WASHINGTON, DC (NOVEMBER 13, 2023) – The Utility Workers Union of America (UWUA), AFL-CIO recently submitted comments to the Occupational Safety and Health Administration (OSHA) regarding the agency’s proposed rule on the Worker Walkaround Representative Designation Process.
In a letter to Assistant Secretary for Occupational Safety and Health Douglas Parker, UWUA National Safety Director John ‘Scotty’ MacNeill supports clarifying the process to have employees select any representative of their choice to accompany an investigator during an inspection, which can make a big difference between a fair investigation and an investigation that favors the employer. The letter outlines two incidents involving member fatalities where having a union representative on-site during the OSHA investigation resulted in more just outcomes.
The full text of the letter appears below:
November 13, 2023
Assistant Secretary for Occupational Safety and Health
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, DC 20210
Re: OSHA’s Proposed Rule on Worker Walkaround Representative Designation Process (Docket ID: OSHA-2023-0008)
Dear Mr. Parker:
The Utility Workers Union of America (UWUA), representing some 45,000 workers in the electric, gas and water utility sectors across the U.S. welcomes the opportunity to comment on OSHA’s proposed rule on the Worker Walkaround Representative Designation Process. The UWUA has long supported increasing worker participation in every stage of workplace safety and health investigations and welcomes clarification on the process for designating worker representatives during OSHA enforcement investigations.
In particular, the UWUA strongly supports the agency’s effort to clarify the intention to have employees select any representative of their choice, regardless of whether this person is an employee of the employer, to accompany the investigator during an inspection. In recent years, the UWUA national union has 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. Two examples of this illustrate many of the points made below.
First, in a Pennsylvania fatality incident, an overhead lineman, working with a crew operating a bucket truck was killed when the truck unexpectedly rolled downhill and overturned in the road. The worker, while still in the bucket, struck the road’s surface and died due to blunt force trauma. Once on site, the national union’s representative was able to educate the investigator on technological and work practice changes in the industry that were not immediately apparent, even to the workers themselves due to inadequate training having been provided – training that had been required by OSHA – on these changes.
The truck in question had not been equipped with an inclinometer – a simple device that indicates how many degrees off-level a truck may be sitting. Having been made prior to the introduction of these devices, the truck had not been retrofitted – again as required by OSHA – meaning the work crew had no objective means of evaluating the risk. Second, the truck was not parked on firm ground, due to considerable amounts of rain the previous evening having made the ground soft. Again, OSHA standards having been changed on this issue, the employer had failed in its duty to properly train the workers on these new standards.
As the investigator was not, himself, an overhead lineman, and as the workers involved had not been educated on changes within the industry and were understandably emotionally wrought in the wake of the accident, it fell to the workers’ designated representative to educate everyone about these changes in technology and practice. This, in turn, made it clear to the investigator that, far from the workers being at fault, the employer had failed in its duty to properly equip the truck and ensure current industry technologies and safety standards were being followed, leading to a much different, and more just outcome.
In a second fatality incident in Michigan, the designated worker representative, once more from the UWUA national union, was again able to explain how lack of proper work safety process was to blame for an accident rather than fault being unjustly placed on an individual worker. Absent this representative being present to balance the power dynamic, however, the employer would have had the opportunity to avoid accountability and, perhaps worse, make no adjustments to its safety practices, thus creating the potential for further incidents in the future. This is a key point – an accident investigation must do more than simply assess a given incident in a vacuum but, rather, must also be sure that behavior changes so that future hazards are avoided. One fatality is bad enough without poor safety practices leading to additional deaths down the line.
In this incident, a number of safety practices were allowed to be thwarted by the employer who simply wished to have work on high-voltage cables done quickly. As the equipment in question carried greater than 600 volts, proper practice required that a worker could not work alone, that such a multi-worker job not begin until the entire crew had been briefed, and that the briefing had actually occurred.
Instead, without the employer providing a proper briefing, crew or preparation, a worker was sent into a seven-foot trench – that had not been properly sheeted and shored against cave-in – to begin immediate work on a high-voltage line. Unbeknown to the worker due to the lack of preparatory briefing, the cable was still energized with 7000 volts and upon making contact was electrocuted and killed.
Here again, the investigator involved was not, themselves, a lineman and knew nothing of the industry and work practice specific to the incident. By being able to rely on the worker-designated representative for subject matter expertise, however, the investigator was able to ask the appropriate questions regarding the required safety practices on briefing, crew size, and equipment precautions to understand that poor employer safety practices were at the root of the fatality, rather than simply one worker making a careless error. Absent an empowered representative, however, the employer could have avoided accountability for this incident and, worse, continued to use flawed safety practices leaving open the possibility of future injuries and fatalities.
