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By Stephen Lee
Sept. 9 — Employer fears that unions will use expanded walkaround rights, articulated in a 2013 OSHA letter of interpretation, to enter workplaces and contact employees prompted a lawsuit from a business group ( Nat’l Fed’n of Indep. Bus. v. Dougherty , N.D. Tex., No. 3:16-cv-02568, 9/8/16 ).
The complaint, filed Sept. 8 in U.S. District Court for the Northern District of Texas by the National Federation of Independent Businesses, is driven by concerns that the walkaround rights will facilitate union organizing, said Damien Schiff, principal attorney at the Pacific Legal Foundation, which is representing the federation.
“It becomes just another tool for unions in their organizing campaigns to effectively proselytize employees as to why they should organize, and why they should use that particular union,” Schiff told Bloomberg BNA.
That kind of activity is already happening, according to the complaint. In 2013, a Houston-based cleaning company called Professional Janitorial Service, mired in a labor dispute with the Service Employees International Union, was inspected four times in the space of four months. Each time, the Occupational Safety and Health Administration inspector was accompanied by nonemployee representatives from the SEIU, the complaint alleges.
“For this company, the enforcement of the memo has been problematic,” Schiff said. “It has required them to allow union reps into the workplace at a very sensitive time.”
Schiff also said the Pacific Legal Foundation, a nonprofit group that fights for limited government and private property rights, has submitted Freedom of Information Act requests to OSHA to determine how many times unions have acted as employee representatives on walkarounds but was told the agency doesn’t keep those records.
Moreover, the Occupational Safety and Health Act makes clear that only employees and persons with specialized safety expertise, such as industrial hygienists, can accompany inspectors during walkarounds, according to the federation’s complaint. The new standard set forth in what is known as OSHA’s Fairfax memo—which lowered the bar to a person who “will make a positive contribution"—were significant enough that they should have been enacted through rulemaking with notice and comment, Schiff said.
But Eric Frumin, safety and health director at Change to Win, said neither the statute nor the regulations say anything about a worker representative being an employee or having specialized expertise.
“The legislative history is very clear: OSHA has the responsibility and the authority to make decisions about walkaround reps that workers have designated who will assist OSHA most effectively in doing a thorough inspection,” Frumin told Bloomberg BNA. “Nothing in this lawsuit has challenged OSHA’s authority to do that, including its authority to interpret its regulations in this way.”
Further, said Frumin, there is no evidence that the SEIU representatives at the Professional Janitorial Service inspections were proselytizing.
Unions also don’t need to be present in workplaces in order to mount organizing campaigns, Frumin said, undercutting the rationale behind the NFIB’s stated concerns.
“Union organizers have for decades been successfully organizing workers without ever setting foot on company property,” Frumin said. “NFIB has a long record of trying to undermine workers’ rights in the workplace. This, sadly, follows in that inglorious tradition.”
The business community and congressional Republicans have long chafed under the Fairfax memo. In June 2013, a coalition of business groups and Republicans on the House Education and the Workforce Committee asked OSHA to withdraw the memo.
OSHA will have 60 days to respond once it is served, which is expected to happen early the week of Sept. 12, Schiff said.
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The complaint in National Federation of Independent Business v. Dougherty is available at http://src.bna.com/ir3
OSHA’s letter of interpretation is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28604.
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