Inside OSHA


Unions, Employers Clash Over ‘Walkaround’ Rule At OMB Meetings

February 28, 2024

Industry groups and unions are raising sharply contrasting arguments on OSHA’s pending final rule to allow worker representatives to take part in enforcement “walkaround” inspections even if they are not employed at the site, with employers calling the rule “unconstitutional” and demanding it be scrapped while labor groups are strongly backing it.

The White House Office of Management and Budget (OMB) is in the midst of a blitz of stakeholder meetings on OSHA’s “Worker Walkaround Representative Designation Process” rule, where sources say unions and employers have largely renewed arguments they raised in written comments on the policy, in a potential preview of legal battles over a final version.

“We think that this proposal as written is plainly unconstitutional,” Eric Conn, founder and chair of the OSHA Workplace Safety Practice Group at the law firm Conn Maciel Carey, told Inside OSHA following a Feb. 26 OMB meeting the firm sought on behalf of an employer coalition it represents.

He said the rule fails even one of the basic principles of policymaking required by executive orders on the regulatory process - “that an executive agency identify a problem that needs to be solved by the rule that being proposed.” However, “there just is not a problem that has been identified here,” he said.

But unions and their allies have welcomed the proposal, arguing that it will bolster workers’ rights while making OSHA site visits more effective, and several are now pushing OMB to quickly approve the final rule.

For example, Rebecca Reindel, director of occupational safety and health at the AFL-CIO told Inside OSHA following another Feb. 26 OMB meeting that “the [third-party] participation rights have always existed under OSHA, but they've been eroded in practice,” calling it “a costless way to get safer workplaces, involving the people who need to have knowledge about the workplace, about the industry, and about the exposures involved in the investigation.”

The rule aims to revive a controversial Obama-era policy allowing non-employee representatives to participate in a walkaround “if, in the judgment of the Compliance Safety and Health Officer [CSHO], good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”

It has faced harsh opposition from Republicans and employer groups who see it as a way to force companies with non-union workforces to allow union representatives to participate in inspections.

“This is not a reasonable regulation. This regulation should not be issued by OSHA, certainly not in its current form, and it's hard for me to envision a form that accomplishes what OSHA is trying to accomplish,” Conn said.

He said the firm asked OMB to “send the rule back to OSHA with a signal that it should not be resubmitted, or at the very least [require OSHA to] do a lot of work on it and to address these very serious concerns that we identified.”

Conn also told Inside OSHA that in a rare step for OMB, staffers asked CMC’s representatives if they were aware of direct costs that could result from the rule.

He said they told OMB that “we did identify a whole host of costs associated with this rule,” giving examples such as employee training on new policies for dealing with uninvited third parties “who may be forced into the workplace by OSHA,” security, legal costs with having to “escort non-governmental entities” during an OSHA inspection, and training third parties on site-specific awareness.

Regulatory Loopholes

Conn further echoed a concern raised by several employer groups and their attorneys -- that the “motivation” for OSHA’s proposal was “to facilitate an easier path for unions to get access to non-union workplaces,” but added that even outside of that issue, the rule seems to open a door for other third parties that it seems the agency “wasn’t intending to” give access to, such as plaintiffs’ attorneys, former employees, competitors, media and even family members of previous employees.

“We understand OSHA has a job to do, and we appreciate the mission that OSHA has, but there’s an entirely different category of third party [representatives] that would seem to have a wedge into an open door because of this rule,” he said.

The National Retail Federation (NRF) voiced similar concerns in its own Feb. 22 OMB meeting. Ed Egee, the group’s vice president of government relations and workforce development, says NRF told the White House that the rule “has nothing to do with workplace safety,” and instead serves to provide union access to workplaces.

“We spend millions and millions of dollars every year to innovate ways to find new technologies, new procedures, to keep our workers safe. This walkaround rule has nothing to do with any of that,” Egee told Inside OSHA.

He added that the rulemaking is “taking this tiny little preexisting exemption and blow[ing] it out,” by adding a “whole new category of participant in walkarounds, which has everything to do with the union movement and nothing to do with worker safety.”

OMB received the final walkaround rule on Feb. 9 -- less than six months after OSHA proposed the policy on Aug. 30, an unusually quick turnaround for an agency that often takes many years to complete its regulatory process.

Both Egee and Conn speculated that the unusually quick timeline for the rule is most likely a result of OSHA wanting to release it before the rule could be quickly rescinded under the Congressional Review Act (CRA) by a GOP Congress and president next year if Democrats fare poorly in the November elections. The CRA allows repeal of recent executive actions by a majority vote in Congress, and experts say rules issued after May of this year could be subject to that process.

‘Bang For Their Buck’

By contrast, Reindel said the AFL-CIO argued to OMB that the rule will materially aid OSHA’s inspections.

“OSHA has limited resources, and this [rulemaking] is a way for them to get the most bang for their buck, so to speak, from an . . . investigation,” she said.

Reindel said that during AFL-CIO's meeting with OMB, she and other union members highlighted that the Mine Safety and Health Administration (MSHA) already has a similar rule, and that it “levels the playing field” for workers.

She also addressed the arguments presented by industry that unwanted third parties would gain access to workplaces; “We push back a little bit on this argument that we keep hearing from industry that the sky is falling. . . . Employers have clear representation rights, and those rights will not change and are not at stake here, and [employers] also don't need additional restrictions . . . on who workers choose as their representation.” -- Sarah Mattalian (