Rule2024-06572
Worker Walkaround Representative Designation Process
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 1, 2024
Effective
May 31, 2024
Issuing agencies
Labor DepartmentOccupational Safety and Health Administration
Abstract
In this final rule, OSHA is amending 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, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OSHA concluded that these clarifications aid OSHA's workplace inspections by better enabling employees to select representative(s) of their choice to accompany the CSHO during a physical workplace inspection. Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards.
Full Text
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<title>Federal Register, Volume 89 Issue 63 (Monday, April 1, 2024)</title>
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[Federal Register Volume 89, Number 63 (Monday, April 1, 2024)]
[Rules and Regulations]
[Pages 22558-22601]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06572]
[[Page 22557]]
Vol. 89
Monday,
No. 63
April 1, 2024
Part IV
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1903
Worker Walkaround Representative Designation Process; Final Rule
Federal Register / Vol. 89 , No. 63 / Monday, April 1, 2024 / Rules
and Regulations
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1903
[Docket No. OSHA-2023-0008]
RIN 1218-AD45
Worker Walkaround Representative Designation Process
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: In this final rule, OSHA is amending 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, in the judgment of the CSHO, good cause has been shown why they
are reasonably necessary to aid in the inspection. In the final rule,
OSHA also clarified that a third party may be reasonably necessary
because of their relevant knowledge, skills, or experience with hazards
or conditions in the workplace or similar workplaces, or language or
communication skills. OSHA concluded that these clarifications aid
OSHA's workplace inspections by better enabling employees to select
representative(s) of their choice to accompany the CSHO during a
physical workplace inspection. Employee representation during the
inspection is critically important to ensuring OSHA obtains the
necessary information about worksite conditions and hazards.
DATES:
Effective date: This final rule is effective on May 31, 2024.
Docket: To read or download comments or other information in the
docket, go to Docket No. OSHA-2023-0008 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
All comments and submissions are listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> index; however, some information (e.g., copyrighted
material) is not publicly available to read or download through that
website. All comments and submissions, including copyrighted material,
are available for inspection through the OSHA Docket Office. Contact
the OSHA Docket Office at (202) 693-2350 (TDY number 877-889-5627) for
assistance in locating docket submissions.
When citing exhibits in the docket in this final rule, OSHA
includes the term ``Document ID'' followed by the last four digits of
the Document ID number. Citations also include, if applicable, page
numbers (designated ``p.''), and in a limited number of cases a
footnote number (designated ``Fn.''). In a citation that contains two
or more Document ID numbers, the Document ID numbers are separated by
semi-colons (e.g., 0001; 0002).
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Frank Meilinger, Director, OSHA Office of
Communications, telephone: (202) 693-1999; email:
<a href="/cdn-cgi/l/email-protection#2b464e424742454c4e59054d594a45484258196b4f4447054c445d"><span class="__cf_email__" data-cfemail="b5d8d0dcd9dcdbd2d0c79bd3c7d4dbd6dcc687f5d1dad99bd2dac3">[email protected]</span></a>.
General and technical inquiries: Scott Ketcham, OSHA Directorate of
Construction, telephone: (202) 693-2020; email: <a href="/cdn-cgi/l/email-protection#5f343a2b3c373e32712c3c302b2b1f3b303371383029"><span class="__cf_email__" data-cfemail="a3c8c6d7c0cbc2ce8dd0c0ccd7d7e3c7cccf8dc4ccd5">[email protected]</span></a>.
Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's web page
at <a href="https://www.osha.gov">https://www.osha.gov</a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. The OSH Act and OSHA's Inspection Authority
B. Regulatory History and Interpretive Guidance
C. Litigation and Subsequent Agency Enforcement Actions
III. Legal Authority
IV. Summary and Explanation of the Rule
A. The Need for and Benefits of Third-Party Representation
1. Comments Supporting Third-Party Representation
2. Comments Opposed to Third-Party Representation
3. Conclusion on the Need for and Benefits of Third-Party
Representatives
B. The ``Good Cause'' and ``Reasonably Necessary'' Requirement
1. Comments That Supported Removing the CSHO's ``Good Cause''
and ``Reasonably Necessary'' Determination Requirement in Some Form
2. Comments That Generally Supported Retaining the Existing
``Good Cause'' and ``Reasonably Necessary'' Requirement and Opposed
the NPRM's Alternatives
3. Conclusion on the ``Good Cause'' and ``Reasonably Necessary''
Requirement
C. Role of the Employee Representative in the Inspection
D. Constitutional Issues
1. First Amendment Issues
2. Fourth Amendment Issues
3. Fifth Amendment Issues
4. Due Process Issues
5. Tenth Amendment Issues
E. National Labor Relations Act and Other Labor-Related Comments
F. Administrative Issues
1. Administrative Procedure Act
a. Consistency With the OSH Act
b. Consistency With Other OSHA Regulations
c. Basis for the Rule
d. Specificity of the Rule
2. Public Hearing
G. Practical and Logistical Issues
H. Liability Issues
I. Other Issues
V. Final Economic Analysis and Regulatory Flexibility Act
Certification
A. Introduction
B. Costs
1. Rule Familiarization
2. Training
3. Providing PPE
4. Policy Development, Revisions, and Planning
5. Legal Advice and Consultations
6. Insurance and Liability Costs
7. Protecting Trade Secrets and Confidential Business
Information
8. Hiring Experts
9. Costs to State Plan States
10. Societal Costs
C. Benefits
D. Regulatory Flexibility Certification
E. Small Business Regulatory Enforcement Fairness Act
VI. Office of Management and Budget (OMB) Review Under the Paperwork
Reduction Act
VII. Federalism
VIII. State Plans
IX. Unfunded Mandates Reform Act
X. Consultation and Coordination With Indian Tribal Governments
XI. Environmental Impact Assessment
XII. List of Subjects
XIII. Authority and Signature
I. Executive Summary
Since the Occupational Safety and Health Act of 1970 (OSH Act or
Act) was passed in 1970, section 8(e) of the OSH Act has required that,
subject to regulations issued by the Secretary of Labor (via OSHA), a
representative of the employer and a representative authorized by
employees ``shall'' each have the opportunity to accompany OSHA during
the physical inspection of the workplace (i.e., ``the walkaround'') for
the purpose of aiding OSHA's inspection. One of section 8(e)'s
implementing regulations, at 29 CFR 1903.8(c), provided that a
representative authorized by employees ``shall be an employee(s) of the
employer.'' However, that regulation also created an exception for ``a
third party who is not an employee of the employer'' when, ``in the
judgment of the Compliance Safety and Health Officer, good cause has
been shown'' why the third party was ``reasonably necessary to the
conduct of an effective and thorough physical inspection of the
workplace. . . .'' 29 CFR 1903.8(c) (1971). The regulation pointed to
two non-exhaustive examples--a safety engineer and an industrial
hygienist.
While OSHA has long permitted employee representatives to be third
parties pursuant to 29 CFR 1903.8(c), in
[[Page 22559]]
2017, a district court concluded that interpretation was not consistent
with the regulation. Because the first sentence of 1903.8(c) explicitly
stated that employee representatives ``shall be employees of the
employer,'' it rejected OSHA's interpretation as ``flatly
contradict[ing]'' the regulation. Nat'l Fed'n of Indep. Bus. v.
Dougherty, No. 3:16-CV-2568-D, 2017 WL 1194666, at *11 (N.D. Tex. Feb.
3, 2017) (NFIB v. Dougherty). However, the district court also
recognized that OSHA's interpretation that third parties could be
employee representatives was a ``persuasive and valid'' reading of
section 8(e) of the OSH Act. Id. at 12. The court concluded that ``the
Act merely provides that the employee's representative must be
authorized by the employees, not that the representative must also be
an employee of the employer.'' Id.
This final rule has a narrow purpose and makes two changes to
1903.8(c). First, in response to the district court's decision, it
clarifies that consistent with Section 8(e) of the OSH Act, employee
representatives may either be an employee of the employer or a third
party. Second, consistent with OSHA's longstanding practice, it
clarifies that a third-party representative authorized by employees may
have a variety of skills, knowledge, or experience that could aid the
CSHO's inspection. The latter revision clarifies that employees'
options for third-party representation during OSHA inspections are not
limited to only those individuals with skills and knowledge similar to
that of the two examples (industrial hygienist or safety engineer)
provided in the prior regulatory text. OSHA has retained the
longstanding requirement in 1903.8(c) that third-party representatives
may accompany the CSHO when good cause has been shown why they are
reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace.
These revisions to 1903.8(c) do not change the CSHO's authority to
determine whether good cause has been shown why an individual is
reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace. See 29 CFR 1903.8(b). The
revisions also do not affect other provisions of section 1903.8, such
as the CSHO's authority to deny the right of accompaniment to any
individual whose conduct interferes with a fair and orderly inspection
(29 CFR 1903.8(d)), the requirement that the conduct of inspections
preclude unreasonable disruption of the operations of the employer's
establishment (29 CFR 1903.7(d)), or the employer's right to limit
entry of employee authorized representatives into areas of the
workplace that contain trade secrets (29 CFR 1903.9(d)).
As discussed below, OSHA's revisions will better align the language
in 1903.8(c) with the language and purpose in section 8(e) of the OSH
Act, 29 U.S.C. 657(e). By clarifying who can serve as employees'
walkaround representative, the rule facilitates improved employee
representation during OSHA inspections. Employee representation is
vital to thorough and effective OSHA inspections, and OSHA finds these
changes will improve the effectiveness of OSHA inspections and benefit
employees' health and safety. OSHA determined that the rule
appropriately recognizes employees' statutory right to a walkaround
representative and OSHA's need for thorough and effective inspections
while still protecting employers' privacy and property interests.
Additionally, OSHA has concluded that this rule will not increase
employers' costs or compliance burdens.
II. Background
A. The OSH Act and OSHA's Inspection Authority
The OSH Act was enacted ``to assure so far as possible every
working [person] in the Nation safe and healthful working conditions
and to preserve our human resources'' (29 U.S.C. 651(b)). To effectuate
the Act's purpose, Congress authorized the Secretary of Labor to
promulgate occupational safety and health standards (see 29 U.S.C.
655). The Act also grants broad authority to the Secretary to
promulgate rules and regulations related to inspections,
investigations, and recordkeeping (see 29 U.S.C. 657).
Section 8 of the OSH Act states that OSHA's inspection authority is
essential to carrying out the Act's purposes and provides that
employers must give OSHA access to inspect worksites ``without delay''
(29 U.S.C. 657(a)). Section 8(e) of the Act provides specifically that
``[s]ubject to regulations issued by the Secretary, a representative of
the employer and a representative authorized by [its] employees shall
be given an opportunity to accompany [the CSHO] for the purpose of
aiding such inspection'' (29 U.S.C. 657(e)). Section 8(g) further
authorizes the Secretary to promulgate such rules and regulations as
the agency deems necessary to carry out the agency's responsibilities
under this Act, including rules and regulations dealing with the
inspection of an employer's establishment (29 U.S.C. 657(g)).
B. Regulatory History and Interpretive Guidance
On May 5, 1971, OSHA proposed rules and general policies for the
enforcement of the inspection, citation, and penalty provisions of the
OSH Act. (36 FR 8376, May 5, 1971). OSHA subsequently issued
regulations for inspections, citations, and proposed penalties at 29
CFR part 1903. (36 FR 17850, Sept. 4, 1971).
The OSH Act and 29 CFR part 1903 provide CSHOs with significant
authority to conduct OSHA's inspections. Part 1903 contains specific
provisions that describe the CSHO's authority and role in carrying out
inspections under the OSH Act. For example, the CSHO is in charge of
conducting inspections and interviewing individuals and has authority
to permit additional employer representatives and representative(s)
authorized by employees to accompany the CSHO during the physical
inspection of the workplace. See 29 CFR 1903.8(a). In addition, the
CSHO has the authority to resolve any disputes about who the employer
and employee representatives are and to deny any person the right of
accompaniment if their conduct interferes with a fair and orderly
inspection. See 29 CFR 1903.8(b), (d). The CSHO also has authority to
use various reasonable investigative methods and techniques, such as
taking photographs, obtaining environmental samples, and questioning
individuals while carrying out their inspection. 29 CFR 1903.7(b); see
also 1903.3(a).
Section 1903.8(c), the subject of this rulemaking, authorizes the
CSHO to determine whether third-party representatives would aid OSHA's
physical inspection of a workplace. Prior to this rulemaking, section
1903.8(c) provided: ``The representative(s) authorized by employees
shall be an employee(s) of the employer. However, if in the judgment of
the Compliance Safety and Health Officer, good cause has been shown why
accompaniment by a third party who is not an employee of the employer
(such as an industrial hygienist or a safety engineer) is reasonably
necessary to the conduct of an effective and thorough physical
inspection of the workplace, such third party may accompany the
Compliance Safety and Health Officer during the inspection.'' 29 CFR
1903.8(c) (1971). This paragraph, which primarily addresses employer
and employee representatives during inspections, had not been revised
since it was adopted in 1971.
[[Page 22560]]
Since issuing its inspection-related regulations, OSHA has provided
guidance on its interpretation of section 1903.8(c) and the meaning of
``representative authorized by employees'' for purposes of the OSHA
walkaround inspection. For example, on March 7, 2003, OSHA issued a
letter of interpretation to Mr. Milan Racic (Racic letter), a health
and safety specialist with the International Brotherhood of
Boilermakers (Document ID 0002). Mr. Racic asked whether a union
representative who files a complaint on behalf of a single worker could
then also act as a walkaround inspection representative in a workplace
that has no labor agreement or certified bargaining agent (Document ID
0002). In its response letter, OSHA stated that there was no
``provision for a walkaround representative who has filed a complaint
on behalf of an employee of the workplace'' (Document ID 0002).
On February 21, 2013, OSHA issued a letter of interpretation to Mr.
Steve Sallman (Sallman letter) of the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers
International Union (Document ID 0003). Mr. Sallman asked whether
workers at a worksite without a collective bargaining agreement could
designate a person affiliated with a union or a community organization
to act on their behalf as a walkaround representative. OSHA responded
in the affirmative, explaining that such person could act on behalf of
employees as long as they had been authorized by employees to serve as
their representative.
OSHA further explained that the right is qualified by 29 CFR
1903.8, which gives CSHOs the authority to determine who can
participate in an inspection. OSHA noted that while 1903.8(c)
acknowledged that most employee representatives will be employees of
the employer being inspected, the regulation also ``explicitly allows
walkaround participation by an employee representative who is not an
employee of the employer when, in the judgment of the OSHA compliance
officer, such representative is `reasonably necessary to the conduct of
an effective and thorough physical inspection' '' (Document ID 0003).
OSHA explained that such representatives are reasonably necessary when
they will make a positive contribution to a thorough and effective
inspection (Document ID 0003).
OSHA gave several examples of how an authorized employee
representative who was not an employee of the employer could make an
important contribution to the inspection, noting that the
representative might have a particular skillset or experience
evaluating similar working conditions in a different facility. OSHA
also highlighted the usefulness to workers and to the CSHO of an
employee representative who is bilingual or multilingual to better
facilitate communication between employees and the CSHO during an
inspection.
Additionally, OSHA noted that the 2003 Racic letter had
inadvertently created confusion among the regulated community regarding
OSHA's interpretation of an authorized employee representative for
walkaround inspection purposes. OSHA explained that the Racic letter
merely stated that a non-employee who files a complaint does not
necessarily have a right to participate in an inspection arising out of
that complaint, but that it did not address the rights of workers
without a certified or recognized collective bargaining agent to have a
representative of their own choosing participate in an inspection. OSHA
withdrew the Racic letter to eliminate any confusion and then included
its interpretation of 29 CFR 1903.8(c) as to who could serve as an
authorized employee representative when it updated its Field Operations
Manual (FOM) CPL 02-00-159 on October 1, 2015 (Document ID 0004). The
FOM explained that ``[i]t is OSHA's view that representatives are
`reasonably necessary', when they make a positive contribution to a
thorough and effective inspection'' and recognized that there may be
cases in which workers without a certified or recognized bargaining
agent would authorize a third party to represent the workers on the
inspection (Document ID 0004). OSHA noted that ``[t]he purpose of a
walkaround representative is to assist the inspection by helping the
compliance officer receive valuable health and safety information from
workers who may not be able or willing to provide such information
absent the third-party participants'' (Document ID 0004)
C. Litigation and Subsequent Agency Action
In September 2016, several years after OSHA issued the Sallman
letter, the National Federation of Independent Business (NFIB) filed a
suit in the district court for the Northern District of Texas
challenging the Sallman letter, arguing it should have been subject to
notice and comment rulemaking and that it conflicted with OSHA's
regulations and exceeded OSHA's statutory authority. NFIB v. Dougherty,
2017 WL 1194666. On February 3, 2017, the district court concluded that
OSHA's interpretation as stated in the Sallman letter was not
consistent with 29 CFR 1903.8(c) and such a change to a regulation
could not be made without notice and comment rulemaking. Id. at *11.
The district court held that the letter ``flatly contradicts a prior
legislative rule as to whether the employee representative must himself
be an employee.'' Id.
Nevertheless, the court rejected NFIB's claim that the Sallman
letter conflicted with the OSH Act, finding that OSHA's Sallman letter
of interpretation was ``a persuasive and valid construction of the
Act.'' Id. at *12. The court concluded that ``the Act merely provides
that the employee's representative must be authorized by the employees,
not that the representative must also be an employee of the employer.''
Id.
Following this decision, on April 25, 2017, OSHA rescinded the
Sallman letter (Document ID 0006). OSHA also revised the Field
Operations Manual to remove language that incorporated the Sallman
letter (CPL 02-00-163 (09/13/2019), Document ID 11544).
On August 30, 2023, OSHA published a notice proposing revisions of
29 CFR 1903.8(c) to clarify who may serve as a representative
authorized by employees for the purpose of OSHA's walkaround inspection
(88 FR 59825).
III. Legal Authority
The OSH Act authorizes the Secretary of Labor to issue safety and
health ``standards'' and other ``regulations.'' See, e.g., 29 U.S.C.
655, 657. An occupational safety and health standard, issued pursuant
to section 6 of the Act, prescribes measures to be taken to remedy an
identified occupational hazard. See 29 U.S.C. 652(8) (an occupational
safety and health standard ``requires conditions, or the adoption or
use of one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.''). In contrast, a ``regulation''
is issued pursuant to general rulemaking authority found, inter alia,
in section 8 of the Act, and establishes an ``enforcement or detection
procedure designed to further the goals of the Act generally.''
Workplace Health and Safety Council v. Reich, 56 F. 3d 1465, 1468 (D.C.
Cir. 1995). Although the U.S. Chamber of Commerce (Chamber of Commerce)
suggested that this rule should be subject to the requirement that
``occupational safety and health standards'' be ``reasonably
necessary''
[[Page 22561]]
under section 3(8) of the OSH Act, (Document 1952, p. 2), inspection-
related requirements, such as the requirements in 1903.8(c), are
properly characterized as regulations because they do not require
``conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful employment and places of employment.'' 29
U.S.C. 652(8).
In this rulemaking, OSHA is revising its existing regulation at
1903.8(c) pursuant to OSHA's authority under section 8 of the OSH Act.
See 29 U.S.C. 657(e) (describing the Secretary's authority to
promulgate regulations related to employer and employee representation
during an inspection); 657(g)(2) (describing the Secretary of Labor's
and the Secretary of Health and Human Services' authority to ``each
prescribe such rules and regulations as [they] may deem necessary to
carry out their responsibilities under this Act, including rules and
regulations dealing with the inspection of an employer's
establishment''). This rule clarifies employees' statutory right to a
walkaround representative under section 8 of the OSH Act and does not
impose any new substantive inspection-related requirements.
Several provisions of the OSH Act underscore OSHA's authority to
promulgate inspection-related requirements, including those that relate
to the rights of employees to have an authorized representative
accompany OSHA during a physical inspection of their workplace. Section
2 of the OSH Act states that the Act's express purpose is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions.'' 29 U.S.C. 651(b). To effectuate that
purpose, Congress provided OSHA with broad authority under section 8 to
conduct inspections of workplaces and records, to require the
attendance and testimony of witnesses, and to require the production of
evidence. See generally 29 U.S.C. 657. OSHA's ability to carry out
workplace inspections is critical to the OSH Act's entire enforcement
scheme. See 29 U.S.C. 658 (authorizing OSHA to issue citations for
violations following an inspection or investigation); 659 (citations
shall be issued within a reasonable time after inspection or
investigation). Moreover, any approved State occupational safety and
health plan must provide for an OSHA inspector's right of entry and
inspection that is at least as effective as the OSH Act. See 29 U.S.C.
