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OSHA’s union rep inspection policy under fire

Union members

A U.S. Occupational Safety and Health Administration policy that allowed union officials to participate in inspections at nonunionized workplaces may be doomed after a judge’s decision not to dismiss part of a lawsuit challenging the policy.

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 — drawing 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.

The Washington-based National Federation of Independent Business employer group challenged the interpretation in September 2016 in U.S. District Court in Dallas. The lawsuit was filed after one of its members, Houston-based Professional Janitorial Service Inc., was forced to allow three nonemployee representatives of the Service Employees International Union to participate in multiple inspections of its workplaces due to the interpretation letter.

The NFIB argued the agency lacked the authority to allow union representatives to accompany its compliance officers at nonunion workforces and that it constituted a rule change made in violation of the Administrative Procedure Act, which mandates a public notice-and-comment period for federal rule-making. On Feb. 3, a judge denied part of OSHA’s motion to dismiss by allowing the APA claim to move forward, but dismissed the other claim after finding that the letter did not exceed OSHA’s authority.

“It was a split decision, but it basically showed that what they were doing was kind of an end around formal rule-making by way of the interpretation letter,” said Mark Kittaka, a Columbus, Ohio-based partner with Barnes & Thornburg L.L.P. “The full decision on the merits hasn’t been decided yet in terms of the actual declaration on the scope of the statute, but this goes a long way towards that.”

Allowing third parties who do not work at the plant or were not designated representatives of the employees to accompany the officers was “pretty unprecedented” and controversial, he said.

“It kind of puts OSHA in the realm of labor relations that is usually covered by the National Labor Relations Board,” he said. “What it does is gives (unions) a direct avenue to organize your employees. It’s almost like OSHA facilitating the organization of your company.”

Nissan North America Inc. also went to court in September 2016 after the U.S. District Court in Jackson, Mississippi, issued a warrant to force the company to allow a representative of the Nissan Workers Organizing Committee, which had been working to unionize the workforce, to accompany an OSHA compliance officer during an inspection of the automaker’s Canton, Mississippi, plant.

The rule “was something that I think a lot of us saw as intended or designed or at least having the effect of giving unions access to workers or access to workplaces where they otherwise would not have it,” said Steven Swirsky, a New York-based member of Epstein Becker & Green P.C.

Legal experts say it is highly likely that the administration will rescind the interpretation letter and/or stop defending the lawsuit. OSHA filed a motion on Monday asking for a 30-day extension to give the incoming leadership personnel at the U.S. Department Labor adequate time to consider the issues, which suggests the agency may be changing its position, Mr. Swirsky said. 

“It’s just an interpretation letter,” Mr. Kittaka said. “It’s easy to change that. There isn’t a formal rule-making process, notice and comment, to get rid of that.”

“Although the court’s ruling allows the case to proceed to trial, it is more likely that OSHA under the Trump administration will decide instead to withdraw the interpretation letter and return to the agency’s pre-2013 inspection policy,” according to an article by law firm Constangy Brooks Smith & Prophete L.L.P. “Under the prior policy, non-employee participation was restricted to those unusual cases where OSHA could show a specific need for the non-employee’s presence or that the non-employee was specifically chosen by the employees to represent them during the inspection.”

In the meantime, however, employers may still have to allow union representatives to participate in inspections of nonunion workplaces as the policy remains the official position of the administration.

“I don’t think anyone should read this decision as a safe harbor for denying a union representative access to participate,” Mr. Swirsky said. “I think the court’s analysis and the court’s refusal to dismiss the lawsuit gives some basis to be hopeful that the outcome is going to be favorable for employers, but it’s not there yet.”




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