Worker Walkaround Representative Designation Process
| Published date | 01 April 2024 |
| Record Number | 2024-06572 |
| Citation | 89 FR 22558 |
| Court | Labor Department,Occupational Safety And Health Administration |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 63 (Monday, April 1, 2024)
[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 [www.gpo.gov]
[FR Doc No: 2024-06572]
[[Page 22557]]
Vol. 89
Monday,
No. 63
April 1, 2024
Part IVDepartment of Labor-----------------------------------------------------------------------Occupational Safety and Health Administration-----------------------------------------------------------------------29 CFR Part 1903Worker Walkaround Representative Designation Process; Final Rule
Federal Register / Vol. 89 , No. 63 / Monday, April 1, 2024 / Rules
and Regulations
[[Page 22558]]
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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.
-----------------------------------------------------------------------
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 https://www.regulations.gov.
All comments and submissions are listed in the https://www.regulations.gov 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:
[email protected].
General and technical inquiries: Scott Ketcham, OSHA Directorate of
Construction, telephone: (202) 693-2020; email: [email protected].
Copies of this Federal Register notice and news releases:
Electronic copies of these documents are available at OSHA's web page
at https://www.osha.gov.
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
https://www.osha.gov/sites/default/files/publications/osha3160.pdf.
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 https://www.osha.gov/enforcement/directives/std-01-06-005;
Sikh American Legal Defense and Education Fund, OSHA Interpretive
Letter (Aug. 5, 2011), available at https://www.osha.gov/laws-regs/standardinterpretations/2011-08-05, 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 interagency cooperation will interfere with OSHA inspections or
neutrality. As explained previously, third-party employee
representatives will accompany the CSHO on an inspection only when the
CSHO determines good cause has been shown that the third-party employee
representatives are reasonably necessary to an effective and thorough
inspection. OSHA concludes that existing safeguards and the requirement
for third party representatives to be reasonably necessary to the
inspection will prevent such an appearance of bias or endorsement of
unionization or particular unions.
Commenters in opposition to the proposed rule also voiced the
possibility that third-party employee representatives from unions or
other advocacy organizations would use the walkaround inspection for
organizing (see, e.g., Document ID 0021; 0040, p. 3). The National
Federation of Independent Business discussed these concerns and alleges
that third-party employee representatives ``would gain access to
information otherwise not available and could interact with employees
in a way that could facilitate union organizing campaigns, political
activity, mischief, and litigation'' (Document ID 0168 p. 7). The North
American Insulation Manufacturers Association claimed that ``unions
would monitor OSHA complaint filings, contact employees, and attempt to
receive authorization to attend walkarounds so they can access the site
to solicit for employee support'' (Document ID 1937, p. 5).
Additionally, some commenters asserted that permitting union
representatives in workplaces without a collective bargaining agreement
is part of an `` `all-of-government' approach to union expansion''
(see, e.g., Document ID 1776, p. 2). Similarly, some commenters argued
that this rule is ``designed to give union supporters access to company
facilities that they would otherwise not be granted'' and that it
``promote[s] unions and collective bargaining'' (Document ID 0033;
1030). Certain commenters in support of the proposed believed that the
proposed rule was about ensuring union representation in inspected
workplaces (see, e.g., Document ID 0056; 10725).
Alleged union misconduct is another concern of several commenters
in opposition to the proposed rule. NRF alleges that they ``have
learned of anecdotal incidents wherein union business agents have
relationships with CSHOs from some local area offices'' and that these
CSHOs have ``pursued unjustifiable citations against companies during
critical times'' (Document ID 1776, p. 6-7). Some commenters also
expressed concerns that third-party representatives affiliated with one
union would ``poach'' employees from employees' existing union (see,
e.g., Document ID 11275). Other comments raise misconduct of third
parties generally as a basis for their opposition to the proposed rule.
For example, the American Road & Transportation Builders Association
(ARTBA) claims ``ARTBA members have shared past experiences with bad
actors attempting to access their job sites for reasons unrelated to
worker safety and health'' (Document ID 1770, p. 3).
NRF referenced amendments to the NLRA and the Landrum-Griffin Act,
also known as the Labor-Management Reporting and Disclosure Act
(LMRDA), which, according to NRF, ``provides a mechanism through which
employees and employers can challenge the status of an Authorized
Representative'' (Document ID 1776, p. 6). NRF asserted that this
``pre-enforcement mechanism'' allows ``an appeal and remedy before
employees and employers must submit to representation by the Authorized
Representative.'' (Document ID 1776, p. 6). NRF asserted that the
policy rationale of limiting union misconduct was behind the amendments
to the NLRA and passage of the LMRDA and suggested that the final rule
should include similar safeguards to further the same policy rationale
(Document ID 1776, p. 6).
U.S. Representative Virginia Foxx asserted that unions ``weaponized
the OSHA inspection process'' after OSHA issued the Sallman letter,
referencing four inspections where a representative affiliated with a
union accompanied OSHA as the employee walkaround representative
(Document ID 1939, p. 2-3). One commenter asserted that this rule could
lead to compromised inspections and quoted an unnamed ``Occupational
Safety and Operational Risk Management Professional'' who claimed to
witness inspections where union officials allegedly argued with CSHOs
and stated that CSHOs could not write a citation without the union's
consent (Document ID 11506). No information about the date, location,
employer, union, OSHA staff, or the witness was included.
Some commenters, including U.S. Senator Bill Cassidy, MD, called
attention to the potential that the ``presence of a union organizer,
especially in a non-union workplace, could very well cause an employer
to deny OSHA access'' (Document ID 0021, p. 2; see also 1772, p. 1).
Senator Cassidy stated that this would delay the inspection while OSHA
seeks a warrant, which would be detrimental to worker safety and health
(Document ID 0021, p. 1-2; see also 1772, p. 1). Winnebago Industries,
Inc. stated their concerns about worker privacy when a third-party
union representative accompanies an OSHA inspector (Document ID 0175,
p. 2).
Those in support of the proposed rule, including UFCW, stated that
third-party representatives from their union have not used OSHA
inspections as pretext for organizing (Document ID 1023, p. 2). A
former director of the safety and health program for AFSCME stated that
when he served as a third-party representative in workplaces that
AFSCME was attempting to organize that ``no union issues were raised''
(Document ID 1945, p. 3). Representative Scott, citing to a
[[Page 22585]]
prominent union organizer, noted that union organizing was unlikely to
happen during a walkaround inspections because of the need for in-
depth, one-on-one conversations between the organizer and workers
during a campaign (Document ID 1931, p. 10-11). Representative Scott
concluded that walkaround inspections do not allow for such
conversations.
In response to these comments both for and against the rule, OSHA
first reiterates that the purpose of this rulemaking is to allow CSHOs
the opportunity to draw upon the skills, knowledge, or experience of
third-party representatives and ensure effective inspections, not to
facilitate union organizing or ensure union representation. OSHA
strongly disagrees with NRF's suggestion that CSHOs have pursued
unjustifiable citations due to union influence. Further, NRF provided
no specific details to enable OSHA to evaluate these allegations. For
the same reason, OSHA finds little support for the allegation that
CSHOs have been improperly influenced by union officials and that this
rule will lead to further improper influence. Assertions of general
misconduct of third parties raised by commenters such as ARTBA do not
appear linked to OSHA's inspections and lack specific details.
OSHA also disagrees with the notion that this rule allows the OSHA
inspection to be ``weaponized.'' Because any third-party
representative, including those from unions or advocacy organizations,
would need to be reasonably necessary for a thorough and effective
inspection, the OSHA inspection cannot be ``weaponized'' against
employers. Further, OSHA complaints are not publicly available, so is
there no way for a union to ``monitor'' them and contact employees,
contrary to the North American Insulation Manufacturers Association's
claim.
While third-party employee walkaround representatives may observe
workplace conditions, they only have access to this information for the
specific purpose to aid an OSHA inspection. And, as explained above,
they are not permitted to engage in any conduct that interferes with a
fair and orderly inspection. See 29 CFR 1903.8(d). If a representative
engages in conduct that interferes with a fair and orderly inspection,
such as union organizing or any type of misconduct, OSHA will deny the
representative the right of accompaniment and exclude the
representative from the walkaround inspection. See 29 CFR 1903.8(d).
CSHOs have extensive experience maintaining fair and orderly
inspections, and, given the CSHO's command over the inspection, OSHA
finds that union organizing, political activity, or misconduct are
unlikely during a walkaround. Furthermore, any union solicitation, such
as handing out union authorization cards, would not aid the inspection
and would be grounds to deny accompaniment.
OSHA concludes that this rule, along with existing procedural and
regulatory safeguards, are adequate to protect inspections from
interference, union organizing, or misconduct. See 29 CFR 1903.7(d);
1903.8(a)-(d). Additionally, as discussed in Section IV.A, The Need for
and Benefits of Third-Party Representation, any inspection with a
third-party representative is subject to OSHA regulations on the
protection of trade secrets. See 29 CFR 1903.9(a)-(d).
OSHA also disagrees with Winnebago Industries' suggestion that
allowing authorized third-party representatives from unions will have a
noticeable impact on worker privacy. Since 1971, OSHA has permitted
employees to have a third-party walkaround representative, and no
comment has provided a specific example of when a worker's privacy was
adversely impacted by the actions of a third-party representative. In
fact, one commenter noted that a representative selected by workers can
offer workers more privacy to reveal issues away from surveillance by
an employer (Document ID 1728, p. 3-4).
OSHA disagrees with NRF's comment that this rule should include
procedures similar to the NLRB ``before employees and employers must
submit to representation by the Authorized Representative'' (Document
ID 1776, p. 6). It is unknown exactly which mechanism this comment is
referring to, such as situations where an employer declines to sign an
election agreement and proceeds to a formal hearing before an NLRB
Hearing Officer or situations where employees vote against a union in
an NLRB-held election. Under the NLRA, an employer has a limited right
to challenge a candidate bargaining representative, pre-election, by
filing a petition with the NLRB. See 29 U.S.C. 159(c)(1)(B).
In either case, the NLRB processes for union recognition are
completely inapposite to the framework of the OSH Act. First, OSHA
inspections are to be conducted ``without delay,'' 29 U.S.C. 657(a)(1),
and delaying an inspection to hold a hearing on who can be the
employees' walkaround representative is antithetical to section 8(a) of
the OSH Act. Second, as explained previously, nothing in the OSH Act
requires majority support for a representative the way the NLRA does.
Third, unlike the NLRA, the OSH Act does not include a process by which
employers object to employees' representative--or for employees to
object to the employer's representative, for that matter. Nevertheless,
employers may raise concerns related to the authorized employee
representative with the CSHO, who will address them at the worksite.
Where the employer's concerns cannot be resolved, the CSHO will
construe the employer's continued objection as to the authorized
employee representative as a refusal to permit the inspection and shall
contact the Area Director, per Chapter 3, Section IV.D.2 of the FOM.
OSHA will obtain a warrant when necessary to conduct its inspections.
See Barlow's, 436 U.S. at 313; see also 29 CFR 1903.4(a).
Finally, because any third-party walkaround representative is
subject to the good cause and reasonably necessary requirement, OSHA
anticipates that the vast majority of employers will not deny entry
simply because the employees' walkaround representative is a third
party. However, OSHA will obtain a warrant when necessary to conduct
its inspections. See Barlow's, 436 U.S. at 313; see also 29 U.S.C.
657(a)(1)-(2); 29 CFR 1903.4(a). In situations where the employer's
past practice either implicitly or explicitly puts the Secretary on
notice that a warrantless inspection will not be allowed, OSHA may seek
an anticipatory warrant in order to conduct its inspection without
delay. See 29 CFR 1903.4(b)(1). As such, OSHA does not believe that
this rule will result in further delays that would be detrimental to
worker safety and health.
