Challenging unauthorized union access

September 09, 2016 | By DAMIEN SCHIFF

Yesterday, we filed a new case challenging a controversial rule from the Occupational Safety and Health Administration. The lawsuit, brought in the Northern District of Texas and styled National Federation of Independent Business v. Dougherty, attacks a 2013 OSHA “standard interpretation letter.” Often referred to as the “Fairfax Memo” (after the agency official who signed it), the letter dramatically alters the rules governing OSHA workplace inspections. Prior to the Fairfax memo’s issuance, and pursuant to longstanding regulation, a representative of the employer, as well as a representative of the employees, could accompany an OSHA compliance officer on a workplace inspection. This “walk-around” right was limited in two key ways.  The employee representative had to be an employee. And a non-employee third party could be allowed only if the third party’s presence was reasonably necessary to the inspection, such as a safety engineer or industrial hygienist.

The Fairfax Memo changed these rules in two key respects. First, it relaxed the prior regulation’s clear requirement that an employee representative actually be an employee. Second, it lowered the standard for whether a third party could accompany the compliance officer, from “reasonably necessary” to “makes a positive contribution.” The reason for these changes was to assist union organizing campaigns. As the Fairfax Memo explains, a union representative may accompany a compliance officer as of right, even if the union rep is not an employee, and regardless of whether the rep has any special technical expertise relevant to the inspection.

The Fairfax Memo made these substantial changes to the existing inspection regime without giving the public prior notice or an opportunity to comment. And it cannot be reconciled with Congress’s intent behind the Occupational Safety and Health Act’s authorization for employee representatives to accompany compliance inspections. That authorization was meant to provide the workingman a voice in the safety of his workplace; it was not intended to give a leg-up to union organizing campaigns.

We’ve teamed up with NFIB to challenge OSHA’s blatant disregard of the fundamental principles of administrative rule-making, not to mention the private property rights of employers throughout the nation.