A federal judge has issued a decision paving the way for NFIB to strike down an illegally adopted OSHA Rule that has enabled union representatives to accompany OSHA inspectors.
In 2013, the Occupational Safety and Health Administration secretly tweaked its regulatory guidance concerning rules for OSHA inspections in a letter that has been dubbed the “Fairfax Memo” (named after its author Richard Fairfax, the Labor Department’s former deputy assistant secretary), according to the Washington Examiner. But in doing so, OSHA actually re-wrote the rulebook to allow union officials to be present during OSHA inspections—even at nonunion workplaces. Specifically, the Fairfax Memo allows “any worker to recommend that a union official accompany the [OSHA] inspector,” the Washington Examiner reports—and prohibits employers from objecting.
NFIB has been fighting this “Union Walkaround Rule,” including filing a complaint in September against the Occupational Safety and Health Administration. Recently, NFIB won a partial preliminary victory.
A federal judge in Texas ruled that OSHA’s Walkaround Rule was adopted in contravention of the Administrative Procedure Act, which requires that the regulated community must have an opportunity for notice and comment before new rules are imposed. The court also held that “NFIB had sufficiently alleged an injury in the form of the presence of non-employee third parties on the property of one of its members,” according to Law 360.
“Congress never intended for union operatives to accompany OSHA inspectors,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “So we don’t think this rule is defensible on its face. But in any event, this decision was a significant victory for the small business community in reaffirming that the Administrative Procedure Act imposes important and non-negotiable procedural requirements on federal agencies. They can’t just change the rules through ‘guidance’ or an ‘opinion letter’ and evade judicial review.”
Judge Sidney A. Fitzwater is the man responsible for refusing to dismiss the lawsuit. His decision concluded that “NFIB has stated a claim upon which relief can be granted[.]” The opinion also concludes that “the [Union Walkaround Rule] flatly contradicts a prior legislative rule[,]” which had been clear in saying that an “employee representative” in a OSHA inspection must actually be an employee, according to Lexology.
“We have definitely raised the issue with the new administration,” Harned said.