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Furnace repair company in Ohio attempting to gut OSHA with federal lawsuit

The furnace repair company's lawsuit, filed in Northern Ohio federal court on Thursday, is looking to gut the authority of the Occupational Safety and Health Administration by declaring the Occupational Safety and Health Act unconstitutional.

(CN) — An industrial furnace repair company based near Toledo filed a federal lawsuit on Thursday, alleging that the 1970 Occupational Safety and Health Act is unconstitutional. The company claims the act, which informs the authority of the Occupational Safety and Health Administration, violates Article 1 of the Constitution establishing that only Congress has the power to create laws.

"Article I of the Constitution vests all legislative power in Congress," the lawsuit complaint reads. "Under the nondelegation doctrine, Congress may not delegate its legislative power to the Executive Branch... Section 6(b) of the OSH Act contains an extraordinary delegation of legislative power authorizing the Secretary of Labor to promulgate 'any occupational safety or health standard' regulating every employer in the United States."

The company bringing the lawsuit, Allstates Refractory Contractors, claims that the Secretary of OSHA has used the act to impose "onerous" safety standards on employers. The company bemoans that the administration has the power to conduct "intrusive" surprise inspections of workplaces, that it often works with labor unions to ensure worker safety, and that is has the power to impose fines on employers who fail to meet the administration's safety standards.

"In fiscal year 2019, for example, OSHA fined employers more than $142 million," the complaint claims, though OSHA's own records state the total cost of fines to all employers nationwide was slightly less than $142 million.

The crux of the lawsuit's argument lies in the broad language of Section 6 of the OSH Act, which stipulates that the secretary of OSHA may independently "promulgate, modify, or revoke any occupational safety or health standard" for employers at both the state and federal level. The secretary is also charged to "promulgate the standard which assures the greatest protection of the safety or health of the affected employees" in the event that state or federal safety laws conflict with OSHA's own standards.

As OSHA is technically part of the executive branch of government charged with enforcing laws made by the Legislative branch — in this case, enforcing the OSH Act itself — the company argues that these broad powers give the executive undue power to create its own laws.

"Instead of enacting workplace safety rules itself, Congress delegated that task to the Executive Branch 'by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce,'” the lawsuit claims, citing U.S. Code Title 29.

Ironically the 1970 OSH Act, passed at the encouragement of then-President Richard Nixon, was a compromise bill meant to curb the Secretary of Labor's power. It was more employer-friendly than several labor safety bills that passed through Congress in the late 1960s, just as U.S. unions' membership and political influence was beginning to decline.

A 1968 bill proposed by former President Lyndon B. Johnson would have given the secretary more powers to imprison employers who violated safety regulations; under the adopted OSH Act criminal penalties are far less severe. Even in the event that an employer's violations result in a worker's death, the maximum prison sentence is only six months, or one year if it happens again. An earlier version of the 1970 bill gave the secretary power to indefinitely shut down workplaces found to be endangering workers. The adopted version includes an appeals process by which employers can contest and overturn violations.

Nevertheless, the furnace repair company in its lawsuit claims that OSHA has the power to write and enforce "abusive" rules at employers' expense. It ultimately seeks an injunction against all enforcement of the OSH Act and an end to employers' mandatory compliance with OSHA standards.

"That injunction against enforcement of the statutory mandate would relieve Allstates of its obligation to comply with OSHA’s safety standards issued under Section 6(b) and prevent OSHA from imposing civil and criminal penalties for non-compliance," the lawsuit reads.

Allstates wanting to avoiding harsh penalties for OSHA non-compliance is at least part of the motivating factor behind the lawsuit, dedication to the U.S. Constitution aside. As the complaint states,

"Allstates faces a substantial risk of OSHA enforcement for failing to comply with the OSH Act. The threat to Allstates is real and severe because OSHA imposed a fine against Allstates in the past."

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