F. Administrative Issues.
1. Administrative Procedure Act
Some commenters argued that the proposal conflicted with the
Administrative Procedure Act (APA) (See, e.g., Document ID 1776, p. 8,
10; 1953, p. 1, 3, 5; 1954, p. 2, 4). The APA requires an agency to
provide notice of a proposed rulemaking and to include ``either the
terms or substance of the proposed rule or a description of the
subjects and issues involved.'' 5 U.S.C. 553(b)(3). A final rule must
be a logical outgrowth of the proposed rule and must allow affected
parties to anticipate that the final rule was possible. See Allina
Health Servs. v. Sebelius, 746 F.3d 1102, 1107 (D.C. Cir. 2014). In
issuing a final rule an ``agency must examine the relevant data and
articulate a satisfactory explanation for its action including a
`rational connection between the facts found and the choice made.' ''
Motor Vehicle Mfrs. Ass'n of
[[Page 22586]]
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).
Several commenters asserted that the proposed rule was arbitrary
and capricious under the APA because it was inconsistent with the OSH
Act, other OSHA regulations, lacked a rational basis for adoption,
lacked sufficient clarity on third-party qualifications, invited chaos,
or because it gave CSHOs too much discretion (see, e.g., Document ID
0168, p. 4-6; 1754, p. 2-3; 1776, p. 2-3; 1782, p. 3-5; 1952, p. 12-13;
1953, p. 5; 1954, p. 4). As discussed below, OSHA has determined that
this rule is consistent with APA and OSH Act rulemaking requirements.
a. Consistency With the OSH Act
Several commenters asserted that the proposed rule is arbitrary and
capricious because it was not a valid construction of the OSH Act (see,
e.g., Document ID 0168, p. 6; 1946, p. 4-5; 1952, p. 11-13). Some
commenters asserted that the term ``authorized employee
representative'' in section 8(e) of the OSH Act is limited to employees
of the employer (see, e.g., Document ID 1768, p. 4; 11506). Others
argued that the term is reserved for unions that represent employees
for collective bargaining purposes (see, e.g., Document ID 1952, p. 6-
7; 10808). Commenters further argued that defining this term to include
all employee walkaround representatives, including non-union third
parties, would directly conflict with existing OSHA regulations and
procedural rules issued by the Occupational Safety and Health Review
Commission (``Commission'') interpreting the same or similar terms
(e.g., Document ID 1937, p. 4; 1946 p. 4-5; 1952, p. 6-8, 9-11; 1976,
p. 6). OSHA has determined that this regulation is consistent with the
plain language and legislative history of the OSH Act and finds that
other, unrelated regulations do not require OSHA to limit its
interpretation of ``employee representative'' in section 8(e) of the
OSH Act to employees of the employer or unions that represent employees
for collective bargaining purposes.
As explained in Section III, Legal Authority, the Act does not
place restrictions on who can be a representative authorized by
employees--other than requiring that they aid the inspection--and
permits third parties to serve as authorized employee representatives.
See Matter of Establishment Inspection of Caterpillar Inc., 55 F.3d at
338 (``[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.''). Likewise, nothing in the OSH
Act or its legislative history suggests that Congress intended to
extend employee accompaniment rights only to unionized 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). Section
8(e) uses ``representative authorized by his employees'' and
``authorized employee representative'' as equivalents, and certainly
employees can authorize an employee representative to accompany a
walkaround inspection even if they are not unionized. There is no
reason to think that Congress intended anything more.
Thus, section 8(e)'s plain meaning permits employees to select a
walkaround representative, irrespective of whether that representative
is employed by the employer, to serve as an ``authorized employee
representative.'' Contrary to some commenters' claims, section 8(e)
does not limit the scope of authorized employee representatives to
``only lawfully recognized unions'' (Document ID 1952, p. 6).
Furthermore, sections 8(e) and 8(g), respectively, expressly authorize
the Secretary to issue regulations related to employee and employer
representation during OSHA's walkaround inspection as well as
``regulations dealing with the inspection of an employer's
establishment.'' 29 U.S.C. 657(e), (g)(2).
Furthermore, as discussed in Section III, Legal Authority, this
rule is consistent with Congress's expressed intent because Congress
clearly intended to give the Secretary of Labor the authority to issue
regulations to resolve the question of who could be an authorized
employee representative for purposes of the walkaround inspection. See
29 U.S.C. 657(e); 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.'').
Other commenters argued that this regulation is consistent with the
plain language of the OSH Act (see, e.g., Document ID 1752, p. 1-3;
1969, p. 4). For example, the AFL-CIO argued that the Secretary's
interpretation ``is strongly supported by judicial construction of the
almost identical provision of the Federal Mine Health and Safety Act of
1977, 30 U.S.C. 813(f)'' (Document ID 1969, p. 4). OSHA agrees.
The Mine Act contains nearly identical language conferring miners
the right to have an authorized representative accompany the inspector
as the OSH Act. Compare 30 U.S.C. 813(f) (``Subject to regulations
issued by the Secretary, a representative of the operator and a
representative authorized by his miners shall be given an opportunity
to accompany the Secretary or his authorized representative during the
physical inspection of any coal or other mine[.]'') with 29 U.S.C.
657(e) (``Subject 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 the physical inspection of any
workplace[.]''). Courts have long held that this language in the Mine
Act does not limit who can be employees' representative. See Utah Power
& Light Co. v. Sec'y of Labor, 897 F.2d 447 (10th Cir. 1990) (Section
103(f) of the Mine Act ``confers upon the miners the right to authorize
a representative for walkaround purposes without any limitation on the
employment status of the representative.'').
As with the Mine Act, the nearly identical language in the OSH Act
``does not expressly bar non-employees from serving as'' authorized
employee representatives. Kerr-McGee Coal Corp., 40 F.3d at 1262. In
Kerr-McGee Coal Corp., the D.C. Circuit held that the Secretary's
interpretation of the Mine Act's virtually identical language as
allowing the ``involvement of third parties in mine safety issues . . .
is consistent with Congress's legislative objectives of improving miner
health and mine safety.'' Id. at 1263; see also id. (``Obviously, if
Congress had intended to restrict the meaning of `miners'
representatives' in the 1977 Act, it could have done so in the statute
or at least mentioned its views in the legislative history. It did
neither. Consequently, in view of Congress' clear concern about miners'
safety, the Secretary's broad interpretation of the term is consistent
with congressional objectives.'').
[[Page 22587]]
Moreover, Congress gave the Secretary of Labor the authority to
issue regulations related to walkaround inspections and to resolve the
question of who could be an authorized employee representatives for
purposes of section 8(e) of the OSH Act. See 29 U.S.C. 657(e);
Legislative History of the Occupational Safety and Health Act of 1970,
at 151 (Comm. Print 1971). Given the nearly identical language in
section 103(f) of the Mine Act, which was passed shortly after the OSH
Act, and the similar purposes of the two statutes, here too the plain
language of the OSH Act confers upon employees the right to authorize a
representative irrespective of the representative's employment status.
See Smith v. City of Jackson, Miss., 544 U.S. 228, 233 (2005)
(plurality opinion) (``[W]hen Congress uses the same language in two
statutes having similar purposes, particularly when one is enacted
shortly after the other, it is appropriate to presume that Congress
intended that text to have the same meaning in both statutes.'').
The Chamber of Commerce also asserted that the plain meaning of the
term ``authorized'' employee representative requires a legal delegation
(see Document ID 1952, p. 10). In support, the Chamber cites two
cases--Anderson v. U.S. Dep't of Labor, 422 F.3d 1155, 1178-79 (10th
Cir. 2005) and United States v. Stauffer Chemical Co., 684 F.2d 1174,
1190-91 (6th Cir. 1982), aff'd, 464 U.S. 165 (1984) (Document ID 1952,
p. 10). However, these cases are distinguishable and do not support the
Chamber's proposition that a legal delegation of authority is required.
In Anderson, the Tenth Circuit addressed whether a whistleblower
complainant's position as a political appointee precluded her from
being an ``authorized representative of employees'' under the employee
protection provisions of the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 (CERCLA) and other related
environmental statutes. 422 F.3d at 1157. The Department of Labor's
Administrative Review Board (ARB) held that the complainant (Anderson)
lacked standing to sue under CERCLA because the meaning of ``authorized
representative'' under that statute requires ``some tangible act of
selection by employees in order for one to be an `authorized
representative of employees.' '' Id. at 1180. The ARB concluded that
Anderson could not as a matter of law ``represent'' employees in her
position as a political appointee under state law and, even if she was
permitted to serve as an ``authorized representative,'' she failed to
establish that municipal employees or union officials ``authorized''
her to be their representative during her tenure.'' Id. at 1178, 1180.
On appeal, the Tenth Circuit held that, based on the statutory language
and the legislative history of the applicable statutes, the ARB
construction of `` `authorized representative' to require some sort of
tangible act of selection is a permissible one.'' Id. at 1181.
The Chamber of Commerce argues that Anderson stands for the
proposition that that an employee representative is ``authorized''
under the OSH Act only where there is some ``legal authority, rather
than merely a request by employees to represent them.'' (Document ID
1952, p. 10) (citing Anderson, 422 F.3d at 1178-79). However, this is
an incorrect reading of Anderson. The court in Anderson did not hold--
as the Chamber suggests--that ``legal authority'' is required for an
employee representative to be ``authorized'' under any statute.
Further, the holding in Anderson was limited to the meaning of
``authorized representative of employees'' as used in CERCLA (and other
related environmental statutes). OSHA has never required an employee
representative to have ``legal authority'' as a precondition to serving
as a walkaround representative in the more than fifty years of
implementing section 8(e) of the OSH Act, nor has any court. For
example, OSHA's FOM has long instructed that employee members of an
established workplace safety committee or employees at large can
designate a walkaround representative, see OSHA Field Operations
Manual, CPL 02-00-164, Chapter 3, Section VII, A.1-A.2, even though
that representative does not have ``legal authority.''
Likewise, Stauffer Chemical is inapplicable to this rule. In that
case, the U.S. Court of Appeals for the Sixth Circuit held that the
term ``authorized representative'' of the EPA Administrator under the
Clean Air Act's provision governing pollution inspections means
``officers or employees of the EPA'' and cannot include employees of
private contractors. Stauffer Chem. Co., 684 F.2d at 1189-90. The Sixth
Circuit, after reviewing the language of the Clean Air Act and its
legislative history, determined that ``[c]onstruing authorized
representatives under section 114(a)(2) to include private contractors
would lead to inconsistencies between that section and other parts of
the Clean Air Act.'' Id. at 1184. Contrary to the Chamber's contention,
Stauffer Chemical does not hold that ``an `authorized representative'
of an employee cannot be a third party but must be a fellow employee of
the EPA.'' (Document ID 1952, p. 10). That issue was not before the
court. As discussed above, the court's holding in Stauffer Chemical was
limited to who is permitted to serve as an ``authorized
representative'' of the EPA Administrator under the Clean Air Act and
whether that includes private contractors or only officers and
employees of the EPA. It has no bearing on the meaning of ``authorized
employee representative'' in the context of 8(e) of the OSH Act.
The National Federation of Independent Business argued ``[t]he
proposed rule fails to incorporate properly the statutory requirement
that any participation in an inspection by persons other than the OSHA
inspector must be solely for the purpose of `aiding such inspection,'
and OSHA's position that virtually any activity by a walking-around
individual aids an inspection is arbitrary and capricious'' (Document
ID 0168, p. 6). OSHA rejects the premise that any activity by a third-
party will aid the inspection under the final rule. The existing
regulation contains a provision, which will remain in this final rule,
requiring that the CSHO first determine that ``good cause has been
shown why 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); see also 1903.8(a) (representatives of
employer and employees shall be given an opportunity to accompany the
CSHO during the physical inspection ``for the purpose of aiding such
inspection'').
b. Consistency With Other OSHA Regulations
Some commenters asserted that this rule conflicts with other OSHA
regulations (see, e.g., Document ID 1938, p. 4; 1946, p. 4-5). One
commenter argued that this regulation directly conflicts with the
definition of ``authorized employee representative'' in OSHA's
Recordkeeping and Reporting regulation at Sec. 1904.35(b)(2)(i)
(Document ID 1976, p. 6).
