Mr. Milan Racic
Health and Safety Specialist
International Brotherhood of Boilermakers
452 West Willow Court
Fox Point, Wisconsin 53217-2654

Dear Mr. Racic:

This is in further response to your January 17, 2003 letter, which was sent to all Regional Administrators of the Occupational Safety and Health Administration (OSHA) and faxed to Richard Fairfax, Director of the Directorate of Enforcement Programs. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions, situations, or scenarios not delineated within your original correspondence. You ask specific questions regarding two situations where your union does not have a labor agreement and is not the certified bargaining agent; one concerns access to material safety data sheets (MSDSs) under 29 CFR 1210.1200, and the other concerns a walkaround representative in a complaint inspection.

Situation 1: It is our understanding that we [International Brotherhood of Boiler-makers; IBB] should be able to act on behalf of even one employee at a given workplace where we do not have a collective bargaining agreement, or for that matter any facility, and request Material Safety Data Sheets based on 29 CFR 1910.1200. Of course this would be conditional on IBB's obtaining a written authorization from that employee. In case of a dispute, we think OSHA should be able to go to that employer and, by examining the employer's employee roster, verify without revealing the name of the employee that the employee in question is indeed employed at that facility.

Response: OSHA's hazard communication standard (HCS) at 1910.1200(g)(8) states in part: The employer shall maintain in the workplace copies of the required MSDSs and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).

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Appendix A of OSHA's hazard communication directive (OSHA Instruction CPL 2-2.38D, issued March 20, 1998) clarifies and interprets the HCS. In the Appendix, the Directive states that the term readily accessible means immediate access to MSDSs; the MSDSs must be available to employees without them having to ask. Your described situation did not indicate whether employee access to MSDSs was denied or hampered in any way. You also did not state why the employee needed a representative in order to get a copy of an MSDS. If the employee is experiencing difficulty in getting access to or copies of the MSDSs, or the work environment is such that there may be employer retaliation if the employee is seen reviewing the MSDSs, then it would be appropriate to file a complaint with OSHA. It is also not clear in the situation you describe whether an OSHA inspection is ongoing in the facility. Certainly if OSHA is conducting an inspection, the compliance safety and health officer (CSHO) can review the employer's roster of employees to determine if a particular person is an employee without revealing the name of the employee on whose behalf the complaint is filed. However, if your union only wants OSHA to be an intermediary with the employer to confirm that the person you are representing is on the employer's roster of employees, that would be an inappropriate use of OSHA's resources.

Situation 2: Imagine the same facility with our union filing an OSHA complaint: a facility where our union does not have a labor agreement and is not the certified bargaining agent. We think the person representing the employee on whose behalf our union is filing an OSHA Complaint should be able to act as a walkaround representative. Here again, your CSHO should be able to request the employee roster and verify that the employee on whose behalf we are filing this complaint is indeed working at the facility in question. [OSHA] should be able to obtain this information without ever revealing the name of the employee on whose behalf we are filing the complaint.

Response: Section 8(e) of the Occupational Safety and Health Act of 1970 (OSHAct) says in part: [A] representative of the employer and a representative authorized by his (sic) employees shall be given an opportunity to accompany the [CSHO] during the…inspection…for the purpose of aiding such inspection. Where there is no authorized employee representative, the [CSHO] shall consult with a reasonable number of employees concerning matters of health and safety in the workplace [clarification added].

Title 29 Code of Federal Regulations §1903.8(a) says in part: ….A representative of the employer and a representative authorized by his (sic) employees shall be given an opportunity to accompany the [CSHO] during the…inspection…for the purpose of aiding such inspection… [clarification added].

Section 1903.8(b) says in part: [CSHOs] shall have authority to resolve all disputes as to who is the representative authorized by the employer and employees…. If there is no authorized representative of employees, or if the [CSHO] is unable to determine with reasonable certainty who is such representative, he (sic) shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

Section 1903.8(c) says in part: The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the [CSHO], 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…inspection… such third party may accompany the [CSHO] during the inspection [emphasis and clarification added].

Section 1903.8(d) says in part: [CSHOs] are authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection. The right of accompaniment in areas containing trade secrets shall be subject to the provisions of 1903.8(d) [clarification added].

According to paragraph A.3.f.(3) of Chapter II of the OSHA Field Inspection Manual (FIRM) (copy of pages enclosed): Where employees are not represented by an authorized representative, where there is no established safety committee, or where employees have not chosen or agreed to an employee representative for OSHA inspection purposes whether or not there is a safety committee, the CSHO shall determine if any other employees would suitably represent the interests of employees on the walkaround. If selection of such an employee is impractical, the CSHO shall consult with a reasonable number of employees during the walkaround.

Paragraph A.3.h. says: The CSHO may deny the right of accompaniment to any person whose conduct interferes with a full and orderly inspection…. If disruption or interference occurs, the CSHO shall use professional judgment as to whether to suspend the walkaround or take other action. The Assistant Area Director shall be consulted if the walkaround is suspended. The employee representative shall be advised that during the inspection matters unrelated to the inspection shall not be discussed with employees.

As you can see, neither the OSHAct, the regulations in 29 CFR §1903.8, nor the FIRM make any provision for a walkaround representative who has filed a complaint on behalf of an employee of the workplace. Therefore, if a representative from your union obtains written authorization from a current employee of a workplace to file a work-place safety and health complaint with OSHA on his or her behalf, that representative does not have a right to accompany the CSHO on the inspection walkaround.

During a complaint inspection, when necessary and without revealing the name of the employee on whose behalf the complaint is filed, the CSHO can and does review the employer's roster of employees to determine if a particular person is an employee.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,

John L. Henshaw
Assistant Secretary

Enclosure