OSHA is an agency that is part of the Department of Labor and has tremendous powers. This is understandable and needed, as OSHA is directed to lead the charge on employee safety. Every so often, OSHA alters existing regulations. There is one rule that is currently under review that, while many contractors do not see it affecting them, they may want to look closer. The proposed changes could have significant impact to trade contractors using skilled labor. The change is in regards to Regulation 29 CFR 1903.8 (c). This rule is informally known as the “Worker Walkaround Rule.” While the name sounds innocuous, it has the potential to be a game-changer. Depending on what side of the fence you are on will determine if that is good or bad.
The controversy to the “Walkaround Rule” started in 2013 with an interpretation response by OSHA known as the “Fairfax Memo.” OSHA is often asked and provides an interpretation to a specific rule. Typically, it is about a specific instance or circumstance involving a citation, but may also be a request for clarification on an OSHA rule. An interpretation letter or memo carries weight, as it comes from the head office of OSHA.
The 2013 “Fairfax Memo” interpretation from OSHA answered two questions put to them about who is allowed to accompany an OSHA compliance officer on a walkaround inspection. The rule basically states that a representative accompanying the OSHA officer shall be an employee authorized by the employer. The rule further states that if there is just or good cause, a third party may accompany the OSHA officer. It was generally understood that this meant an industrial hygienist or engineer who is more familiar with the potential violation. The interpretation of the “Fairfax Memo,” developed by OSHA, expanded the rules to permit others to participate in OSHA inspections.
The memo further clarified that the extra person could even be a representative of a labor union, as they have expertise in safety issues related to their trade. The memo allowed a union representative to be present even if the employer is not signatory to a collective bargaining agreement. This opened the door to a wider range of fears for employers, who may have concerns about unions, in particular, the perceived agenda that the union is really more interested in organization merit shops than safety.
Union Organizing Rules
The organizing do's and don’ts are established by the National Labor Relation Board and can be tricky to navigate. Employers are allowed to prohibit union representatives to organize in work areas during working hours, with a few exceptions. Union representatives have the right to be in areas open to the public, so long as they do not disrupt work activities. The rules get confusing and the lines of what can and cannot be done often are blurred. The broader interpretation of the “Fairfax Memo” essentially provides a wider variety of persons to accompany the OSHA officer on their inspection. The concern for many is that this potentially gives union organizers or activists access to employers and workers during their paid work time. It is especially concerning when some reports claim that safety inspections routinely increase during organizing campaigns.
In 2017, the latitude of the “Fairfax Memo” was dropped due to a less labor-friendly administration. Currently, efforts are underway to reinstate the interpretation as well as formalize the “Fairfax Memo” as part of the rule. Should the proposed rule be adopted, it would be almost impossible to reverse that final ruling. This makes the stakes high indeed. A formalized rule will likely lead to more NLRB decisions as to what is legal or not legal during organizing efforts, especially if done under the cover of a safety inspection.
OSHA Inspections With Third Parties
It is not rare to see OSHA officers conduct private interviews with employees to verify the safety culture of an employer. However, this rule could allow an activist to be present during these interviews and essentially grant a prospective organizer something they desperately want - a captive audience.
While you may think that being a current signatory contractor is not an issue, you may want to look closer too. That third-party union representative accompanying the OSHA officer could be from another union, meaning a union that is looking to get your crews to switch unions. This is known as decertification and it, too, has many dos and don’ts. The goal is to get those workers to force the employer to become signatory with another union.
It is hard to read the intent or underlying agenda of people. While OSHA officers may only care about worker safety, is that true of the union representative, especially during an active organizing campaign? There have been reports of union representatives providing cues to OSHA officers on what to look for and possibly encourage private time meetings with employees. We all want safer workplaces, whether union or merit shop, but what union you sign with is a decision best left to employers and their employees without undue interference from either side.