OSHA's Recordkeeping and Recording regulation provides that ``an
employee, former employee, personal representative, and authorized
employee representative'' may obtain copies of the OSHA 300 Logs and
defines the term ``authorized employee representative'' as ``an
authorized collective bargaining agent of employees.'' 29 CFR
1904.35(b)(2), (b)(2)(i). That regulation also provides for access to
OSHA 301 Incident
[[Page 22588]]
Reports; however, ``employees, former employees, and their personal
representatives'' may only access OSHA 301 Incident Reports
``describing an injury or illness to that employee or former
employee.'' 29 CFR 1904.35(b)(2)(v)(A) (emphasis added). Only
``authorized employee representatives'' for an establishment where the
agent represents employees under a collective bargaining agreement have
access to OSHA 301 Incident Reports for the entire establishment (and
only the section titled ``Tell us about the case''). See 29 CFR
1904.35(b)(2)(i), (b)(2)(v)(B).
``Authorized employee representative'' is defined narrowly in the
Recordkeeping and Reporting regulation because of employee privacy
interests and the role a union serves in safety and health matters when
employees have an authorized collective bargaining agent. In the
preamble to the 2001 Recordkeeping Rulemaking, OSHA explained the
agency's decision to grant expanded access to the OSHA 301 Incident
Reports by extensively discussing the importance of protecting
employees' private injury and illness information while also
recognizing the value of analyzing injury and illness data to improve
injury and illness prevention programs. See 66 FR 6053-54, 6057. OSHA
noted that the records access requirements were intended as a tool for
employees and their representatives to affect safety and health
conditions at the workplace, not as a mechanism for broad public
disclosure of injury and illness information. See id. at 6057. OSHA
also explained that granting access to unions serves as a useful check
on the accuracy of the employer's recordkeeping and the effectiveness
of the employer's safety and health program. See id. at 6055.
Therefore, in defining ``authorized employee representative'' as
``an authorized collective bargaining agent of employees,'' OSHA sought
to strike a reasonable balance between employees' privacy interests and
a union representative's more comprehensive role representing employees
on safety and health matters in the workplace. See id. (describing the
need to apply a ``balancing test'' weighing ``the individual's interest
in confidentiality against the public interest in disclosure.'').
Employee privacy concerns are not present in the context of this rule
and, thus, a more inclusive definition to include any representative
authorized by employees, regardless of whether the employees have a
collective bargaining agent, is appropriate to effectuate the Act's
goal of ensuring employee representation to aid the inspection.
Moreover, in exercising its authority to issue regulations
implementing the walkaround rights granted to employees under section 8
of the Act, OSHA is not bound by the definition in the Recordkeeping
and Reporting regulation. See, e.g., Env't Def. v. Duke Energy Corp.,
549 U.S. 561, 575-76 (2007) (EPA could interpret term ``modification''
differently in two different regulations dealing with distinct issues).
Unlike 29 CFR 1903.8(c), the Recordkeeping and Reporting regulation,
including 29 CFR 1904.35(b)(2)(i), was promulgated under a different
provision of the Act (section 8(c)). Accordingly, OSHA is permitted to
define the same term differently in the Recordkeeping and Walkaround
regulations because they implicate different regulatory, compliance,
and privacy interests.
Several commenters also contended that this rule conflicts with the
Commission's existing regulation that defines ``authorized employee
representative'' as ``a labor organization that has a collective
bargaining relationship with the cited employer and that represents
affected employees who are members of the collective bargaining unit,''
29 CFR 2200.1(g) (e.g., Document ID 1938, p. 4; 1946, p. 4-5; 1976, p.
7). Some of these commenters incorrectly stated that 29 CFR 2200.1(g)
is an OSHA regulation (e.g., Document ID 1976, p. 6). As an initial
matter, the Commission is an independent agency and 29 CFR 2200.1(g) is
a procedural rule promulgated by the Commission, not OSHA. Indeed,
Congress delegated adjudicated authority to the Commission and
delegated enforcement and rulemaking authority under the OSH Act to the
Secretary. See Martin v. Occupational Safety & Health Rev. Comm'n, 499
U.S. 144, 151 (1991) (describing the ``split enforcement'' structure of
the OSH Act). The Commission's procedural regulations at 29 CFR
2200.1(g) were promulgated under 29 U.S.C. 661(g), which authorizes the
Commission to promulgate rules only as are necessary for the orderly
transaction of its proceedings. Under the ``split enforcement''
structure of the OSH Act, the Commission's procedural rules apply only
to its adjudicatory proceedings, and thus the Commission's
interpretation of ``authorized employee representative'' has no bearing
on the Secretary's authority to interpret and issue regulations on the
meaning of ``authorized employee representative'' in Section 8(e) of
the OSH Act. Notably, the term ``authorized employee representative''
is not used in the Commission rules in an exclusionary way, as
commenters have argued. Under Commission rules, employee
representatives may participate in Commission proceedings even if they
are not associated with a collective bargaining unit. See 29 CFR
2200.1(h); 2200.20(a); 2200.22(c).
The Chamber of Commerce argued that the proposed rule contradicts
the Commission's procedural rule at 29 CFR 2200.53 by allegedly
allowing OSHA and ```experts' deemed qualified by OSHA inspectors
alone'' access to a worksite before the beginning of a Commission
proceeding to engage in discovery (Document ID 1952, p. 15-17). There
is no such contradiction as the Commission's discovery rules have no
applicability to OSHA's investigation. OSHA has clear authority to
access a worksite in order to conduct inspections. See 29 U.S.C.
657(a)(1)-(a)(2), (b).
c. Basis for the Rule
Some commenters argued that OSHA ``proposed [the rule] without the
reasoned explanation that is required'' (Document ID 1952, p. 13),
``failed to consider obvious and critical issues'' (Document ID 1954,
p. 4), failed to provide technical data that supports its reasonings
(Document ID 1776, p. 10), and failed to provide a rational basis why
the regulation will advance the agency's mission (Document ID 1953, p.
3).
The APA requires an agency to ``examine the relevant data and
articulate a satisfactory explanation for its action including a
`rational connection between the facts found and the choice made.' ''
Air Transp. Ass'n of Am., Inc. v. U.S. Dep't of Agric., 37 F.4th 667,
675 (D.C. Cir. 2022) (internal citations omitted). If an agency relies
on technical studies, those studies ``must be revealed for public
evaluation.'' Chamber of Com. of U.S. v. SEC, 443 F.3d 890, 899 (D.C.
Cir. 2006) (quoting Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C. Cir.
1991)).
OSHA complied with APA rulemaking requirements by discussing and
outlining its policy considerations and determinations in making this
clarification via this rule. OSHA did not rely on any technical
studies, but examined the record and based its determination that this
rule will aid OSHA's workplace inspections on evidence in the record
and decades of enforcement experience. For example, commenters stated
that this rule would particularly aid OSHA inspections involving
vulnerable working populations in the farming industry and
[[Page 22589]]
meatpacking industry as well as specialized workplaces such as airports
that involve several different employers and contractors (see, e.g.,
Document ID 1023, p. 3-4; 1728, p. 8-9; 1763, p. 2-3; 1980, p. 3).
Some commenters also argued the rule represents a departure from
OSHA's prior position and its policy reasons are insufficient to
support the change (see, e.g., Document ID 1952, p. 14; 1954, p. 4).
The Chamber of Commerce, for example, contended that OSHA failed to
acknowledge ``that it is changing position'' and failed to show ``good
reasons for the new policy.'' (Document ID 1952, p. 14). As explained
throughout this final rule, by clarifying OSHA's interpretation of the
OSH Act that third parties can serve as employee representatives for
the purposes of the OSHA walkaround inspection, the revised regulation
more closely aligns with the text of Section 8(e) and serves several
beneficial purposes. Several commenters provided examples of third-
party representatives who accompanied OSHA on walkaround inspections
(Document ID 1750, p. 3; 1761, p. 1; 1945, p. 3; 1958, p. 3; 1980, p.
2). For example, one commenter who served as the director of AFSCME's
safety and health program discussed serving as a third-party employee
walkaround representative accompanying CSHOs on inspections of health
care facilities in the 1980s (Document ID 1945, p. 3). Furthermore,
OSHA's letter of interpretation to Mr. Steve Sallman (Sallman letter)
clarified OSHA's interpretation that a third party may serve as a
representative authorized by employee (Document ID 0003).
d. Specificity of the Rule
Some commenters argued the rule is overly broad and will invite
chaos (Document ID 1113; 1779, p. 2, 3, 5; 1942, p. 1-2, 3, 5; 1952, p.
13; 1953, p. 1, 5). Some argued that the rule will leave ``open-ended
which individuals can be considered `authorized representatives'''
(Document ID 1952, p. 13; see also 1782, p. 3-5; 1953, p. 4-5). And
they argued that, as a result, the rule is arbitrary and capricious
because it will allow a ``multitude of third parties'' as
representatives or a ``seemingly unlimited variety of people who can
represent employees during a plant walkaround'' thereby leaving
``employers unable to prepare for which individuals may enter their
facilities during inspections and what such individuals may do while on
their property'' (Document ID 1782, p. 3-5; 1952, p. 13; 1953, p. 4-5).
Finally, some commenters argued that the rule is arbitrary and
capricious because it lacks sufficient specificity of third-party
qualifications and provides CSHOs too much discretion (Document ID
1754, p. 2; 1776, p. 2-3).
OSHA disagrees with these concerns. First, the final rule provides
greater clarity and specificity regarding who may serve as a third-
party representative than the prior regulation. OSHA's prior regulation
included only two, non-exhaustive examples with no guiding criteria for
determining if good cause had been shown that a third party was
reasonably necessary. As explained in the NPRM, third-party
representatives are reasonably necessary if they will make a positive
contribution to a thorough and effective inspection. And, as discussed
in Section IV.A, The Need for and Benefits of Third-Party
Representation, there are many types of knowledge, skills, and
experience that can aid the inspection. Therefore, the final rule
provides several factors for a CSHO to consider when determining if
good cause has been shown that a third-party employee representative is
reasonably necessary to the conduct of an effective and thorough
physical inspection.
Further, third-party representatives are subject to other
inspection-related regulations, which allows the CSHO to deny access if
the representative unreasonably disrupts the employer's operations or
interferes with the inspection. See 29 CFR 1903.7(d), 1903.8(d). While
some commenters asserted that this rule leaves them unable to
``prepare'' for the individuals who may come to the workplace,
inspections under the OSH Act are unannounced and employers are not
entitled to advanced notice to ``prepare'' for inspections. See 29
U.S.C. 657(a) (authorizing Secretary of Labor to enter, inspect, and
investigate workplaces without delay); 29 U.S.C. 666(f) (providing for
criminal penalties for ``[a]ny person who gives advanced notice of any
inspection''); see also Marshall v. Shellcast Corp., 592 F.2d 1369,
1371 (5th Cir. 1979) (Congress considered the `` `element of surprise'
a crucial component'' of OSHA inspections).
As such, OSHA finds that this rule is consistent with APA and the
OSH Act.
2. Public Hearing
Some commenters asserted that OSHA should have held public hearings
(see, e.g., Document ID 1774, p. 6-7; 1955, p. 10). As OSHA explained
in the proposal, because this rulemaking involves a regulation rather
than a standard, it is governed by the notice and comment requirements
in the APA (5 U.S.C. 553) rather than section 6 of the OSH Act (29
U.S.C. 655) and 29 CFR 1911.11. Therefore, the OSH Act's requirement to
hold an informal public hearing (29 U.S.C. 655(b)(3)) on a proposed
rule, when requested, does not apply to this rulemaking.
Section 553 of the APA does not require a public hearing. Instead,
it states that the agency must ``give interested persons an opportunity
to participate in the rule making through submission of written data,
views, or arguments with or without opportunity for oral presentation''
(5 U.S.C. 553(c)). In the NPRM, OSHA invited the public to submit
written comments on all aspects of the proposal and received thousands
of comments in response. OSHA extended its initial 60-day comment
period by two weeks in response to requests from the public (88 FR
71329). No commenter identified any information that might have been
submitted at a public hearing that was not, or could not have been,
submitted during the written comment period. Accordingly, OSHA finds
that interested parties had a full and fair opportunity to participate
in the rulemaking and comment on the proposed rule through the
submission of written comments.