667(c)(3).
In addition to granting OSHA broad authority to conduct workplace
inspections and promulgate regulations to effectuate those inspections,
Congress also recognized the importance of ensuring employee
participation and representation in the inspection process. The
legislative history of section 8 of the OSH Act shows Congress' intent
to provide representatives authorized by employees with an opportunity
to accompany the inspector in order to benefit the inspection process
and ``provide an appropriate degree of involvement of employees.'' S.
Rep. No. 91-1282 91st Cong., 2nd Sess. (1970), reprinted in Legislative
History of the Occupational Safety and Health Act of 1970 at 151 (Comm.
Print 1971). Senator Harrison A. Williams of New Jersey, who was a
sponsor of the bill that became the OSH Act, explained that the
opportunity for workers themselves and a representative of their
choosing to accompany OSHA inspectors was ``manifestly wise and fair''
and ``one of the key provisions of the bill.'' Subcomm. on Labor of the
Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess.,
reprinted in Legislative History of the Occupational Safety and Health
Act of 1970, at 430 (Comm. Print. 1971).
The OSH Act's legislative history further indicates that Congress
considered potential concerns related to the presence of a
representative authorized by employees at the inspection and ultimately
decided to expressly include this right in section 8(e) of the Act.
Congressional debate around this issue included concern from some
members of Congress that the presence in the inspection of a
representative authorized by employees would cause an undue burden on
employers or be used as ``an effort to ferment labor unrest.'' See
Comments of Congressperson William J. Scherle of Iowa, 92d Cong. 1st
Sess., reprinted in Legislative History of the Occupational Safety and
Health Act of 1970, at 1224 (Comm. Print 1971); see also Comments of
Congressperson Michel of Illinois, id. at 1057. Similarly, Senator
Peter Dominick of Colorado proposed an amendment to the Senate bill
that would have removed the right of a representative authorized by the
employees to accompany the CSHO and instead would have only required
that the CSHO consult with employees or their representative at ``a
reasonable time.'' Proposed Amendment No. 1056, 92d Cong. 1st Sess.,
reprinted in Legislative History of the Occupational Safety and Health
Act of 1970, at 370 (Comm. Print 1971). One of the stated reasons for
the proposed amendment was a concern that ``[t]he mandatory `walk-
around' provisions now in the bill could . . . lead to `collective
bargaining' sessions during the course of the inspection and could
therefore interfere both with the inspection and the employer's
operations.'' Id. at 372. This proposed amendment was rejected, and
section 8(e) of the OSH Act reflects Congress' considered judgment of
the best way to strike the balance between employers' concerns about
workplace disruptions and the critical importance of employee
representation in the inspection process.
And while section 8(e) underscores the importance of employer and
employee representation in OSHA's workplace inspection, the Act places
only one criterion on who can be an employer or employee representative
and that is that the representative ``aid[ ] such inspection.'' 29
U.S.C. 657(e). It does not state that the representative must be an
employee of the employer. See Matter of Establishment Inspection of
Caterpillar Inc., 55 F.3d 334, 338 (7th Cir. 1995) (``[T]he plain
language of Sec. 8(e) permits private parties to accompany OSHA
inspectors[.]''); NFIB v. Dougherty, 2017 WL 1194666, at *12 (``[T]he
Act merely provides that the employee's representative must be
authorized by the employee, not that the representative must also be an
employee of the employer.''). Instead, the Act authorizes the Secretary
of Labor (via OSHA) to issue regulations and determine who may be a
representative for purposes of the OSHA inspection. 29 U.S.C. 657(e).
Congress intended to give the Secretary of Labor the authority to issue
regulations related to determining the specifics and resolving the
question of who could be a representative for purposes of the
walkaround inspection. See Legislative History of the Occupational
Safety and Health Act of 1970, at 151 (Comm. Print 1971) (``Although
questions may arise as to who shall be considered a duly authorized
representative of employees, the bill provides the Secretary of Labor
with authority to promulgate regulations for resolving this
question.'').
The National Retail Federation (NRF) argued that the ``Saxbe
Amendment'' to the OSH Act demonstrates that an ``authorized''
representative must be ``one selected through the NLRA selection
process'' (Document ID 1776, p. 8). The Saxbe Amendment sought to
``clarif[y] and protect[ ] from abuse'' the right of accompaniment by
adding ``provisions making such right clearly subject to regulations of
the Secretary, defining the purpose of such accompaniments as aid of
the inspection, and extending mandatory consultation rights to a
reasonable
[[Page 22562]]
number of employees where there is no `authorized' representative of
employees.'' Subcomm. on Labor of the Senate Comm. on Labor and Public
Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the
Occupational Safety and Health Act of 1970, at 197-98 (Comm. Print.
1971). NRF points to the reason given for this amendment, which was to
avoid scenarios in which the Secretary would have to ``resolve union
organizing issues which have no relationship to this legislation.''
(Document ID 1776, p. 9) (citing Subcomm. on Labor of the Senate Comm.
on Labor and Public Welfare, 92d Cong. 1st Sess., reprinted in
Legislative History of the Occupational Safety and Health Act of 1970,
at 198 (Comm. Print 1971)).
This reference to union organizing simply reflects Congress's
acknowledgement that in some workplaces there may be disputes
concerning union representation. However, it cannot be read to deny
accompaniment rights to employees in non-union workplaces. See Comments
of Congressperson William J. Scherle of Iowa, 92d Cong. 1st Sess.,
reprinted in Legislative History of the Occupational Safety and Health
Act of 1970, at 1224 (Comm. Print 1971) (``The bill provides that union
representatives or any employee representative be allowed to accompany
inspectors on their plant tours.'' (emphasis added)). Moreover, the
concern raised about union organizing has been addressed both through
OSHA policy and regulations. As discussed in Section IV.E, National
Labor Relations Act and Other Labor-Related Comments, it is OSHA's
longstanding policy to avoid being interjected into labor relations
disputes. See also OSHA Field Operations Manual, Chapter 3, Sections
IV.G-H (``Under no circumstances are CSHOs to become involved in a
worksite dispute involving labor management issues or interpretation of
collective bargaining agreements''). OSHA's regulations also provide
that the inspection shall ``preclude unreasonable disruption of the
employer's establishment,'' 29 CFR 1903.7(d), and that the CSHO may
deny the right of accompaniment to any person whose conduct
``interferes with a fair and orderly inspection.'' 29 CFR 1903.8(d).
Further, where there is a dispute that prevents the CSHO from
determining with reasonable certainty who is the authorized employee
representative, the CSHO will consult with a reasonable number of
employees concerning matters of safety and health in the workplace. 29
CFR 1903.8(b).
This final rule does not infringe on employer's Fourth Amendment
rights. The Fourth Amendment protects employers against ``unreasonable
searches and seizures,'' and, absent consent from an employer, OSHA is
required to obtain a warrant to conduct a physical inspection of their
workplace. See Marshall v. Barlow's Inc., 436 U.S. 307 (1978). Where
the government has sought and obtained a search warrant supported by
probable cause and acted within its scope, the resulting search is
presumptively reasonable under the Fourth Amendment. See Sims v.
Labowitz, 885 F.3d 254, 268 (4th Cir. 2018). ``And for the search to be
reasonable, it does not have to be conducted flawlessly nor by the
least intrusive means.'' Id. (citing Skinner v. Ry. Labor Executives'
Ass'n, 489 U.S. 602, 629 n.9 (1989)). This rule comports with the
Fourth Amendment's prohibition against ``unreasonable searches and
seizures'' because all OSHA inspections, including those in which
employees authorize a third-party walkaround representative under this
final rule, will be carried out either with the employer's consent or
pursuant to a duly issued inspection warrant. Furthermore, while the
OSH Act grants the Secretary of Labor broad authority to inspect
workplaces ``without delay'' to find and remedy safety and health
violations, 29 U.S.C. 657(a)(1), these inspections must be carried out
``during regular working hours and at other reasonable times, and
within reasonable limits and in a reasonable manner.'' Id. at
657(a)(2); see also 29 CFR 1903.7(d) (``The conduct of inspections
shall be such as to preclude unreasonable disruption of the operations
of the employer's establishment.'').
Some commenters argued that allowing a third-party employee
representative to accompany OSHA during the walkaround inspection would
make OSHA's search unreasonable (see, e.g., Document ID 1976, p. 19).
However, as discussed in Section IV.D.2, Fourth Amendment Issues, the
mere presence of a third-party employee representative on the
employer's premises does not render OSHA's inspection unreasonable for
Fourth Amendment purposes. See Bills v. Aseltine, 958 F.2d 697, 703
(6th Cir. 1992) (noting that a third party's entry onto subject's
private property may be ``justified if he had been present to assist
the local officers''); see also Wilson v. Layne, 526 U.S. 603 (1999)
(holding that bringing members of the media into a home during the
execution of a search warrant violated the Fourth Amendment when the
presence of the third parties in the home was not in aid of the
execution of the warrant). Additionally, contrary to the concerns
expressed by some commenters opposed to the rule, this rulemaking does
not grant third parties ``unfettered access'' to an employer's private
property (see, e.g., Document ID 0040, p. 4; 0045; 0235, p. 2; 0528;
1757, p. 3; 1762, p. 3; 1974, p. 2; 9316). Rather, as explained in
Sections IV.A, IV.C, and IV.D.II, the role of the third-party
representative is limited to aiding the inspection; they are only
permitted to accompany the CSHO, and they may not stray from the CSHO
or conduct their own searches.
This final rule preserves the requirement that the CSHO must first
determine ``good cause has been shown'' why the accompaniment by a
third party is ``reasonably necessary to the conduct of an effective
and thorough physical inspection of the workplace.'' 29 CFR 1903.8(c).
And, under OSHA's existing regulations, the CSHO is authorized to deny
the right of accompaniment to any person whose conduct interferes with
a fair and orderly inspection. 29 CFR 1903.8(d). Accordingly, OSHA
inspections conducted pursuant to this rule will comport with the
Fourth Amendment's reasonableness requirement because the role of the
third-party employee representative will be limited to aiding OSHA's
inspection. Indeed, the CSHO will ensure the inspection is conducted in
a reasonable manner per section 8(a)(2) of the Act and 29 CFR
1903.3(a). See Matter of Establishment Inspection of Caterpillar Inc.,
55 F.3d at 339 (``[T]he Act and its regulations establish a number of
administrative safeguards that adequately protect the rights of
employers and limit the possibility that private participation in an
inspection will result in harm to the employer.'').
Moreover, because OSHA's inspections are conducted in accordance
with the Fourth Amendment, they do not constitute a ``physical taking''
under the Takings Clause of the Fifth Amendment. Under the Fifth
Amendment's Takings Clause, the government must provide just
compensation to a property owner when the government physically
acquires private property for public use. See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg'l Plan. Agency, 535 U.S. 302, 321 (2002).
However, the Supreme Court has recognized that ``[b]ecause a property
owner traditionally [has] had no right to exclude an official engaged
in a reasonable search, government searches that are consistent with
the Fourth Amendment and state law cannot be said to take any property
right from landowners.'' Cedar Point Nursery v. Hassid, 141 S. Ct.
2063, 2079 (2021).
[[Page 22563]]
Nonetheless, some commenters argued that the rule would affect an
unconstitutional per se taking under Cedar Point Nursery because it
would grant third parties access to the employer's property (Document
ID 0043, p. 2-3; 1952, p. 8-9; 1976, p. 18-19). As discussed more fully
in Section IV.D.3, Fifth Amendment Issues, this rule does not
constitute a per se taking because the presence of third-party employee
representatives on the employer's property under this rule will be
limited to accompanying the CSHO during a lawful physical inspection of
the workplace and their sole purpose for being on the employer's
premises will be to aid the inspection. See 29 CFR 1903.7(d),
1903.8(b); see also Matter of Establishment Inspection of Caterpillar
Inc., 55 F.3d at 339.
Based on the foregoing, OSHA has determined that it has legal
authority for its revisions to OSHA's existing regulation at 29 CFR
1903.8(c).
IV. Summary and Explanation
On August 30, 2023, OSHA proposed amending its existing rule for
the Representatives of Employers and Employees at 29 CFR 1903.8(c) to
clarify who may serve as a representative authorized by employees
during OSHA's walkaround. 88 FR 59825. OSHA provided sixty days for
public comment and subsequently extended the comment period for an
additional two weeks. 88 FR 71329. By the end of the extended comment
period, OSHA had received 11,529 timely comments on the proposed rule
that were posted to the docket.
Prior to this rulemaking, the rule stated that a representative
authorized by employees ``shall be an employee(s) of the employer.''
However, that regulation also created an exception for ``a third party
who is not an employee of the employer'' when, ``in the judgment of the
Compliance Safety and Health Officer, good cause has been shown'' why
the third party was ``reasonably necessary to the conduct of an
effective and thorough physical inspection of the workplace. . . .'' 29
CFR 1903.8(c) (1971). The regulation also listed two non-exhaustive
examples of such third parties--a safety engineer and an industrial
hygienist.
OSHA proposed two revisions of 29 CFR 1903.8(c). First, the agency
proposed to clarify that the representative(s) authorized by employees
may be an employee of the employer or a third party. Second, OSHA
proposed that a third-party representative authorized by employees may
be reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace by virtue of their knowledge,
skills, or experience. This proposed revision was intended to clarify
that the employees' options for third-party representation during OSHA
inspections are not limited to only those individuals with skills and
knowledge similar to that of the two examples provided in prior
regulatory text: Industrial Hygienist or Safety Engineer.
OSHA noted in the Notice of Proposed Rulemaking (NPRM) that the
proposed revisions to section 1903.8(c) would not change the CSHO's
authority to determine whether an individual is a representative
authorized by employees (29 CFR 1903.8(b)). Also, the proposed
revisions would not affect other provisions of 29 CFR part 1903 that
limit participation in walkaround inspections, such as the CSHO's
authority to prevent an individual from accompanying the CSHO on the
walkaround inspection if their conduct interferes with a fair and
orderly inspection (29 CFR 1903.8(d)) or the employer's right to limit
entry of employee authorized representatives into areas of the
workplace that contain trade secrets (29 CFR 1903.9(d)). As always, the
conduct of OSHA's inspections must preclude unreasonable disruption of
the operations of employer's establishment. See 29 CFR 1903.7(d).
OSHA sought public comment on all aspects of the rule, including
why employees may wish to be represented by a third-party
representative and examples of third-party representatives who have
been or could be reasonably necessary to the conduct of an effective
and thorough walkaround inspection. OSHA also sought examples and
information about any other unique skills that have been helpful or
added safety and health value to OSHA's inspection. Additionally, OSHA
solicited input on regulatory options, such as whether the agency
should maintain the ``good cause'' and ``reasonably necessary''
requirement.
OSHA received comments in favor of the rule and opposed to it,
ranging from requests to withdraw the rule entirely to criticism that
the rule does not go far enough to ensure that employees are able to
select a representative of their choice. Many organizations
representing employers contended that the rule represents a significant
change to OSHA's procedures and will facilitate union organizing. Among
other arguments, these organizations generally argued that the rule:
(1) conflicts with the OSH Act and existing OSHA regulations; (2)
infringes on employers' Constitutional rights, particularly property
rights; (3) imposes substantial costs, particularly for small
businesses; and (4) will be difficult for OSHA to administer.
Conversely, organizations representing employees praised the rule for
encouraging employee representation, ensuring thorough and effective
inspections, and promoting workers' safety and health. Some
organizations representing employees also argued that OSHA should
eliminate the ``good cause'' and ``reasonably necessary'' requirement
for third parties.
OSHA considered all issues raised, and, as explained in depth
below, determined that revising 1903.8(c) more clearly aligns with the
language and purpose of section 8(e) of the OSH Act, 29 U.S.C. 657(e).
Moreover, OSHA's revisions to 1903.8(c) better ensure employee
involvement in an OSHA inspection, which is a critical component to
conducting an effective and thorough inspection. As explained further
below, OSHA has decided to retain the existing ``good cause'' and
``reasonably necessary'' requirement in the final rule. Additionally,
because of commenter concerns that the use of the word
``participation'' in the NPRM suggested the employee representative had
a role in conducting OSHA's inspection, OSHA removed that term in favor
of ``accompaniment'' in the final rule.
A. The Need for and Benefits of Third-Party Representation
The text of the OSH Act provides that, ``[s]ubject to regulations
issued by the Secretary, a representative of the employer and a
representative authorized by his employees shall be given an
opportunity to accompany the Secretary or his authorized representative
during'' physical workplace inspections. 29 U.S.C. 657(e) (emphasis
added). There is nothing in the OSH Act to suggest that employee (or
employer) representatives must be employees of the employer. The only
criterion the statute imposes is that the representative will ``aid[ ]
such inspection.'' In the NPRM, OSHA explained that, based on its
experience, there are a variety of third parties who might serve as
representatives authorized by employees who could aid the OSHA
walkaround inspection. 88 FR at 59829-30. As an example, OSHA
highlighted an inspection where a worker for a company removing
asbestos at a worksite reported safety concerns to OSHA and a third
party. The third party contacted OSHA and a community organization on
behalf of the workers to ensure their safety and health concerns were
fully communicated to and understood by the
[[Page 22564]]
CSHO. The community organization's attorney and a former employee of
the workplace were chosen as the employees' representatives to
participate in the walkaround inspection. OSHA found the presence of
both individuals to be very beneficial to the inspection because the
representatives were able to clearly identify and communicate safety
concerns to the CSHO during the walkaround. Many of the exposed workers
on this worksite were not fluent in English and having representatives
who the workers trusted and could facilitate communication with the
CSHO enabled OSHA to conduct numerous worker interviews and better
investigate the workplace conditions. 88 FR 59830.
In the NPRM, OSHA sought public comment on any other examples where
third parties benefitted OSHA inspection, the reasons why employees may
desire a third-party representative, and any data or anecdotal examples
of individuals who may serve as third parties, among other questions.
In response, many commenters, both for and against the proposed rule,
commented on the need for third-party employee representatives and the
benefits they bring to OSHA's inspections.
After reviewing the comments, as summarized below, OSHA has
concluded that third-party representatives authorized by employees may
have a variety of skills, knowledge, or experience that could aid the
CSHO's inspection. This includes, but is not limited to, knowledge,
skills, or experience with particular hazards or conditions in the
workplace or similar workplaces, as well as any relevant language or
communication skills a representative may have to facilitate better
communication between workers and the CSHO. OSHA has therefore deleted
the two enumerated examples in the current regulation--industrial
hygienists and safety engineers--to clarify that different types of
individuals may be reasonably necessary to OSHA's inspection. These
revisions do not preclude an industrial hygienist or safety engineer
from serving as an employee representative; instead, the revisions more
properly focus the CSHO's determination on factors such as the
knowledge, skills, or experience of the third party rather than the
third party's professional discipline. 88 FR 59829.
1. Comments Supporting Third-Party Representation
OSHA received numerous comments demonstrating the importance and
benefits of third-party representation--many of which included real-
life examples of how third-party representatives have assisted OSHA
over the years. Commenters supporting the rule emphasized the benefits
of third parties' technical and/or subject matter expertise. They also
appreciated OSHA's effort to clarify that various types of third
parties, and not just those with the above expertise, can aid OSHA's
inspections based on a variety of knowledge, skills, or experience
(see, e.g., Document ID 1972, p. 3-4). As one commenter noted, third-
party representatives need not be ``certified expert[s]'' to
meaningfully contribute to an inspection (Document ID 0022).
In particular, commenters supporting third-party representation
pointed out that: (1) third parties can possess helpful technical and/
or subject-matter expertise with hazards, industries, and OSHA's
investigation process; (2) third parties can provide critical language
skills and related cultural competencies; (3) third parties can
facilitate employee cooperation by increasing employees' trust in the
inspection process; (4) third-party representation greatly benefits
inspections involving multi-employer worksites; and (5) third-party
representation empowers workers and appropriately balances the rights
and needs of all parties during the inspection process.
