By Ruder Ware Alumni
May 20, 2014
This past month, the federal Occupational Safety and Health Administration (OSHA) caught the employer community off guard with an unexpected, union-friendly pronouncement, one that provides labor unions free reign to infiltrate non-union workplaces.
On April 5, 2013, OSHA publicly announced [through a letter of interpretation/Standard Interpretation to the United Steelworkers Union dated February 21, 2013, but not released until April 5, 2013] that during inspections of non-union workplaces, employees are permitted to seek representation from anyone including, significantly, agents from outside labor unions (even if the specific union is not the bargaining representative of employees at the workplace). Employees have always been able to designate outside third-party representatives in connection with workplace investigations (e.g., industrial hygienist or safety consultant). However, the expansion of this policy initiative/standard to include outside union personnel when the union is not the bargaining representative of employees is contrary to the language of OSHA’s governing regulations, as well as longstanding agency guidance and past practice. This controversial decision may be challenged because OSHA failed to engage in notice and comment rulemaking before revising the standard.
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