G. Practical and Logistical Issues
Commenters raised various questions and concerns regarding how OSHA
will implement and administer this rule. Many of these questions are
beyond the scope of this rulemaking, while others are addressed by
other regulations or enforcement guidance. While OSHA cannot anticipate
every possible scenario, OSHA has provided responses below or otherwise
herein. CSHOs will also continue to conduct inspections in accordance
with OSHA's other regulations and the FOM. Further, OSHA intends to
issue additional guidance for its CSHOs on administering this rule.
Commenters' questions and concerns can be grouped as follows: (1)
how employees will authorize their walkaround representative(s); (2)
how many employee walkaround representatives are permitted to accompany
the CSHO; (3) whether advance notice of inspections will be provided;
(4) how delays may impact inspections; and (5) how OSHA intends to
respond to third-party interference or disruptions during the
walkaround.
First, many commenters had questions about the process by which
employees would authorize a walkaround representative (see, e.g.,
Document ID 1726, p. 3-4; 1748, p. 6; 1751, p. 4; 1759, p. 2; 1762, p.
2-3; 1763, p. 5-6, 8; 1775, p. 4-6; 1779, p. 2; 1782, p. 2-3, 6; 1936,
p. 3; 1955, p.
[[Page 22590]]
4-6, 8-9; 1976, p. 12-14). For example, one commenter stated, ``[a]s
proposed, there are no established procedures for an employer's
employees to make a designation of an authorized representative that is
not an employee of the employer'' (Document ID 1779, p. 2). Several
commenters asked how many employees are required to designate a
representative (see, e.g., Document ID 1748, p. 6; 1751, p. 1; 1779, p.
5; 1936, p. 3; 1942, p. 4-5; 1946, p. 3, 7; 1953, p. 5; 1966, p. 5;
1976, p. 12-13), what the designation process entails (see Document ID
1030; 1759, p. 2; 1946, p. 3, 7; 1966, p. 5; 1976, p. 12-14; 9901;
11524; 11275), and whether the designation process would include a vote
(see, e.g., Document ID 1976, p. 10, 13). Further, the Construction
Industry Safety Coalition asserted that the rule also ``fails to
address how a CSHO is to identify if the employees have designated a
third-party representative, or when'' (Document ID 1955, p. 5).
Commenters also asked whether OSHA would require evidence when
determining that a representative is authorized (see, e.g., Document ID
1726, p. 3-4).
Other commenters also asked what OSHA would do if faced with
requests for third-party employee representatives from competing unions
(Document ID 1952, p. 3; 11275) as well as non-unionized worksites or
worksites with unionized and non-unionized employees (Document ID 1782,
p. 4; 1933, p. 3; 1960, p. 4-5; 1976, p. 8, 12-13; 11275). Some
commenters asserted that the ``rule does not provide clear guidance on
how multiple Walkaround Representatives should be selected, especially
when chosen by different employees or groups within the organization''
(Document ID 1954, p. 3) and on multi-employer worksites (Document ID
1960, p. 2-3; 1774, p. 5).
Neither the OSH Act nor any OSHA regulations specify when or how
employees should authorize their walkaround representative(s). As such,
there is no single or required process by which employees can designate
a walkaround representative. OSHA has never had a rigid designation
process or required documentation to show that a representative is
authorized. As explained above, OSHA has long permitted nonemployees to
serve as employee walkaround representatives, and OSHA has not
encountered issues with the ways employees may authorize their
representative. Thus, because OSHA does not believe such measures are
necessary and seeks to provide flexibility for employees' designation
process, OSHA declines to adopt specific procedures.
Likewise, there is no single way for employees to inform OSHA that
they have a walkaround representative (whether that representative is
an employee or a third party). For example, OSHA's FOM provides that in
workplaces where employees are represented by a certified or recognized
bargaining agent, the highest-ranking union official or union employee
representative on-site would designate who participates in the
walkaround. See OSHA Field Operations Manual, CPL 002-00-164, Chapter
3, Section VII.A.1. Employees could also designate an authorized
employee representative when they authorize them to file an OSHA
complaint on their behalf. Additionally, employees may inform the CSHO
during the walkaround inspection itself or during employee interviews,
or they may contact the OSHA Area Office. This is not an exhaustive
list but rather some examples of ways employees may designate their
walkaround representative(s).
As explained previously, 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, CPL 002-00-164, Chapter 3, Section VII.A.2 (noting that members
of an established safety committee can designate the employee
walkaround representative). The OSH Act does not require that a
specific number or percentage of employees authorize an employee
representative, and OSHA declines to do so through this rulemaking.
However, in a workplace with more than one employee, more than one
employee would be needed to authorize the walkaround representative
pursuant to the language in section 8(e) of the OSH Act, which uses the
phrase ``representative authorized by [the employer's] employees.'' 29
U.S.C. 657(e). If the CSHO is unable to determine 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. See 29 CFR 1903.8(b).
Second, several commenters asserted that the number of third-party
representatives that employees may authorize for a single inspection is
unclear or stated their opposition to having multiple representatives
during an inspection (Document ID 1937, p. 4; 1946, p. 3, 7; 1953, p.
5; 1966, p. 5; 1976, p. 12-13; 9901). For example, the Air Conditioning
Contractors of America claimed that the rule ``lacks clear parameters
regarding the number of third-party representatives allowed during a
single inspection and fails to provide guidance on the management and
prioritization of multiple requests from employees for different
representatives. This has the potential to result in impractical and
chaotic inspection processes with a multitude of third-party
participants'' (Document ID 1935, p. 1; see also 1030; 11313).
Similarly, the International Foodservice Distributors Association
asserted the rule ``lacks guidance or proposed language on how third-
party representatives may be selected by the employees and any limiting
principles on the number of representatives who may be selected. This
will lead to confusion for both employees and employers'' (Document ID
1966, p. 5).
Other commenters noted that the number of permitted representatives
is complicated by unique worksites. For instance, the National
Association of Home Builders (NAHB) questioned how ``OSHA [will]
identify who the `employee representative' is of a general contractor
who may only have one employee on the particular jobsite, while
multiple trade subcontractors and their employees are also present?''
(Document ID 1774, p. 5; see also 1960, p. 2-3). Within the packaging
and manufacturing industry, the Flexible Packaging Association proposes
that because the rule presents several issues and threats ``for a large
party of employees and their representatives, the CSHO, the employer,
and his/her representatives on the manufacturing floor,'' ``each
employee should be limited to no more than one representative, and the
employer should be limited to one representative'' with an exception
for translators (Document ID 1782, p. 2-3).
Under OSHA's existing regulations, a representative of the employer
and a representative authorized by its employees can accompany the CSHO
on the inspection, but the CSHO may permit additional employer
representatives and additional authorized employee representatives if
the additional representatives will further aid the inspection. See 29
CFR 1903.8(a). A different employer and employee representative may
accompany the CSHO during each different phase of an inspection if this
will not interfere with the conduct of the inspection. Id. OSHA's FOM
further explains that where more than one employer is present or in
situations where groups of employees have different representatives, it
is acceptable to have a different employer/employee representative for
different phases of the inspection. OSHA Field Operations
[[Page 22591]]
Manual, CPL 002-00-164, Chapter 3, Section VII.A. However, if the CSHO
determines that multiple representatives would not aid the inspection
or if the presence of multiple representatives interferes with the
inspection, the CSHO retains the right to deny the right of
accompaniment to representatives. See 29 CFR 1903.8(a), (d).
Third, some commenters questioned whether, due to this rule, OSHA
would begin providing advance notice of an inspection to employers,
employee representatives, or both. For example, some commenters, like
the American Trucking Association, stated that the proposed rule did
not indicate whether OSHA would provide an employer with advance
notice, prior to arriving at a worksite, that a third-party employee
representative would be accompanying OSHA during the walkaround portion
of its inspection (Document ID 1773, p. 3). The Flexible Packing
Association recommended that OSHA give employers advance notice that a
third-party representative will be accompanying the CSHO, ``justify why
the third-party would assist in an effective walkaround,'' and then
give an employer ``10 days to respond to OSHA on such request''
(Document ID 1782, p. 5).
Several commenters also addressed advance notice to employee
representatives. For example, the AFT urged that in inspections where
OSHA gives advance notice to the employer that ``the complainant, union
or other employee representative must be notified at the same time''
(Document ID 1957, p. 6). In addition, the Service Employees
International Union (SEIU) suggested that OSHA can give advance notice
to third parties prior to the inspection of airports for the purpose of
seeking assistance with industry-specific issues such as jurisdiction
and security clearance, although it is unclear if that third party's
assistance would be limited to pre-inspection activity or if the SEIU
also envisioned the third party being an employee walkaround
representative (Document ID 1728, p. 8-9). The Office of Advocacy of
the U.S. Small Business Administration asserted that ``it appears to
naturally flow from the proposed regulation that these non-employee
third-party representatives will, for purposes of planning, be given
advance notice of the inspection so they can arrange to meet the
inspector at the workplace, when notice of the inspection is supposed
to be strictly confidential'' (Document ID 1941, p. 5 fn. 23; see also
1955, p. 5).
The OSH Act generally forbids advance notice of OSHA inspections;
indeed, any person who gives advance notice without authority from the
Secretary or the Secretary's designees is subject to criminal
penalties. See 29 U.S.C. 666(f). However, OSHA regulations provide
certain exceptions to this general prohibition. See 29 CFR 1903.6(a);
OSHA Field Operations Manual, CPL 02-00-164, Chapter 3, Section II.D
(discussing advance notice of OSHA inspections). These exceptions
include: (1) ``cases of apparent imminent danger'' (29 CFR
1903.6(a)(1)); (2) ``circumstances where the inspection can most
effectively be conducted after regular business hours or where special
preparations are necessary for an inspection (29 CFR 1903.6(a)(2)); (3)
``[w]here necessary to assure the presence of representatives of the
employer and employees or the appropriate personnel needed to aid in
the inspection'' (29 CFR 1903.6(a)(3)); and (4) ``other circumstances
where the Area Director determines that the giving of advance notice
would enhance the probability of an effective and thorough inspection''
(29 CFR 1903.6(a)(4)).
Given the OSH Act's general prohibition against advance notice and
limited exceptions, OSHA declines to further amend the rule to
guarantee advance notice of inspections to either employers or third-
party employee representatives. Whether or not an exception applies
depends on the particular needs and circumstances of the inspection.
Fourth, and related to advance notice, some commenters also
asserted that the proposed rule could result in delays to OSHA's
inspection (see, e.g., Document ID 1964, p. 5-6; 1966, p. 3; 1972, p.
8; 1976, p. 15). Reasons given for potential delays include: CSHO
difficulty in determining who the authorized representative is among
various vying third-party representatives (Document ID 1964, p. 5-6),
fewer employers consenting to OSHA inspections if the CSHO is
accompanied by a third-party employee representative (Document ID 0040,
p. 4-5; 1933, p. 2-3; 1966, p. 3), employers failing to notify
authorized employee representatives after being given advance notice of
an inspection by OSHA (Document ID 1761, p. 3), representatives
conferring with workers on personal issues (Document ID 1782, p. 3-4),
workers needing to advocate to OSHA that their representative is
reasonably necessary (Document ID 1972, p. 8), employers subjecting
third-party representatives to background checks or other requirements
for entry to employer property (Document ID 1960, p. 5), expansion of
the inspection resulting from third-party representative involvement
(Document ID 0040, p. 3), employers asserting that their property
contains proprietary information when faced with a third-party
representative (Document ID 0040, p. 4), and CSHOs struggling to
exercise their discretion because of a lack of guidelines in the
proposed rule (Document ID 1976, p. 14-15).
The issues that have been raised are issues that CSHOs have long
addressed in conducting inspections, and CSHOs are experienced and
adept at conducting inspections without delay and in a reasonable
manner. See 29 U.S.C. 657(a). OSHA will use its authority under 29 CFR
1903.8(b) to resolve potential disputes about third-party
representatives expeditiously. As explained previously, OSHA
anticipates that the vast majority of employers will not deny entry
simply because the employees' walkaround representative is a third
party. However, OSHA will obtain a warrant when necessary to conduct
its inspections. See Barlow's, 436 U.S. at 313; see also 29 U.S.C.