First, numerous commenters emphasized that third parties can
possess helpful technical and/or subject-matter expertise with
particular hazards, industries, or the investigation process (see,
e.g., Document ID 1753, p. 5-7). The United Steelworkers Union (USW)
noted that it has brought in technical experts to serve as designated
employee representatives in OSHA inspections involving issues related
to combustible dust, combustion safety, electrical safety, and
occupational medicine (Document ID 1958, p. 5). The Amalgamated Transit
Union also stated that its union officials, including those in the
Health and Safety Department, have transit safety and health knowledge
that could be relevant to an OSHA investigation, such as technical
expertise regarding transit vehicle designs, transit maintenance
equipment, and a ``big-picture view'' of the hazard; it also pointed to
union officials' ability to assemble workers for interviews, identify
relevant evidence, and bring a level of familiarity and comfort in
speaking with government agents that employees might lack (Document ID
1951, p. 1-2).
Similarly, the USW provided examples of where its familiarity with
OSHA inspections was beneficial. In one such example involving an
explosion and fatalities at a USW-represented workplace, a USW safety
representative from the union's headquarters traveled to the site to
assist (Document ID 1958, p. 4-5). Because access to the area at issue
was initially restricted to OSHA and others, the safety representative
assisted OSHA with determining who should be interviewed and what
information OSHA should request from the employer; the third-party
union representative was also needed to help the local union and OSHA
obtain employees' involvement during interviews and the walkaround
(Document ID 1958, p. 4-5).
In addition, the USW commented that ``[w]orkplaces that do not have
a collective bargaining representative may be especially vulnerable to
safety hazards, and employees in these workplaces benefit from the
expertise and advocacy experience that a community group, safety
expert, or labor organization can provide in a walkaround inspection''
(Document ID 1958, p. 3). Farmworker Justice agreed, recognizing that
third parties such as union representatives and worker advocates have
industry-specific or workplace safety expertise that they can use to
help workers identify and communicate workplace safety concerns to OSHA
(Document ID 1763, p. 3-4).
Several commenters emphasized the benefits of third parties'
industry-specific expertise in particular. For example, the Utility
Workers Union of America (UWUA) noted that, in recent years, the UWUA
national union provided a walkaround representative in numerous
incidents that ``have proven the difference between a fair
investigation and one that unfairly weighs in the employer's balance''
(Document ID 1761, p. 1). UWUA described one inspection in Pennsylvania
involving the death of an overhead lineman who had been working with a
crew operating a bucket truck when that truck unexpectedly rolled
downhill and overturned in the road (Document ID 1761, p. 1). UWUA
explained that the national union representative was able to inform the
CSHO about technological and work practice changes in the industry,
including the use of an inclinometer, that were not immediately
apparent even to the workers themselves due to inadequate training
(Document ID 1761, p. 1). OSHA's inspection benefitted from the
national union representative's industry-specific expertise (Document
ID 1761, p. 1).
Similarly, the USW also highlighted an OSHA inspection that
benefitted
[[Page 22565]]
from a third-party representative who had industry-specific expertise
(Document ID 1958, p. 3). In that inspection, where a USW mechanic died
in a flash fire involving a dust collection system, a USW safety
representative from the union's headquarters accompanied the CSHO along
with local union representatives who had never been part of an OSHA
inspection or a fatality investigation (Document ID 1958, p. 3). The
USW safety representative's experience in the industry, experience
serving on one of the National Fire Protection Agency's combustible
dust committees, and experience with prior OSHA inspections and
fatality investigations benefitted the inspection (Document ID 1958, p.
3-4). According to the USW, the CSHO confirmed that the third-party's
assistance made the inspection more ``through[ ] and complete''
(Document ID 1958, p. 3).
In the healthcare industry, one commenter, a former director of the
safety and health program for the American Federation of State, County
and Municipal Employees (AFSCME), provided examples of where this
commenter was able to assist CSHOs during past inspections with hazards
that were not well-known at the time (Document ID 1945, 2-3). This
commenter stated that they were able to provide guidance to CSHOs
regarding workplace violence and bloodborne pathogens and what similar
facilities were doing to abate similar problems and hazards (Document
ID 1945, p. 2-3).
In addition, the International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied Crafts of the
United States, Its Territories and Canada, (``IATSE'') asserted that
third-party representation can also benefit inspections in their
industry, as ``[t]erminology, specific job functions, equipment, and
procedures might be unfamiliar to an industry outsider'' (Document ID
1970, p. 1). As an example, IATSE explained that, if a worker was
injured in a remote location during a motion picture production, a
third-party walkaround representative could explain the industry
practice of equipment rentals, camera placement, crew positions, and
other industry-standard procedures (Document ID 1970, p. 1).
Several of these commenters explained that the expertise of third
parties is helpful to OSHA because CSHOs cannot be expected to have
knowledge or expertise with every industry, craft, task, hazard,
occupation, or employer (Document ID 1969, p. 14; see also 1753, p. 5-
7). Commenters noted that third parties can assist when hazards are
hidden or not immediately apparent to the CSHO (see, e.g., Document ID
1753, p. 7).
Second, many commenters, including the National Employment Law
Project (NELP), also identified a need for third-party representatives
with language skills when CSHOs interact with workers from a linguistic
or other background with which the CSHO is unfamiliar (see, e.g.,
Document ID 1972, p. 4). Numerous commenters noted the importance of
third-party representatives who can interpret for limited-English
proficient workers (see, e.g., Document ID 0030; 0037; 0526, p. 1-2;
1958, p. 2). For example, the USW explained that ``employees can offer
significantly more information when they can comfortably communicate in
a language in which they are fluent'' (Document ID 1958, p. 2).
MassCOSH described the importance of having a ``respected, culturally
and linguistically competent'' employee representative to ensure the
CSHO obtains information needed for a complete and thorough inspection
(Document ID 1750, p. 3). MassCOSH provided an example where several
Central American immigrant workers suffered from lead poisoning at a
lead recycling facility in Massachusetts (Document ID 1750, p. 3). The
CSHO did not speak Spanish and could not communicate with Spanish-
speaking workers, and so was unable to identify areas of lead
contamination (Document ID 1750, p. 3). Workers subsequently contacted
MassCOSH, which contacted OSHA and provided a Spanish-speaking
representative to accompany the CSHO on a second inspection (Document
ID 1750, p. 3). The representative was able to facilitate communication
between the CSHO and workers, who pointed the CSHO to the areas that
were particularly contaminated with lead but were not easily found
(Document ID 1750, p. 3).
Similarly, Justice at Work described how a worker organization it
collaborates with in Massachusetts, Centro Comunitario de Trabajadores
(CCT), works with workers who face significant language barriers
because many in the community do not speak English, and some are not
fluent in Spanish and need K'iche' interpretation (Document ID 1980, p.
2). Justice at Work noted that a CCT leader was selected by workers to
assist OSHA during a fatality investigation several years ago and
workers were ``immediately comfortable to see a member of their
community there; they spoke freely with the CCT leader and pointed out
the danger areas in the worksite'' (Document ID 1980, p. 2).
United Brotherhood of Carpenters and Joiners of America (UBC)
explained that union representatives may be aware of languages spoken
by a workforce in a specific geographic area and have the language
skills necessary to communicate with these workers (Document ID 1753,
p. 6-7). UBC further noted that when serving as a third-party
representative, these union representatives can bring these skills to
assist CSHOs who may lack such a familiarity with the languages spoken
by workers in that specific geographic area, such as Polish in the
Chicago-area (Document ID 1753, p. 6-7). Nebraska Appleseed, which
partners with hundreds of immigrant community members in advocating for
safer working conditions, explained that workers in meat and poultry
processing facilities often speak Spanish, Somali, Karen,\1\
Vietnamese, and other languages not typically spoken by local OSHA
staff (Document ID 1766, p. 1-3). Similarly, United Food and Commercial
Workers (UFCW) explained that many union members struggle with language
barriers, noting that in Nebraska and South Dakota, the immigrant
population makes up over half the working staff (Document ID 1023, p.
3-4). Project WorkSAFE noted that, in Vermont, there is an increasing
need to have individuals at a worksite who speak Spanish and English
for translation purposes, but, in their experience, none of the CSHOs
in Vermont OSHA speak Spanish (Document ID 0037).
---------------------------------------------------------------------------
\1\ Karen languages are spoken in parts of Burma and Thailand.
---------------------------------------------------------------------------
A third-party's language skills can prevent situations ``where
employers or `ad hoc' interpreters are the go-betweens for the CSHO and
the worker'' (Document ID 0526, p. 2). Justice at Work Pennsylvania
explained that when supervisors translate for workers, flawed
interpretations or even full fabrications may result, and a translator
can facilitate ``an accurate and complete'' conversation between CSHOs
and workers (Document ID 0526, p. 2). NELP stated that ``poor
communication between workers onsite and OSHA inspectors is not solely
a function of language access. OSHA compliance officers may lack the
cultural competence, community knowledge, and existing relationships
with workers that are necessary to facilitate trust and frank
communication'' (Document ID 1972, p. 4). The USW also added that
third-party representatives can provide ``language justice'' by
ensuring ``cultural competency, trust and knowledge'' (Document ID
1958, p. 2). Even when a CSHO has the requisite language skills
[[Page 22566]]
or access to an interpreter, third-party representatives can provide
needed ``language and cultural competency skills'' or have a prior
relationship with workers, (Document ID 1972, p. 4-5; see also 1969, p.
18), and thereby bridge the gap between workers and CSHOs (see Document
ID 1763, p. 4; 1972, p. 4). The AFL-CIO provided such an example when
immigrant workers chose a faith leader from their community to be a
representative during an OSHA inspection (Document ID 1969, p. 14).
This faith leader helped the workers overcome their fear of speaking to
the CSHO by drawing upon a prior relationship with the workers and by
interpreting for them (Document ID 1969, p. 14).
Third, commenters explained that, in addition to technical
expertise, third-party representatives may also benefit inspections by
increasing employees' trust in the inspection process and thereby their
cooperation (see, e.g., Document ID 1972, p. 5-6). Commenters
identified several reasons that employees may be reluctant to speak to
an OSHA official, such as unfamiliarity with OSHA and their rights
under the OSH Act, fears of retaliation, negative immigration
consequences, language or cultural barriers, or their age, among other
reasons (see, e.g., Document ID 0526, p. 3; 1031; 1763, p. 2-4). The
AFL-CIO explained that many employers discourage workers from engaging
with OSHA, noting that workers have shared that their employer
threatened them with getting in trouble, personally fined, or losing
their job as a result of an OSHA inspection (Document ID 1969, p. 13).
The AFL-CIO noted that vulnerable workers, including immigrant workers
and refugees, may fear that speaking with OSHA will jeopardize their
ability to stay and work in the United States (Document ID 1969, p.
13). Similarly, Justice at Work Pennsylvania shared that, in one
client's workplace, employees were too fearful to cooperate with OSHA
after their employer called U.S. Immigration and Customs Enforcement on
a co-worker (Document ID 0526, p. 3). Several commenters noted that
employees ``may feel unsafe speaking to OSHA inspectors without a
trusted representative. . . .'' such as worker centers, unions,
community organizations, and attorneys (see, e.g., Document ID 0031;
0034; 1031).
Commenters identified several ways that such third-party
representation can promote employee trust and cooperation. For
instance, commenters explained that a trusted employee representative
can help workers understand OSHA's inspection process (see, e.g.,
Document ID 0042). Commenters also stated that third-party
representatives can guide and support workers through the inspection
process, providing assurances that it is safe and worthwhile to provide
information and encouraging employees to communicate openly with OSHA
(see, e.g., Document ID 0526, p. 3; 1969, p. 13). The AFL-CIO noted
several examples of situations where workers were willing to speak with
OSHA when a trusted representative was present, including the example
described above where workers chose a faith leader who they knew
personally and trusted (Document ID 1969, p. 14).
Additionally, commenters noted that third-party representatives can
also serve as a buffer between the employer and employees who fear
retaliation (see, e.g., Document ID 0014; 0022; 0089; 0120; 0526, p. 3;
1023, p. 5; 10725) and can communicate employees' concerns for them
(see, e.g., Document ID 1728, p. 3). As the National Black Worker
Center explained, ``We understand the layered experience of Black
workers on the job, including the fear of reporting health and safety
issues due to employer retaliation. We are uniquely suited to support
workers who may have reservations about calling out issues on the job''
(Document ID 1767, p. 2-3). The National Black Worker Center explained
that allowing worker centers to provide a third-party employee
representative will ensure that ``the specific concerns and experiences
of workers, including those who have been historically underserved and
underrepresented, are given due consideration during inspections''
(Document ID 1767, p. 3).
Some commenters also mentioned that a third-party representative
can be especially helpful during fatality investigations, which are
``particularly sensitive'' (Document ID 1969, p. 17) and ``stressful''
for employees (1958, p. 3-5). In these situations, third-party
representatives can put employees at ease and enable them to feel more
comfortable interacting with CSHOs (See, e.g., 1958, p. 3-5; 1969, p.
17).
Several commenters also referenced an OSHA investigation in
Palmyra, Pennsylvania where third-party representatives from the
National Guestworkers Alliance (NGA), a workers' advocacy group, had
developed a relationship with the foreign students who worked at the
inspected facility and assisted them by filing an OSHA complaint and
accompanying OSHA during the inspection (see, e.g., Document ID 1945,
p. 4-5; 1958, p. 3; 1978, p. 4-6). Commenters explained that OSHA
benefitted from NGA's representation of these workers in identifying
and understanding workplace safety issues (see, e.g., Document ID 1945,
p. 4-5).
Fourth, several commenters pointed out the benefits of third-party
representation on multi-employer worksites (see, e.g., Document ID
1747, p. 2; 1969, p. 16; 1970, p. 2). For example, the AFL-CIO pointed
to an inspection involving a multi-employer worksite with union and
non-union workers; the non-union workers designated a union agent who
represented other workers on site as their walkaround representative
(Document ID 1969, p. 16). The union agent assisted OSHA by providing
information on the workplace respiratory procedures, which revealed
violations of the respiratory protection standard and recordkeeping
requirements (Document ID 1969, p. 16). In addition, IATSE stated that
third-party representation can be helpful for inspections involving
multi-employer worksites in the entertainment industry; IATSE explained
that touring workers may be unfamiliar with worksite-based hazards and
a location-based representative may better aid the CSHO during an
inspection (Document ID 1970, p. 2).
Fifth, and last, commenters also expressed support for allowing
third-party employee representatives on walkaround inspections because
there is a need to balance employee and employer rights under the OSH
Act. As the UWUA explained, ``[a]lthough the value of having a worker's
chosen representatives involved in the investigation process cannot be
mathematically quantified, . . . [a] worker representative brings the
possibility of worker trust, subject matter expertise, language
justice, empowerment, and protection to a situation that can otherwise
simply devolve into the meting out of blame by an employer seeking only
to protect itself'' (Document 1761, p. 2). As another commenter
similarly noted, third party representation can empower workers and
thereby minimize the employer's ability to control what information is
shared by employees, which enables CSHOs to gather more accurate
information (Document ID 0526, p. 2). Other commenters also pointed to
employers' ``unrestricted ability'' to select their workaround
representative and argued that OSHA should go beyond the current
proposal and provide employees that same right without qualification
and employer interference (see, e.g., Document ID 1958, p. 5-6). A
commenter asserted that when workers are allowed to
[[Page 22567]]
designate their own representatives, workers have increased trust in
OSHA, and inspections are more efficient, complete, and accurate
(Document ID 1958, p. 1-2).
2. Comments Opposed to Third-Party Representation
Many commenters disputed the need for and benefits of third parties
and raised numerous arguments to support their positions. These
arguments included: (1) that OSHA has not presented evidence
demonstrating a need for third parties; (2) third parties cannot aid
OSHA's inspections when they are unfamiliar with the particular
worksite being inspected; (3) industry-specific concerns should
preclude third-party representation; (4) third parties may discourage
employer cooperation; (5) third-party representatives will
disenfranchise employees; (6) the use of third parties will lower the
qualifications to be a CSHO; (7) third parties may have ulterior
motives and could engage in conduct unrelated to the inspection; (8)
the potential disclosure of confidential business information and trade
secrets outweighs the need for third-party representation; and (9)
alternatively, if third parties are allowed to serve as employee
representatives, they should be limited to individuals with technical
expertise or language skills.
First, commenters argued that OSHA has failed to demonstrate a need
for third-party representation during the walkaround. For example, some
commenters asserted that OSHA did not provide evidence that the rule
will facilitate more efficient inspections, aid CSHOs during the
walkaround inspection, or otherwise promote the safety and health of
workers (see, e.g., 1776, p. 10; 1939, p. 4; 1953, p. 4; 1976, p. 4 fn.
9). Commenters questioned why CSHOs were not capable of handling
inspections on their own and needed third parties to assist them or
were passing off their inspection responsibilities to others (see,
e.g., Document ID 0046; 1938, p. 1; 1974, p. 3-4; 3347). The Pacific
Legal Foundation also asked why OSHA needed third parties on an
employer's premises when third parties could accomplish their
activities, such as communicating with employees, offsite (Document ID
1768, p. 5).
Relatedly, other commenters argued that OSHA does not need third-
party employee representatives during its inspections because OSHA's
current inspection procedures are sufficient (see, e.g., Document ID
1960, p. 1). For example, one commenter stated that employees are
already empowered to participate in OSHA's inspections since they can
file anonymous complaints and speak with CSHOs in private (Document ID
1955, p. 3). Similarly, commenters asserted that the FOM already
accounts for situations where CSHOs need third-party translation and
that the current regulation allows for third parties with technical
expertise to accompany CSHOs in ``limited situations'' (Document ID
1960, p. 3-4; see also 1952, p. 2). Ultimately, commenters asserted
that ``OSHA is improperly seeking to address a nonexistent issue''
(Document ID 1955, p. 3; see also 1976, p. 4) and that ``[t]here is no
pressing need for this change'' (Document ID 9002).
Second, commenters expressed skepticism that third parties who are
unfamiliar with a specific worksite could have anything meaningful to
contribute to an OSHA inspection (see, e.g., Document ID 0033). For
example, the American Chemistry Council asserted that each chemical
manufacturing facility and its hazards are unique and that merely
having a general understanding of hazards is insufficient to truly aid
an OSHA inspection (Document ID 1960, p. 2). Commenters argued that
employees of the employer, and not third parties, are better suited to
be representatives because employees understand the specific tasks at
issue by virtue of their employment and may have received job-specific
training (see, e.g., Document ID 1960, p. 2). NFIB also took issue with
the type of knowledge, skills, or experience that OSHA indicated could
aid the inspection, asserting that ``[w]hat constitutes relevant
knowledge or skills is left vague'' and that it is unclear whether the
phrase ``with hazards or conditions in the workplace or similar
workplaces'' modifies ``experience'' or also ``relevant knowledge'' and
``skills'' (Document ID 0168, p. 5).
Third, commenters also raised a number of industry-specific safety
and security concerns. For instance, in the manufacturing industry, the
Illinois Manufacturer's Association raised safety concerns, asserting
that third-party representatives were unnecessary because they could
pose safety risks to themselves or others, or to the employer's
products due to their lack of expertise and/or training (see, e.g.,
Document ID 1762, p. 2-3; 1770, p. 4; 1774, p. 4; 1937, p. 2; 1974, p.
2-3; 1946, p. 7; 1942, p. 5). In addition, commenters raised safety and
security-related concerns for their industries. The National Council of
Farmer Cooperatives explained that some agriculture employers are
required to restrict access to their facilities to only authorized
personnel who are trained in practices of ensuring food safety; this
commenter expressed concerns that the proposed rule could result in
noncompliance with that requirement (Document ID 1942, p. 5). The Food
Industry Association asserted that the presence of third parties could
create serious food safety hazards in food production and warehousing,
noting the need for following strict sanitation protocols (Document ID
1940, p. 3). The American Chemistry Council similarly raised concerns
about third parties in the chemical industry who have not undergone
background checks or who lack credentials through the Chemical Facility
Anti-Terrorism Standards program or the Transportation Worker
Identification Credential program (Document ID 1960, p. 5).
Commenters also raised concerns in the healthcare context (see,
e.g., Document ID 0234, p. 2). Hackensack Meridien Health shared two
examples: (1) at one of its hospitals, a union brought in a third party
to provide feedback on a workplace safety issue and shared information
with OSHA that was not scientifically sound (though OSHA did not
ultimately use the information); and (2) employees brought in an expert
for a walkaround who did not recognize a patient safety concern, which
the employer's internal team later identified and remediated (Document
ID 0234, p. 2). According to Hackensack Meridian Health, both instances
could have resulted in harm to patients or team members because the
third party did not possess the requisite expertise (Document ID 0234,
p. 2).
