If you asked 100 non-union employers whether they thought they would be required to admit union representatives to inspections of their facilities, probably 99 of them would say no. It turns out they are wrong, at least according to the Occupational Safety and Health Administration (OSHA) under President Obama.
In a little-publicized interpretative bulletin recently issued, OSHA opined that employees of a non-union employer can be represented by anyone he prefers, including an outside union agent. While OSHA maintains that this is merely a continuation of already existing policy, the fact remains that in the 40-plus years of its existence, OSHA has never provided such an interpretation in the past and there is nothing in the OSH Act or the implementing regulations which supports this guidance. In fact, OSHA’s guidance directly contradicts a previous interpretive letter which said that union representatives were not allowed at a non-union facility for an inspection.
Why should you care? Any time a government agency gives a union direct access to a non-union facility, employers should be concerned about the effect it can have on employees. During an OSHA inspection, it is inevitable that the union agent will make his presence known to other employees, no matter how you try to curtail his activities.
If you are going to be inspected, can you do anything to keep a union out? You can try. In response to an inspection notice, employers can tell OSHA that it can proceed with the inspection, but that union agents will not be allowed onsite. OSHA (and, to a lesser degree, the union) will be given a choice whether they want to proceed with the inspection or seek an inspection warrant from a federal judge.
Is this a sign of more bad news to come? Potentially. Over the years, the National Labor Relations Board has reversed itself repeatedly on the issue of whether Weingarten rights apply in non-union workforces. In Weingarten, the U.S. Supreme Court found that employees in unionized workplaces have the right to the presence of a union representative during any management inquiryhe employee reasonably believes may result in discipline, provided that he asks for such a representative. Presently, the Board has found that Weingarten rights apply only in union workforces, but under previous administrations, the Board had broadened the holding in Weingarten to apply in non-union settings as well. This administrative action suggests that Weingarten may be expanded by the Board.
- Dan Handman