657(a)(1)-(2); 29 CFR 1903.4(a). And, if the Secretary is on notice
that a warrantless inspection will not be allowed, OSHA may seek an
anticipatory warrant to conduct its inspection without delay. See 29
CFR 1903.4(b)(1). Accordingly, OSHA does not believe that this rule
will result in further inspection delays that would be detrimental to
worker safety and health.
Last, many commenters had questions about how OSHA would handle
situations where a third party deviated from their role as the
employees' walkaround representative and engaged in conduct unrelated
to the inspection--particularly conduct that interfered with OSHA's
inspection and/or disrupted the employer's operations (see, e.g.,
Document ID 1762, p. 5). As discussed in Sections IV.A, IV.C, and IV.H,
commenters raised a number of potential scenarios where third parties
may have ulterior motives. Commenters also raised scenarios where
third-party representatives may not have ulterior motives but
nevertheless interfere with an inspection by engaging in conduct such
as ``[having] lengthy discussions of process equipment and safety
designs, or products.'' (Document ID 1782, p. 3-4).
Many commenters questioned CSHOs' ability to stay in charge of such
inspections (see, e.g., Document ID 1030; 1935, p. 1; 1938, p. 5),
while others offered various suggestions. For example, one commenter
stated that ``once third parties are identified, they should be
governed by the same inspection standards as the CSHO'' (Document ID
1762, p. 5). In addition, the NRF requested that OSHA ``define what
constitutes appropriate conduct
[[Page 22592]]
for an Authorized Representative and give the employer the express
authority to remove an Authorized Representative from the premises''
(Document ID 1776, p. 4). The NRF also requested that OSHA ``mandate a
dress code for third parties'' for the protection of employer products
and equipment and to prevent clothing with ``inappropriate messaging,
language, campaign information.'' (Document ID 1776, p. 4).
Commenters' concerns about the CSHOs' ability to address potential
interference or disruptions to the workplace are unfounded. CSHOs have
extensive experience conducting inspections and handling any
interference or disruptions that may arise. During inspections, CSHOs
will set ground rules for the inspection to ensure all representatives
know what to expect. While OSHA declines to anticipate and categorize
every type of conduct as appropriate or inappropriate or mandate
specific rules, such as dress codes, OSHA intends to issue further
guidance to the extent specific issues arise.
In addition, and as explained in Chapter 3 of the FOM, the employee
representative shall be advised that, during the inspection, matters
unrelated to the inspection shall not be discussed with employees. OSHA
Field Operations Manual, CPL 02-00-164, Chapter 3, Section V.E. CSHOs
will also ensure the conduct of inspections will not unreasonably
disrupt the operations of the employer's establishment. See 29 CFR
1903.7(d). If disruption or interference occurs, CSHOs will promptly
attempt to resolve the situation. Depending on the severity and nature
of the behavior, a warning may suffice in some instances. In other
instances, the CSHO may need to terminate the third party's
accompaniment during the walkaround. As the FOM explains, the CSHO will
contact the Area Director or designee and discuss whether to suspend
the walkaround inspection or take other action. See OSHA Field
Operations Manual, Chapter 3, Section V.E.
H. Liability Issues
Several commenters raised questions concerning liability.
Specifically, they questioned who would be liable if a representative
authorized by employees is injured, causes injury to others, or engages
in misconduct (see e.g. Document ID 0527, p. 2; 1030; 1762, p. 2-3;
10253; 11228; 11482), or discloses trade secrets (Document ID 1953, p.
7). For example, the International Foodservice Distributors Association
asserted that third-party representatives who are not affiliated with
the workplace and/or lack an appropriate level of industry experience
or adequate safety training could be easily injured or cause injury
during an inspection (Document ID 1966, p. 2). The Workplace Policy
Institute also raised concerns about the conduct of third-party
representatives, who are ``likely'' not state actors and not limited by
due process requirements (Document ID 1762, p. 4). Some commenters
asked if OSHA would bear any liability in these circumstances (see,
e.g., Document ID 1976, p. 15; 1835), while other commenters asserted
that the proposed rule would increase employers' liability (see, e.g.,
Document ID 1933, p. 3). In addition, NRF requested that the rule be
further amended to indemnify an employer against any ``violent or
damaging conduct committed by'' the third-party representative while on
site or provide for ``felony prosecution of any CSHO that abuses their
authority under the proposed rule'' (Document ID 1776, p. 4, 7). Black
Gold Farms argued that OSHA should train representatives on general and
industry-specific topics, show the employer proof of this training, and
then assume liability for the representative's actions if they violate
the employer's policy or the law (Document ID 0046).
For several reasons, OSHA has determined it is unnecessary to amend
the rule to assign liability or indemnify employers. As an initial
matter, the OSH Act does not seek to ``enlarge or diminish or affect in
any other manner the common law or statutory rights, duties, or
liabilities of employers and employees.'' 29 U.S.C. 653(b)(4). Varying
bodies of law, including tort and criminal law, already regulate the
scenarios that commenters have raised, and any regulation from OSHA on
liability or indemnification would potentially upend those other laws.
In fact, commenters identified worker's compensation, tort law, 42
U.S.C. 1983, and 18 U.S.C. 202(a) as potentially relevant (Document ID
1762, p. 3; 1954, p. 4; 1955, p. 2-3; 1976, p. 21 fn. 79).
OSHA generally is not liable for the conduct of authorized employee
representatives, who are not themselves officers or employees of a
Federal agency. And, to the extent that any claim relates to OSHA's
conduct during an inspection, under the Federal Tort Claims Act (FTCA),
the United States is not liable for ``[a]ny claim based upon an act or
omission of an employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such statute or
regulation be valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the
part of a Federal agency or an employee of the Government, whether or
not the discretion involved be abused.'' 28 U.S.C. 2680(a). A number of
U.S. Circuit Court of Appeals have held that general administrative
inspections conducted by OSHA compliance officers fall under this
``discretionary function'' exception to the FTCA. See, e.g., Irving v.
U.S., 162 F.3d 154, 164 (1st Cir. 1998). OSHA declines to opine on the
merits of other legal bases for liability because determining liability
is a fact-specific inquiry and it is beyond the scope of this
rulemaking.
Commenters raised several hypothetical scenarios of injury or
misconduct but failed to identify any specific or substantiated
examples of when such scenarios have occurred during OSHA inspections.
OSHA therefore anticipates that these scenarios involving injury or
misconduct will be rare, and declines to adopt any training requirement
for third parties.
Moreover, this regulation and OSHA's other inspection-related
regulations contain safeguards to reduce the likelihood of any
misconduct. This final rule places limitations on who can serve as the
employee walkaround representative. Per the rule, the CSHO must
determine whether a potential third-party employee walkaround
representative will aid the inspection. The CSHO will determine whether
good cause has been shown why the individual is reasonably necessary to
an effective and thorough OSHA inspection. The CSHO has authority to
deny the right of accompaniment to any individual who is not reasonably
necessary to the inspection. Moreover, the CSHO has authority to deny
accompaniment to an employee walkaround representative who is
disrupting the inspection. Further, OSHA's regulation at 29 CFR
1903.9(d) provides employers the option to request that, in areas
containing trade secrets, the employee walkaround representative be an
employee in that area or an employee authorized by the employer to
enter that area, and not a third party. OSHA has determined that the
existing regulatory framework provides sufficient protection for the
hypotheticals that commenters raised. In addition, at least one
commenter, the Utility Line Clearance Safety Partnership, noted that
some employers have existing policies and waivers for third parties
that enter their sites, though OSHA declines to opine on the legal
sufficiency of such documents (Document ID 1726, p. 5).
Finally, potential abuse of the walkaround provision does not
[[Page 22593]]
necessitate excluding walkaround rights for third parties altogether.
In cases involving the Mine Act, which the Secretary of Labor also
enforces, courts have rejected hypothetical arguments that third-party
walkaround representatives may cause harm or abuse their position
during an MSHA inspection. See Thunder Basin Coal Co., 56 F.3d at 1281
(noting the potential for abuse ``appears limited'' as designation as
the miners' representative does not ``convey `an uncontrolled access
right to the mine property to engage in any activity that the miners'
representative wants'') (quoting Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 217 (1994)); Kerr-McGee Coal Corp., 40 F.3d at 1264 (``The
motivations of a miners' representative are irrelevant so long as the
representative, through its actions, does not abuse its designation and
serves the objectives of the Act.''); Utah Power & Light Co., 897 F.2d
at 452 (recognizing mine's concern that walkaround rights may be abused
by nonemployee representatives but holding that potential abuse ``does
not require a construction of the Act that would exclude nonemployee
representatives from exercising walkaround rights altogether''). OSHA
agrees. Because an authorized employee representative does not have
uncontrolled access to the employer's property and the CSHO is in
control of the inspection, the risk of misconduct, damage, or injury
appears limited.
I. Other Issues
Renner Bros. Construction, Inc. asked if they would need to fire or
reassign their current safety representatives because of this rule
(Document ID 1091). Third-party employee representatives are not
employees or representatives of the employer being inspected, nor do
they have a duty to the employer, and thus they should not be a
consideration when employers make staffing decisions related to their
safety representatives.
Additionally, the State Policy Network and other commenters that
submitted a report from the Boundary Line Foundation asserted that OSHA
presented a prior version of the Field Operations Manual, CPL 02-00-159
(10/1/2015) (Document ID 0004) ``as a document integral to the
development of and justification for the'' rule (Document ID 1965, p.
22-28; see also 1967; 1968; 1973; 1975). It next claimed that OSHA's
submission of another prior Field Operations Manual, CPL 02-00-160
(Document ID 0005) into the docket misrepresented this FOM as the
current FOM (see, e.g., Document ID 1965, p. 26-28). Next, it asserted
that the FOM has no ``color of authority'' for rulemaking purposes
(Document ID 1965, p. 28-29; see also 1967; 1968; 1973; 1975). It
finally argued that OSHA erred in failing to submit into the docket the
two most recent FOMs (CPL 02-00-163 and CPL 02-00-164) (Document ID
1965, p. 27-28; see also 1967; 1968; 1973; 1975).
These comments are unsupported. As explained in Section II.B,
Regulatory History and Interpretive Guidance, OSHA submitted into the
docket two versions of the FOM (CPL 02-00-159 (10/1/2015), Document ID
0004 and CPL 02-00-160 (8/2/2016), Document ID 0005) to explain OSHA's
practice and interpretation of 29 CFR 1903.8(c). OSHA neither stated
nor indicated the 2016 FOM was submitted as the most recent and
effective FOM. The two most recent versions of the FOM are posted on
OSHA's website, available for any interested party to review if it so
wished. See https://www.osha.gov/enforcement/directives/cpl-02-00-164
and https://www.osha.gov/enforcement/directives/cpl-02-00-163.
Furthermore, the FOM is merely guidance and does not create any duties,
rights, or benefits. There is no merit to the Boundary Line
Foundation's argument that the fact that the record does not contain
OSHA's two most recent FOMs rendered the public ``incapable of
meaningful participation during the public comment period of this
rulemaking process'' (Document ID 1965, p. 27).
V. Final Economic Analysis and Regulatory Flexibility Act Certification
A. Introduction
As described above, OSHA is revising 29 CFR 1903.8(c) to clarify
that the representative(s) authorized by employees may be either an
employee of the employer or, when reasonably necessary to aid in the
inspection, a third party. Additionally, OSHA's revisions further
clarify that third parties may be reasonably necessary to an OSHA
inspection due to skills, knowledge, or experience that they possess.
OSHA has determined that, while these revisions may impose societal
costs and that some employers may decide to undertake actions not
directly required to comply with any requirements in this rule, the
revisions impose no new direct cost burden on employers.\2\
---------------------------------------------------------------------------
\2\ Executive Order 12866 requires agencies to consider costs
that the regulated community may undertake regardless of whether
those actions are directly required by a standard or regulation.
