A recently published OSHA Letter of Interpretation (the “Sallman Letter”) could have a profound effect on how OSHA inspections are conducted. According to the Sallman Letter, employees at a workplace without a collective bargaining agreement may designate a person affiliated with a union to act as their “personal representative” for OSH Act purposes. Employees may also designate these persons to act on their behalf as a walkaround representative during an OSHA inspection. This novel interpretation creates new threats to the protection of proprietary information, the risk of tort liability and opens the door to union organizing campaigns.
The Sallman Letter was written in response to a recent request for a letter of interpretation from the United Steelworkers Union. Specifically, OSHA was asked: “(1) May one or more workers designate a person who is affiliated with a union without a collective bargaining agreement at their workplace or with a community organization to act as their “personal representative” for OSH Act purposes; and (2) May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.” OSHA answered yes to both questions.
OSHA maintains its interpretation is consistent with past practices – this claim is a stretch at best. OSHA's own regulation, 29 CFR 1903.8(c), states that "the representative authorized by the employees shall be an employee of the employer." OSHA regulations have permitted the involvement of representatives in activities such as participating in informal conferences and contesting the abatement period in OSHA citations. Before the Sallman Letter, OSHA has also occasionally permitted outside experts such as industrial hygienists or safety engineers to accompany compliance officers during an inspection or “walkaround” where, according to the judgment of the compliance officer, good cause has been shown that an expert’s assistance is “reasonably necessary to the conduct of an effective and thorough physical inspection.” 29 C.F.R. § 1903.8(c). These experts had technical expertise to assist the compliance officer to assess safety or health issues during an inspection. But they have never been characterized as representatives of the employees.
Now, according to the Sallman Letter, representatives are deemed “reasonably necessary” when they will “make a positive contribution to a thorough and effective inspection.” OSHA, however, has provided no objective standard by which compliance officers may determine whether a potential representative “makes a positive contribution….” The Sallman Letter merely provides some examples to illustrate what may constitute a “positive contribution,“ such as a representative’s experience in evaluating similar worksites, fluency in a relevant language, or the ability to simply make an employee feel more comfortable. Such a broad and subjective definition leaves the phrase open to unpredictable and abusive interpretations.
Regardless of the representative’s identity, employers are now faced with increased threats to their proprietary information. OSHA employees have a statutory duty to protect business confidential and trade secret information and are subject to criminal prosecution for knowingly violating this law – but this law applies to government employees only. No such duty would apply to these outside representatives. There is no regulation or statute governing whether or how employers can protect their trade secret, business confidential information when community group members or union members are permitted to join the compliance officer conducting the inspection. Employers should therefore consider requiring the representative to sign a confidentiality agreement as a condition of entry into the facility, forbidding disclosure of business confidential and trade secret information to anyone other than members of the OSHA team conducting the inspection.
While there is a low likelihood, this representative may also be injured during the course of an inspection; e.g., he may fall down stairs, trip and fall, etc. Since he is not an employee, there is no workers compensation bar to protect the employer from any potential negligence claim the representative may have for injuries sustained during the inspection. Employers should therefore also consider requiring the representative to sign a release from liability as a condition of entry, should he be injured during the inspection.
And if the individual is a union representative, OSHA may open the doors to unionizing efforts at a non-unionized facility. During an OSHA interview, OSHA routinely asks the employee for name, home address, home phone number and about various safety and health issues, which frequently become citations. Unions often argue that unionization helps make the workplace safer. Based on the freedoms bestowed upon union representatives in the Sallman Letter, the representative who attends the OSHA interviews will have access to employee contact information and knowledge about specific safety and health issues, thus opening a new avenue to starting an organizing campaign.
For decades, the Supreme Court of the United States has held that under the National Labor Relations Act (“NLRA”) an employer may prevent nonemployees from conducting unionizing activities on its property if reasonable efforts by the union to contact the non-unionized employees through other channels of communication can be made. See, e.g., Lechmere, Inc. v. NLRB, 502 U.S. 527, 537-40 (1992); NLRB v. Babcock and Wilcox Co., 351 U.S. 105, 112-14 (1956). The exception to this rule is a narrow one. Lechmere, Inc. at 539. Where a union can contact non-unionized employees via any other means, such as by e-mail, telephone calls, visits to their homes, billboards, signage, etc., the union member has no right to access the non-unionized facility. Id. Permitting a union representative into an employer’s non-unionized facility as a representative during an OSHA inspection could be an effective union strategy for commencing or furthering a unionizing campaign on the property. As discussed above, the union representative will have an enhanced understanding of any health and safety issues that may exist in the facility and will be able to demonstrate this knowledge to non-unionized employees, advocating that unionization would make the workplace safer.
In order to protect its interests during an inspection, the employer should ask all of the members of the OSHA inspection team for their credentials at the opening conference. By regulation, the inspection team members must show them and if you discover at this point that a team member is not an OSHA employee, you should ask why he is necessary to the inspection. Some other useful questions to ask include: "What is his alleged expertise and reason for participating in the inspection?" "Who is his employer?" "How did he become involved in the inspection?" The answers to these questions address whether this person can in good faith serve as a representative and will provide the employer with information for challenging his role as a “representative.”
Based on the answers to these questions, the employer should discuss its concerns about the representative with the compliance officer before the inspection begins. If OSHA lacks a search warrant, the employer has the legal right to deny OSHA entry, or limit consent to an inspection by OSHA employees only and deny entry to the representative. Should OSHA decide to seek a search warrant, the employer will have an opportunity to challenge it before a judge, raising the many troubling issues discussed above (that is, the possibility of harmful proprietary information disclosures, potential tort liability, NLRA violations, and that the Sallman Letter is simply an unreasonable interpretation contrary to the express terms of the regulation). While it is rarely advantageous for an employer to require OSHA to seek a warrant, in this case, the process may aid the employer by possibly preventing the representative access, or at least putting protections in place to secure the employer’s interests during the inspection.
For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.