In the workplace, there is an acknowledged and understood power dynamic between the employee and employer that interferes with the ability of an employee to openly, and honestly interact with an investigator without fear of reprisal. Power in the workplace is fundamentally held by the employer and cannot avoid influencing workers’ decisions to report, discuss or otherwise share safety concerns, past practices, and other information during an OSHA investigation.
Although the value of having a worker’s chosen representatives involved in the investigation process cannot be mathematically quantified, the value in more fairly balancing the scales of workplace power are undeniable. 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.
A worker representative that has been chosen by a worker inherently is a trusted individual to that worker. The level of trust is not something that can be measured, but it makes a resounding difference in a worker’s willingness to speak openly to an investigator about their safety and health concerns and employers’ past practices that can make a significant difference in the outcome of the investigation.
Worker representatives can offer a level of subject matter expertise to the investigation that cannot be provided through other means. The type of expertise will vary depending on the representative chosen; however, the knowledge that is shared by the representative can greatly improve the investigator’s ability to perform a thorough investigation.
Workers may choose to designate a worker representative that has a unique set of safety and health expertise. The expertise may be specific to hazards in a particular workplace, the employer, or the industry. While investigators are the foremost safety and health experts, they cannot have specific knowledge of every hazard, task, occupation, employer, or industry where every investigation is conducted.
Workers may also choose a representative who has deep familiarity with the OSHA investigation process itself. Workers, regardless of union status or even holding an elected local union office, usually do not encounter OSHA in their workplace and do not organically know the process of an OSHA investigation. This is even more true during a fatality investigation when workers, including a local union, are navigating complex emotions and logistics following the loss of a coworker, friend and/or community member.
However, other individuals that may be selected as the workers’ representative can have experience navigating not only a normal OSHA investigation, but also sensitive fatality investigations in which emotions can be running high. This person can help the workers understand the process, encourage them to speak, and provide confidence for the workers to fully participate in the investigation. While the investigator is also an expert in the OSHA investigation process, the investigator is an individual that can only inform workers of their rights, which may not be sufficient to address the barriers to participation in workplaces where power is unbalanced.
The workers may choose a representative who provides the knowledge and practical experience of exercising workers’ rights, often as a worker themselves or as a worker representative. There is a significant difference between an investigator’s ability to inform a worker of their rights under the law and a worker representative’s ability to encourage and facilitate a worker actually exercising those rights. Additionally, worker representatives can privately identify when workers are feeling intimidated by the employer and relay such information to the investigator without fear of reprisal.
A core benefit of workers having the right to choose their own representative is the empowerment that it provides them. The simple act of workers themselves determining who best represents their interests helps to shift the power dynamic away from the employer and towards the workers, providing them the opportunity to meaningfully participate in the investigation. Upholding the workers’ right to choose their representative at the beginning of an inspection process with support of the investigator also fosters trust between the workers and the investigator.
In many cases, the chosen representative may not be the same person for each stage of the investigation. For example, workers may choose their local health and safety representative to walk around with the investigator to help identify hazards and improve the investigator’s understanding of the tasks done in the workplace. For interviews, workers may choose the representative they most trust to share sensitive information they fear could result in retaliation. During the opening and closing conference, the workers may choose to have a national union representative or other worker advocate to help guide them through the OSHA investigation process. In short, the workers must have the right to choose the person whom they feel best represents them at each stage of the process.
Additionally, the workers’ representatives may need to be more than one individual to adequately represent them. For example, the investigator may need to interview workers from multiple shifts or areas of the workplace and the population of workers may differ between shifts or occupations. These differences may result in the need to have different representatives. Some workers may choose to have a representative that provides translation and cultural competency that other workers do not require, and those other workers may choose a different representative. Investigators must understand that all workers may not have the same backgrounds and comfort level with a representative and should defer to the workers’ choice to ensure inclusivity, prevent discrimination, and adequately understand all workers’ safety and health concerns.
This concept must be maintained throughout the entire investigation process, and the investigator should be mindful that it is not always practical for the workers’ chosen representative to be present at the beginning of each step of the process. Advanced notice of an inspection is often not given by the employer. This frequently leads to a delay of the designated representative reaching the opening conference, inspection or closing conference, even if the representative has been pre-selected by workers.
In conclusion, we ask that OSHA take swift action on the proposed rule on the Worker Walkaround Representative Designation Process as a primary and direct means of leveraging the authority and ability of OSHA investigators to properly, thoroughly, and expertly evaluate workplace safety practices and procedures. Only by cutting through inevitable workplace power dynamics, as facilitated by a worker-designated representative, can OSHA be sure that workers’ voices will truly be heard.
John ‘Scotty’ MacNeill
National Safety Director
Utility Workers Union of America, AFL-CIO
Chartered in 1945, the Utility Workers Union of America (UWUA), AFL-CIO represents 45,000 active members employed in America’s utility sectors including the electric, gas, water, and related professional and service industries. James Slevin is UWUA’s National President. For more information visit https://uwua.net.