OSHA Authorized Trespass: What Are We Doing to Fight Back?

Date: September 19, 2016

As part of our Underground Regulations Report, in the fall of 2015, NFIB Legal Center uncovered numerous examples of illegal Obama Administration regulations—pronounced through mere government proclamations, rather than through the formal notice-and-comment process required by law. One especially provocative example was a rule pronounced by the Occupational Safety & Health Administration in mere letter addressed to union officials. The so called “Fairfax Memo” purported to interpret existing OSHA regulations, which address who may be present during an OSHA inspection of a worksite. But in categorically asserting that union officials may be present—even when OSHA is inspecting a non-union shop—OSHA effectively re-wrote its existing regulations so as to authorize trespass on private property. 

Of course, this newly pronounced rule raises serious concerns for small business owners, as it provides unions with yet another tool to use in scorched earth unionization campaigns. NFIB Legal Center described these aggressive union tactics in a 2013 Supreme Court filing: “As explained by a prominent officer of AFL-CIO, Richard Trumka, ‘[c]orporate campaigns swarm the target employer from every angle, great and small, with an eye toward inflicting upon the employer the death of a thousand cuts rather than a single blow.’ Union campaigns have been acknowledged by courts as involving a ‘wide and indefinite range of legal and potentially illegal tactics,’ including ‘litigation, political appeals, requests that regulatory agencies investigate and pursue [alleged] employer violations of state and federal law, and negative publicity campaigns aimed at reducing the employer’s goodwill with employees, investors, or the general public.’” And to boot, now OSHA is telling employers that they must permit union officials to invade their workspace during OSHA inspections—which can be triggered simply by union officials filing false complaints. 

But, one NFIB member, who can speak first hand to these underhanded union tactics, decided to go on the offensive. After union officials repeatedly filed false complaints against Professional Janitorial Services (PJS) of Houston, the company won a landmark decision against the Service Employees International Union (SEIU)—with an award of $5.3 million dollars. So hopefully this case will stand as a warning against improper organizing tactics, especially the despicable practice of filing false claims against business owners, who are then forced to expend thousands of dollars in legal fees.

PJS’ owner Brent Southwell has also spoken out against OSHA’s illegal union walk around rule after the agency appeared at his worksite insisting that he had to allow SEIU employees on site. Here is a clip from his appearance on Fox News, discussing the issue with Greta Van Susteren. As Southwell explains, “We have no problem with OSHA coming in. Our problem is when they bring in the union representatives to try to intimidate us and basically using government agencies to try to force us to become union.”

And of course NFIB is concerned that unions will likewise seek to politicize the OSHA inspection process—since the agency has now bestowed rights upon union organizers to be present. So going back to the central issue outlined in our Underground Regulations Report, is it legal for an administrative agency to simply re-write existing statutes without giving the regulated community an opportunity to respond—or even notice that new rules are coming down the pipe? The answer is an emphatic no.

Of course federal agencies may legitimately seek to interpret or restate existing rules. But when an “interpretation” goes so far as to change existing standards, that requires either an act of Congress or—at the very least—a formal rulemaking process through which concerned businesses have an opportunity to voice objections. For this reason, the NFIB has filed a lawsuit, with representation from the Pacific Legal Foundation, to enjoin OSHA from enforcing the illegally adopted union walk around rule. We are hopeful that—at the end of the day—a win will send a strong signal to the agencies that they cannot ignore the law any more than the unions can.  

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