Seyfarth Synopsis: Industry has
sued to block OSHA's efforts to give unions increased access to
blogged previously about OSHA's new standard interpretation
guidance letter that would allow workers
without a collective bargaining agreement to designate a union
representative to act on their behalf as their "walk-around
representative" during an OSHA inspection. We warned at that
time that this interpretative guidance was essentially an
invitation to allow union representatives access to employees at
non-union facilities for the purpose of union organizing.
Last week the National Federation of Independent Business (NFIB)
sued in Federal Court to challenge OSHA's
"illegal administrative expansion" of the
"walk-around" right. The NFIB complaint notes that for
over four decades OSHA construed the Act to "afford employees
a limited right to accompany an OSHA compliance safety and health
officer during a workplace inspection." See29 C.F.R. § 1903.8.
Under OSHA's long-standing approach to this provision, an
"employee representative" had to be an employee of the
employer whose workplace was the subject of the inspection. In very
limited cases OSHA might allow for third-party technical
specialists to accompany the compliance officer when their presence
would be "reasonably necessary." OSHA's guidance
letter blows this wide open by allowing a union to serve as the
third-party technical specialist even when the union does
not represent the employees.
NFIB indicates that OSHA longstanding construction of the
Act's walk-around right accurately captured a delicate
legislative balance. "Congress concluded that employees should
be allowed to participate in inspections meant to protect their
health and safety. But Congress also recognized that this
participatory right should not be used as a pretext to facilitate
union access to proselytize employees of open-shop
According to the Complaint, the NFIB alleges that the real
purpose of the change was to facilitate union access to open-shop
workplaces. The interpretation "effected these changes without
giving the public prior notice or an opportunity to comment. The
[interpretation] conflicts with Congress's purpose behind the
Act's walk-around provision." NFIM concludes that
interpretation's promulgation also violated the
notice-and-comment requirements of the Administrative Procedure
Act, 5 U.S.C. § 553(b)-(c).
We will keep you up-to-date as this case proceeds.
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