On Oct. 16, the U.S. Department of Labor’s Occupational Safety and Health Administration issued an extension of the comment period for its Worker Walkaround Representative Designation Process proposed rule, 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. OSHA extended the comment period from Oct. 30 to Nov. 13. On Sept. 21, ABC, as a steering committee member of the Coalition for Workplace Safety, wrote to OSHA requesting a 60-day extension. ABC will submit comments in opposition to the rule and ABC members are also encouraged to submit comments on regulations.gov.

On Sept. 26, ABC joined 40 other CWS members in sending a letter to the U.S. House Education and the Workforce Committee’s Subcommittee on Workforce Protections calling out OSHA for its proposed rule and the politicization of the agency that the rulemaking exemplifies. Read CWS’s press release and letter.

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, OSHA Developments Affecting the Construction Industry, which is archived in the ABC Academy.

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.