from entering your workplace. You might even call security to have him removed from the premises.

Now, imagine that the same person is selected by one of your employees (remember this is a non-union workplace) to be that employee’s representative to accompany an OSHA inspector during a “walk-around” inspection. Under the OSHA regulation, you would be powerless to prevent this union organizer from coming into your workplace or controlling where they go, what they wear, or what they do during the inspection.

And it goes way beyond just workplace safety. Let your imagination range even further:

The OSHA regulation…sets no limits on how many employee representatives can accompany an OSHA inspector. So, an employee can claim that they want an anti-fossil fuels activist to accompany the OSHA inspector, a plaintiffs’ attorney, or any other type of person with an agenda that would not be helpful to the employer and who would otherwise be prevented from entering if they just walked up and asked to come in.”

Right. In whose imagination does an OSHA inspector say, “OK, we’ll let this anti-fossil fuels advocate, who knows nothing about workplace safety, into the workplace to do what?

Plaintiffs attorney? Really? How about a transgender anti-abortion activist?

Finally, according to the Chamber, “OSHA’s regulation will result in OSHA sanctioning trespassing—none of the third parties who will be able to come in with an OSHA inspector would be able to come in on their own.”

Now I’m not lawyer, but I can’t find any definition of trespassing that would encompass a representative legally coming onto a workplace at the request of employees to accompany a government inspector. Lawyers out there, please let me now if I’m wrong.

Associated Builders and Contractors

ABC is a notoriously anti-union construction contractors association. And they are not amused.

“Simply put, OSHA’s overreach does nothing to promote workplace health and safety, but instead pushes the administration’s ‘all-of-government’ agenda to encourage unions and collective bargaining,” according to Greg Sizemore, ABC vice president of health, safety, environment and workforce development

Sizemore goes on to argue that  “There simply is no business case for this final rule and no benefit during a compliance inspection.”

Well maybe no “business case.” And true, maybe no benefit for ABC.  But OSHA doesn’t exist to benefit employers who may be operating unsafe workplaces. OSHA’s job is to assure that employers provide a safe workplace, even if the employer sees no benefit or “business case.”

Sizemore continues. “By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law. This final rule negatively impacts the rights of employers while simultaneously ignoring the rights of the majority of employees who have not authorized a union to represent them.”

Love this. First, the rule is not about “union agents.” True, third party walkaround reps could be union staff. In fact, when I worked for AFSCME, I was often the members’ walkaround rep, even though I wasn’t an employee of the employer. No one seemed to have a problem with that — even when it was a non-union workplace we were trying to organize. I didn’t hand out union cards. I never mentioned organizing. I focused on what I was there for: to make sure the inspection was thorough and effective. 

But third party walkaround reps are just as likely to be translators (because who wants to trust management’s translator?) or a COSH Group rep, or an immigrant rights group representative, or a worker defense organization. Anyone that the workers trust more than management to represent them or who may be knowledgeable about safety conditions in the workplace.

Second, a health and safety problem is not a “labor-management dispute.” It’s a health or safety problem. Unless maybe the health and safety problem leads to a strike. In fact, OSHA inspectors are explicitly instructed and trained not to get involved in labor management disputes.

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.” 

Furthermore, 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.”

But that’s not enough. The ABC is very very concerned about the safety of the walkaround reps: “OSHA’s rule also poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite.”

ABC’s solution? “OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results.”

Nice thoughts. OSHA already does that. Sometimes positive partnerships work. Sometimes they don’t. When they don’t you see complaints and OSHA inspections. And all too often, you also see injured, sick and dead workers. 

Law Firms

Now let’s look at some of the nation’s leading anti-union, anti-OSHA lawfirms

Morgan Lewis

Morgan Lewis tries to kill two enemies with one stone: OSHA and the National Labor Relations Board (NLRB)

OSHA’s new Walkaround Rule disregards federal labor relations policy and the need for a union to be lawfully recognized through procedures set forth in the National Labor Relations Act (NLRA).

Employers should expect and prepare for more complaints by labor organizers and others who seek to gain access to employers’ private property. Because these “representatives” likely will have motives beyond the inspection itself, the rule is primed to cause disruption at employer worksites across the nation.

Even worse:

Employers should also be aware of how the rule could impact access to company confidential, trade secret, and proprietary information where nonemployees, who could even be employed by competitors, would be able to participate in worksite inspections.

But no worries, Morgan Lewis will come to your rescue (for a hefty fee):

Employers do have options if a third party attempts to access their worksite, including demanding a search warrant that allows the third party to participate in OSHA’s inspection or seeking to quash any search warrant issued.

Morgan Lewis lawyers are poised to help employers navigate the impact of the rule on their workplaces, including creating plans prior to its effective date and, once effective, in evaluating legal options if OSHA utilizes this new rule in inspections.

Littler

Little, one of the nation’s leading union busting firms, attempts to have a sense of humor with its headline: “No April Foolin’ – OSHA Updates its Worker Walkaround Representative Regulation”

(The regulation was issued on March 31 — almost April Fools Day)

Littler is also upset that “the Agency has not provided guidance or a defined process for CSHOs (inspectors) to follow in making their determination other than referring to the factors already listed in the rule.”

That statement didn’t age well. OSHA has now issued extensive FAQs for employers, workers and CSHOs.

Conn Maciel Carey

The law firm expands the the over-reach accusation by claiming that the new rule conflicts with the National Labor Relations Act, Administrative Procedure Act, the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act and Executive Order 12866 (which controls agency rulemaking), and for good measure, the US Constitution.   I’m pretty sure it also conflicts with the Bible.

