Washington — A coalition of more than 40 organizations is calling on California to stop work on rulemaking regarding worker walkaround representation.
A recently proposed rule from the state’s Division of Occupational Safety and Health comes on the heels of a federal OSHA rule (in effect since May 31, 2024) that allows workers to designate someone who doesn’t work for their employer – including a labor union member – to represent them during the “walkaround” part of an OSHA inspection.
Under OSHA 1903.8, a walkaround representative “shall be an employee(s) of the employer.” However, the regulation allows an OSHA inspector, also known as a compliance safety and health officer, to make a judgment call on whether a third party can participate in a walkaround. A nonemployee representative, the rule clarifies, could be “reasonably necessary” based on skills, knowledge or experience.
In an April 1 letter to Cal/OSHA’s staff counsel, the coalition, which includes Associated Builders and Contractors, contends the proposed rule:
- Exceeds the statutory authority of Cal/OSHA, which operates as a State Plan program under federal OSHA.
- Conflicts with the National Labor Relations Act of 1935.
- Violates employer property rights and raises significant constitutional concerns.
- Endangers employer trade secrets and increases employer liability.
- Will discourage employer cooperation and slow down inspections.
Additionally, the coalition claims that Cal/OSHA’s “at least as effective as” justification for the rule doesn’t stand up to scrutiny because the agency “has no existing counterpart to the original federal walkaround regulation.”
Finally, the coalition contends the proposed rule’s “Good Cause” and “Reasonably Necessary” standards are illusory and leave employers without meaningful protection.
“The proposed rule purports to impose a ‘good cause’ and ‘reasonably necessary’ threshold before a nonemployee, noncollective bargaining third party may join an inspection,” the letter states. “In practice, however, these limitations provide no real protection. The proposed rule vests the inspector (a safety enforcement officer) with sole authority to make determinations about third-party representative credentials, the legitimacy of employees’ authorization and resolution of competing claims to representative status.
“Inspectors are not trained on the complexities of labor-management relations. That is why federal OSHA explicitly instructs inspectors to avoid involvement in labor-management disputes. The same logic applies here.”
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Original article published by Safety+Health an NSC publication