Companies fear union intrusion in new OSHA walkaround rule

Companies are worried that a new federal rule could make it easier for third parties like outside union officials to accompany federal safety officials during inspections of factories, an employment lawyer told a recent plastics industry conference.

But other workplace safety experts say the new Walkaround Representation Rule from the Occupational Safety and Health Administration could make workplaces safer.

The walkaround rule, a longtime standard that was updated earlier this year, was among the OSHA changes highlighted by labor and employment attorney Nelva Smith Seymour during a presentation at the Environmental Health & Safety Summit Aug. 7-8 in Indianapolis.

Smith Seymour, an attorney with Columbus, Ohio-based Steptoe & Johnson PLLC, said the previous rule allowed for union representation (in a union shop), a plant manager, industrial hygienist or safety expert to accompany the OSHA inspector.

The revised rule may allow a union business agent or union official in a nonunion business to accompany the inspection.

"This was upsetting to the employer industry. ... It basically allows a possible union person ... to point out issues and insert themselves in the workplace where they would not have the ability to before. There is that concern out there," she said.

Smith Seymour told attendees at the summit, which was organized by the Manufacturers Association for Plastics Processors and the Association for Rubber Products Manufacturers, that there is no specific guidance in the OSHA inspector's manual that details what to look for.

"So a compliance officer in Toledo could be completely different than an officer from Cincinnati," she said.

Under the revised walkaround rule, proprietary information could be at risk as well, Smith Seymour said.

"The rule does not explain or take into account how the employer would shield its confidential information or trade secrets from third parties that might be brought into the workplace," Smith Seymour told the audience. "In addition, the rule does not exclude a third-party plaintiff's attorney from being designated and brought in by the [compliance officer].

"How do I protect my trade secrets from a third party?"

One avenue is to label documents or folios as "confidential trade secrets," which OSHA typically has to honor, she said.

"One of the things to think about is having that third party sign off on that confidentiality," she said. "If the compliance officer signs off, the third party has to [sign off] as well."

In addition, "employers may decide to consent only to the compliance officer, have its own expert, require a warrant and move to quash it, under certain circumstances," according to Smith Seymour.

The new walkaround rule also attracted interest at a July 24 OSHA oversight hearing in Congress, where another workplace safety expert said third-party walkarounds can protect workers if they fear retaliation for talking to OSHA inspectors.

"It does protect workers' health and safety," said Jordan Barab, who was deputy assistant secretary of OSHA during President Barack Obama's administration. "We know that if there isn't a walkaround representative and OSHA inspectors are then supposed to just talk to a number of employees, that employees are often intimidated. They often get punished or they feel they will be punished if they talk to OSHA inspectors."

In prepared testimony at the hearing before the House Subcommittee on Workforce Protections, Barab said he often served as the workers' representative on OSHA walkarounds when he was a safety official for the American Federation of State, County and Municipal Employees, including in workplaces the union did not represent.

"The employers never accused me of disrupting the workplace, stealing business information, organizing workers or doing anything except ensuring that the workers were provided with a safe workplace," Barab said.

But others at the hearing, like Rep. Virginia Foxx, R-N.C., said the new walkaround rule could allow inexperienced third-party representatives onto work sites.

Foxx named union organizers and a "community activist without safety experience" as walkaround representatives that would be allowed, and she questioned what they would contribute to safety.

"The final walkaround rule dramatically lowers the qualification standards for individuals who are allowed to participate in an OSHA job site inspection," Foxx said.

Felicia Watson, an employment lawyer with Littler Mendelson PC in Washington, criticized the new walkaround rule in her testimony.

"That person might not be familiar with the job site, they might not be familiar with the employees and what the requirements would be," Watson said. "I don't think it lends anything to the process of improving worker safety, certainly, and improving worker representation."

But Rep. Haley Stevens, D-Mich., said union officials can offer broad safety knowledge as walkaround representatives.

"Many of my Republican colleagues believe that allowing union third parties on inspections would lead to surreptitious organizing campaigns," Stevens said, arguing instead that union organizing campaigns take months or years and can't be done on walkarounds.

Barab said the new OSHA rule increases qualifications that walkaround representatives must have, and he said OSHA inspectors have the authority to bar third parties if their conduct disrupts safety reviews.

"This is not a real problem," he added.

This was upsetting to the employer industry. ... It basically allows a possible union person ... to point out issues and insert themselves in the workplace where they would not have the ability to before. There is that concern out there."

Nelva Smith Seymour

Steptoe & Johnson PLLC