OSHA has enhanced its policies to provide workers at worksites without collective bargaining agreements with more opportunities to be involved in OSHA inspections. Some unions have been using the new policy to help workers at non-union sites.
OSHA has clarified that workers without collective bargaining agreements may designate a person affiliated with a union or a community organization to act on their behalf during OSHA inspections, including acting as a walk-around representative during the inspection.
Employees filing OSHA complaints in workplaces with collective bargaining agreements have always had the right to be represented by the union in all phases of an OSHA inspection, including the filing of the complaint, the opening conference, on-site walk around and inspection, closing conference, and the informal conference.
However, for employees in workplaces without collective bargaining agreements, it has not always been clear what their rights are with respect to representation during enforcement activities.
As a result of a February, 2013 “letter of interpretation” written by OSHA in response to an inquiry by the United Steelworkers on this matter, OSHA stated that employees without a collective bargaining agreement may designate a person affiliated with a union or a community organization to act on their behalf “as a walk around representative, during the inspection, so long as the individual has been authorized by the employees to serve as their representative.”
OSHA does say, however, that OSHA compliance officers are allowed to exercise “discretion” over who participates in the workplace inspections.
The support for this clarification lies in the OSH Act, Section 8 (e), which recognizes the need for effective participation by employees in OSHA inspections. Where there is no authorized employee representative, then it is reasonable that employees in such a case may need representatives who are not employed by that employer in order to have a “more effective inspection.” And these representatives can be affiliated with a union or a community organization, if that is what will result in a “more effective inspection” and greater involvement of employees in the workplace being inspected.