Businesses Say OSHA Rule Favors Unions

     DALLAS (CN) — A group of small businesses say that the Occupational Safety and Health Administration’s change to the union “walk-around” rule that allows non-employees to accompany OSHA inspectors during workplace inspections illegally brings union representatives into nonunion businesses.
     The National Federation of Independent Business sued the agency in Dallas Federal Court on Thursday, claiming OSHA illegally expanded the “walk-around” right under the Williams-Steiger Occupational Safety and Health Act. It says the agency had a “long-standing” policy of allowing only employees before allowing “reasonably necessary” non-employees under a standard interpretation letter issued in 2013.
     According to the group, OSHA later lowered the standard for third parties from “reasonably necessary” to “will make a positive contribution.” The new standard took effect this past fall.
     “The reason for the Fairfax memo’s changes was to facilitate union access to open-shop workplaces,” the 15-page complaint states. “The Fairfax memo effected these changes without giving the public prior notice or an opportunity to comment.”
     OSHA’s change conflicts with Congress’ purpose behind the “walk-around” provision, the small business say, and the agency violated the notice-and-comment requirements under the Administrative Procedure Act because it did “not give the public prior notice or an opportunity through comment to participate” in the formation of the change.
     The group says the change also violates the Occupational Safety and Health Act, which does not expressly authorize a non-employee to accompany an OSHA compliance officer.
     One of the group’s members, Professional Janitorial Services in Houston, was met by three non-employee representatives with the Service Employees International Union in October 2013 during an OSHA compliance inspection. At least three more inspectors appeared in the following months, all accompanied by non-employee union representatives, according to the complaint.
     “For none of the foregoing inspections was any effort made to explain how or why the presence of the union representatives was at all necessary to facilitate a thorough workplace inspection,” the complaint states.
     The group seeks a court declaration that OSHA violated federal law, and an order barring enforcement of the rule change.
     OSHA did not immediately respond to an email message requesting comment Friday afternoon.
     The plaintiff is represented by Adam H. Charnes with Kilpatrick Townsend in Dallas and Damien M. Schiff and Joshua Thompson with the Pacific Legal Foundation in Sacramento, California.
     Thompson said the rule “essentially provides cover for what amounts to trespassing” by union representatives.
     “It gives union organizers the power to intrude on private workplaces and button-hole nonunion employees, by deputizing these officials as government inspectors,” he said in a statement.

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