Fourth, commenters expressed concerns that third parties could
discourage cooperation from employers. Commenters argued that third
parties could ``discourage[ ] employer cooperation in the inspection
process'' (see, e.g., Document ID 1938, p. 1). One commenter asserted
that most employers currently cooperate with inspections by not
requiring warrants; however, it predicted that more employers will
request warrants if employee representatives can be third parties,
including due to the fear of union organizing (Document ID 1938, p. 9;
see also 1772, p. 1).
Fifth, some commenters also asserted that third-party
representation would ``disenfranchise'' employees by replacing employee
representatives with third-party representatives (see, e.g., Document
ID 1120; 1123; 1163). A commenter asked, ``Would you like for someone
off the street to come in and tell you to `pack up your stuff and
leave,
[[Page 22568]]
I'm replacing you?' I wouldn't think so'' (Document ID 1163).
Sixth, commenters also asserted that third-party representation
could result in lowering the qualifications to be a CSHO. For example,
some commenters, such as Larson Environmental, expressed concern that
the proposal would result in ``soften[ing] or water[ing] down the need
for technical expertise and training of OSHA employees'' (Document ID
1109; see also 0033).
Seventh, commenters argued that third parties may not benefit
OSHA's inspections because third parties may have ulterior motives and
be engaged in conduct unrelated to the inspection (see, e.g., Document
ID 1775, p. 6; 1937, p. 5). For example, commenters suggested that
third parties could engage in union organizing (Document ID 0168, p. 5-
6; see also 1964, p. 2). Commenters also expressed concerns that
attorneys or experts serving as third-party representatives could use
the walkaround to conduct pre-litigation discovery in personal injury
or wrongful death actions (Document ID 1938, p. 5; 1976, p. 11-12) or
that attorneys could use the walkaround to solicit clients (Document ID
1953, p. 5). Others also worried about disgruntled former employees
engaging in workplace violence or causing conflict (see, e.g., Document
ID 1762, p. 3-4; 1781, p. 2), and raised concerns about the conduct of
other third parties such as competitors, relatives or friends of
injured or deceased employees, job applicants who did not a receive a
job, or individuals with ideological differences (see, e.g., Document
ID 1272; 1533; 1701; 1762, p. 3-4; 1937, p. 5; 1976, p. 11-12). For
example, the American Family Association asserted that ``[a]llowing
facility access to a third-party representative who might hold views
antithetical to AFA's mission could easily disrupt the current
requirement that OSHA conduct a `fair and orderly inspection'''
(Document ID 1754, p. 3).
Eighth, commenters also argued that the need to protect trade
secrets and other confidential information outweighs the need for third
parties. For example, commenters voiced concerns that a third-party
representative, such as competitor or someone who is hostile to the
employer being inspected, could obtain and disclose trade secrets or
other confidential business information (see, e.g., Document ID 0040,
p. 4; 0175, p. 2; 11515) or relatedly, pose antitrust issues (Document
ID 1937, p. 3; 1960, p. 6). With regard to the manufacturing industry
in particular, commenters explained that ``the manufacturing process
itself constitutes proprietary trade secrets that would be impossible
to protect from disclosure'' (Document ID 0175, p. 2) and that ``[e]ach
manufacturing process may have unique or specialized features that give
them a competitive edge'' (Document ID 1937, p. 3).
Commenters also raised concerns about the unauthorized disclosure
of confidential business information generally; as examples of such
information, they pointed to an employer's operations, customer and
supplier data, intellectual property, or employees' sensitive
information (see, e.g., Document ID 1774, p. 3, 6; 11487). The
International Foodservice Distributors Association (IFDA) provided
additional examples of confidential information, including: ``the
layout of the facility, staffing, large pieces of equipment, materials
used, and other information that cannot be easily kept away from a
third-party representative'' (Document ID 1966, p. 3). Commenters
argued that the unauthorized disclosure of confidential information
could occur due to the NPRM's ``lack of a set definition of `trade
secrets''' (Document ID 1774, p. 3) and the fact that OSHA's existing
regulation at 1903.9 is limited to trade secrets (Document ID 1966, p.
3).
In addition, the Utility Line Clearance Safety Partnership argued
that while OSHA is not permitted to disclose trade secrets or other
confidential business information, which it notes is protected from
disclosure in a Freedom of Information Act request, the rule fails to
prevent third parties from disclosing the same information (Document ID
1726, p. 7). NRF recommended that the rule ``provide authority for
injured employers to bring claims against the Secretary for monetary
remedies and other sanctions'' if a third-party representative obtains
trade secrets and proprietary information (Document ID 1776, p. 3-4).
The Workplace Policy Institute likewise asserted that disclosure of
confidential information and trade secrets to competitors or the public
would result in litigation requiring OSHA staff testimony (Document ID
1762, p. 3).
Ninth, and lastly, several commenters argued that, if the final
rule ultimately permitted third-party employee representatives, the
rule should be narrow and limit third-party representatives to certain
professions. Some commenters asserted that third parties should be
limited to the enumerated examples in the current regulation--
industrial hygienists and safety engineers--or to individuals with
technical expertise or certain professional certifications (see, e.g.,
Document ID 1384; 1937, p. 2). For example, the American Family
Association commented that the rule should require third-party
representatives to ``possess demonstrable safety and health expertise,
relevant to the workplace being inspected'' (Document ID 1754, p. 2).
Several commenters, including U.S. Representative Virginia Foxx and
the U.S. Apple Association, contended that the previous regulation only
permitted third-party employee representatives with technical or safety
expertise (see, e.g., Document ID 1756, p. 2; 1936, p. 1; 1939, p. 1-2;
see also 1966, p. 4-5). The North American Insulation Manufacturers
Association asserted that under the previous regulation, a third-party
employee representative ``must normally have specialized safety
knowledge'' (Document ID 1937, p. 2). According to a coalition of
state-based think tanks and public interest litigation groups (the
State Policy Network), the inclusion of industrial hygienists and
safety engineers as examples was intended to ``establish minimum floor
threshold qualifications'' for third-party representatives; the State
Policy Network further argued that, according to ``historical OSHA
policy manuals,'' such individuals ``must have minimum levels of
education, experience, and certification granted by professional
organizations and/or State-level administrative agencies'' (Document ID
1965, p. 13). The Mom and Pop Alliance of SC also expressed concern
that the proposal would ``eliminate the requisite technical credentials
necessary for non-employees to participate'' in the inspection
(Document ID 0528).
Other commenters supported limiting the universe of potential third
parties but were open to both technical experts and interpreters
serving as third parties (see, e.g., Document ID 10797; 1782, p. 3).
For example, the Flexible Packaging Association explained that it did
not necessarily object to a third-party representative participating in
a walkaround inspection, particularly if that representative was a
translator, industrial hygienist, or safety engineer, but expressed
concern that the proposal would permit a ``seemingly unlimited variety
of people'' who can serve as third-party representatives, and urged
OSHA to limit third-party representatives to technical experts and
translators (Document ID 1782, p. 3). A private citizen commented that
industrial hygienists and safety engineers should not be deleted, but
``language expert'' should be added as an additional example to ``help
the
[[Page 22569]]
focus of inspections to remain on health and safety and clear
communication of such'' (Document ID 10797).
3. Conclusion on the Need for and Benefits of Third-Party
Representatives
After reviewing the comments, OSHA has decided to adopt its
proposed revisions because allowing third-party representatives as
discussed in this rule better comports with the OSH Act. Nothing in
section 8(e) expressly requires ``a representative authorized by . . .
employees'' to be an employee of the employer. 29 U.S.C. 657(e).
Rather, the statute merely states that the representative must ``aid[ ]
the inspection.'' Id. The revisions adopted by this final rule better
conform with section 8(e)'s requirement by eliminating the text in the
regulation requiring employee representatives to be an employee of the
employer. In addition, the revisions ensure employees are able to
select trusted and knowledgeable representatives of their choice,
leading to more comprehensive and effective OSHA inspections. Through
the agency's own enforcement experience and based on numerous comments,
particularly those with real-life examples, OSHA has determined that
there are a wide variety of third parties who can aid OSHA's
inspection. OSHA has therefore concluded that it is appropriate to
delete the examples of industrial hygienists and safety engineers in
the prior rule to make it clear that a third party is not reasonably
necessary solely by virtue of their professional discipline. Rather,
the focus is on how the individual can aid the inspection, e.g., based
on the individual's knowledge, skills, or experience. The final rule,
however, does not change the requirement that, once the CSHO is
notified that employees have authorized a third party to represent them
during a walkaround inspection, the third party may accompany the CSHO
only if the CSHO determines that good cause has been shown that the
third party is reasonably necessary to an effective and thorough
inspection.
In deciding to adopt its proposed revisions, OSHA agreed with
commenters who explained how third-party employee representatives can
greatly aid OSHA inspections. In a variety of ways, third parties can
assist OSHA in obtaining information and thereby ensuring comprehensive
inspections. For example, the comments submitted in support of the
proposed rule demonstrated that third parties can provide valuable
technical expertise and support to CSHOs during walkaround inspections.
This includes inspections involving workplace hazards that do not fall
under a specific standard and worksites that contain hazards that are
not readily apparent to the CSHO.
Third parties also may be more likely to understand industry
standards than an employee of the employer, and many comments
demonstrated the benefits of having a third-party representative with
industry-specific expertise. Several commenters provided compelling
examples of this, such as the UWUA's national representative providing
guidance to a CSHO about changes in the utility industry, including the
use of an inclinometer (Document ID 1761, p. 1), and the USW safety
representative's contribution to a fatality inspection involving a dust
collection system due to that representative's experience in the
industry and service on a combustible dust committee of the National
Fire Protection Association (Document ID 1958, p. 3-4). A former
director of AFSCME also provided a first-hand example of how he, as a
third-party employee representative, was able to draw from his
knowledge and experience in the healthcare industry not only to provide
guidance to the CSHO on less well-known hazards but also to share how
other workplaces in the industry had addressed similar hazards
(Document ID 1945, p. 2-3).
While several commenters opposed to the rule argued that third
parties will lack industry-specific expertise and pose safety risks to
themselves or others, or to the employer's products, comments
supporting the rule demonstrate that many third parties can and do in
fact possess industry-specific knowledge expertise and that such
expertise has assisted OSHA's inspections. However, even if a third
party lacked such industry-specific knowledge or expertise, it does not
necessarily mean they will pose a risk or cause harm, as Hackensack
Meridien Health contended.
Hackensack Meridien Health asserted that employees or patients
could have been harmed on two separate occasions--once, when a third
party provided safety feedback to OSHA that Hackensack Meridien Health
did not feel was scientifically sound and, on another occasion, when an
expert did not recognize a patient safety concern. However, in the
first example, which does not indicate whether the third party was a
walkaround representative, Hackensack Meridien Health acknowledged that
OSHA did not rely on the advice. In addition, in the second example, a
walkaround representative is not expected or required to identify
patient concerns or replace the CSHO, as the representative's role is
to aid OSHA's inspection into workplace hazards that could harm
employees. Furthermore, these examples do not show that a third party
caused any harm or that OSHA's inspection procedures related to
employee representation were inadequate.
Concerns about risks third parties pose in certain industries are
speculative and ignore the roles of both the third party and the CSHO
during the inspection. Third-party representatives have a specific
purpose--to aid OSHA's inspection. Therefore, they must stay near the
CSHO and are not permitted to wander away from the inspection or into
unauthorized areas. While some commenters in the chemical industry
discussed the need for third parties to follow the facility's
sanitation protocols, and some commenters in the chemical industry
discussed the need for third parties to have certain credentials, OSHA
has ample experience conducting investigations in worksites with such
requirements. During the opening conference, the CSHO inquires about
any such work rules or policies, such as policies related to PPE, areas
requiring special precautions, whether any safety briefings are
necessary, and any other policies relevant to the inspection. CSHOs
have long adhered to such policies in conducting inspections in
facilities with unique requirements, and any third party would
generally need to as well, as long as those rules and policies apply
equally to all visitors and are not implemented or enforced in a way
that interferes with an employee representative's right to accompany
the CSHO. OSHA will consider facility-specific concerns on a case-by-
case basis, but anticipates that the agency's existing inspection
procedures adequately address concerns about potential harm from third
parties in any given industry.
In addition to certain types of expertise third parties may have,
third parties can also offer interpretation skills for employees with
limited English proficiency and provide greater language access by
using their cultural competence and prior relationships with workers.
With regard to interpretation, third parties can help ensure employees
are able to have accurate and complete conversations with CSHOs and
that employees do not have to rely on supervisors to interpret or on ad
hoc interpreters. This can prevent situations where supervisors or ad
hoc interpreters provide flawed or fabricated versions of employees'
statements. While commenters have argued that OSHA could instead use
bilingual CSHOs or hire outside interpreters, these comments ignore an
[[Page 22570]]
important component of third parties' interpretation assistance--their
cultural competencies. Employees may not be as comfortable when the
interpreter is a law enforcement official, such as a CSHO, or when the
interpreter is unknown to them. In contrast, as commenters supporting
the rule explained, if an interpreter is from a workers advocacy group
or union designated by the employees, employees may trust the
interpreter more and, as a result, be more willing to provide
information.
Likewise, third parties can increase worker involvement in the
inspection by facilitating communication between workers and OSHA.
Multiple commenters submitted examples of situations where third-party
representatives were trusted by workers and successfully encouraged
them to speak more openly with CSHOs. Several commenters argued that
employees may fear retaliation if they speak to an OSHA official, and
both comments in the record and OSHA's own enforcement experience
demonstrate that workers are more likely to speak openly and
participate in an OSHA inspection if they have a representative who
they trust. Several commenters noted that workers are the ``eyes and
ears of a workplace, and are in the best position to provide OSHA with
the inspection information it needs regarding the presence of hazards,
the frequency and duration of worker exposure to them, and the
employer's awareness of both hazards and exposures'' (Document ID 1934,
p. 2; see also 1031; 1769, p. 3). Without employee cooperation and
participation, OSHA may not be able to gather all the relevant
information during a workplace inspection. Ensuring that workers have a
trusted representative so that they are able to cooperate in an OSHA
inspection is critical.
In addition, third parties may have cultural competency skills that
can facilitate communication not only with employees who need
interpreters but also for a number of other employees. Employees may
not trust or understand government processes, and third parties,
particularly third parties known to the employees, allow the employees
to be more at ease or forthcoming during the OSHA inspection. The
presence of third parties can also be beneficial in workplaces where
employees fear retaliation or intimidation by their employer and are
afraid to speak up. Employees may either feel more empowered to
participate or may feel more comfortable relying on the third party to
represent their interests without revealing a particular employee's
identity.
Third parties may also aid inspections that are complex, include
multiple employers, or involve fatalities or serious injuries. While
third-party representatives do not need to be safety engineers or
industrial hygienists to aid an inspection, representatives can often
possess important technical or safety expertise necessary for a
thorough inspection even if they are not specifically employed as
safety and health professionals. In support of this, commenters
asserted that union officials and worker advocates often have industry-
specific or workplace safety expertise that is helpful to a CSHO's
inspection and, most importantly, helps to facilitate a CSHO's
communication with workers about workplace safety.
OSHA has revised the final rule to make explicit that a
representative may be reasonably necessary if they facilitate
communication between workers and the CSHO. As explained above, there
are a number of reasons, other than language skills, why a third party
may be able to facilitate communication between workers and the CSHO,
including because of their trusted relationship with workers, their
cultural competence, or because they can put employees at ease and
enable them to speak more candidly with the CSHO. Ensuring that
employees have a voice during the inspection and have the ability to
speak openly and candidly with the CSHO is critical to ensuring that
OSHA obtains the necessary information about worksite conditions and
hazards to conduct a thorough inspection. Accordingly, OSHA has revised
paragraph (c) to add communication skills to the exemplar skills that
could be reasonably necessary to an effective and thorough inspection.
Several commenters incorrectly asserted that the previous regulation
only permitted third-party representatives with technical or safety
expertise (see, e.g., Document ID 1756, p. 2; 1936, p. 1; 1939, p. 1-2;
see also 1966, p. 4-5), and the State Policy Network referenced an OSHA
guidance document in support of its arguments that representatives
``must have minimum levels of education, experience, and certification
granted by professional organizations and/or State-level administrative
agencies'' (Document ID 1965, p. 13).
These comments are misguided; OSHA did not previously limit
1903.8(c) to technical or safety experts, nor do those commenters point
to any evidence to support their claims. The only OSHA document
referenced by the State Policy Network is an OSHA booklet titled ``The
Occupational Health Professional's Services and Qualifications:
Questions and Answers'' (Occupational Health Q & A), available at
<a href="https://www.osha.gov/sites/default/files/publications/osha3160.pdf">https://www.osha.gov/sites/default/files/publications/osha3160.pdf</a>.
This guidance document relates to how employers select health care
professionals to ``assist the employer in achieving a safe and
healthful work environment'' (Occupational Health Q & A, p. 7).
Although the guidance document references occupational health care
professionals' education and training, it has nothing to do with who
employees may select as their walkaround representative under
1903.8(c).
Industrial hygienists and safety engineers were included in the
prior regulation as examples of individuals who may be reasonably
necessary to an inspection but were not intended to limit employees'
ability to authorize the participation of third-party representatives
with other skills or expertise. And the examples provided by unions and
worker advocates, discussed above, show that OSHA applied paragraph (c)
to allow third-party employee representatives to accompany the CSHO on
the walkaround where they aid the inspection even though they were not
industrial hygienists or safety engineers. The record is replete with
examples of how third parties with a variety of knowledge, skills, or
experience beyond technical expertise made them reasonably necessary to
the conduct of an effective and thorough physical inspection. OSHA
emphasizes that the examples in paragraph (c) are illustrative and not
exhaustive; while the phrase ``with hazards or conditions in the
workplace or similar workplaces'' modifies ``knowledge, skills, and
experience,'' there may be other types of knowledge or skills that
could be reasonably necessary to the conduct of an effective and
thorough inspection.
OSHA also rejects comments asserting that permitting third-party
employee representatives to accompany the CSHO indicates that OSHA is
not competent to conduct inspections. In explaining why an employee
representative must be given the opportunity to accompany the CSHO on
an inspection under section 8(e) of the OSH Act, Senator Williams
explained that ``no one knows better than the working [person] what the
conditions are, where the failures are, where the hazards are, and
particularly where there are safety hazards.'' Subcomm. on Labor of the
Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess.,
reprinted in Legislative History of the Occupational
[[Page 22571]]
Safety and Health Act of 1970, at 430 (Comm. Print. 1971). While CSHOs
have significant expertise, training, and experience in identifying
safety and health hazards, it is not reasonable to expect every CSHO to
have comprehensive knowledge of every aspect of site-specific
equipment, materials, work practices, and safety requirements without
assistance from employees. By permitting employees to designate
representatives of their choice, OSHA will be better able to obtain
information from employees that is necessary to conduct a comprehensive
inspection. More comprehensive OSHA inspections will be more protective
of worker safety and health.
Likewise, contrary to some commenters' arguments, this rule will
not result in OSHA lowering its qualifications for CSHOs or decreasing
the amount or quality of training provided to CSHOs. This rule will not
diminish the CSHO's role in an OSHA inspection. CSHOs will continue to
be in charge of conducting inspections and have the authority to use
various reasonable investigative methods and techniques, such as taking
photographs, obtaining environmental samples, and questioning
individuals while carrying out their inspection. See 29 CFR 1903.3(a);
1903.7(b); 1903.8(a). Rather than weakening the CSHO's role, this rule
will enable CSHOs to obtain more comprehensive information during an
inspection.
Commenters additionally argued that OSHA's current procedures (such
as anonymous complaints and CSHO's private interviews with workers) are
sufficient and that third parties can conduct all activities offsite;
however, many other comments demonstrated otherwise and established
that third-party representatives are critically important during the
walkaround portion of the inspection. OSHA also finds that third-party
representatives, including those from unions or worker advocacy groups,
are needed to accompany CSHOs during inspections because
representatives explaining OSHA processes or protections against
retaliation before or after the inspection would not be sufficient to
adequately assure workers. The physical inspection is a key part of
OSHA's investigation; it is often difficult to obtain information from
workers after the inspection because workplace conditions change, or
workers leave employment or recall less about the circumstances of an
incident that was the subject of the inspection. Having third-party
representatives accompany a CSHO during the inspection can reassure
workers during this vital step and allow the CSHO to gather information
more effectively and efficiently. Additionally, even if workers are
reassured about OSHA processes outside of the physical inspection,
workers could still be intimidated or confused when faced with a CSHO
without the presence of an authorized third-party representative.