OSHA's requirements under the OSH Act and related court decisions
require the agency to show that an occupational safety and health
standard is economically feasible. While this analysis is not being
undertaken to show the feasibility of this rule, because it is not a
standard, OSHA's approach to this finding does not generally
consider activities voluntarily undertaken to be costs of a rule for
the purposes of showing feasibility or, in the context of the
Regulatory Flexibility Analysis, a significant economic impact. The
agency has clarified in this analysis that some unquantified costs
as considered by Executive Order 12866 may be incurred and that
these differ from direct costs of a rule typically considered in an
OSHA economic feasibility analysis.
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Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of the intended regulation and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 14094 reaffirms, supplements, and updates Executive Orders 12866
and 13563 and further directs agencies to solicit and consider input
from a wide range of affected and interested parties through a variety
of means.
Under section 6(a) of Executive Order 12866, Regulatory Planning
and Review, 58 FR 51735 (Sept. 30, 1993), the Office of Management and
Budget's (``OMB'') Office of Information and Regulatory Affairs
(``OIRA'') determines whether a regulatory action is significant and,
therefore, subject to the requirements of the Executive Order and
review by OMB. Section 3(f) of Executive Order 12866, as amended by
section 1(b) of Executive Order 14094, Modernizing Regulatory Review,
88 FR 21879 (Apr. 6, 2023), defines a ``significant regulatory action''
as an action that is likely to result in a rule that may: (1) have an
annual effect on the economy of $200 million or more in any 1 year
(adjusted every 3 years by the Administrator of OIRA for changes in
gross domestic product), or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impacts of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise legal or policy issues for which
centralized review would meaningfully further the President's
priorities or the principles set forth in this Executive order, as
specifically authorized in a timely manner by the Administrator of OIRA
in each case. OIRA has determined that
[[Page 22594]]
this final rule is a significant regulatory action under section 3(f)
but not under section 3(f)(1) of Executive Order 12866, as amended by
Executive Order 14094. Therefore, a full regulatory impact analysis has
not been prepared.
This Final Economic Analysis (FEA) addresses the costs and benefits
of the rule and responds to comments on those topics. The agency also
evaluates the impact of the rule on small entities, as required by the
Regulatory Flexibility Act (5 U.S.C. 605).
B. Costs
This final rule imposes no new direct cost burden on employers and
does not require them to take any action to comply. This rule merely
clarifies who can be an authorized employee representative during
OSHA's walkaround inspection. As explained in the Summary and
Explanation above, this rule does not require or prohibit any employer
conduct, and an employer cannot ``violate'' this regulation. Any costs
of a rule are incremental costs--meaning, the cost of a change from the
future (projected from the current situation) without the final rule to
a world where the final rule exists.
In the NPRM's Preliminary Economic Analysis, OSHA preliminarily
determined that the proposal did not impose direct costs on employers
and welcomed comments on this determination and information on costs
that OSHA should consider. Many commenters stated their belief that the
final rule will impose additional costs. Some commenters, even those
who expressed concerns about potential costs of the rule, acknowledged
that OSHA's prior rule allowed third parties to accompany OSHA
inspectors if good cause had been shown that they were reasonably
necessary to the inspection (see, e.g., Document ID 0168, p. 2; 1941,
p. 3; 1952, p. 2). Many commenters that stated the final rule will
impose additional costs did not articulate exactly what changes this
rule would introduce that would result in cost increase, and no
commenter provided concrete evidence of actual costs it would incur
because of the rule.
1. Rule Familiarization
OSHA considers the cost of rule familiarization in many cases as
part of the economic impact analysis. However, it is not necessary for
employers to read or become familiar with this rule as there are no
requirements that the employer must undertake to be in compliance with
the rule. If an employer does not become familiar with this rule, there
is no risk of being out of compliance or violating the rule.
Furthermore, this rule is a clarification of OSHA's longstanding
practice with which employers are already familiar. Finally, the
regulatory text is very brief. Even if employers did choose to read the
revised regulation, it would take no more than a few minutes to do so.
Here, relying on the U.S. Census's Statistics of U.S. Businesses
for 2017, it is estimated that the final rule will apply to inspections
at approximately 7.9 million establishments. If familiarization takes,
at most, five minutes per establishment and is performed by Safety
Specialists (SOC 19-5011 \3\) or comparable employees, the total rule
familiarization costs, assuming the unlikely event that all employers
covered by OSHA will read this rule, will be approximately $40.5
million (= 7.9 million x [5/60] hour x $37.77 x [100% + 46% + 17%]), or
about $5 per employer. This quantitative estimate portrays an unlikely
upper bound assuming all employers will decide to read this regulation.
---------------------------------------------------------------------------
\3\ The median hourly base wage is $37.77 (per Occupational
Employment and Wages, May 2022, https://www.bls.gov/oes/current/oes195011.htm#nathttps://www.bls.gov/oes/current/oes195011.htm#nat).
A fringe benefits ratio (46 percent of earnings) is derived from
Bureau of Labor Statistics Employer Costs for Employee Compensation
data using variables CMU1020000000000D and CMU1030000000000D. Also,
overhead costs are assumed to be 17 percent of the base wage.
---------------------------------------------------------------------------
2. Training
Commenters suggested that employers would be required to provide
safety training for third-party representatives and would accordingly
incur costs for such training (see, e.g., Document ID 1762, p. 2-3;
1782, p. 2-3, 5-6; 1974, p. 4; 1952, p. 4; 1774, fn. 17; 1976, p. 15).
For example, NAHB suggested that OSHA's regulations require employers
to train employees before they may use certain equipment, including
personal protective equipment (PPE) (Document ID 1774, fn. 17), and the
Phylmar Regulatory Roundtable stated that OSHA failed to consider the
employer's need to provide third-party representatives with appropriate
safety training ``for their personal safety, the safety of the
workplace, and mitigation of liability'' (Document ID 1974, p. 4).
OSHA disagrees that employers will incur training costs as a result
of this final rule. Training of third-party representatives is not
required by the rule. OSHA's rules on training require an employer to
train their employees. Because a third-party employee representative is
not an employee of the employer undergoing an OSHA inspection, the
employer has no obligation to train those individuals. Additionally, as
stated in the NPRM, employers may have policies and rules for third
parties to ``participate in a safety briefing before entering'' a
jobsite. Given that such briefings would be given to the CSHO, OSHA
finds there would be no further cost to an employer to have an
additional visitor present during any potential safety briefing since
any potential briefing would be given regardless of the number of
individuals present. See 88 FR 59831. Commenters did not provide
information that suggested otherwise. Based on this, and because such
policies are not required by this rule, OSHA reaffirms that there are
no costs attributable to this final rule for this activity.
Similarly, some commenters, including the Employers Walkaround
Representative Rulemaking Coalition and the Chamber of Commerce, also
said they would need to train employees to educate them on this final
rule, or communicate with employees regarding the role of any non-
employee third-party representative (see, e.g., Document ID 1782, p. 5-
6; 1976, p. 23-24; 1952, p. 5). As explained above, this rule includes
no requirement that employers provide training and, therefore, any
associated costs are not attributable to this final rule. Since this
rule creates no new obligations for employers, training should be
unnecessary. Accordingly, OSHA does not attribute costs for training to
this rule.
3. Providing PPE
Several commenters were concerned that they would incur costs to
provide PPE to third-party representatives (see, e.g., Document ID
1774, p. 5; 1782, p. 3; 1937, p. 3; 1938, fn. 2; 1940, p. 3-4; 1941, p.
4-5; 1952, p. 5; 1976, p. 23). For example, NAHB said that general
contractors do not have ``extra PPE to address every potential
situation requiring PPE on a jobsite,'' and ``small businesses will
rarely have enough extra PPE or extra equipment that would enable all
relevant parties to take part in an inspection on a moment's notice''
(Document ID 1774, p. 5). This commenter also raises the issue of
proper PPE fit for third-party representatives in light of OSHA's
current rulemaking addressing correctly fitting PPE in construction
(Document ID 1774, p. 5). That rulemaking addresses how the PPE that
employers provide to their employees must fit properly but it does not
introduce any obligation regarding the fit of PPE loaned or provided to
non-employees who may be present on the worksite. Additionally, UFCW
commented that
[[Page 22595]]
the cost of providing PPE to third-party representatives ``is minimal
when considering the price of PPE and the number of OSHA inspections
taking place in one specific facility'' (Document ID 1023, p. 8).
In the NPRM, OSHA considered that employers may have policies and
rules for third parties, such as requiring visitors to wear PPE on
site, but preliminarily concluded that this would not impose costs to
employers because ``PPE could be supplied from extra PPE that might be
available on site for visitors or could be supplied by the third
party.'' 88 FR 59831. This final rule does not require employers to
have policies that require visitors to wear PPE on jobsites and,
therefore, any associated costs are not attributable to this final
rule. However, where employers have such policies, it is likely that
they would have extra PPE available for visitors in accordance with
their own policies. OSHA's enforcement experience indicates that where
employers have such policies, it is generally the case that those
employers make PPE available to visitors. Nonetheless, while employers
may provide any extra PPE they have to the third-party, the employer is
under no obligation to provide PPE to third-party representatives
during the walkaround inspection, nor would the employer be responsible
to ensure proper PPE fit for third parties. If the employer does not
have PPE available for the third-party representative, the third party
would need to supply their own PPE. If the third-party representative
does not have PPE that would allow them to safely accompany the CSHO,
the representative would be unable to accompany the CSHO in any area
where PPE is required. Accordingly, OSHA has determined that employers
will incur no costs associated with the provision of PPE to third-party
representatives as a result of this rule.
4. Policy Development, Revisions, and Planning
Some commenters, including the Office of Advocacy of the U.S. Small
Business Administration and the Employers Walkaround Representative
Rulemaking Coalition, said that this rule would impose costs related to
preparing or updating policies and procedures around third-party
visitors (see, e.g., Document ID 1782, p. 5-6; 1941, p. 4-5; 1974, p.
4; 1976, p. 23). As stated above, this final rule merely clarifies
longstanding OSHA practice to permit third-party representatives to
accompany CSHOs on inspections. Since this rule creates no new
obligations for employers, it should be unnecessary for employers to
revise any policies or procedures that are currently in place.
5. Legal Advice and Consultations
Some commenters said that they would need to obtain additional
legal advice or consult with legal counsel, or otherwise would incur
legal costs related to this rule (see, e.g., Document ID 1776, p. 7;
1782, p. 5-6; 1952, p. 5). For example, NAHB said that ``employers may
accumulate additional and unanticipated costs for consulting with
counsel on how they and their respective employees should handle these
interactions [with third-party representatives]'' (Document ID 1774, p.
4), and the Employers Walkaround Rulemaking Coalition stated that
employers would incur ``legal fees for managing more complex and
fraught inspection interactions'' (Document ID 1976, p. 23). This
commenter offered no evidence to support its assertion that
interactions during inspections would be more difficult as a result of
this rule.
As stated above, this final rule simply clarifies who can be an
authorized employee representative during OSHA's walkaround inspection.
The rule creates no new obligations for employers, and OSHA disagrees
with the assertion that the rule creates a need for employers to
consult with legal counsel. Furthermore, as discussed in other
sections, the rule creates no obligation for employers to consult with
legal counsel and therefore, OSHA attributes no costs to this voluntary
activity.
6. Insurance and Liability Costs
Some commenters, including the Flexible Packaging Association, the
Alliance for Chemical Distribution, and the Workplace Policy Institute
said that this rule would raise their insurance premiums, necessitate
purchasing additional liability or workers' compensation insurance to
cover injuries to non-employees, or otherwise create liability risks
for employers (see, e.g., Document ID 1726, p. 8; 1762, p. 2-3; 1774,
p. 3; 1974, p. 4-5; 1976, p. 21; 1781, p. 3; 1782, p. 5-6; 1952, p. 5).
The Workplace Policy Institute stated that OSHA's liability insurance,
rather than the employer's insurance, should cover injuries to third-
party representatives to avoid imposing significant additional burden
on employers (Document ID 1762, p. 3).
