Page 14 - Demo

14 | January 2024
Slippery Rock Gazette
series of MOUs with other federal agencies , including the Federal Trade Commission and the Department of Labor’s Wage and Hour Division and the Office of Labor- Management Standards as part of its ongo- ing interagency coordination initiative to promote a whole-of-government approach to enforcement of labor laws, targeting nonunion employers.
NLRB General Counsel Jennifer Abruzzo and OSHA Chief Doug Parker suggested that this MOU is critical in bol- stering protections needed for workers who choose to speak out about unsafe working conditions so they can do so without a fear of retaliation.
The MOU lays out protocols for the exchange of information between the agencies, as well as worker outreach, which includes OSHA providing potential victims of alleged unfair labor practices with the NLRB’s contact information. OSHA also will advise employees who file time-barred official complaints with the agency that they may still file an unfair labor charge with the NLRB for another six months.
Under the agreement, the NLRB will be sharing information with OSHA regard- ing workers who are currently or likely exposed to health or safety hazards, or to suspected violations of OSHA regulations, along with encouraging those workers to contact OSHA promptly. The MOU also includes provisions for protecting the con- fidentiality and information security of any data shared between the agencies.
Continued from page 16
OSHA Seeks to Add Union Reps to Inspections
The Occupational Safety and Health Administration (OSHA) has pro- posed a rule that would allow employees to request that a non-govern- mental third party — which could be a representative from a labor union — to join an OSHA safety inspection of a non-union employer’s facility.
In a separate development, OSHA and the National Labor Relations Board (NLRB) also announced that they have entered into a formal agreement to work together closely, coordinating their activi- ties in a manner that promotes unionization of the workforce.
Commenting on the OSHA proposal to allow employees and agency inspectors to choose third parties, such as union repre- sentatives, to accompany the inspectors when they walk around employer facil- ities, Marc Freedman, vice president, employment policy for the U.S. Chamber of Commerce, said, “Without question, if OSHA moves forward with this regula- tion, the agency will be making clear its agenda is no longer focused on improving workplace safety but on promoting orga- nized labor.”
In addition, he stressed that if the new rule is adopted as proposed, it would open the door to other parties with a grievance against the employer to be allowed in if an employee requested them. Think of envi- ronmental activists opposed to the use of fossil fuels seeking entry to a refinery, he suggested.
OSHA originally attempted to create this policy during the Obama administration, but it was later reversed when President Trump was in office. The Occupational Safety and Health Act (OSH Act), OSHA’s enabling law, allows a representative of the employer and a representative autho- rized by employees to join OSHA officials during a workplace inspection.
Although the law states that the employ- ee-authorized representative shall be an employee of the employer, it also says the agency’s safety inspector can allow a third- party representative “such as an industrial hygienist or a safety engineer” to accom- pany the inspection if they determine good cause is shown that this is reasonably necessary, note attorneys Melanie Paul, Jonathan Spitz and Lorien Schoenstedt of the Jackson Lewis law firm.
The new proposed rule would amend the OSH Act to clarify that, “for the purpose of the walkaround inspection, the repre- sentative authorized by employees may be an employee of the employer, or, when they are reasonably necessary to aid in the inspection, a third party.” OSHA says the clarification will “ensure employees are able to select trusted and knowledgeable representatives of their choice, leading to more effective inspections.”
If its rule-making proposal is adopted, OSHA explains that employees in work- places without collective bargaining agreements will be able to designate a representative from “a worker advocacy group, community organization or labor union” to fulfill the role of being their rep- resentative in an OSHA inspection.”
The rule’s goal is to focus on the “knowl- edge, skills, or experience of the indi- vidual, rather than their professional discipline,” OSHA states. The proposed rule doesn’t cite union representatives as the only example of potential third-party representatives; others named by the agency include translators or represen- tatives of local safety councils or worker advocacy organizations.
Under the rule, employers are still enti- tled to request that certain areas of the facility, particularly those containing trade secrets, be kept off-limits to designated employee representatives who do not work in that specific area of the workplace.
The proposed rule can be expected to generate sharp criticism from employ- ers concerned with the extraordinarily broad range of third parties who might be allowed entry into their facilities during an OSHA inspection, point out the Jackson Lewis attorneys.
While the rule could provide an entry point for union representatives to orga- nize workers, concerns also have been raised about the proposal leaving that kind of decision to the discretion of individual OSHA inspectors in the field.
When it is eventually adopted as a final rule—a process which could take a year or longer—it will apply only in those states where federal OSHA exercises direct juris- diction over employers. In the 22 states that have their own state OSHA programs covering private employers, it will be up to them to decide whether they wish to adopt a similar rule. It seems likely that those states that are decidedly pro-union, like California, and Washington, will do just that.
OSHA and NLRB Link Up
In another development, OSHA and the NLRB reported entering into a Memorandum of Understanding (MOU) that further signals their commitment to promoting unionization through blending enforcement of safety and labor laws. As both agencies put it when they announced it, the agreement will “strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice.”
The NLRB already has signed off on a
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