OSHA Drops Contested Inspection Policy for Non-Union Employers

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By Bruce Rolfsen

OSHA is no longer insisting it has the right to invite union advocates to inspections of non-union worksites, according to an April 27 federal court notice filed by the National Federation of Independent Businesses.

The Occupational Safety and Health Administration’s change of position is “a complete victory and we are very happy with it,” attorney Joshua P. Thompson of the Pacific Legal Foundation, which represented the federation, told Bloomberg BNA April 27 ( Nat’l Fed’n of Indep. Bus. v Dougherty , N.D. Tex., No. 16-2568, 4/27/17 ).

The federation had asked the U.S. District Court for the Northern District of Texas to overturn a policy set in a 2013 interpretation letter from OSHA. The interpretation letter addressed which people not associated with the employer or government can be selected by compliance officers to accompany them on inspections.

The letter changed OSHA procedures so broadly that the revision should be considered a rule change subject to public review before taking effect, the federation argued.

On April 27, the federation filed a notice of voluntary dismissal with the U.S. District Court for the Northern District of Texas.

The federation’s attorneys said in the notice that OSHA had notified them that the letter had been rescinded and that the guidance would be removed from OSHA’s manual on how staff should conduct inspections.

Later on April 27, the court dismissed the case.

Thompson said the judge hearing the case, District Judge Sidney Fitzwater, had indicated in a Feb. 3 ruling that he believed the new policy was, in fact, a rulemaking that should have gone through a public notice and comment period.

Thompson believes Trump administration officials decided not to appeal the Feb. 3 ruling, leaving nothing for OSHA to challenge.

OSHA did not immediately respond to Bloomberg BNA’s request for comment.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Paul Connolly at PConnolly@bna.com

For More Information

The notice of dismissal is available at http://src.bna.com/ojO.

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