In addition, OSHA disagrees with comments that asserted that
employees, and not third parties, are always better suited to serve as
employee representatives due to employees' familiarity with the
worksite and job tasks. These comments ignore the variety of knowledge,
skills, or experience third parties offer, as well as the
particularities of different inspections, and the fact that employees
may sometimes prefer to have nonemployee representatives accompany the
CSHOs. They also disregard the many reasons employees may be reluctant
or scared to participate in an inspection, much less as the employee
representative. While employees who are willing to be a walkaround
representative certainly aid OSHA's inspections and are entitled to be
the representative if authorized by employees, OSHA disagrees with the
suggestion that only employees, and never third parties, could
contribute to an OSHA inspection.
OSHA does, however, recognize that there may be situations where a
third-party representative will not aid OSHA's inspection during the
walkaround. By maintaining the requirement that good cause be shown
that the third-party representative is reasonably necessary to the
conduct of an effective and thorough physical inspection of the
workplace, OSHA will allow third-party representatives to accompany the
CSHO only when they will aid the inspection. Concerns about potential
misconduct, injury, or malfeasance from third-party representatives,
and how OSHA would respond, are discussed in more detail herein,
including in Sections IV.E, IV.G, IV.H.
In addition, OSHA disagrees with commenters that argued that the
protection of trade secrets or other confidential business information
outweighs the need for third parties. These concerns can be addressed
while still allowing third parties to serve as walkaround
representatives. OSHA's existing regulations expressly afford employers
the right to identify areas in the workplace that contain or might
reveal a trade secret, and request that, in any area containing trade
secrets, the authorized employee representative shall be an employee in
that area or an employee authorized by the employer to enter that area.
See 29 CFR 1903.9(c), (d). Although one commenter criticized the NPRM
for not defining ``trade secrets,'' this term is defined in section 15
of the OSH Act by reference to 18 U.S.C. 1905, as information
concerning or related to ``processes, operations, style of work, or
apparatus, or to the identity, confidential statistical data, amount or
source of any income, profits, losses, or expenditures of any person,
firm, partnership, corporation, or association.'' See also OSHA Field
Operations Manual, Chapter 3, Section VII.E.
If an employer identifies something as a trade secret, OSHA will
treat it as a trade secret if there is ``no clear reason to question
such identification.'' See 29 CFR 1903.9(c); OSHA Field Operations
Manual, Chapter 3, Section VII.E. Accordingly, OSHA finds that existing
requirements and policies are sufficient to protect employers' trade
secrets and propriety information, but will address any unique
circumstances on an inspection-by-inspection basis.
While two commenters asserted that a third-party walkaround
representative from a competitor could raise antitrust or
anticompetition concerns, this assertion appears highly improbable.
First, any third-party must be authorized by the employer's employees,
and it seems unlikely that employees would authorize a competitor who
would then engage in anticompetitive conduct to represent them.
Further, the CSHO must find good cause has been shown that a third
party is reasonably necessary to the conduct of an effective and
thorough physical inspection of the workplace. This requirement ensures
that the representative will aid the inspection. Additionally, if a
third party engages in conduct that is unrelated to the inspection, the
CSHO has the authority to terminate the third party's accompaniment.
OSHA also disagrees with commenters that argued third parties are
not needed because third parties can discourage employer cooperation or
disenfranchise employees. Concerns about diminished employer
cooperation and an increase in warrants are discussed in more detail in
Sections IV.G. Further, commenters have also failed to show how workers
will be disenfranchised by allowing third-party representatives because
workers still have the right to designate employee representatives.
Because third-party representatives must be authorized by workers, they
cannot ``disenfranchise'' workers. Rather, they can facilitate worker
participation during inspections.
[[Page 22572]]
Finally, comments arguing that the purpose of this rule is to
facilitate union organizing are incorrect. Employee representation
during the inspection is critically important to ensuring OSHA obtains
the necessary information about worksite conditions and hazards. In
addition, the rule does not limit third-party representatives to union
representatives but clarifies that varying types of third parties may
serve as employee representatives based on their knowledge, skills, or
experience. Third-party representatives' sole purpose onsite is to aid
OSHA's inspection, 29 U.S.C. 657(e), and CSHOs have authority to deny
the right of accompaniment to third parties who do not do that or who
interfere with a fair and orderly inspection. 29 CFR 1903.8(a)-(d).
Ultimately, as evidenced herein, OSHA disagrees with commenters
that assert that there is no need or not a pressing need for this
rulemaking. The district court's decision in NFIB v. Dougherty
necessitated this rulemaking to explain OSHA's ``persuasive and valid
construction of the Act.'' 2017 WL 1194666, *12. Moreover, neither the
plain text of the OSH Act nor its legislative history support arguments
that OSHA is required to show that there is a ``pressing need'' to
clarify who is eligible to be a third-party representative. For a
fuller discussion of OSHA's rulemaking authority, see Section III,
Legal Authority.
For the reasons discussed above, OSHA has determined that
permitting employees to select trusted and knowledgeable
representatives of their choice, including third parties, facilitates
the CSHO's information gathering during OSHA inspection, which will
improve the effectiveness of OSHA inspections and benefit employees'
health and safety. Employee representatives can ensure that CSHOs do
not receive only the employer's account of the conditions in the
workplace. As National COSH explained, employees are a key source of
information as to specific incidents, and they also may possess
information related to an employer's history of past injuries or
illnesses and an employer's knowledge of or awareness of hazards
(Document ID 1769, p. 2). By obtaining comprehensive information, OSHA
can not only better and more timely identify dangerous hazards,
including hazards that may be hidden or hard to detect, but ensure the
hazards are abated quickly and do not injure or kill employees.
Accordingly, OSHA concludes that its rule is necessary. See 29 U.S.C.
657(g)(2).
B. The ``Good Cause'' and ``Reasonably Necessary'' Requirement
In the NPRM, OSHA proposed to revise 29 CFR 1903.8(c) to clarify
that the representative(s) authorized by employees may be a third party
and that third parties are not limited to the two examples listed in
the existing rule. However, as the NPRM explained, the proposed
revisions would not alter the regulation's existing requirement for the
CSHO to determine that ``good cause'' had been shown why the third
party was ``reasonably necessary to the conduct of an effective and
thorough physical inspection of the workplace.'' The NPRM requested
public input regarding the ``good cause'' and ``reasonably necessary''
requirement for third-party employee representatives. The NPRM also set
forth the following three questions, suggesting alternatives to OSHA's
proposed revisions.
1. Should OSHA defer to the employees' selection of a
representative to aid the inspection when the representative is a third
party (i.e., remove the requirement for third-party representatives to
be reasonably necessary to the inspection)?
2. Should OSHA retain the language as proposed, but add a
presumption that a third-party representative authorized by employees
is reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace?
3. Should OSHA expand the criteria for an employees' representative
that is a third party to participate in the inspection to include
circumstances when the CSHO determines that such participation would
aid employees in effectively exercising their rights under the OSH Act?
Why or why not? If so, should OSHA defer to employees' selection of a
representative who would aid them in effectively exercising their
rights?
OSHA received many comments both for and against the ``good cause''
and ``reasonably necessary'' requirement, and many commenters
specifically addressed the possible alternatives. After reviewing the
comments, summarized below, OSHA has decided to retain the existing
``good cause'' and ``reasonably necessary'' requirements in the final
rule. Therefore, if the representative authorized by employees is a
third party, the third party may accompany the CSHO during the physical
inspection of the workplace if in the judgment of the CSHO, good cause
has been shown why the third party's accompaniment is reasonably
necessary to the conduct of an effective and thorough inspection of the
workplace (including, but not limited to, because of their relevant
knowledge, skills, or experience with hazards or conditions in the
workplace or similar workplaces, or language or communication skills).
1. Comments That Supported Removing the CSHO's ``Good Cause'' and
``Reasonably Necessary'' Determination Requirement in Some Form
A number of commenters asserted that OSHA should abandon the
existing ``good cause'' and ``reasonably necessary'' requirement for
third-party employee representatives and adopt one of the proposed
alternatives in the NPRM. For example, some commenters requested that
OSHA pursue the first proposed alternative--removing the CSHO's
``reasonably necessary'' determination, with the CSHO deferring
entirely to the employees' selection of a representative (e.g.,
Document ID 1023, p. 3; 1763, p. 5-6, 7-8; 1769, p. 4-5; 1777, p. 3-4;
1934, p. 4-5; 1948, p. 2; 1958, 8-9, 13; 1969, p. 2-8; 1972, p. 7-8;
1978, p. 1-2; 11231). According to these commenters, the ``good cause''
and ``reasonably necessary'' requirement is contrary to the text of the
OSH Act, infringes upon workers' rights, and impairs the Act's safety
and health goals.
First, several commenters argued that the ``good cause'' and
``reasonably necessary requirement'' is contrary to the language of the
OSH Act. For example, National COSH contended that requiring employees
to demonstrate ``good cause'' as to why a representative is
``reasonably necessary'' is an ``extra hurdle the employees'
representative needs to clear before qualifying'' that is not supported
by the language of the Act (Document ID 1769, p. 5). According to
National COSH, section 8 of the Act ``properly determines when the
employees' selected representative has a right to participate in the
inspection: that is, when their purpose is to aid the inspection''
(Document ID 1769, p. 5). Likewise, the AFL-CIO stated that
``[w]orkers' belief that their chosen representative will support them
is sufficient reason to find that the representative will aid the
investigation'' (Document ID 1969, p. 6). In the AFL-CIO's view,
``there is no distinction between deferring to workers' choice of
representatives and finding that the workers' choice is reasonably
necessary to aid the OSHA investigation'' (Document ID 1969, p. 6).
In addition, commenters argued that section 8 does not authorize
CSHOs to decide whether good cause has been shown that a third-party
employee representative is ``reasonably necessary.'' For example,
Farmworker
[[Page 22573]]
Justice argued that employees' right to a representative ``should not
depend on a determination by the CSHO'' (Document ID 1763, p. 8).
Additionally, the AFL-CIO asserted that ``giving a CSHO discretion to
exclude an employee's third-party representative as not `reasonably
necessary' is contrary to the plain terms of the Act'' (Document ID
1969, p. 3-4), and that ``the Secretary does not have authority to
impose limitations on employees' rights that are inconsistent with the
Act.'' (Document ID 1969, p. 4). Similarly, National COSH argued that
under section 8, employees' selected representative has a right to
participate in the inspection regardless of whether the
representative's ``participation is `reasonably necessary to the
conduct of an effective and thorough inspection,' as determined in the
judgment of the CSHO'' (Document ID 1769, p. 4). The AFL-CIO
recommended that OSHA remove the ``good cause'' and ``reasonably
necessary'' requirement to ``ensure that the full benefits of the
workers' choice is not limited by misinterpretation or CSHO
variability, aligning with the purpose and language of the OSH Act''
(Document ID 1969, p. 6). Similarly, Sur Legal Collaborative
recommended ``OSHA remove the proposed language in 1903.8(c) that `in
the judgment of the Compliance Safety and Health Officer, good cause'
must be shown'' (Document ID 11231). Additionally, U.S. Representative
Robert ``Bobby'' Scott advocated for an unqualified right for workers'
lawyers to act as ``representatives in all phases of OSHA inspection,
enforcement, and contest'' (Document ID 1931, p. 8).
Second, various commenters contended that requiring good cause be
shown that a third-party employee representative is ``reasonably
necessary'' infringes upon workers' rights by imposing a higher burden
for employee representatives than for employer representatives. The
AFL-CIO argued that although ``the plain language of the Act places no
greater restriction on who employees may choose as their representative
than it does on who the employer may choose,'' the ``existing
regulation and the new, proposed rule, on the other hand, only place
restrictions on employees' choice of representative, creating unequal
access to the right granted both parties by the OSH Act'' (Document ID
1969, p. 3) (emphasis omitted). Similarly, National Nurses United
argued that because employers are not required to demonstrate ``good
cause'' at ``any part of the investigation process, OSHA should not
require employees to justify their choice of representative'' (Document
ID 1777, p. 3).
The American Federation of Teachers (AFT) argued that this language
allows CSHOs too much discretion to reject a third-party representative
that employees have selected and that disallowing third-party certified
bargaining agents ``is incongruent with rights secured by the [NLRA] or
public sector labor relations laws'' (Document ID 1957, p. 2). National
COSH argued that OSHA should defer to employee choice because the
``presence of a representative chosen by workers helps ensure workers
can participate in the process without experiencing retaliation''
(Document ID 1769, p. 3). According to National COSH, ``when workers
are accompanied by a trusted community, labor, or legal representative,
they can more easily overcome the threat of retaliation and other
barriers to give OSHA the information it needs for a comprehensive
inspection'' (Document ID 1769, p. 3). More generally, UFCW asserted
that OSHA should defer to employee choice because ``limiting the
employee's ability to choose representation for a matter as serious as
an OSHA inspection is unfairly restrictive of the workers basic
rights'' (Document ID 1023, p. 3).
Third, other commenters asserted that the inclusion of the ``good
cause'' and ``reasonably necessary'' requirement impairs the safety and
health goals of the OSH Act. For example, the AFL-CIO stated that
``[i]t is inarguable that worker participation improves OSHA
investigations by increasing the CSHO's knowledge of the workplace and
hazards'' and that ``[w]orker participation is enhanced by the presence
of a worker advocate through increasing trust, increasing knowledge and
expertise, providing language justice, protecting workers from
retaliation, and empowering workers in the investigation process to
create a safer workplace'' (Document ID 1969, p. 6).
In addition to commenters that supported eliminating the ``good
cause'' and ``reasonably necessary'' requirement altogether, the Texas
RioGrande Legal Aid (TRLA) supported the second alternative proposed in
the NPRM and advocated for adding a presumption that a third-party
representative authorized by employees is reasonably necessary to the
conduct of an effective and thorough physical inspection of the
workplace (Document ID 1749, p. 2). TRLA suggested that employers can
rebut the presumption by ``show[ing] good cause to the contrary''
(Document ID 1749, p. 2).
Farmworker Justice supported the third alternative proposed in the
NPRM, arguing that ``OSHA should expand the criteria for an employees'
representative that is a third party to participate in the inspection
to include circumstances when the CSHO determines that such
participation would aid employees in effectively exercising their
rights under the OSH Act, and OSHA should defer to employees' selection
of a representative who would aid them in effectively exercising their
rights'' (Document ID 1763, p. 8). The Strategic Organizing Center
stated that no ``additional criteria should be imposed on the workers'
process for selecting their representatives, nor on the CSHOs for
interpreting or approving of that process'' (Document ID 1978, p. 2).
However, the Strategic Organizing Center stated that if OSHA were to
adopt ``any criteria regarding worker selection of representation, it
should be used only to help inform workers of their right to choose a
designee'' (Document ID 1978, p. 3).
2. Comments That Generally Supported Retaining the Existing ``Good
Cause'' and ``Reasonably Necessary'' Requirement and Opposed the NPRM's
Alternatives
In contrast, many commenters who were otherwise opposed to this
rule responded that OSHA should not remove the ``good cause'' and
``reasonably necessary'' requirement for a third party to accompany the
CSHO during the walkaround (e.g., Document ID 1754, p. 2; 1762, p. 4-5;
1770, p. 3; 1954, p. 5; 1966, p. 4-5; 1974, p. 5).
Several commenters argued that the ``good cause'' and ``reasonably
necessary'' standard ensures that the third party has a legitimate
inspection purpose for being on-site (see, e.g., Document ID 1762, p.
4-5; 1770, p. 3). For example, the American Petroleum Institute argued
that the ``good cause'' and ``reasonably necessary'' requirement
ensures that ``the third party has a defined and accepted interest in
the inspection,'' which ``help[s] reduce the risk of potential security
issues their participation could raise'' (Document ID 1954, p. 5). The
Chamber of Commerce stated that OSHA should retain the ``good cause''
and ``reasonably necessary'' requirement because providing employees
discretion to authorize any third-party as a representative ``will turn
OSHA inspections into an opportunity for individuals or groups with
grievances or an agenda against the employer to advance their interests
by gaining full access to the employer's property'' (Document ID 1952,
p. 3). The
[[Page 22574]]
Employers Walkaround Representative Rulemaking Coalition also
emphasized that because the purpose of a third-party representative is
to aid the inspection, not to aid employees, OSHA should not defer to
employee choice alone (Document ID 1976, p. 15-16).
Some commenters supported retaining the existing the ``good cause''
and ``reasonably necessary'' requirement without modification (e.g.,
Document ID 1974, p. 5), while other commenters had questions about how
OSHA will determine whether good cause has been shown why employees'
chosen third-party representative is reasonably necessary and
recommended that OSHA revise the requirement by providing further
guidance (e.g., Document ID 1762, p. 4-5; 1770, p. 4; 1775, p. 4-6;
1776, p. 5-6; 1938, p. 2-3; 1954, p. 5; 1956, p. 3-4; 1965, p. 11-16;
1974, p. 5-7; 1976, p. 11-14).
Some of these commenters disapproved of the ``discretion'' afforded
to CSHOs under the proposed rule and contended that the proposed rule
lacked sufficient specificity and a ``defined process'' to determine
the employee representative (Document ID 1976, p. 11-15; see also 0040,
p. 4-5). For example, the State Policy Network contended that further
guidance is necessary because ``[t]he lack of measurable criteria,
authoritative definitions, or concrete examples of what constitutes
`good cause,' `positive contribution,' or `reasonably necessary'
delegates inappropriate and broad discretionary authority to the
CSHO,'' which it argued will ``result[ ] in confusion, inconsistencies,
potential financial and safety risks in workplaces, and overall
uncertainty in the outworking of state plans'' (Document ID 1965, p. 1,
11).
Along the same lines, many commenters asserted that the vagueness
of the ``good cause'' and ``reasonably necessary'' requirement will
result in disparate application (e.g., Document ID 1754, p. 2-3; 1762,
p. 4-5; 1770, p. 4; 1775, p. 6-8; 1776, p. 5-6; 1938, p. 2-3, 11; 1956,
p. 2-4; 1965, p. 1, 11-16). For instance, the Coalition of Worker
Safety expressed concern that the rule ``contains no mechanisms to
enforce the `good cause' or `reasonably necessary' requirements beyond
the CSHO's discretion,'' which it contends ``puts employers at the
mercy of the CSHO's unfettered subjective decision making about the
meaning of `good cause' or `reasonable necessity' [and] provides
employers no recourse--aside from the warrant process--to challenge the
CSHOs['] determinations'' (Document ID 1938, p. 2).
Commenters also critiqued a lack of employer input in the
determination process (Document ID 1726, p. 3) or asked whether there
was any oversight over OSHA's inspections (Document ID 0040, p. 4-5)
and what ``recourse [ ] a business owner h[as] to challenge the
selection process'' (Document ID 1771, p. 1). One individual critiqued
the rule for ``not provid[ing] any clear definition or rubric'' for
CSHOs to follow in their determinations (Document ID 11524). Some
commenters, such as the National Association of Wholesaler-
Distributors, expressed concern that CSHOs will be put ``in a very
unfair position'' by an alleged lack of guidance in the proposed rule
creating ``additional burdens'' on CSHOs which ``are unrelated to their
training and expertise'' (Document ID 1933, p. 3). Another individual
commenter asserted that employers are ``at the mercy of the OSHA
employees who will pick anyone they decide on'' (Document ID 1116).
Additionally, the State Policy Network submitted a report from the
Boundary Line Foundation, which stated that the proposed rule
``neglects to provide direction to the CSHO in the event a proffered
third-party employee representative is disqualified by the CSHO''
(Document ID 1965, p. 15). This comment suggested incorporating section
8(e)'s language to ``consult with a reasonable number of [employees]
concerning matters of health and safety in the workplace'' where there
is no authorized employee representative (Document ID 1965, p. 15).