OSHA has determined that, as a result of this final rule, employers
will not incur costs associated with insurance and liability for
several reasons. First, because employers already have third parties
who may come onto their worksites for a variety of reasons unrelated to
an OSHA inspection, employers' insurance policies should already
account for risks related to the presence of third parties. Second,
given that there is an extremely low likelihood that an average
employer would be inspected by OSHA,\4\ that a third-party
representative would be present during that inspection, and that that
third party would be injured on the employer's premises, insurers would
not see that as something necessitating additional insurance coverage
or higher premiums. Finally, as OSHA explained in the Summary and
Explanation, the CSHO has the authority to deny accompaniment to an
employee walkaround representative who is disrupting the inspection,
and would exclude a representative from the walkaround if they are
acting in a manner that creates a dangerous situation for themselves or
others (see Section III, Summary and Explanation). No commenter
provided any data or information other than speculation that premiums
would increase. Accordingly, OSHA has determined that employers will
incur no new costs associated with insurance and liability as a result
of this final rule.
---------------------------------------------------------------------------
\4\ In Fiscal Year 2023, OSHA conducted about 34,000 inspections
of the more than 8 million employers covered by the OSH Act, which
means the average employer has about a 0.43 percent chance of being
inspected in a given year. Commonly Used Statistics, available at
https://www.osha.gov/data/commonstats.
---------------------------------------------------------------------------
7. Protecting Trade Secrets and Confidential Business Information
Some commenters, including the Chamber of Commerce, expressed
concern that they would incur costs associated with protecting trade
secrets or confidential business information during an inspection where
a third-party representative was present, or from the harm resulting
from their disclosure (see, e.g., Document ID 1952, p. 5). Similarly,
some commenters, such as the Flexible Packaging Association and the
Office of Advocacy of the U.S. Small Business Administration, said that
they would incur costs associated with preparing and executing
nondisclosure agreements (see, e.g., Document ID 1976, p. 23; 1782, p.
5-6; 1941, p. 4-5).
OSHA has determined that, as a result of this rule, employers will
not incur costs associated with the protection of trade secrets or the
preparation of nondisclosure agreements. As explained in the NPRM,
under 29 CFR 1903.9(d), employers maintain the right to request that
areas of their facilities be off-limits to representatives who do not
work in that particular part of the facility. See 88
[[Page 22596]]
FR 59826, 59830-31. This final rule does not alter or limit employers'
rights under section 1903.9(d) and, therefore, employers should not
incur costs related to the protection of trade secrets or confidential
business information. To the extent employers choose to take additional
action to protect trade secrets, including the use of nondisclosure
agreements, the ensuing costs would be the result of voluntary actions
taken by the employer.
8. Hiring Experts
Some commenters were concerned about incurring additional costs
associated with hiring experts (see, e.g., Document ID 1941, p. 4-5;
1782, p. 5-6). For example, the Office of Advocacy of the U.S. Small
Business Administration stated that employers may incur costs from
``providing additional staff and experts (including possible outside
experts) to correspond to the variety of non-employee third-party
participants during inspections and related activities'' (Document ID
1941, p. 5). As explained above, this final rule clarifies longstanding
OSHA practice. The final rule creates no new obligations for employers,
so it should be unnecessary for employers to hire experts or other
staff in response to the rule. Additionally, the final rule does not
require employers to hire experts or other staff, so if employers
choose to do so, the costs of such would derive from the employer's
voluntary action.
9. Costs to State Plan States
The State Policy Network commented that State Plan states would
need to update their rules on third-party representation (Document ID
1965, p. 9). While this is true, OSHA-approved State Plans must
routinely adopt standards and other regulations in order to remain at
least as effective as Federal OSHA, which is a condition of the State
Plan's continued existence. See also the discussion of State Plan
obligations in Section VIII. State Plans take on a variety of forms and
the method for each to adopt a rule varies widely. As a result, OSHA is
unable to determine what, if any, opportunity costs are associated with
State Plans adopting Federal OSHA rules. The agency believes these
activities are already an anticipated part of the State Plan's budget
(part of which is provided by the Federal Government) and will not
represent spending above a State Plan's established budget.\5\
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\5\ State Plan participation is voluntary, and states are aware
of the requirements--including those to adopt standards and other
regulations in order to remain at least as effective as Federal
OSHA--before undertaking the process to establish a State Plan. The
continued participation by states in the OSHA State Plan program
indicates that any costs associated with complying with the
requirements of participation do not outweigh the benefits a state
anticipates realizing as a result of participation in the program.
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10. Societal Costs
As explained in the NPRM, this rule does not require the employer
make a third party available, nor does it require the employer to pay
for that third party's time. 88 FR 59831. There is an opportunity cost
to the third party insomuch as their time is being spent on an
inspection versus other activities they could be engaged in. Id. This
opportunity cost is not compensated by the employer undergoing the OSHA
inspection and it is not a monetary burden on that employer. Id.
The American Petroleum Institute (API) commented that it was not
reasonable for OSHA to conclude that the rule does not impose costs on
employers because that would mean either third-party representatives
will provide their services at no cost, or OSHA intends either
employees or taxpayers to pay for their time (Document ID 1954, p. 1-2;
see also 1091). In an attempt to calculate the cost of compensating
third-party representatives for time spent accompanying CSHOs on
walkaround inspections, API pointed to OSHA's FY 2022 Congressional
Budget Justification, in which OSHA requests $63,500,000 for Compliance
Assistance-State Consultation to provide a total of 20,139 visits
performed by all Consultation programs (Document ID 1954, p. 2). Based
on these data, API concluded that OSHA's cost for providing onsite
consultation services is approximately $3,153 per engagement and,
``[u]sing this information as a proxy for third-party walkaround
representative(s), participating in 90,000 inspections [per year],''
the cost impact is $238.8 million (Document ID 1954, p. 2).
As an initial matter, this final rule does not require a third-
party representative to be selected or participate in an inspection,
nor does it require employees or taxpayers to pay for third-party
representatives' time. Third-party representatives are generally
employees of another organization (e.g., labor union, advocacy group,
worker justice coalition, etc.) who are paid by that group. Third-party
representatives' job duties would include providing employee
representation, assistance, or support during OSHA inspections and in
other situations. Therefore, third-party representatives are not paid
by the employer under inspection, the employer's employees, or the U.S.
Government; rather, they are paid by the organizations that employ
them. Similarly, it is not true that OSHA will need to expend resources
to train CSHOs on ``new responsibilities'' under the rule (see, e.g.,
Document ID 1938, p. 10), because any CSHO training will be integrated
into existing ongoing training curriculum and not impose any new
resource requirements on the agency. Accordingly, OSHA's conclusion
that the final rule will not impose direct costs on employers does not
mean that employees or taxpayers will bear the cost instead.
Furthermore, API's interpretation of OSHA's FY 2022 Congressional
Budget Justification and the application of those figures is incorrect
for several reasons. First, the Congressional Budget Justification does
not represent the actual budget of the agency and should not be
interpreted as such. In this case, the FY 23 budget for State
Compliance Assistance programs is $62,661,000--$839,000 less than
OSHA's request in FY 22.
Second, some of the budget of the State Consultation program is
spent on activities other than the salaries of the consultants. The
funding includes the administrative costs of running the program,
training and travel costs for the consultants, outreach and educational
support, the administration of OSHA's Safety and Health Recognition
Program, and other activities. There are no centralized administrative
costs of third-party representation. To use the full budget of the
State Consultation programs as the numerator in this equation would
grossly overstate the costs of a third-party representative's
participation by including irrelevant costs.
Third, the activities of an OSHA consultant and a third-party
representative are different and not directly comparable. A consultant
does work both before the consultation visit and after. They prepare a
summary report about their visit and provide follow up services to the
employers they are working with. On the other hand, a third-party
representative simply accompanies the CSHO during an inspection. Even
if one derived a per-engagement cost that stripped out unrelated
administrative costs, the consultant would dedicate more hours to each
engagement than would a third-party representative.
Finally, it is not correct to assume a third-party representative
would participate in every OSHA inspection. While OSHA does not collect
data on the frequency of third-party representative participation in
OSHA
[[Page 22597]]
inspections, based on anecdotal evidence from CSHOs, employees are more
typically represented by another employee during the walkaround
inspection. When preparing a regulatory impact analysis, the cost of a
rule is measured as incremental costs--the cost to go from the state of
the world in the absence of a rule to the state of the world if the
rule were promulgated. Under the previous rule, third-party
representatives were already permitted to participate in OSHA
inspections. So, the incremental costs of the rule would be the
additional inspections that third-party representatives will now
participate in that they would not have participated in before. OSHA
does not collect data on the frequency of third-party participation in
inspections and so is unable to determine the number of inspections
that would newly involve third-party representatives. But, since this
rule clarifies existing rights and does not expand or grant new rights,
the number is likely to be very small.
In sum, OSHA does not collect data on the frequency of third-party
participation in inspections, nor has the agency attempted to estimate
how many inspections a third-party representative might participate in
as a result of this rule. Because these data are not available, OSHA
acknowledged the existence of, but has not attempted to estimate,
societal costs for this analysis. As discussed above, OSHA also
acknowledges that there are potentially some unquantified costs of
activities that employers may voluntarily undertake as a result of this
rule. However, the agency finds that this final rule does not impose
any new direct cost burden on employers.
C. Benefits
While there are no new costs borne by employers associated with
this final rule, amending section 1903.8(c) will reinforce the benefits
of the OSH Act. Third-party representatives--given their knowledge,
expertise, or skills with hazardous workplace conditions--can act as
intermediaries and improve communication about safety issues between
employees and the CSHO. Improved communication can reduce workplace
injuries and related costs such as workers' compensation or OSHA fines.
As discussed in more detail in Section III, Summary and Explanation,
this final rule will enable employees to select trusted and
knowledgeable representatives of their choice, which will improve
employee representation during OSHA inspections. Employee
representation is critical to ensuring OSHA inspections are thorough
and effective.
As illustrated by the examples set forth in Section III, Summary
and Explanation, this final rule has important benefits on the
effectiveness of OSHA's inspections and worker safety and health.
Indeed, the record demonstrates that some of these benefits accrue in
particular to underserved communities that are likely to benefit from
third-party representatives with language or cultural competencies or
trusted relationships with workers. These benefits are not the result
of actions taken or not taken by employers necessarily, but instead,
from the nonquantifiable societal costs of the third-party
representatives' time. OSHA has not attempted to quantify these
benefits since--unlike injuries avoided and fatalities prevented--they
are relatively intangible. Executive Order 12866, as amended by
Executive Order 14094, encourages agencies to quantify benefits to the
extent reasonably possible, but to articulate them in detail,
qualitatively, when they are not. As outlined throughout the preamble,
OSHA has provided extensive explanation and information to support the
agency's belief that the benefits of the rule, while unquantified, are
substantial.
D. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., OSHA examined the regulatory requirements of the final rule to
determine if they would have a significant economic impact on a
substantial number of small entities. As indicated in Section V, Final
Economic Analysis, the final rule may have familiarization costs of
approximately $5 per establishment where employers are aware of and
decide to read this regulation. The rule does not impose any additional
direct costs of compliance on employers, whether large or small.
Accordingly, the final rule will not have a significant impact on a
substantial number of small entities.
Some commenters, including the Office of Advocacy of the U.S. Small
Business Administration and the National Federation of Independent
Business, disagreed (see, e.g., Document ID 0047; 0168, p. 6-7; 1774,
p. 4-5; 1941, p. 3-6; 1952, p. 5; 5793). For example, the Office of
Advocacy of the U.S. Small Business Administration stated that OSHA's
certification that the proposed rule would not have a significant
impact on a substantial number of small entities was ``improper''
because OSHA failed to provide a ``factual basis'' for certification
(Document ID 1941, p. 4).
For the reasons explained in detail above, OSHA estimates that this
rule potentially imposes an optional one-time cost for familiarization
of approximately $5 per establishment. Otherwise, the rule has no
direct requirements for employers and no more than de minimis costs of
activities employers may voluntarily undertake as a result of the final
rule. The agency considered ``direct and foreseeable costs'' in the
NPRM and this final rule and commenters offered nothing more than
speculative costs that are neither required by the rule nor are they
reasonable activities for employers to undertake. As explained in the
NPRM and this final rule, the rule clarifies who can be an authorized
representative during OSHA's walkaround inspection. It does not impose
new cost burdens on employers or require them to take any action apart
from the potential rule familiarization cost of $5 per employer that
decides to read it. Therefore, the final rule will not have a
significant economic impact on a substantial number of small entities.
