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Employer representatives are praising the U.S. Occupational Safety and Health Administration’s withdrawal of a controversial Obama-era policy that allowed union officials to participate in safety inspections at nonunionized workplaces, as the Trump administration focuses on easily reversible policies.
In 2013, OSHA issued a standard interpretation letter allowing employees at nonunion workplaces to designate nonemployees such as union representatives to participate in so-called “walkaround” inspections. However, OSHA has now withdrawn the union policy language featured in the letter, calling it “unnecessary,” in a memorandum to regional administrators dated April 25.
The policy drew the ire of the employer community, which viewed it as a not-so-veiled attempt by the Obama administration to support and expand union representation to nonunion workplaces.
“It was just a strange situation where it seemed like OSHA was crossing over into the realm of (the National Labor Relations Board) to say who was the employee representative when there hasn’t been an election, when there hasn’t been any determination or recognition by the employer,” said Mark Kittaka, a Columbus, Ohio-based partner with Barnes & Thornburg L.L.P. “That’s why it was pretty controversial.”
The Washington-based National Federation of Independent Business employer group challenged the interpretation in September 2016 in U.S. District Court in Dallas, but voluntarily withdrew the legal challenge once the Trump administration rescinded the rule.
Legal experts had predicted the rule could be doomed after a judge’s decision on Feb. 3 not to dismiss part of a lawsuit challenging the policy, saying the Trump administration would either stop defending the lawsuit and/or rescind the interpretation letter. Unlike OSHA’s silica and electronic record-keeping rules, the union walkaround policy was set without engaging in a formal rulemaking process so it did not require OSHA to embark on a lengthy rulemaking process to overturn the policy.
“This was one of the ones we thought was low-hanging fruit in the sense that it was just an interpretation letter and could easily be, essentially with a stroke of a pen, rescinded,” Mr. Kittaka said.
Employers were generally not being inundated with demands to allow union representatives to participate in these inspections, aside from the particular employer who was represented in the NFIB litigation, said John Martin, a Washington-based shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C.
“It seemed like it was really focused on a few targets, but all that is gone now, at least until 2020,” he said. “I could see you might have this battle every time there’s a regime change at the White House.”
The rescission means that OSHA’s policy will revert to the previous interpretation, which allowed third parties such as industrial hygienists to participate in such inspections, but not union officials at nonunion workplaces with no such expertise, said Steven Swirsky, a New York-based member of Epstein Becker & Green P.C.
“Now, I think it’s pretty clear that the position that employers were taking that allowing a union representative who was not the bargaining representative of the workers at that plant to participate was something that the law and the regulations did not require or permit,” he said. “I think you’re going to see hopefully a review of some of these outlier positions that came in the last eight years, see whether or not they really are supported by the law and hopefully more of a common-sense position that goes back to what the law is intended for rather than using it as a bootstrap for organizing or something else.”
Less certain is what OSHA regulations or policies the Trump administration will tackle next, according to experts. The agency could receive some guidance from the new Secretary of Labor Alexander Acosta – confirmed by the U.S. Senate last week – but the “marching orders” for OSHA staff will come primarily from whoever is the next assistant secretary of labor for OSHA, with a nomination possibly taking another three or four months, Mr. Martin said.
“I was a little surprised to see they went ahead and did this,” he said. “Having said that, whoever becomes the next head of OSHA, I don’t think they’re going to be upset by this. It could just be that they saw the inevitable and decided might as well rescind it now rather than wait.”
“That’s the primary thing I’m watching because I don’t think anything else is going to get pushed through until we have that,” Mr. Martin added. “You’re not going to see any new regulations.”
A federal standard to protect health care and social assistance employees from workplace violence is necessary because only a few states have such protections in place and they are sometimes not enforced, union representatives say.