Pit & Quarry, August 2013

BY MICHAEL T HEENAN Mandatory employee safety reps W ho can claim the right to represent your employees for purposes of participating in MSHA or OSHA inspections and other safety and health matters Can an employee at a site who is designated by a majority of employees at that site claim that right How about one designated by only a minority of employees Or an employee designated by just one other employee Or a non employee designated by a majority of employees Or even a non employee designated by just two employees The issue of who can represent employees is suddenly getting a lot of attention because of a recent OSHA issued interpretation in response to a request from the United Steel Paper and Forestry Rubber Manufacturing Energy Industrial and Service Workers International Union The question posed was whether workers at a nonunion workplace can authorize an individual affiliated with a union to act as their representative including acting as a personal representative of an employee and accompanying the employee on an OSHA inspection A retiring deputy assistant secretary of labor for Occupational Safety and Health replied that union representatives are welcome even at union free sites even though they have no official status and have not been designated as collective bargaining representatives OSHA says employees can select a union or community organization to act as a personal representative in filing complaints for the employees and act as a walk around representative during OSHA inspections and discussing citations This interpretation is a drastic departure from the agencys long standing position and more importantly OSHAs own regulation that states The representative s authorized by employees shall be an employee s of the employer The regulation does however provide for third party consultants to participate in inspections at the discretion of the OSHA compliance officer if there is good cause MSHA interpretation While OSHAs interpretation has come as a shock to employers it has long been the rule for mines For example MSHA has allowed the United Mine Workers of America UMWA union to serve as a representative at non union mines following coal mine disasters in recent years A right of a non employee entity representing miners was firmly established years ago and is reflected in a 1985 decision of the U S Court of Appeals for the District of Columbia In Council of Southern Mountains v Federal Mine Safety and Health Review Commission the right to monitor safety training classes at a mine was denied but the right to serve as a miners representative for inspection walk around purposes was taken as a given Thus the council and the UMWA have both acted as safety representatives without being collective bargaining representatives or having other official status While OSHA has made no determination as to how a non safety employee representative would become recognized MSHA has specified that any two employees may designate a representative For outside representatives at least two employees would MSHA will recognize multiple representatives even competing representatives and can allow as many to participate in an inspection as the inspector deems appropriate and not unduly burdensome Often though inspectors will tell competing representatives that they must work out between themselves who will accompany the inspector have to designate the representative Because no majority vote is required MSHA will recognize multiple representatives even competing representatives and can allow as many to participate in an inspection as the inspector deems appropriate and not unduly burdensome Often though inspectors will tell competing representatives that they must work out between themselves who will accompany the inspector If there is too much delay the inspector can proceed without a representative Complications and responses There are problems with respect to representational status under both OSHA and MSHA Because the OSHA interpretation is new none of the following have been resolved Are multiple and perhaps competing representatives permitted How is representative designation established Is proof of majority election needed What protections exist for proprietary and trade secret information Can a representative take photos or videos Continued on page 54 50 PIT QUARRY August 2013 www pitandquarry com