Some commenters opposed the second alternative presented in the
NPRM and stated that OSHA should not create a presumption that a third-
party representative is reasonably necessary to aid an inspection. For
example, the Employers Walkaround Representative Rulemaking Coalition
argued that creating a presumption would ``shift[ ] the burden of proof
to the employer to show that an authorized representative is not
reasonably necessary,'' which they contended is not supported by the
text of the Act (Document ID 1976, p. 16). Labor Services International
(LSI) argued that a presumption should not be added because it would
result in increased complexity and a question of who is responsible to
overcome the presumption--the employer or the CSHO (Document ID 1949,
p. 4).
Other commenters opposed the third alternative presented in the
NPRM and stated that OSHA should not expand the criteria to allow for a
third party to serve as employees' walkaround representative when the
CSHO determines that such participation would aid employees in
effectively exercising their rights under the OSH Act (Document ID
1974, p. 5). For example, LSI argued that this alternative proposal is
``superfluous'' because ``the existing version of 29 CFR 1903.8(c)
affords employees a role in the inspection procedure'' (Document ID
1949, p. 4).
3. Conclusion on the ``Good Cause'' and ``Reasonably Necessary''
Requirement
OSHA has considered all arguments in favor and against each of the
options and has decided to retain the existing ``good cause'' and
``reasonably necessary'' requirement in the final rule. Therefore, if
the representative authorized by employees is a third party, the third
party may accompany the CSHO during the physical inspection of the
workplace if in the judgment of the CSHO, good cause has been shown why
the third party's accompaniment is reasonably necessary to the conduct
of an effective and thorough inspection of the workplace (including,
but not limited to, their relevant knowledge, skills, or experience
with hazards or conditions in the workplace or similar workplaces, or
language or communication skills).
OSHA has determined that the existing ``good cause'' and
``reasonably necessary'' requirement continues to be the appropriate
criteria for determining when a third-party will aid an inspection.
This requirement is supported by the broad authority granted to the
Secretary to promulgate rules and regulations related to inspections,
investigations, and recordkeeping. See 29 U.S.C. 657(e), (g)(2); see
also Section III, Legal Authority. As many commenters noted, the right
of employees to authorize a representative to accompany them during the
inspection of the workplace is qualified by the statutory requirement
that the representative be authorized ``for the purpose of aiding such
inspection.'' 29 U.S.C. 657(e). In other words, an authorized employee
representative may accompany the CSHO only for the purpose of aiding
the inspection. The requirement for the CSHO to determine that ``good
cause'' has been shown why the third party is ``reasonably necessary''
to aid an effective and thorough inspection is consistent with the Act
and ensures that an authorized representative aid in the inspection.
See 29 U.S.C. 657(e), (g)(2). Thus, OSHA disagrees with commenters who
suggested that OSHA lacks the authority to determine if a third party
will aid an inspection.
OSHA's interpretation of section 8(e) as requiring a showing of
good cause and reasonable necessity is consistent
[[Page 22575]]
with the authority vested in the CSHO and OSHA's other longstanding
regulations. CSHOs are ``in charge of inspections'' and ``shall have
authority to resolve all disputes as to who is the representative
authorized by the employer and employees for the purpose of this
section.'' 29 CFR 1903.8(a), (b). The Workplace Policy Institute stated
that a third-party representative should only be ``allowed on site when
doing so will actually positively assist in the inspection, not simply
because a third party wants to be there. The individual must have a
reason for attending that is actually related to the inspection, and
not some ulterior motive'' (Document ID 1762, p. 4-5). OSHA agrees and
believes that the existing ``good cause'' and ``reasonably necessary''
requirement assures that this will be so. Third-party representatives
are reasonably necessary if they will make a positive contribution to
aid a thorough and effective inspection.
While some commenters took issue with the terms ``good cause,''
``reasonably necessary,'' and ``positive contribution,'' OSHA notes
that the ``good cause'' and ``reasonably necessary'' requirement is a
single requirement and OSHA does not intend the regulation to require a
separate ``good cause'' inquiry. OSHA considered deleting the term
``good cause'' from the regulation and using only the term ``reasonably
necessary'' as the criterion for determining whether a third party
could accompany the CSHO. OSHA rejected that approach because it could
lead to unnecessary confusion. OSHA has implemented the ``good cause''
and ``reasonably necessary'' requirement, and it has been known to
employees and employers, for more than fifty years. As such, OSHA finds
no compelling reason to delete the term ``good cause'' from the revised
regulation. Some commenters suggested that the ``good cause'' and
``reasonably necessary'' standard places a higher burden on third-party
employee representatives than it does on third-party employer
representatives. This is true, and OSHA has determined that a different
standard is appropriate in the case of third-party employee
representatives. As many commenters noted, the presence of such persons
in the workplace raises property and privacy concerns that are not
present where the employer has identified a third party as its
representative. The ``good cause'' and ``reasonably necessary''
requirement protects against impermissible infringement of these
interests by ensuring that third-party employee representatives will be
present only when they aid the inspection. And this requirement ensures
that the third party's presence meets the reasonableness requirements
of the Fourth Amendment (see Section IV.D.2, Fourth Amendment Issues).
These property and privacy concerns are not implicated where the
employee representative is an employee, or when the employer selects a
third party to represent it in the walkaround.
Additionally, OSHA has determined that the ``good cause'' and
``reasonably necessary'' requirement does not infringe upon employee
rights. Although some commenters asserted that this language gives
CSHOs too much discretion to reject employees' third-party
representative, including one who is the recognized bargaining agent
(such as from a union's national or international office), CSHOs have
the expertise and judgment necessary to determine, on an inspection-by-
inspection basis, whether a third party will aid OSHA's inspection.
Moreover, several unions provided examples where representatives from
the national or international union were permitted to accompany the
CSHO and aided the inspection (see, e.g., Document ID 1761, p. 1;
Document ID 1958, p. 3-8). While CSHOs have the authority to deny the
right of accompaniment to any representative that interferes with--and
thus does not aid--the inspection, (see 29 CFR 1903.8(d)), OSHA
anticipates that third-party recognized bargaining agents in a
unionized workplace would generally be ``reasonably necessary'' to the
inspection. Cf. OSHA Field Operations Manual, Chapter 3, Section
VII.A.1 (explaining that ``the highest ranking union official or union
employee representative onsite shall designate who will participate in
the walkaround''). OSHA's discussion of how this rule interacts with
the NLRA is explained in detail in Section IV.E, National Labor
Relations Act and Other Labor-Related Comments. Accordingly, OSHA does
not believe that the ``good cause'' and ``reasonably necessary''
requirement infringes upon or is in tension with employee rights under
the NLRA or public sector labor relations laws.
Likewise, OSHA disagrees with comments that there should be a
rubric for CSHOs to follow in making their determination or that CSHOs
need a defined process to determine whether good cause has been shown
that a third-party walkaround representative is reasonably necessary.
The statute provides that an employee representative is allowed if they
aid the inspection. And the regulation provides further explanation of
how OSHA will implement that requirement. The regulation contains
factors for the CSHO to consider in making the ``good cause'' and
``reasonably necessary'' determination, and the preamble describes
numerous examples of the types of third parties who have made a
positive contribution to OSHA's inspections. Accordingly, OSHA rejects
the argument that the ``good cause'' and ``reasonably necessary''
requirement is too subjective, will result in disparate application, or
that a rubric or defined process for determining whether a
representative is reasonably necessary would be appropriate.
The OSH Act grants employees the right to a walkaround
representative ``for the purpose of aiding such inspection.'' 29 U.S.C.
657(e). As explained above, OSHA has determined that third parties can
aid OSHA's inspections in a variety of different scenarios. However,
not all third-party representatives will necessarily aid OSHA's
inspection simply because employees have selected the individual.
Several commenters raised concerns that some individuals may have
motivations unrelated to safety or the inspection, such as unionizing a
facility or ``looking for lawsuit opportunities'' (Document ID 1953, p.
5; see also 1775, p. 7-8; 1938, p. 2-3; 1975, p. 18-21). Maintaining
the ``good cause'' and ``reasonably necessary'' requirement ensures
that OSHA's inspection comports with section 8(e) of the OSH Act
because the CSHO has determined that the representative will in fact
aid the inspection. As such, this requirement does not conflict with
the text of the Act or undermine the goals of the Act.
Contrary to several commenters' claims, the ``good cause'' and
``reasonably necessary'' requirement does not place a high burden on
employees. Rather, the CSHO will determine whether a representative is
reasonably necessary. To determine whether ``good cause'' has been
established why a third-party representative is ``reasonably
necessary,'' the CSHO will inquire about how and why the representative
will benefit the inspection, such as because of the representative's
knowledge, skills, or experience with hazards or conditions in the
workplace or similar workplaces, relevant language skills, or other
reasons that the representative would facilitate communication with
employees, such as their cultural competency or relationship with
employees. For example, this may include the representative's
familiarity with the machinery, work processes, or hazards that are
present in the
[[Page 22576]]
workplace, any specialized safety and health expertise, or the language
or communication skills they have that would aid in the inspection. The
CSHO will speak with employees and the employees' walkaround
representative to determine whether good cause has been shown that the
representative is reasonably necessary. This requirement is not a
``hurdle'' that employees must overcome, but rather better enables OSHA
to ensure that a third-party employee representative will aid OSHA's
inspection.
While the State Policy Network suggested additional guidance to
CSHOs in the event a proffered third-party employee representative is
disqualified by the CSHO (Document ID 1965, p. 16-17), this suggestion
is unnecessary. Section 1903.8(b) already instructs CSHOs what to do if
there is no authorized employee representative or the CSHO cannot
determine who is the authorized employee representative with reasonable
certainty. See 29 CFR 1903.8(b) (``If there is no authorized
representative of employees, or if the Compliance Safety and Health
Officer is unable to determine with reasonable certainty who is such
representative, he shall consult with a reasonable number of employees
concerning matters of safety and health in the workplace.'').
OSHA concludes that retaining the existing requirement also strikes
the appropriate balance between workers' rights and employers' property
and privacy concerns. Employees, like employers, have a statutory right
to a representative to aid in the inspection. See 29 U.S.C. 657(e).
OSHA has determined that this requirement enables sufficient
flexibility for OSHA to realize the potential benefits that third
parties may provide to an inspection while remaining consistent with
Fourth Amendment reasonableness requirements. If a third-party
representative engages in activity unrelated to the inspection, OSHA
will attempt to resolve any potentially interfering conduct and retains
the authority to deny individuals the right of accompaniment if their
conduct ``interferes with a fair and orderly inspection.'' 29 CFR
1903.8(d).
Finally, it is OSHA's intent that the general presumption of
severability should be applied to this regulation; i.e., if any portion
of the regulation is held invalid or unenforceable or is stayed or
enjoined by any court of competent jurisdiction, the remaining portion
remains workable and should remain effective and operative. It is
OSHA's intent that all portions be considered severable. In this
regard, the agency intends that: (1) in the event that any portion of
the regulation is stayed, enjoined, or invalidated, all remaining
portions of the regulation shall remain effective and operative; and
(2) in the event that any application of the regulation is stayed,
enjoined, or invalidated, the regulation shall be construed so as to
continue to give the maximum effect to the provision permitted by law.
C. Role of the Employee Representative in the Inspection
In response to comments received, OSHA has slightly revised the
regulatory text in the final rule. OSHA's proposed revision to section
1903.8(c) stated that a third party representative could accompany the
CSHO during the inspection ``if, in the judgment of the Compliance
Safety and Health Officer, good cause has been shown why their
participation is reasonably necessary to the conduct of an effective
and thorough physical inspection of the workplace (e.g., because of
their relevant knowledge, skills, or experience with hazards or
conditions in the workplace or similar workplaces, or language
skills).'' 88 FR 59833-34.
The use of the word ``participation'' in the proposed regulation
prompted several commenters to question whether the term reflected a
change in the role served by the employee representative (see, e.g.,
Document ID 1781, p. 2-3; 1941, p. 5; 1964, p. 3; 1974, p. 3-4), while
a number of commenters observed that the revision could overly broaden
the role of third-party representatives (see, e.g., Document ID 1964,
p. 3-4; 1974, p. 3; 1976, p. 21; 6991). Other commenters described
scenarios in which third-party representatives could take advantage of
ambiguity resulting from the revision by performing acts not authorized
by the OSH Act, i.e., acts that do not aid the inspection (see, e.g.,
Document ID 1755, p. 1; 1964, p. 4; 1974, p. 3-4; 1976, p. 5; 6991).
Some commenters expressed concern that the revision could permit
representatives to participate in private employee or management
interviews, independently interview employees, or gain unauthorized
access to employers' private records (see, e.g., Document ID 1765, p.
2; 1774, p. 6; 1964, p. 3-4; 1976, p. 5). Commenters also opposed
allowing representatives to make unauthorized image, video, or audio
recordings during inspections and to use such recordings for purposes
other than furthering the inspection (see, e.g., Document ID 1762, p.
5; 1774, p. 6; 1966, p. 2). Relatedly, one commenter suggested that
employee representatives should be subject to nondisclosure
requirements and only be allowed to share information with CSHOs
(Document ID 8120). Commenters further asked whether third-party
employee representatives could ``weigh[ ] in with their own
commentary,'' and ``opin[e] on what is and is not safe,'' (Document ID
1762, p. 5). Additionally, the Office of Advocacy of the U.S. Small
Business Administration asked what ``participation'' would entail and
how it would affect small entities (Document ID 1941, p. 5).
While the terms ``participate'' and ``accompany'' are often used
interchangeably in discussing employee walkaround rights (see, e.g.,
OSHA Field Operations Manual, CPL 02-00-164, Chapter 3, Sections IV.D;
VII.A), OSHA did not intend to change the role of the walkaround
representative. Based on stakeholder comments, OSHA has determined that
using the term ``accompaniment'' rather than ``participation''
maintains consistency with the OSH Act and other related OSHA
regulations. See, e.g., 29 U.S.C. 657(e); 29 CFR 1903.4 (establishing
procedures upon objection to an inspection, including upon refusal to
permit an employee representative to accompany the CSHO during the
physical inspection of a workplace in accordance with 29 CFR 1903.8);
29 CFR 1908.6 (explaining procedures during an onsite consultative
visit for an employee representative of affected employees to accompany
the consultant and the employer's representative during the physical
inspection of a workplace); 29 CFR 1960.27 (providing that a
representative of employees shall be given an opportunity to accompany
CSHOs during the physical inspection of any workplace, and that a CSHO
may deny the representative's right of accompaniment if their
participation interferes with a fair and orderly inspection).
Accordingly, OSHA has removed the term ``participation'' in the final
rule to clarify that the employee representative may accompany the CSHO
when good cause has been shown why ``accompaniment'' is reasonably
necessary to an effective and thorough workplace inspection.
OSHA received many comments related to what a third-party
representative can or cannot do during the inspection (see, e.g.,
Document ID 0234, p. 1-2; 1935, p. 1; 1937, p. 1, 4-5; 1938, p. 2-6).
This rulemaking does not change the role of the third-party
representative authorized by employees; the representative's role is to
accompany the CSHO for the purpose of aiding OSHA's physical inspection
of the workplace. The representative is permitted to accompany the CSHO
[[Page 22577]]
during the walkaround inspection, attend the opening and closing
conferences (see OSHA Field Operations Manual, CPL 02-00-164, Chapter
3, Sections V.A, VII.A, and VIII.A), and ask clarifying questions to
ensure understanding of a specific item or topic of discussion. While
the representative may informally ask clarifying questions during the
walkaround, private employees interviews conducted during the
inspection are conducted by the CSHO in private unless the employee
requests the presence of the representative.
One commenter urged that OSHA ensure that the third-party
walkaround representative not be allowed to review physical and
electronic records, including procedures, injury and illness logs,
diagrams, emergency plans, and floor plans, along with the CSHO
(Document ID 1765, p. 2). Although CSHOs may preliminarily review
employer-provided documents such as safety and health manuals or injury
and illness records during the walkaround inspection, in-depth review
typically occurs away from the inspected worksite. However, this rule
does not alter in any way the requirement that employers provide access
to injury and illness records to ``employees, former employees, their
personal representatives, and their authorized employee
representatives,'' as those terms are defined in OSHA's Recordkeeping
and Reporting regulation (29 CFR 1904.35). Additionally, the third-
party representative may review records that relate to work processes,
equipment, or machines at the CSHO's discretion if their review during
the walkaround will aid the CSHO's inspection.
Further, during an inspection, the CSHO will ensure an employee
representative's conduct does not interfere with a fair and orderly
inspection. OSHA considers conduct that interferes with the inspection
to include any activity not directly related to conducting an effective
and thorough physical inspection of the workplace. OSHA Field
Operations Manual, CPL 02-00-164, Chapter 3, Section VII.A. The FOM
instructs the CSHO to advise the employee representative that, during
the inspection, matters unrelated to the inspection shall not be
discussed with employees. See OSHA Field Operations Manual, CPL 02-00-
164, Chapter 3, Section V.E. Under section 1903.8(d), a CSHO may deny a
representative the right to accompany the CSHO on an inspection if
their conduct interferes with a fair and orderly inspection. Last,
matters concerning the authorized representative's conduct outside the
walkaround inspection is beyond the scope of this regulation or this
rulemaking, and OSHA declines to add a nondisclosure requirement or
other limitations to the sharing of information.
D. Constitutional Issues
1. First Amendment Issues
OSHA received several hundred comments asserting that this rule
could adversely affect religious liberty, such as by permitting someone
opposed to a church to be a third-party employee representative (see,
e.g., Document ID 1076; 1151; 1724; 1739; 6800). Other commenters
suggested that churches should not be inspected (see, e.g., Document ID
1360). OSHA believes that the concerns expressed in these comments are
unfounded.
First, under this rule and pursuant to the OSH Act, any third-party
employee representative must be authorized by the employees. Employees
do not have to designate a third-party representative if they do not
want to. Thus, only a third party selected by the employees of the
church or other religious organization will be eligible to accompany
the CSHO on the inspection. Second, a third-party employee
representative may accompany the CSHO only if the CSHO concludes that
good cause has been shown that the third party is ``reasonably
necessary'' to conduct a thorough and effective inspection. Third, the
CSHO has the authority to deny the right of accompaniment to any third-
party employee representative ``whose conduct interferes with a fair
and orderly inspection.'' 29 CFR 1903.8(d).
While OSHA accommodates religious practices in carrying out its
responsibilities under the OSH Act, see, e.g., OSHA Exemption for
Religious Reason from Wearing Hard Hats, STD 01-06-005 (1994),
available at <a href="https://www.osha.gov/enforcement/directives/std-01-06-005">https://www.osha.gov/enforcement/directives/std-01-06-005</a>;
Sikh American Legal Defense and Education Fund, OSHA Interpretive
Letter (Aug. 5, 2011), available at <a href="https://www.osha.gov/laws-regs/standardinterpretations/2011-08-05">https://www.osha.gov/laws-regs/standardinterpretations/2011-08-05</a>, coverage of religious institutions
is not at issue in this rulemaking. OSHA does conduct inspections at
religious worksites, see, e.g., Absolute Roofing & Constr., Inc. v.
Sec'y of Labor, 580 F. App'x 357, 359 (6th Cir. 2014) (involving OSHA's
inspection of a jobsite where a worker was injured while performing
repair work on a church), but for the reasons stated above OSHA finds
that this rule does not adversely affect religious liberty or change
OSHA's long-exercised authority to do so.
Additionally, OSHA received a few comments asserting that this rule
infringed on free speech rights (see, e.g., Document ID 1754, p. 2;
8781). However, these commenters did not explain why or how this rule
limits free speech. This rule neither requires nor prohibits speech,
and OSHA finds no merit to the argument that it limits the First
Amendment right to freedom of speech.
2. Fourth Amendment Issues
While the OSH Act grants the Secretary of Labor broad authority to
inspect workplaces ``without delay'' to find and remedy safety and
health violations, 29 U.S.C. 657(a)(1)-(2), there are constitutional
and statutory components of reasonableness that an OSHA inspection must
satisfy. The Fourth Amendment of the U.S. Constitution protects
employers against ``unreasonable searches and seizures.'' See U.S.
