Volume 2, Issue 7 – April 15th, 2014
Unions are taking increasing advantage of a controversial OSHA determination that a complaining employee at a nonunion company can request a union representative accompany an OSHA inspector who is investigating a work site.
For example, Service Employees International Union representatives have been accompanying OSHA inspectors at cleaning sites where Professional Janitorial Service, the largest non-union janitorial company in Houston, operates.
News reports say SEIU wants a card-check election at PJS, a situation where union officials would be able to see how employees vote, opening them to intimidation by the union.
Using OSHA inspections to harass PJS is only the most recent development in a seven-year organizing campaign that has gotten so ugly the company is suing the union for $7 million for slander.
Although the law and OSHA regulations allow employees to select “an employee representative” to accompany inspectors, until an OSHA determination in February 2013 this did not include non-employees from outside the company.
So what do you do if an OSHA inspector arrives at your non-union business with a union representative in tow? It depends on how hard a line you want to draw. As usual, the best advice is for you to consult your own labor law attorney before doing anything.
Attorneys at the law firm of Seyfarth Shaw LLP point out that if your workplace has requirements for non-employee visitors, such as participating in an orientation program or wearing personal protective equipment (PPE), you can impose those requirements on the activist or organizer.
Employers can also challenge the validity of the non-employee’s presence if there is concern that he or she would be disruptive or distracting to employees during an inspection.
“While these tactics and others may not prevent OSHA from seeking to have the organizer or activist participate in the inspection, they are strategies that may help employers with inspections,” the Seyfarth Shaw attorneys said.
Eric J. Conn of the firm of Epstein Becker Green takes a harder line. Despite OSHA’s interpretation, he said, “the plain language of the standard makes it clear that such involvement by a third-party union representative is not permitted under the law.” Thus, employers may exclude third parties by demanding and challenging a warrant when that happens, he said.
“If confronted with such a situation, employers should consult with legal counsel before allowing any non- employee third party to participate,” Conn observed.
If the non-employee is permitted on premises, he stressed that employers should be explicit about who bears responsibility for any PPE and injuries, and determine whether the outsider is trained on hazards that may be present.
You also may check on whether the person has necessary security clearances for sensitive activities that may be in view to protect any proprietary processes from being revealed, Conn noted.
Once an OSHA inspection begins, employers also have a right to accompany the compliance officer at all times during the walkaround, and to take side- by-side photographs or other physical evidence that OSHA takes during the inspection, he added.
Conn also said you should keep in mind that after the inspection, employers have the right to contest OSHA’s citations, which are nothing more than allegations. “OSHA is not the final word, and there is a body of independent Administrative Law Judges who hear challenges to OSHA citations.”
The agency’s enabling law requires that inspections be conducted in a reasonable manner, Conn points out. “It is this requirement of reasonableness that gives employers the right to push back on overly burdensome or disruptive inspection requests.”
For a more detailed article on handling OSHA inspections, see ACWI Advance, 10-15-13, Page 4.