For the purposes of illustrating the threshold cost necessary for a
rule to have a significant economic impact (costs that are equal to or
greater than one percent of revenue), the agency presents the
following. Table 1 below shows revenue per average establishment based
on 2017 County Business Patterns and Economic Census (the most recent
year that reports data at the level necessary to perform this analysis)
and the one percent threshold in dollars for selected industries and
size classes. OSHA looked at construction, manufacturing, and
healthcare as industries that may be more likely to be inspected by
OSHA or where there may be higher impacts. The agency also looked at
both establishments with fewer than 500 employees (which roughly
corresponds to or captures all small entities as defined by the U.S.
Small Business Administration) as well as those with fewer than 20
employees, since some construction and healthcare employers are more
likely to be very small. The table below also shows the hours that
would need to be spent on compliance activities by a supervisor with a
loaded wage of about $94 (using the wage of Standard Occupation
Classification code 11-1021 General and Operations Managers from the
U.S. Bureau of Labor Statistics Occupational Employment and Wage
Survey) in order to meet that threshold. Based on these calculations, a
small entity would need to dedicate from nearly 100 hours to as many as
2,900 hours to compliance activities in
[[Page 22598]]
order to exceed that threshold, depending on the industry. For
reference, this is the equivalent of more than two weeks of full-time
work (assuming a 40-hour work week) up to one and a half full-time
employees dedicating all of their work time to compliance activities.
For employers with fewer than 20 employees, those figures range from 35
hours--nearly a full week of work--to more than 1,000 hours--equal to
half of one full-time employee's work time in a year.
Table 1--Hours To Reach Significant Economic Impact, Select Industries by NAICS Industry, https://www.osha.gov/data/commonstats.
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E. Small Business Regulatory Enforcement Fairness Act
OSHA did not convene a Small Business Advocacy Review panel under
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA). The Chamber of Commerce asserted that OSHA failed to comply
with requirements under SBREFA (Document ID 1952, p. 4-5). The
Employers Walkaround Representative Rulemaking Coalition recommended
that OSHA voluntarily establish a Small Business Advocacy Review (SBAR)
panel to receive input directly from small businesses (Document ID
1976, p. 26).
OSHA considers the possibility of disproportionate impact on small
businesses when deciding whether a SBAR panel is warranted. As
explained above, because OSHA preliminarily determined that the
proposed rule would not result in a significant economic impact on a
substantial number of small entities (see 88 FR 59831), OSHA determined
that a SBAR panel was not required. Nothing in the record has disturbed
OSHA's preliminary determination that this rule will not have a
significant economic impact on a substantial number of small entities,
nor did OSHA's threshold calculations indicate that the preliminary
determination was incorrect. Therefore, OSHA has concluded that a SBAR
panel was not required for this rule.
VI. Office of Management and Budget (OMB) Review Under the Paperwork
Reduction Act
This rule for Worker Walkaround Representative Designation Process
contains no collection of information requirements subject to OMB
approval under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C.
3501 et seq.) and its implementing regulations at 5 CFR part 1320. The
PRA defines a collection of information as ``the obtaining, causing to
be obtained, soliciting, or requiring the disclosure to third parties
or the public, of facts or opinions by or for an agency, regardless of
form or format.'' 44 U.S.C. 3502(3)(A). Under the PRA, a Federal agency
cannot conduct or sponsor a collection of information unless OMB
approves it, and the agency displays a currently valid OMB control
number (44 U.S.C. 3507). Also, notwithstanding any other provision of
law, no employer shall be subject to penalty for failing to comply with
a collection of information if the
[[Page 22600]]
collection of information does not display a currently valid OMB
control number (44 U.S.C. 3512).
VII. Federalism
OSHA reviewed this final rule in accordance with the Executive
Order 13132 (64 FR 43255 (Aug. 10, 1999)), which, among other things,
is intended to ``ensure that the principles of federalism established
by the Framers guide the executive departments and agencies in the
formulation and implementation of policies.''
Several commenters submitted cover letters and attached a report
from the Boundary Line Foundation (Boundary Line document) expressing a
concern that OSHA failed to conduct consultation with States adequate
to comply with Executive Order 13132 (see, e.g., Document ID 1965;
1967; 1968; 1973, 1975). The Boundary Line document also argues that
OSHA's rulemaking process ``neglects to assess foreseeable impacts to
State legislative or regulatory actions or consider alternatives that
can only be revealed through the State consultation process'' (see,
e.g., Document ID 1965, p. 5-9; 1975, p. 5-9; 1968, p. 5-9).\7\ OSHA
disagrees.
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\7\ Some of these commenters request that OSHA withdraw the
rulemaking to complete ``its obligation'' to consult with states,
ignoring section 11 of E.O. 13132 which specifies that the E.O. does
not ``create any right or benefit, substantive or procedural
enforceable at law.'' (64 FR 43255, 43259).
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In fact, the Boundary Line document, along with several State
comments that reference this document, set out a number of
alternatives, including not making the proposed changes or providing a
more specific set of criteria to be referenced by the CSHOs (Document
ID 1965, p. 11, 15-16, 21, 30; 1967; 1968; 1973, 1975). OSHA has
considered and discussed those alternatives but did not select them for
the reasons fully explained in the Summary and Explanation.
After analyzing this action in accordance with Executive Order
13132, OSHA determined that this regulation is not a ``policy having
federalism implications'' requiring consultation under Executive Order
13132. This final rule merely clarifies OSHA's longstanding practice
under which third-party representatives may accompany inspectors
conducting workplace safety and health inspections authorized by the
OSH Act. It will not have substantial direct effect on the States, on
the relationship between the National Government and the States, or on
the distribution of power and responsibilities among the various levels
of government that would affect the States' ability to discharge
traditional State governmental functions.
The effect of the final rule on States and territories with OSHA-
approved occupational safety and health State Plans is discussed in
Section VIII, State Plans.
VIII. State Plans
As discussed in the Summary and Explanation section of this
preamble, this final rule revises the language in OSHA's
Representatives of Employers and Employees regulation, found at 29 CFR
1903.8(c), to explicitly clarify that the representative(s) authorized
by employees may be an employee of the employer or a third party for
purposes of an OSHA walkaround inspection. Additionally, OSHA clarified
that when the CSHO has good cause to find that a representative
authorized by employees who is not an employee of the employer would
aid in the inspection, for example because they have knowledge or
experience with hazards in the workplace, or other skills that would
aid the inspection, the CSHO may allow the employee representative to
accompany the CSHO on the inspection.
Among other requirements, section 18 of the OSH Act requires OSHA-
approved State Plans to enforce occupational safety and health
standards in a manner that is at least as effective as Federal OSHA's
standards and enforcement program, and to provide for a right of entry
and inspection of all workplaces subject to the Act that is at least as
effective as that provided in section 8 (29 U.S.C. 667(c)(2)-(3)). As
described above and in the Summary and Explanation of this preamble,
OSHA concludes that these clarifying revisions enhance the
effectiveness of OSHA's inspections and enforcement of occupational
safety and health standards. Therefore, OSHA has determined that,
within six months of the promulgation of a final rule, State Plans are
required to adopt regulations that are identical to or ``at least as
effective'' as this rule, unless they demonstrate that such amendments
are not necessary because their existing requirements are already ``at
least as effective'' in protecting workers as the Federal rule. See 29
CFR 1953.4(b)(3).
Several commenters representing state and local governments (but
not State Plan officials) submitted similar comments and included the
Boundary Line document. The Boundary Line document questioned OSHA's
application of section 18(c)(2) (29 U.S.C. 667(c)(2)) to State Plans'
obligations with respect to this rulemaking (see Document ID 1965, p.
10-11; 1967, p. 10-11; 1968, p. 10-11; 1975, p. 10-11). (The report
incorrectly cites 29 U.S.C. 677(c)(2), but this appears to be a
typographical error.) Section 18(c)(2) of the OSH Act provides that one
condition of OSHA approval is that a State Plan ``provides for the
development and enforcement of safety and health standards . . . which
standards (and the enforcement of which standards) are or will be at
least as effective in providing safe and healthful employment and
places of employment'' (emphasis added). Because this rule enhances the
effectiveness of the enforcement of OSHA standards, section 18(c)(2)
applies.
The same document also questioned the impact of this rulemaking on
State Plans' obligations to develop strategic plans (Document ID 1965,
p. 9; 1967, p. 9; 1968, p. 9; 1975, p. 9). OSHA requires State Plans to
submit 5-year strategic plans as a condition of receiving Federal
funding grants pursuant to section 23(g) of the OSH Act (29 U.S.C.
672). This is distinct from State Plans' statutory obligations under
section 18 of the OSH Act to maintain at least as effective enforcement
programs and inspections. Although a State Plan's 5-year strategic plan
might reference rulemaking obligations, OSHA is not prescriptive about
whether specific rulemakings would need to be listed in such strategic
plans.
Of the 29 States and Territories with OSHA-approved State Plans, 22
cover both public and private-sector employees: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. The remaining seven States and Territories cover only state
and local government employees: Connecticut, Illinois, Maine,
Massachusetts, New Jersey, New York, and the Virgin Islands.
IX. Unfunded Mandates Reform Act
OSHA reviewed this proposal according to the Unfunded Mandates
Reform Act of 1995 (``UMRA''; 2 U.S.C. 1501 et seq.). As discussed
above in Section V of this preamble, the agency preliminarily
determined that this proposal would not impose costs on any private- or
public-sector entity. Accordingly, this proposal would not require
additional expenditures by either public or private employers.
As noted above, the agency's regulations and standards do not apply
to State and local governments except in
[[Page 22601]]
States that have elected voluntarily to adopt a State Plan approved by
the agency. Consequently, this proposal does not meet the definition of
a ``Federal intergovernmental mandate.'' See section 421(5) of the UMRA
(2 U.S.C. 658(5)). Therefore, for the purposes of the UMRA, the agency
certifies that this proposal would not mandate that State, local, or
Tribal governments adopt new, unfunded regulatory obligations. Further,
OSHA concludes that the rule would not impose a Federal mandate on the
private sector in excess of $100 million (adjusted annually for
inflation) in expenditures in any one year.
X. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249) and determined that it would not have ``tribal
implications'' as defined in that order. The clarifications to 29 CFR
1903.8(c), do not have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
XI. Environmental Impact Assessment
OSHA reviewed the final rule in accordance with the requirements of
the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.),
the regulations of the Council on Environmental Quality (40 CFR parts
1500 through 1508), and the Department of Labor's NEPA procedures (29
CFR part 11). The agency finds that the revisions included in this
proposal would have no major negative impact on air, water, or soil
quality, plant or animal life, the use of land or other aspects of the
environment.
XII. List of Subjects in 29 CFR Part 1903
Occupational safety and health, Health, Administrative practice and
procedures, Law enforcement.
XIII. Authority and Signature
Douglas L. Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, authorized the preparation
of this document pursuant to 29 U.S.C. 657; 5 U.S.C. 553; Secretary of
Labor's Order 8-2020, 85 FR 58393 (2020).
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble, OSHA is amending 29 CFR
part 1903 to read as follows:
PART 1903--INSPECTIONS, CITATIONS AND PROPOSED PENALTIES
0
1. The authority citation for part 1903 is revised to read as follows:
Authority: 29 U.S.C. 657; Secretary of Labor's Order No. 8-2020
(85 FR 58393); and 5 U.S.C. 553.
0
2. Revise paragraph (c) of Sec. 1903.8 to read as follows:
Sec. 1903.8 Representatives of employers and employees.
* * * * *
(c) The representative(s) authorized by employees may be an
employee of the employer or a third party. When the representative(s)
authorized by employees is not an employee of the employer, they may
accompany the Compliance Safety and Health Officer during the
inspection if, in the judgment of the Compliance Safety and Health
Officer, good cause has been shown why accompaniment by a third party
is 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).
* * * * *
[FR Doc. 2024-06572 Filed 3-29-24; 8:45 am]
BILLING CODE 4510-26-P
