On Sept. 26, ABC, as a steering committee member of the Coalition for Workplace Safety, and 40 other employer organizations sent a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections calling out the U.S. Department of Labor’s Occupational Safety and Health Administration for its Worker Walkaround Representative Designation Process proposed rulemaking and the politicization of the agency that the rulemaking exemplifies. The proposed rule would allow an employee to choose a third-party representative, such as an outside union representative, to accompany an OSHA inspector into nonunion facilities. Read CWS’s press release.

According to the CWS letter:

• The proposed rule contradicts the plain language of OSHA’s governing regulations, longstanding agency guidance and past interpretations of the Occupational Safety and Health Act and could very likely result in unmanageable OSHA inspections with many different third-party representatives.
• The proposal conflicts with federal labor law, is contrary to the principles of workplace democracy and potentially violates the wishes of the workers.
• The proposal interferes with, dilutes and undermines OSHA’s credibility and the inspections’ intended sole focus of ensuring workplace health and safety.
• Congress has not granted authority to OSHA to include nonemployee union organizers or other third-party individuals on walkarounds at employers’ private property.
• The administration is attempting to politicize the agency to achieve its goal of increasing union density at all costs, and the committee should continue its oversight efforts to rein in these misguided policies and use of resources.

To learn more about the rule and what employers can do to prepare, see ABC general counsel Littler Mendelson’s analysis of the proposal. In addition, watch ABC’s members-only webinar on OSHA Developments Affecting the Construction Industry, which is archived in ABC’s Academy.

ABC plans to submit comments opposing the proposal by the deadline of Oct. 30 unless an extension is granted. On Sept. 21, CWS wrote to OSHA requesting a 60-day extension. ABC members are also encouraged to submit comments on regulations.gov.

Background:

On Aug. 30, OSHA issued a proposed rule on Worker Walkaround Representative Designation Process, which would allow an employee to choose a third-party representative, such as an outside union representative, to accompany an OSHA inspector into nonunion facilities.

ABC issued a statement opposing the proposed rule, saying, “ABC is deeply disappointed that the Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “This proposal does nothing to promote workplace safety and it will have a substantial negative impact on the rights of employers and their employees.”

“By allowing outside union representatives access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Brubeck. “Unfortunately, many outside union organizer representatives have a biased agenda that is not focused on safety or health, which could distract OSHA inspectors from their primary purpose of workplace safety.

“OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results," said Brubeck. “For example, in ABC’s 2023 Safety Performance Report, top-performing STEP participants achieved a 688% improvement in safety performance compared to the U.S. Bureau of Labor Statistics construction industry average in 2022.”

On Feb. 21, 2013, OSHA issued a letter of interpretation endorsing union representatives and other nonemployee third parties accompanying OSHA inspectors on walkaround inspections at nonunion workplaces, which ABC adamantly opposed, expressing serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.  

ABC will continue to monitor this issue and provide updates as they become available.