OSHA is reviving a defunct enforcement policy by proposing a rule that would allow worker advocates to take part in inspections of nonunion workplaces, even if those advocates aren’t employees.
The standard also may clarify union participation during inspections at worksites where workers are represented by organized labor.
The Occupational Safety and Health Administration’s proposed rule (RIN:1218-AD45) could essentially reinstate a policy OSHA adopted in 2013 during the Obama administration but was withdrawn by the Trump administration in 2017. The regulation exemplifies the Biden administration’s commitment to organized labor in the workplace.
OSHA set May as its target date for issuing a notice of proposed rulemaking, a step that requires the agency to explain options being considered for the standard and open a public comment period.
The proposed rule if enacted seems certain to face a court battle.
“There may very well be arguments on the table that OSHA is exceeding its statutory authority or that its final rule is arbitrary and capricious,” said Luke Wake, an attorney with the Pacific Legal Foundation that contested the policy in federal court until it was withdrawn. “Much depends on exactly what the rule says and how they go about justifying it.”
The agency declined Bloomberg Law requests to discuss the rulemaking.
Revisiting ‘Fairfax Memo’
The original policy was detailed in a February 2013 interpretation letter sometimes called the “Fairfax Memo,” which said that, if an inspector approves, “a person affiliated with a union” or “a community representative” can act on behalf of employees during the inspection so long as the individual is authorized by employees to be their representative.
Shelly Anand, executive director of the Sur Legal Cooperative in Atlanta that focuses on immigrant workers, said allowing workers to be represented during inspections, just as employers are, would benefit the 96% of private-industry workers in Georgia who aren’t represented by a union.
“One of the issues that comes up is fear of retaliation,” Anand said.
Workers would be more willing to tell inspectors about hazards if they had a representative who is familiar with and who shares a common language with them, Anand said.
But employers were concerned the 2013 policy would lead to union organizing, said Rachel Conn, the San Francisco-based leader of Nixon Peabody’s occupational safety and heath practice.
“It was a backdoor way to unionize, outside the bargaining process,” Conn said, adding that she’s not surprised the policy is seeing a revival considering the Biden administration’s pro-union stance.
Who Gets Say
This OSHA rule could clarify the role of union representatives during inspections, said Steve Sallman, director of safety and health for the United Steelworkers.
Employers with union workforces generally understand that their employees can designate a union local member to participate in an inspection, Sallman said.
But there have been problems when a national union office sends a staff member who isn’t an employee at the workplace to participate in an inspection, Sallman said. Employers have refused to let national union representatives into worksites, sometimes leading to OSHA seeking a court order to allow the participation.
“The problem is that delays an inspection,” Sallman said. “OSHA needs to get in and do its job.”
Richard Fairfax, who signed the 2013 policy letter while serving as OSHA’s deputy assistant secretary and is now a safety consultant in Frederick, Md., said he’s concerned the proposed rule could put pressure on inspectors to determine whether someone, as the proposal says, is “reasonably necessary.”
“They already have a tough job,” Fairfax said. OSHA could consider involving OSHA supervisors in the decision, he added.
Defending the Policy
The 2013 policy was challenged in at least two federal lawsuits.
The case was settled when Nissan agreed to allow three union advocates to participate after they became members of the plant’s safety committee.
In the other case, the National Federation of Independent Business represented by the Pacific Legal Foundation challenged the policy on the grounds that it had the effect of a rule and therefore OSHA should have gone through the normal rulemaking process of notices and public comment periods.
The Trump administration’s decision to withdraw letter in 2017 led to the case’s closure.