Const. amend. IV; Barlow's, 436 U.S. 311-12. Under Barlow's, a warrant
is constitutionally necessary for nonconsensual OSHA inspections and,
therefore, if an employer refuses entry, OSHA must obtain a warrant to
proceed with the inspection. 436 U.S. at 320-21; see also 29 CFR
1903.4. Contrary to the concerns expressed by the Pacific Legal
Foundation (Document ID 1768, p. 6-7), this rule will not disturb
employers' right under the Fourth Amendment, including their right to
withhold or limit the scope of their consent, and employers will not be
subject to a citation and penalty for objecting to a particular third-
party representative. Moreover, both the Fourth Amendment and section
8(a) of the OSH Act require that OSHA carry out its inspection in a
reasonable manner. See, e.g., L.R. Willson & Sons, Inc. v. OSHRC, 134
F.3d 1235, 1239 (4th Cir. 1998); Donovan v. Enter. Foundry, Inc., 751
F.2d 30, 36 (1st Cir. 1984). Indeed, section 8(a) of the Act requires
that OSHA's on-site inspections be conducted at ``reasonable times, and
within reasonable limits and in a reasonable manner.'' 29 U.S.C.
657(a)(2).
Some commenters have argued that allowing a third-party employee
representative to accompany OSHA during its physical inspection of a
workplace would not be a ``reasonable'' search under the Fourth
Amendment (see, e.g., Document ID 1976, p. 19). For example, some
commenters have asserted that the rule will force them to admit any
third-party representative onto their property (see, e.g., Document ID
1976, p. 21; Document ID 1952, p. 3) with others arguing that OSHA is
[[Page 22578]]
attempting to create a ``new . . . right'' for third parties to access
private property (see, e.g., Document ID 1952, p. 8). However, as an
initial matter, the purpose of the Fourth Amendment is ``to safeguard
the privacy and security of individuals against arbitrary Invasions by
government officials.'' Camara v. Mun. Ct. of City & Cnty. of San
Francisco, 387 U.S. 523, 528 (1967) (emphasis added). Third-party
employee representatives are not governmental officials and are not
performing their own searches. Their presence on the employer's
premises--consistent with the terms of Section 8(e)--will be limited to
aiding OSHA's inspection (i.e., search). Additionally, this rule does
not create any new rights; instead, it simply clarifies the already-
existing right that employees have under section 8(e) of the OSH Act to
select authorized representatives for OSHA's walkaround inspection.
The reasonableness of OSHA's search will initially turn on whether
OSHA had administrative probable cause to initiate the inspection in
the first place (such as responding to a complaint or conducting a
programmed inspection). See Barlow's, 436 U.S. at 320-21. Where the
government has sought and obtained a search warrant supported by
probable cause and acted within its scope, the resulting search is
presumptively reasonable. See Sims, 885 F.3d at 268. This rule does not
diminish or alter the legal grounds that are required for OSHA to
initiate an on-site inspection. Instead, it merely clarifies the type
of employee representative who can accompany OSHA during a lawful
inspection.
Additionally, this rule, as well as OSHA's existing regulations
concerning the conduct of inspections, provides sufficient
administrative safeguards to ensure the reasonableness of OSHA's
inspections, even when a private party accompanies the CSHO during the
walkaround inspection. See Matter of Establishment Inspection of
Caterpillar Inc., 55 F.3d at 339. For instance, the rule maintains the
provision that the CSHO must first determine good cause has been shown
why accompaniment by a third party is reasonably necessary to an
effective and thorough physical inspection of the workplace. 29 CFR
1903.8(c). This rule also does not diminish or alter administrative
safeguards contained in other OSHA regulations. For instance, CSHOs
still have the authority to resolve all disputes about who the
authorized employee representatives are and to deny the right of
accompaniment to any person whose conduct interferes with a fair and
orderly inspection. 29 CFR 1903.8(b), (d). Section 1903.7(d) also
mandates that ``[t]he conduct of inspections shall be such as to
preclude unreasonable disruption of the operations of the employer's
establishment.'' 29 CFR 1903.7(d). Furthermore, employers have the
right to identify areas in the workplace that contain or might reveal a
trade secret, and may request that, in any area containing trade
secrets, the authorized employee representative shall be an employee in
that area or an employee authorized by the employer to enter that area.
See 29 CFR 1903.9(c), (d).
In the NPRM, OSHA sought comment on whether it should add a
presumption that a third-party representative authorized by employees
is reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace. 88 FR 59833. In response, the
Employers Walkaround Representative Rulemaking Coalition commented that
``[r]emoving the current constraints on third party involvement in OSHA
inspections or permitting the participation of a third party not deemed
`reasonably necessary' . . . would contravene the Fourth Amendment's
prohibition against unreasonable searches and seizures'' (Document ID
1976, p. 19). The Employers Walkaround Representative Rulemaking
Coalition noted that in the criminal law context, the government
violates the Fourth Amendment when it permits private parties with no
legitimate role in the execution of a warrant to accompany an officer
during the search (Document ID 1976, p. 19-20). As an initial matter,
the requirements of administrative probable cause for OSHA inspections
are less stringent than those governing criminal probable cause.
Barlow's, 436 U.S. at 320-21. Moreover, as explained in Section IV.B,
The ``Good Cause'' and ``Reasonably Necessary'' Requirement, OSHA has
retained the requirement that the CSHO first determine that good cause
has been shown that accompaniment by a third-party is reasonably
necessary to an effective and thorough inspection.
Indeed, criminal law cases demonstrate that third parties may aid
or assist the government official in their investigation. For example,
criminal law provides that a search warrant must be served and executed
by an officer mentioned therein and by no other person ``except in aid
of the officer'' executing the warrant. 18 U.S.C. 3105; see also Wilson
v. Layne, 526 U.S. 603 (1999). In Wilson v. Layne, the Supreme Court
held that ``although the presence of third parties during the execution
of a warrant may in some circumstances be constitutionally
permissible,'' the presence of a news crew during the execution of an
arrest warrant at a defendant's home was unconstitutional. 526 U.S. at
613-14. The Court reasoned that the Fourth Amendment requires that
police actions in execution of a warrant be related to the objectives
of the authorized intrusion and because the news crew was on the
premises to advance their own private purposes (and not to assist the
police) their presence in defendant's home was unreasonable. Id. at
611-12. In other cases involving third parties who are involved in
police searches, courts have similarly held that ``the civilian's role
must be to aid the efforts of the police. In other words, civilians
cannot be present simply to further their own goals.'' United States v.
Sparks, 265 F.3d 825, 831-32 (9th Cir. 2001), overruled on other
grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007).
The criminal caselaw also contains examples of searches involving
third parties that courts have found to be reasonable under the Fourth
Amendment. For instance, in Sparks, the court found reasonable a
warrantless search conducted with the aid of a civilian, in part,
because the police officer was in need of assistance. 265 F.3d at 831-
32. Similarly, in United States v. Clouston, the court held that the
presence of the telephone company employees during the execution of a
search warrant was reasonable where the telephone company employees
were present on the premises to aid officers in identifying certain
electronic devices owned by their employer and their role in the search
was limited to identifying such property. 623 F.2d 485, 486-87 (6th
Cir. 1980). Like in the foregoing cases, OSHA's rule--consistent with
the plain text of the statute--also requires third-party employee
representatives to benefit the inspection. Accordingly, the rule will
maintain the language in the regulation that requires that good cause
be shown why the third-party representative's accompaniment is
reasonably necessary to the conduct of an effective and thorough
physical inspection of the workplace.
The Employers Walkaround Representative Rulemaking Coalition also
expressed concern that ``absent the possession of some technical
expertise lacking in the CSHO and necessary to the physical inspection
of the workplace, the presence of a third party outsider (e.g., union
organizer, plaintiff's attorney, etc.) with no connection to the
workplace and acting in his own interests violates the Fourth
Amendment's prohibition against
[[Page 22579]]
unreasonable searches and seizures'' (Document ID 1976, p. 21). The
purpose of this rule is to clarify that, for the purpose of the
walkaround inspection, the representative(s) authorized by employees
may be an employee of the employer or, when they are reasonably
necessary to aid in the inspection, a third party. For third-party
representatives, the rule will require a showing of ``good cause'' for
why they are reasonably necessary to the conduct of an effective and
thorough physical inspection of the workplace (including, but not
limited to, because of their relevant knowledge, skills, or experience
with hazards or conditions in the workplace or similar workplaces, or
language or communication skills). OSHA has determined that this rule
best effectuates the text and purpose of section 8(e) of the Act,
consistent with Fourth Amendment reasonableness requirements, without
imposing an overly burdensome and restrictive ``technical expertise''
requirement on employees who want a representative to accompany the
CSHO during an inspection of their workplace.
The Ohio Manufacturers' Association expressed concern that the rule
will ``expand the plain view doctrine'' and ``convert a targeted
inspection based on a complaint to an unnecessarily comprehensive and
time-consuming `wall-to-wall' inspection'' because the third party will
``constantly scan other parts of the employer's facility to find
potential violations of the OSH Act'' (Document 0040, p. 3). The
Chamber of Commerce also asked whether employee representatives'
observations could satisfy the ``plain view'' doctrine (Document ID
1952, p. 14). On the other hand, the National Council for Occupational
Safety and Health and the Sur Legal Collaborative asserted that some
employers have attempted to limit the scope of OSHA inspections by
preventing CSHOs from seeing hazards that are otherwise in plain view
and noted that employee representatives can point out other areas in
the worksite where there are hazards (Document ID 1769, p. 2; 11231).
Similarly, Worksafe described an inspection in California where the
Cal/OSHA inspector did not observe areas where janitorial employees
worked with bloodborne pathogens and did not inspect a garbage
compactor that had serious mechanical failure because the employer was
able to obscure the hazardous conditions (Document ID 1934, p. 3-4).
Had Worksafe not intervened by sending Cal/OSHA videos and photos of
the hazards, these hazards could have gone unabated, and employees
could have been seriously injured, become ill, or died on the job
(Document ID 1934, p. 4).
The ``plain view'' doctrine allows the warrantless ``seizure'' of
evidence visible to a government official or any member of the general
public while they are located where they are lawfully allowed. Wilson
v. Health & Hosp. Corp. Of Marion Cnty., 620 F.2d 1201, 1210 (7th Cir.
1980). The rationale of the plain view doctrine is that once evidence
is ``in open view'' and is observed by the government or a member of
the public from a lawful vantage point, ``there has been no invasion of
a legitimate expectation of privacy'' and thus the Fourth Amendment's
privacy protections do not apply. Minnesota v. Dickerson, 508 U.S. 366,
375 (1993); see also Donovan v. A.A. Beiro Const. Co., Inc., 746 F.2d
894, 903 (D.C. Cir. 1984). Hence, third-party representatives may
lawfully aid the inspection by informing the CSHO about hazards they
observe in plain view during the walkaround. However, the authority to
inspect areas in plain view ``does not automatically extend to the
interiors of every enclosed space within the area.'' A.A. Beiro Const.
Co., 746 F.2d at 903. Because their role is to aid in ``the conduct of
an effective and thorough physical inspection of the workplace,'' 29
CFR 1903.8(c), the third-party representative is only permitted to
accompany the CSHO, and they are not permitted to stray from the CSHO
or to conduct their own searches.
Moreover, the Ohio Manufacturers' Association's concerns about the
inspection becoming a ``wall to wall'' inspection are overstated. The
CSHO will conduct the walkaround inspection in accordance with the law
and FOM and will inspect those areas where there are reasonable grounds
to believe a violation could be found. Generally, OSHA conducts
unprogrammed inspections (i.e., inspections resulting from an employee
complaint, referral, reported accident or incident) as partial
inspections, which are limited to the specific work areas, operations,
conditions, or practices forming the basis of the unprogrammed
inspection. As explained in the FOM, however, the scope of an OSHA
inspection can be expanded for a number of reasons, including employee
interviews, among other reasons. OSHA Field Operations Manual, (CPL 02-
00-164), Chapter 3, Section III.B.2. Hence, just like employee
representatives employed by the employer, third-party employee
representatives may communicate to the CSHO conditions they are aware
of or observe in plain view while accompanying the CSHO on the
walkaround inspection. ``The effectiveness of OSHA inspections would be
largely eviscerated if compliance officers are not given some nominal
right to follow up on observations of potential violations.'' A.A.
Beiro Const. Co., 746 F.2d at 903.
Several comments also expressed concern that the rule would violate
state laws against trespassing (see, e.g., Document ID 1780, p. 2;
1938, p. 6-7). For example, the Coalition for Workplace Safety cited
the ``local-interest exception'' to the NLRA in arguing that state
trespass laws allow employers to exclude individuals from their
property (Document ID 1938, p. 6-7). The local-interest exception
allows states to regulate certain conduct that is arguably NLRA-
protected without being preempted by the NLRA. See Loc. 926 Int'l Union
of Operating Eng'rs v. Jones, 460 U.S. 669, 676 (1983). This exception
typically applies when the state regulates ``threats to public order
such as violence, threats of violence, intimidation and destruction of
property [or] acts of trespass.'' See Pa. Nurses Ass'n v. Pa State
Educ. Ass'n, 90 F.3d 797, 803 (3d Cir. 1996) (collecting cases). These
cases are inapposite here both because they do not arise under the OSH
Act and deal solely with the actions of private parties such as labor
organizations.
Under the final rule, an authorized employee representative would
accompany the CSHO, a government official, for the purpose of aiding a
lawful inspection under the OSH Act. Moreover, courts apply the local-
interest exception when, among other factors, the conduct at issue is
only a ``peripheral concern'' of the NLRA. See Loc. 926, 460 U.S. at
676. Application of the exception here with respect to the OSH Act
would be inappropriate because the right under section 8(e) for an
authorized employee representative to accompany the CSHO is intended to
increase the effectiveness of the walkaround inspection, an essential
element of the OSH Act's enforcement scheme. Thus it is ``one of the
key provisions'' of the Act. See Subcomm. on Lab. of the S. Comm. on
Lab. and Pub. Welfare, 92d Cong. 1st Sess., reprinted in Legislative
History of the Occupational Safety and Health Act of 1970, at 430
(Comm. Print 1971).
3. Fifth Amendment Issues
Some commenters argued that the rule constitutes a per se taking
under the Fifth Amendment by allowing employee representatives to be
non-employees (see, e.g., Document ID 0043, p. 2-4; 0168, p. 3-4; 1768,
p. 7-8; 1779, p. 2-3; 1952, p. 8-9; 1976, p. 18). These
[[Page 22580]]
commenters asserted that the rule will deny employers the right to
exclude unwanted third parties from their property (see, e.g., Document
ID 0043, p. 3; 1952, p. 8-9; 1976, p. 18). Under the Fifth Amendment's
Takings Clause, the government must provide just compensation to a
property owner when the government physically acquires private property
for a public use. See Tahoe-Sierra Pres. Council, 535 U.S. at 321.
However, the Supreme Court has recognized that ``[b]ecause a property
owner traditionally [has] had no right to exclude an official engaged
in a reasonable search, government searches that are consistent with
the Fourth Amendment and state law cannot be said to take any property
right from landowners.'' Cedar Point Nursery, 141 S. Ct. at 2079.
Despite this important distinction, commenters raised various arguments
in support of their assertion that a taking will occur, focusing on the
identity of the employee representative and the nature of their
activity onsite.
For example, some commenters asserted that a per se taking would
occur because the rule authorizes a third party who is not a government
official to access private property (see, e.g., Document ID 0168, p. 3-
4; 1952, p. 8-9; 1976, p. 18). OSHA's rule provides that employees can
select either a third party or another employee of the employer to
accompany the CSHO. However, only the CSHO, as the government official,
will conduct the inspection. Contrary to the argument made by some
commenters (see, e.g., Document ID 1768, p. 8), OSHA is not delegating
its inspection authority to third parties. The purpose of employee and
employer representation during the walkaround is to aid--not conduct--
OSHA's inspection. See 29 U.S.C. 657(e). If OSHA is engaged in a
reasonable search under the Fourth Amendment, the mere presence of such
a third-party employee representative does not result in a taking. See
Bills, 958 F.2d at 703 (noting that a third party's entry onto
subject's private property may be ``justified if he had been present to
assist the local officers'').
Other commenters argued that the rule conflicts with the Supreme
Court's decision in Cedar Point Nursery because it would allow union
representatives to accompany the CSHO (see, e.g., Document ID 0043, p.
2-3; 1952, p. 8-9; 1976, p. 18-19). In Cedar Point Nursery, the Supreme
Court invalidated a California regulation that granted labor
organizations a ``right to take access'' to an agricultural employer's
property for the sole purpose of soliciting support for unionization.
141 S. Ct. at 2069, 2080. The Supreme Court held that the regulation
appropriated a right to invade the growers' property and therefore
constituted a per se physical taking. Id. at 2072. The Court reasoned
that ``[r]ather than restraining the growers' use of their own
property, the regulation appropriates for the enjoyment of third
parties the owners' right to exclude.'' Id. The circumstances in Cedar
Point Nursery are not present in this rule, however. Cedar Point
Nursery involved a regulation that granted union organizers an
independent right to go onto the employer's property for purposes of
soliciting support for the union for up to three hours per day, 120
days per year. This rule does not. Rather, consistent with section 8(e)
of the OSH Act, this rule--like the regulation that has been in effect
for more than fifty years--recognizes a limited right for third parties
to ``accompany'' CSHOs during their lawful physical inspection of a
workplace solely for the purpose of aiding the agency's inspection.
Additionally, the Supreme Court in Cedar Point Nursery stated that
``many government-authorized physical invasions will not amount to
takings because they are consistent with longstanding background
restrictions on property rights.'' Id. at 2079. ``For example, the
government owes a landowner no compensation for requiring him to abate
a nuisance on his property, because he never had a right to engage in
the nuisance in the first place.'' Id. Here, OSHA's rule will not
constitute a physical taking because, as discussed in Section IV.D.2,
Fourth Amendment Issues, OSHA's inspections are conducted in accordance
with the Fourth Amendment and the OSH Act. Unlike the union organizers
in Cedar Point Nursery, the presence of third-party employee
representatives on the employer's property will be strictly limited to
accompanying the CSHO during a lawful physical inspection of the
workplace and their sole purpose for being there will be to aid the
inspection.
One commenter stated OSHA's rule does not fit within any of the
Supreme Court's recognized exceptions permitting government-authorized
physical invasions because (1) access by third parties is not rooted in
any ``longstanding background restrictions on property'' and ``these
searches [do not] comport with the Fourth Amendment,'' and (2) ``even
if the [rule] could be characterized as a condition imposed in exchange
for a benefit, the third-party tag-along is not germane to risks posed
to the public'' (Document 1768, p. 8) (citing Cedar Point Nursery, 141
S. Ct. at 2079). First, as discussed in Section IV.D.2, Fourth
Amendment Issues, an OSHA inspection can be reasonable under the Fourth
Amendment even when it is conducted with the aid of a third-party. See,
e.g., Sparks, 265 F.3d at 831-32 (finding warrantless search conducted
with the aid of a civilian reasonable under the Fourth Amendment).
Second, in Cedar Point Nursery, the Supreme Court stated that the
government may require property owners to cede a right of access as a
condition of receiving certain benefits, such as in government health
and safety inspection regimes, without causing a taking so long as
``the permit condition bears an `essential nexus' and `rough
proportionality' to the impact of the proposed use of the property,''
Cedar Point Nursery, 141 S. Ct. at 2079-2080 (citing Dolan v. City of
Tigard, 512 U.S. 374, 386, 391 (1994) and Koontz v. St. Johns River
Water Management Dist., 570 U.S. 595, 599 (2013)). However, OSHA is not
required to demonstrate the elements of ``essential nexus'' and ``rough
proportionality'' because it does not condition the grant of any
benefit such as a grant, permit, license, or registration on allowing
access for any of its reasonable safety and health inspections.
Accordingly, OSHA has determined that this rule does not constitute
a taking requiring just compensation under the Fifth Amendment. OSHA
inspections conducted under this rule will be consistent with the
Fourth Amendment and any third-party employee representatives that
accompany the CSHO on their physical inspection of the workplace will
be on the employer's premises solely to aid the inspection.
4. Due Process Issues
Some commenters argued that this rule would deprive employers of
due process because of substantive or procedural deficiencies or
because it is unconstitutionally vague (see, e.g., Document ID 1762, p.
4; 1776, p. 5; 1942, p. 4; 1955, p. 3, 8-9; 8124). For example, NRF
asserted, ``A CSHO's decision to authorize a third-party representative
to enter an employer's property is a violation of substantive due
process that an employer has no pre-entry/pre-enforcement means to
address.'' (Document ID 1776, p. 5). Other commenters asserted that
employers' due process rights are violated because there are not
procedures for employers to challenge the CSHO's ``good cause'' and
``reasonably necessary'' determination, object to the selection of
employees' third-party walkaround representative, or verify the third-
party representative's qualifications before the third party
[[Page 22581]]
enters their property (see, e.g., Document ID 1776, p. 2, 5, 6-7; 1955,
p. 3, 8-9). OSHA does not find any merit to commenters' due process
challenges.