Conn also accuses OSHA of doing something that we almost never hear OSHA accused of: moving too fast. “Only” a 74 day public comment period, and relatively fast clearance by the White House. Now we have a situation where “OSHA can hold the door open to a multitude of nefarious third parties over the objections of employers.”  (“Nefarious” for those who missed vocabulary day in school, is defined as “extremely wicked, villainous, or iniquitous.” Not exactly how I’d describe most health and safety experts — or even union reps. But tomato tomahto.)

Also, this rule has nothing to do with workers feeling that their lives and health are at risk. No. It’s about revenge, espionage and criminal intent:

Disgruntled former employees are often the instigator of OSHA inspections, and would surely love to come in and wreak havoc with an OSHA compliance officer, disrupting the workplace, perhaps engaging in violent or other criminal conduct (e.g., theft of trade secrets of proprietary information), or just instigating division in the workplace.  Family members or injured workers, media, competitors, and community and activist groups could also take advantage of OSHA’s new regulation.

What are employers to do? “Retain experienced OSHA counsel in advance,” develop a “warrant strategy” so you’re prepared to go to court and “develop comprehensive Confidentiality and/or Non-Disclosure Agreements that apply to all guests.” All of these actions, of course, require employer to pay lots of money to lawyers.

The only recommendation missing from any law firms’ advice is to make sure the workplace is safe. That way you won’t have an OSHA inspection in the first place.

According to Conn, employers should also set up safety committees,  Specialized Work Groups and identify foreign language translators so that employees will have a weaker excuse to request third-party walkaound representatives.

The only recommendation missing from Conn — or any other law firms’ advice — is to make sure the workplace is safe. That way you won’t have an OSHA inspection in the first place.

Others

Then there are the think tanks and employer-friendly press:

Competitive Enterprise Institute

CEI, whose mission is to “reform America’s unaccountable regulatory state,” accuses OSHA of attempting “to walk union officials into workplaces….giving them access to worksites that they would never get inside otherwise.” They admit that “OSHA’s new rule would require a worker to invite the union in.”

But, according to CEI, “That isn’t likely to be a great hurdle for unions thanks to the practice of “salting.” That’s when a union has an organizer covertly apply for an open position at a worksite for the express purpose of organizing.”

So unions are “salting” workplaces, so they can create fake hazards in order to invite union organizers into the workplace?”

And then CEI reveals it isn’t a law firm, without saying “we’re not a law firm,” by claiming that “What OSHA really wants is to rewrite the underlying law itself. Unfortunately for the agency, only Congress can do that.” Actually, if the brilliant legal minds at CEI had read the OSHAct, they would have known that there is nothing in the law that limits walkaround reps to employees of the employer.

Capital Press in Salem, Oregon

But it gets worse. Even family farms are at risk, according to Mateusz Perkowski, at the Capital Press in Salem, Oregon. In his op-ed, entitled ‘Walkaround’ rule allows union reps on farms during federal OSHA inspections, Perkowski claims that “Union representatives will soon be able to enter farms during federal safety inspections under a new regulation.”

And he even found a agricultural rep to back him up: “For me as an employer, I will try to do everything I can to protect my employees from union activists who want to come in and do mischief,” said Michael Marsh, executive director of the National Council of Agricultural Employers….Anytime you have union at your place, you have to worry about the welfare of your workers,” he said. “The unions just take advantage of these people.”

Of course, they neglect to mention that due to a 1970s rider on OSHA’s appropriations language, OSHA isn’t allowed to step foot on any farm with ten or fewer employees.

Congress Gets Into the Act

Not to be outdone, several (Republican) Congresspersons have signed onto a resolution sponsored by Rep. Mary Miller (R-IL) that would repeal the new regulation. The action is being taken under the notorious Congressional Review Act that allows both houses of Congress — with the President’s signature, to repeal any recent regulations.

According to the bill’s sponsors,

The rule is an unfair opportunity for union officials to target workers for an organizing drive or for competitors to obtain proprietary information about a workplace. “Requiring businesses to allow third parties access to their facilities introduces additional liability and potential disruption of important safety inspections,” said U.S. Rep. Pete Sessions, R-Texas.

The Coalition of Workplace Safety (CWS), a Chamber of Commerce front group, has gathered the signatures of 58 industry associations on a letter endorsing Miller’s bill, claiming the new rule would “allow third parties looking to harm employers to accompany OSHA safety and health officers during facility inspections.”

That is if by “harm employers” you mean “fight for safe working conditions.”

On the other hand, the CWS in advertently endorses the new OSHA policy claiming that

While OSHA’s regulations have long permitted an employee to accompany CSHOs on inspections, third parties have only been allowed to participate when the individual “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” This policy enabled OSHA to balance the need for outside expertise when necessary and employer property rights.

That “reasonably necessary” language is taken almost verbatim from the new regulation which states that  “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace”

The only difference is that OSHA makes the language more precise by qualifying acceptable third parties as “including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills”

Sounds to me like the “new” language would also enable OSHA “to balance the need for outside expertise when necessary and employer property rights.”

But never fear, this is basically just an exercise by the Chamber to impress its members by looking like it’s doing something. The bill has zero chance of success. Even if the House and the Senate somehow passed it, President Biden would veto it.

Bottom Line

[Update: Just as the new rule came into effect, the Chamber of Commerce and a coalition of business groups filed a lawsuit in the Western District of Texas, Waco Division to overturn the rule. The full complaint can be viewed here.]