OSHA Rule Allowing Union Officials to Inspect Non-Unionized Businesses Challenged

By Barbara Hollingsworth | September 13, 2016 | 10:37am EDT
 

(CNSNews.com) --  The Pacific Legal Foundation (PLF)  has filed a lawsuit against the Occupational Safety and Health Administration (OSHA) for allowing union officials to participate in federal health and safety inspections – even at companies that are not unionized.

Federal law gives employees “a limited right to accompany an OSHA compliance safety and health officer during a workplace inspection” known as a walk-around, according to the lawsuit, which was filed last Thursday in U.S. District Court for the Northern District of Texas on behalf of the National Federation of Independent Business (NFIB).

“According to the agency’s long-standing approach, an employee representative had to be an employee of the employer whose workplace was the subject of the inspection,” the lawsuit states.

“Under the same framework, however, OSHA allowed for third-party specialists (such as industrial hygienists and safety engineers) to accompany the compliance officer when their presence would be ‘reasonably necessary’.”

However, on Feb. 21, 2013, Deputy Assistant Secretary of Labor Richard Fairfax sent OSHA inspectors a memo, which was later incorporated into the agency’s Field Operations Manual, which “substantially diverged, in two key ways” from previous practice, according to the lawsuit:

“First, it backtracked from the categorical requirement that an employee representative must be an employee. Second, it lowered the standard for admitting a third-party specialist to the walk-around, from ‘reasonably necessary’ to ‘will make a positive contribution’.”

According to the Fairfax Memo, “a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walk-around representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers to exercise discretion over who participates in workplace inspections.”

The lawsuit claims that the real reason for the changes “was to facilitate union access to open-shop workplaces.”

Noting that NFIB’s typical member “employs ten people and reports gross sales of about $500,000 a year,” the lawsuit argues that a union representative “has a strong incentive to submit complaints to OSHA to trigger additional inspections and thereby provide the union representatives with access” to NFIB members’ non-unionized employees.

OSHA’s “walk-around” rule “essentially provides cover for what amounts to trespassing by union officials,” PLF attorney Joshua Thompson said in a statement. “It gives union representatives the power to intrude on private workplaces and button-hole non-union employees by deputizing these officials as government inspectors.”

“The walk-around rule has nothing to do with worker safety and everything to do with intimidating independent business owners,” agreed Karen Harned, executive director of NFIB’s Small Business Legal Center. “This is purely and simply a bully tactic on the part of the government for the benefit of unions.”

The lawsuit also claims that OSHA failed to follow proper procedure by giving the public an opportunity to comment on the proposed rule before it went into effect.

“Because the Fairfax Memo is an amendment to a legislative rule, it is itself a legislative rule,” the lawsuit continues. “In promulgating the Fairfax Memo, OSHA did not give the public prior notice or an opportunity through comment to participate in the rule’s formation.”

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