NRF inaccurately asserts that permitting a third-party to enter an
employer's property violates that employer's substantive due process
rights (see Document ID 1776, p. 5). As discussed in Section IV.D.3,
Fifth Amendment Issues, OSHA inspections do not result in the
deprivation of property. Instead, they are law enforcement
investigations to determine whether employers at the worksite are
complying with the OSH Act and OSHA standards. And, as explained in
Section IV.D.2, Fourth Amendment Issues, a third party may accompany
OSHA during its inspection for the purpose of aiding such inspection,
just as other law enforcement officials do, depending on the nature of
the inspection.
This rule also does not change employers' ability to object to
employees' choice for their walkaround representative. Employees have a
right under section 8(e) of the Act to a walkaround representative,
and, if an employer has concerns about the particular representative
that employees choose, nothing in the Act or the rule precludes
employers from raising objections to the CSHO. The CSHO may consider
those objections when conducting an inspection in accordance with Part
1903, including when judging whether good cause has been shown that the
employee representative's participation is reasonably necessary to
conduct an effective and thorough inspection of the workplace.
Furthermore, as discussed in Section IV.D.2, Fourth Amendment
Issues, OSHA's inspections are conducted with the employer's consent or
via a warrant. If an employer denies or limits the scope of its consent
to OSHA's entry because it does not believe a particular third party
should enter, the CSHO will consider the reason(s) for the employer's
objection. The CSHO may either find merit to the employer's objection
or determine that good cause has been shown that the third party is
reasonably necessary to a thorough and effective inspection. In the
latter scenario, the CSHO would follow the agency's procedures for
obtaining a warrant to conduct the physical inspection, and a judge
would consider whether the search, including the third-party's
accompaniment, is reasonable under the Fourth Amendment. See, e.g.,
Matter of Establishment Inspection of Caterpillar Inc., 55 F.3d at 336
(employer objected to striking employee serving as walkaround
representative and denied OSHA entry, moved to quash OSHA's warrant
granting entry, and then appealed district court decision denying
employer's motion). Neither NRF nor the Construction Industry Safety
Coalition have suggested that this process is constitutionally
inadequate.
Other commenters argued that the rule is unconstitutionally vague.
For instance, the Construction Industry Safety Coalition argues the
rule ``does not provide requisite notice of what is required to comply
and will be unconstitutionally vague on its face and as applied.''
(Document ID 1955, p. 3, 8-9). Several commenters argued ``the
regulated community has no notice as to what the standards, procedures,
and their rights will be under this proposed regulation and thus cannot
meaningfully comment.'' (Document ID 1779, p. 2; see also 1751, p. 2;
1942, p. 2).
Constitutional due process requires regulations to be sufficiently
specific to give regulated parties adequate notice of the conduct they
require or prohibit. See Freeman United Coal Mining Co. v. Fed. Mine
Safety & Health Review Comm'n, 108 F.3d 358, 362 (D.C. Cir. 1997)
(``[R]egulations will be found to satisfy due process so long as they
are sufficiently specific that a reasonably prudent person, familiar
with the conditions the regulations are meant to address and the
objectives the regulations are meant to achieve, would have fair
warning of what the regulations require.''); see also AJP Const., Inc.
v. Sec'y of Lab., 357 F.3d 70, 76 (D.C. Cir. 2004) (quoting Gates & Fox
Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986)) (``If, by reviewing
the regulations and other public statements issued by the agency, a
regulated party acting in good faith would be able to identify, with
ascertainable certainty, the standards with which the agency expects
parties to conform, then the agency has fairly notified a petitioner of
the agency's interpretation).
Contrary to CISC's assertion, this rule is not unconstitutionally
vague. As explained in Section IV.F, Administrative Issues, this rule
provides greater clarity than the prior regulation by more explicitly
stating that employees' walkaround representative may be a third party
and that third parties are not limited to the two examples in the
previous regulation. Accordingly, OSHA has determined that this rule
does not infringe on employers' due process rights.
5. Tenth Amendment Issues
Some commenters raised Tenth Amendment concerns (see Document ID
1545; 7349). For instance, one commenter stated they oppose the rule
``because it violates the 10th amendment of the US Constitution, which
reserves all powers to the states and the people that are not
explicitly named in the Constitution'' (Document ID 7349). Another
commenter expressed concern over ``federal law overruling established
state law concerning OSHA rules'' (Document ID 1545). However, OSHA's
authority to conduct inspections and to issue inspection-related
regulations is well-settled and has been long exercised. See 29 U.S.C.
657(e) (describing the Secretary's authority to promulgate regulations
related to employer and employee representation during an inspection);
657(g)(2) (describing the Secretary of Labor's and the Secretary of
Health and Human Services' authority to ``each prescribe such rules and
regulations as he may deem necessary to carry out their
responsibilities under this Act, including rules and regulations
dealing with the inspection of an employer's establishment'');
Barlow's, 436 U.S. at 309 (section 8(a) of the OSH Act ``empowers
agents of the Secretary of Labor (Secretary) to search the work area of
any employment facility within the Act's jurisdiction.''). Accordingly,
OSHA concludes that this rule does not violate the 10th Amendment. For
a discussion on how this rule will affect states, see Sections VII,
Federalism and VIII, State Plans.
E. National Labor Relations Act and Other Labor-Related Comments
Several commenters opposed to the proposed rule discussed the
National Labor Relations Act (NLRA). These commenters mainly asserted
that the rule circumvents or conflicts with the NLRA by allowing union
officials to be employee representatives in non-union workplaces (see,
e.g., 1933, p. 4; 1955, p. 7-8). For example, commenters argued that
under the NLRA, a non-union employer generally has the right to exclude
union representatives engaged in organizing activity from their
property (see, e.g., Document ID 1938, p. 6-7; 1955, p. 6-7; 1976, p.
10-11). The Chamber of Commerce also contended that non-union employers
that allow a union official to serve as employees' walkaround
representative could violate section 8(a)(2) of the NLRA by appearing
to show favoritism to that union (Document ID 1952, p. 7). In addition,
some commenters argued that representation rights under the NLRA are
based on the concept of majority support, and therefore, a CSHO cannot
allow an individual who lacks support from a majority of employees to
serve as the employees' walkaround
[[Page 22582]]
representative during OSHA's inspection (see, e.g., Document ID 1939,
p. 3; 1976, p. 8).
Relatedly, several commenters, including the Utility Line Clearance
Safety Partnership, Coalition for Workplace Safety, and National
Association of Manufacturers asserted that determining whether a third
party is an authorized representative of employees is exclusively under
the jurisdiction of the National Labor Relations Board (NLRB) (Document
ID 1726, p. 4-5; 1938, p. 3; 1953, p. 5). The Coalition for Workplace
Safety also argued that the NLRB alone has the authority to address the
relationship between employees and their authorized representative and
that ``OSHA does not have the expertise or authority to meddle in the
relationship'' between employees and any authorized representative
(Document ID 1938, p. 3-4). Lastly, some commenters raised the question
of whether the rule would allow employees of one union to select a
different union as their walkaround representative and asserted that
this would conflict with the NLRA's requirement that a certified union
be the exclusive representative of all employees in the bargaining unit
(see, e.g., Document ID 1976, p. 9).
Conversely, other commenters, such as a group of legal scholars who
support the proposed rule, denied that the rule implicated the NLRA and
cited the legislative history of the OSH Act to show that the phrase
``for the purpose of aiding such inspection'' was added to section 8(e)
of the OSH Act to limit potential conflict with the NLRA (Document ID
1752, p. 3-4). U.S. Representative Robert ``Bobby'' Scott compared
section 8(e) of the OSH Act with section 103(f) of the Mine Safety and
Health Act (Mine Act), which authorizes employee representatives during
inspections, and noted that Federal courts of appeals have determined
that allowing non-employee representatives under the Mine Act does not
violate the NLRA (Document ID 1931, p. 9-10, citing Thunder Basin Coal
Co. v. FMSHRC, 56 F.3d 1275 (10th Cir. 1995) and Kerr-McGee Coal Corp.
v. FMSHRC, 40 F.3d 1257 (D.C. Cir. 1994)). The American Federation of
Teachers, who commented in support of the proposed rule, noted that
disallowing union representatives in unionized workplaces would be
incongruent with the NLRA because union representatives are the legally
authorized representatives of employees concerning terms and conditions
of employment under the NLRA (Document ID 1957, p. 2).
OSHA concludes that the rule does not conflict with or circumvent
the NLRA because the NLRA and the OSH Act serve distinctly different
purposes and govern different issues, even if they overlap in some
ways. Cf. Representative of Miners, 43 FR 29508 (July 7, 1978) (meaning
of the word ``representative'' in the Mine Act ``is completely
different'' than the meaning of the word in the NLRA). The NLRA
concerns ``the practice and procedure of collective bargaining'' and
``the exercise by workers of full freedom of association, self-
organization, and designation of representatives of their own choosing,
for the purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection.'' 29 U.S.C. 151. To
effectuate this, the NLRB conducts elections to certify and decertify
unions and investigates alleged unfair labor practices, among other
activities. See 29 U.S.C. 159.
In contrast, the purpose of the OSH Act is to ``assure . . . safe
and healthful working conditions.'' 29 U.S.C. 651. To effectuate this
purpose, the OSH Act authorizes OSHA to conduct safety and health
inspections and mandates that ``a representative authorized by [an
employer's] employees shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of [the workplace] for the purpose of aiding such
inspection.'' 29 U.S.C. 657(e). The NLRA contains no analogous
provision. Further, the OSH Act does not place limitations on who can
serve as the employee representative, other than requiring that the
representative aid OSHA's inspection, and the OSH Act's legislative
history shows that Congress ``provide[d] the Secretary of Labor with
authority to promulgate regulations for resolving this question.'' 88
FR 59825, 59828-59829 (quoting Legislative History of the Occupational
Safety and Health Act of 1970, at 151 (Comm. Print 1971)). As such,
OSHA--not the NLRB--determines if an individual is an authorized
representative of employees for the purposes of an OSHA walkaround
inspection. OSHA's FOM instructs that in workplaces where workers are
represented by a certified or recognized bargaining agent, the highest-
ranking union official or union employee representative on-site shall
designate who will participate as the authorized representative during
the walkaround. OSHA Field Operations Manual, CPL 2-00-164, Chapter 3,
Section VII.A.I. While some commenters questioned OSHA's expertise and
authority to make such determinations, OSHA has the statutory and
regulatory authority to determine who is an authorized walkaround
representative and has done so for more than fifty years. See 29 U.S.C.
657(e), (g)(2); 29 CFR 1903.8(a)-(d).
Because of the different nature of each statute and the different
activities they govern, OSHA does not find any merit to the arguments
about potential conflicts or circumvention of the NLRA. For example,
some commenters pointed to Supreme Court cases, including NLRB v.
Babcock & Wilcox Co., 351 U.S. 105 (1956) and Lechmere, Inc. v. NLRB,
502 U.S. 527 (1992), for the proposition that employers have a right to
exclude unions from their property. (see, e.g., Document ID 1952, p. 8-
9; 1955, p. 7; 1976, p. 9-11). However, those decisions did not bar
unions from ever accessing worksites for any reason. Instead, the
decisions concerned unions' ability to access employer property for the
specific purpose of informing non-union employees of their rights under
NLRA Section 7 to form, join, or assist labor organizations. See
Lechmere, Inc., 502 U.S. at 538 (``only where such access [to non-union
employees by union organizers] is infeasible that it becomes necessary
and proper to take the accommodation inquiry to a second level,
balancing the employees' and employers' rights''); Babcock, 351 U.S. at
114 (``[The NLRA] does not require that the employer permit the use of
its facilities for organization when other means are readily
available''). In reaching these decisions, the Supreme Court noted that
the NLRA affords organizing rights to employees and not to unions or
their nonemployee organizers, and therefore, the employer is generally
not required to admit nonemployee organizers onto their property.
Lechmere, 502 U.S. at 532; Babcock, 351 U.S. at 113.
Conversely, the OSH Act explicitly affords employees the right to
have a representative accompany OSHA ``for the purpose of aiding'' the
inspection and does not require that representative to be an employee
of the employer. 29 U.S.C. 657(e). If employees in a non-union
workplace choose a nonemployee representative affiliated with a union
as their walkaround representative during OSHA's inspection, OSHA will
allow that individual to be the employees' walkaround representative
only if good cause has been shown that the individual is reasonably
necessary to the conduct of an effective and thorough inspection. That
third-party walkaround representative will be onsite solely to aid
OSHA's inspection. If the representative deviates from that role,
OSHA's existing regulations afford the
[[Page 22583]]
CSHO the authority to terminate the representative's accompaniment. See
29 CFR 1903.8(d).
Additionally, in interpreting the Mine Act, which contains an
analogous employee representative walkaround right, 30 U.S.C. 813(f),
courts have rejected arguments that allowing a nonemployee union
representative to accompany a Mine Safety and Health Administration
(MSHA) investigator as the miners' representative during an inspection
violates an employer's rights under the NLRA. See U.S. Dep't of Lab. v.
Wolf Run Mining Co., 452 F.3d 275, 289 (4th Cir. 2006) (``While a union
may not have rights to enter the employer's property under the NLRA,
miners do have a right to designate representatives to enter the
property under the Mine Act.''); Thunder Basin Coal Co., 56 F.3d at
1281 (rejecting argument that allowing non-union workers to designate
union representatives for MSHA inspections violated Lechmere); see also
Kerr-McGee Coal Corp., 40 F.3d at 1265 (rejecting the Lechmere standard
because the Mine Act ``defines the rights of miners' representatives
and specifies the level of intrusion on private property interests
necessary to advance the safety objectives of the Act.''). Accordingly,
NLRA case law does not prevent employees from authorizing nonemployee
representatives under the OSH Act, including those affiliated with
unions.
In addition, comments regarding the NLRA's requirements for
majority support are misplaced. One commenter argued that because an
employer can only bargain with a union representative who was
designated or selected by a ``majority of the employees'' under the
NLRA, unions must also have majority support to be the employees'
representative under the OSH Act (Document ID 1976, p. 6-11).
Relatedly, this commenter suggested that the showing to demonstrate
majority support is higher under the OSH Act because the OSH Act does
not exclude as many individuals from the definition of ``employee'' as
the NLRA (Document ID 1976, p. 9). However, the OSH Act contains no
requirement for majority support, nor has OSHA ever imposed one in
determining who is the employees' walkaround representative. Cf. OSHA
Field Operations Manual, Chapter 3, Section VII.A (noting that members
of an established safety committee can designate the employee
walkaround representative). Furthermore, the NLRA's requirements for
majority support would not apply to a union representative accompanying
OSHA in a non-union workplace as this representative would not be
engaged in collective bargaining. Their purpose, like any other type of
employee representative, is to aid OSHA's inspection.
This rule also does not conflict with sections 7 and 8(a)(2) of the
NLRA, contrary to the assertions of several commenters (see, e.g.,
Document ID 1776, p. 9-10; 1946, p. 6; 1952, p. 7). Section 7 of the
NLRA grants employees ``the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection'' as well as ``the right to refrain from any or all of
such activities[.]'' 29 U.S.C. 157. This rule has no effect on
employees' section 7 right to engage in or refrain from concerted
activity, contrary to the assertions of NRF that this rule violates
employees' section 7 rights by denying them a right to vote for or
against an authorized representative (Document ID 1776, p. 9-10).
Again, this rule has no effect on employees' rights under the NLRA to
select a representative ``for the purposes of collective bargaining.''
29 U.S.C. 159(a). The purpose of the employees' walkaround
representative is to aid OSHA's inspection, not engage in collective
bargaining.
One commenter raised several hypothetical situations that could
occur and asked whether these situations would be considered unfair
labor practices under sections 8(a)(1) and 8(b)(1)(A) of the NLRA
(Document ID 1976, p. 9). The question of whether certain conduct could
violate another law is beyond the scope of this rulemaking and OSHA's
authority. The NLRB, not OSHA, determines whether such conduct would
constitute an unfair labor practice.
OSHA has determined this rule does not conflict with section
8(a)(2) of the NLRA, which prohibits employers from ``dominat[ing] or
interfer[ing] with the formation or administration of any labor
organization or contribut[ing] financial or other support to it[.]'' 29
U.S.C. 158(a)(2). NRF asserted that an employer providing a union
organizer with access to its property during an OSHA inspection may be
providing unlawful support to the union in violation of 8(a)(2) of the
NLRA (Document ID 1952, p. 7). However, employees, and not the
employer, select their representative, and the CSHO must also determine
that good cause has been shown that this representative is reasonably
necessary. Given that OSHA, not an employer, has the ultimate authority
to determine which representatives may accompany the CSHO on the
walkaround inspection, see 29 CFR 1903.8(a)-(d), an employer that
grants access to an employee representative affiliated with a union as
part of an OSHA workplace inspection would not run afoul of section
8(a)(2) of the NLRA, even assuming that such access could conceivably
implicate Section 8(a)(2).
Commenters also raised concerns about unionized employees selecting
a different union to accompany OSHA because the NLRA recognizes
certified representatives as the ``exclusive representative'' of the
bargaining unit employees (see, e.g., Document ID 1976, p. 9). Other
commenters raise concerns that the final rule inserts OSHA into
``jurisdictional disputes between unions'' (Document ID 11220; 11211).
If employees at a worksite already have a certified union, OSHA does
not intend to replace that union with a different walkaround
representative. According to the FOM, ``the highest ranking union
official or union employee representative onsite shall designate who
will participate in the walkaround.'' OSHA Field Operations Manual, CPL
02-00-164, Chapter 3, Section VII.A.1. However, the CSHO may permit an
additional employee representative (regardless of whether such
representative is affiliated with a union) if the CSHO determines the
additional representative is reasonably necessary to the conduct of an
effective and thorough inspection and will further aid the inspection.
See 29 CFR 1903.8(a), (c).
Finally, even where the two statutes overlap at times, such as both
the NLRA and OSH Act protecting employees' right to voice concerns to
management about unsafe or unhealthful working conditions, there is no
conflict between the two statutes when employees authorize a third-
party affiliated with a union to accompany a CSHO on an inspection of a
non-union workplace. As evidence that this intersection of statutes
does not lead to conflict, OSHA and the NLRB have had Memoranda of
Understanding (MOUs) since 1975 to engage in cooperative efforts and
interagency coordination. Accordingly, OSHA finds no merit to the
arguments that this regulation conflicts or circumvents the NLRA.
Comments Related to Labor Disputes, Organizing, and Alleged Misconduct
In addition to comments about the NLRA, some commenters expressed
concerns that, by allowing a union representative to accompany OSHA at
a non-union worksite, OSHA would give the appearance of endorsing a
union
[[Page 22584]]
representative in a particular worksite or endorsing unions generally
and thus departing from OSHA's longstanding policy of neutrality in the
presence of labor disputes (see, e.g., Document ID 1976, p. 24-25;
1946, p. 6-7). Another commenter claimed that OSHA's 2023 MOU with the
NLRB could pressure CSHOs ``to allow non-affiliated union
representatives to join their walkaround inspections'' (Document ID
1762, p. 5).
These concerns are unfounded. OSHA does not independently designate
employee representatives. Employees select their representative, and
OSHA determines if good cause has been shown that the individual is
reasonably necessary to the inspection. That inquiry does not depend on
whether the representative is affiliated with a union. And a finding of
good cause does not indicate that OSHA is favoring unions.
Additionally, the FOM provides guidance to CSHOs to avoid the
appearance of bias to either management or labor if there is a labor
dispute at the inspected workplace. See OSHA Field Operations Manual,
CPL 02-00-164, Chapter 3, Sections IV.G.3, IV.H.2.c (``Under no
circumstances are CSHOs to become involved in a worksite dispute
involving labor management issues or interpretation of collective
bargaining agreements''); (``During the inspection, CSHOs will make
every effort to ensure that their actions are not interpreted as
supporting either party to the labor dispute.''). Neutrality has been
OSHA's longstanding policy, and OSHA rejects arguments that the final
rule displays favoritism towards unions or will improperly pressure
CSHOs to allow authorized representatives.
Finally, OSHA's MOU with the NLRB relates to interagency
cooperation and coordination, and there is no basis for assuming that
this interag
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