On Nov. 13, Associated Builders and Contractors filed comments urging the Occupational Safety and Health Administration to withdraw the Worker Walkaround Representative Designation Process proposed rule, which would allow employees to choose a third-party representative, such as an outside union representative or community organizer, to accompany an OSHA safety inspector into nonunion workplaces during site inspections. ABC also signed on to comments submitted by the Coalition for Workplace Safety and Construction Industry Safety.

“The Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now,” said Greg Sizemore, ABC vice president of health, safety, environment and workforce development in ABC’s press release about the proposed rule. “This power grab does nothing to promote workplace health and safety, and instead pushes the administration’s ‘all-of-government’ agenda to encourage unions and collective bargaining. 

“The potential harm that small construction contractors face here is very high,” said Sizemore. “OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results. For example, according to ABC’s 2023 Safety Performance Report, top-performing contractors that participate in ABC’s STEP Safety Management System achieved a 688% improvement in safety performance compared to the U.S. Bureau of Labor Statistics construction industry average in 2022. 

“It is especially concerning that the proposed rule fails to provide clarity in a number of key areas,” said Sizemore. “There is no restriction on the number of different third-party representatives who may be present for a single inspection, nor on how many employees may request different representatives. Additionally, the rule fails to provide any safety expertise criteria for the selection of third-party representatives. It also gives no guidance on how OSHA or an inspector should approve these requests or what is ‘reasonably necessary.’ 

“Unfortunately, this overreach allows anyone and everyone to become an authorized employee representative,” said Sizemore. “By allowing outside union agents 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. Not only does the proposed rule negatively impact the rights of employers, but it also ignores the rights of the majority of employees who have not authorized any union to represent them. Likewise, by allowing a nonmajority community organizer to participate in a walkaround, the proposal could distract the OSHA safety inspector from their primary purpose of workplace safety. 

“Because the proposed rule has the potential of allowing anyone on the jobsite, construction employers are faced with serious safety concerns,” said Sizemore. “OSHA’s rule poses unnecessary risk to the individual joining the inspection and others on the jobsite if the authorized person is not trained to safely walk a construction jobsite. The rule does not include any requirement that the authorized person be equipped or conduct themselves to the same standards as OSHA safety inspectors. Further, the proposal fails to answer who is legally responsible if the third party gets injured during the inspection or harms someone else.”

Visit ABC’s Regulatory Roundup to learn more about the Worker Walkaround proposed rule.