Should union representatives be allowed to accompany federal safety inspectors on non-union employers’ jobsites? The U.S. Department of Labor issued a proposal in August 2023 titled the “Worker Walkaround Representative Designation Process.” The purpose of the proposal is to clarify who is eligible to accompany OSHA compliance officers during workplace inspections.

According to the proposal document (Docket No. OSHA–2023–00080), “OSHA is proposing to amend its Representatives of Employers and Employees regulation to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when they are reasonably necessary to aid in the inspection.”

The docket was open for comment submissions until October 30, 2023; however, many wrote in requesting a deadline extension of 60 days to December 31, 2023, to provide ample time to prepare and submit responses. The deadline was extended to November 13, 2023.

Responses are public information and can be found at regulations.gov with Docket No. OSHA–2023–00080. Over 11,000 public and private responses were submitted for and against the proposal.

Bill Cassidy, M.D., Ranking Member, Senate Committee on Health, Education, Labor, and Pensions submitted a response opposing the ruling, “At issue is whether the employee representative must also be an employee; and, if employees are permitted to designate a third-party representative, whether that representative must offer expertise relevant to the inspection. The current regulation is clear that the employee representative must also be an employee of that employer ‘unless the OSHA inspector determines good cause for a third party to be present to conduct an effective examination of the workplace.’”

The Ohio Manufacturer’s Association finds issue with the language used to define those who are eligible to assist an OSHA compliance officer on the jobsite, “These changes do not make the workplace safer or healthier. They simply remove any qualifying barriers to who can traipse through a worksite. Permitting just about anyone to accompany an OSHA inspection would convert the inspection from being focused on workplace safety to being an organizing tact for unions, a litigation strategy for attorneys, and an opportunity to harass employers,” wrote James Lee, director of public policy. 

We reached out to union and non-union flooring industry professionals, asking for their feedback on the proposal and how it will impact commercial projects going forward should it pass. 

David Gross, Executive Director, International Training & Standards Alliance (INSTALL)

While there is much discussion and spotlighting on what the proposed rule change means in terms of union organizing, this focus misses the bigger question: Just who should be the employee’s representative in these inspection instances? 

There was an interpretation issued in February of 2013 known as the “Fairfax Memo” that addressed this issue. When researching this subject more deeply one finds there is more than a union/non-union issue here. I would ask why the discussion is being framed as solely union-based. It could be just as easy to bring in a third-party that is a competing business owner, lawyer, environmental group, or industrial hygienist.

Those that argue against this proposed rule change would like to see only an employee of the company be able to act as a walkaround representative of the company in the OSHA inspection process. However, that has its own pitfalls. Would the employee that relies on this employer for their livelihood be willing to properly address safety issues that may be present? How would the selection process of the employee representative be accommodated to assure of competency and impartiality. I believe this scenario is just as precarious as letting third-party entities be the accompaniment.

There is much to work out here. The development and clarification of OSHA regulations is a very laborious and time-consuming task when done correctly. OSHA is about worker safety and I have faith they will consider the many competing viewpoints to arrive at a conclusion. The more important issue is worker safety. 

I can speak for INSTALL as a component of the United Brotherhood of Carpenters Union and say that we highly value worker safety. In the long run it is good business. We want our members to have long productive lives that allow them to enjoy the fruits of their labor. Our industry partners will benefit from lower insurance claims and costs along with an experienced workforce that capitalizes on longevity.

We appreciate the work that OSHA does and are interested in all workers—union or not—having the safest work environment possible. An employer that cuts corners on safety may think they are gaining a competitive advantage in saving money, but over time, the cost could be very significant in human tragedy.

Rod Von Busch, Vice President of Operations, C.D.I. Floors, and Advisory Board Chair, International Certified Flooring Installers (CFI) Advisory Board

The intent of this proposal is a complete mystery to me. What possible advantage does OSHA believe there might be? The only possible scenario I can imagine, short of some political motive, is to assist the OSHA inspectors in some training process. But frankly, if OSHA is incapable of properly training their personnel without the union involvement that’s a poor state of affairs. OSHA is supposed to be the experts when it comes to safety and jobsite hazards.  

Our company has teamed with local OSHA on several occasions for education events, and I have always found their staff very knowledgeable. If the goal is to partner with the contract community, why would they not go directly to the specific jobsite safety personnel for the assistance? I doubt that the union representatives are any more qualified than the general contractor’s safety managers. 

If assistance in training is not the case, then I would guess this is just a political move. However, what do the unions have to gain? I don’t normally consider myself a conspiracy theorist, and I’m not anti-union. The only advantage I can see for the union to have a presence on non-union jobsites is to have contact with those non-union workers. I certainly hope this is not the case. But the fact that I or anyone would consider this as a motive for the unions’ involvement is good reason for OSHA to reconsider this proposal. 

What is going to happen when the first non-union company calls foul claiming that they have been treated unfairly due to a union representative that is affiliated with one of their competitors influencing an OSHA’s jobsite review? Whoever dreamed up this idea apparently doesn’t recognize how complicated navigating these issues could become.

Paul Stuart, Co-founder, Go Carrera, and President, Stuart & Associates Commercial Flooring

The Occupational Safety and Health Administration’s (OSHA) proposed rule change allows “third parties” to accompany OSHA on project inspections. The rule states: “The representatives authorized by employees may be an employee of the employer or a third party.” Proponents say it will make the workplace safer if the employees elect a third party to accompany OSHA on walkthroughs.   

Employers have some rights when it comes to OSHA like having the ability to demand that OSHA obtain a warrant before conducting an inspection. This rule would have a unique and unclear effect on the construction industry. Contractors and specialty contractors often do not have property rights on the jobsites they perform at; thus, OSHA may not have to obtain a warrant as long as the building owner does not raise issue.  

The main concern is that union reps may be able to visit non-union projects. The crux of the concern lies in the potential for union representatives to participate in safety inspections of non-union jobsites. Critics argue that such an arrangement would serve as a conduit for recruitment of non-union companies’ employees and further cause undue scrutiny on the contractors and subcontractors operating in a non-union environment.  

Moreover, the ambiguity surrounding the employer's rights to refuse union reps as a “third party” causes more uncertainty in the workplace particularly surrounding trade and operational secrets. This type of regulation could open Pandora's box concerning the intentions of union reps and the resulting damage to non-union employers' operations. 

Another concern surrounds the liability of the third party should they be injured or cause injury to others while on site. It is unclear who would be liable in either of these events.  

The industry awaits further clarification and guidance on how the changes may be implemented. We all want a safe working environment; however, the intentions must be aligned with workplace safety where the well-being of workers is paramount.