by Mike Horowitz
For most of the last four years, OSHA has insisted that a union representative who is not your employee can participate in OSHA inspections at your work site. This spring, that changed when OSHA finally reversed this much-criticized policy.
In an April 25th memorandum, Deputy Assistant Secretary Dorothy Daugherty and Director of Enforcement Programs Thomas Galassi officially rescinded OSHA’s controversial 2013 guidance that allowed workers at a non-union site to designate “a person affiliated with a union or community organization to act on their behalf as a walkaround representative” during OSHA worksite inspections.
2013 memo considered non-employees “reasonably necessary” to participate in inspections
OSHA had issued the guidance, known as the “Fairfax Memo,” in response to a union inquiry. It had overturned a long-held understanding that an employee representative accompanying an OSHA inspector could generally only be either an employee of the site being inspected or a third party deemed “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
Under the 2013 memo, written by former Deputy Assistant Secretary Richard Fairfax, for the first time OSHA considered a non-employee union representative to be routinely “reasonably necessary” to perform an effective inspection. It argued that 29 C.F.R. 1903.8(c) provided room for union officials – whether employees or not – to participate. The 2013 memo had reasoned:
“The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by ‘a representative authorized by [the employer’s] employees.’ 29 U.S.C. § 657(e). Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative . . . . It is OSHA’s view that representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.”
Critics called the 2013 memo a “vehicle for union recruiting” and challenged it in court
This re-definition of “reasonably necessary” in 2013 sparked significant controversy. Industry viewed the policy as a vehicle for unions to recruit and organize. The Pacific Legal Foundation, on behalf of the National Federation of Independent Business, challenged the policy in the U.S. District Court for the Northern District of Texas.
In an April 28, 2017 press release, the Foundation described the rule as an “illegal mandate . . . that foisted union organizers on non-union businesses through an abuse of workplace inspections by the Occupational Safety and Health Administration.” The Foundation also alleged that the Fairfax Memo “effected the changes at issue without giving the public prior notice or an opportunity to comment,” thus violating the Administrative Procedure Act’s notice-and-comment requirements.
The prospects for the lawsuit’s success seemed promising. In his denial of the motion to dismiss, Judge Sidney A. Fitzwater concluded that “that NFIB has stated a claim upon which relief can be granted” and that “the [Fairfax Memo] flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee” to participate in a walkaround inspection.
Memo and lawsuit both dropped
Though the court case survived the Department of Labor’s motion to dismiss, once the Trump administration took office, OSHA received a court extension so that its new leadership could evaluate the policy. Not surprisingly, the lawsuit was dropped following OSHA’s decision to rescind the guidance.
At least one U.S. senator has protested OSHA’s withdrawal of the walk-around policy. Senator Patty Murray (D-WA) wrote to Secretary of Labor Alexander Acosta on June 1st, expressing her “deep concern” about the rescission of the guidance. Murray characterized OSHA’s decision as a “step in the wrong direction.”
In contrast, NFIB President and CEO Juanita Duggan declared, “The new Department of Labor memorandum is a clear win for small businesses… The 2013 memo gave unions a pathway to intimidate small business owners. Congress never intended that OSHA should open the door to unionization efforts.” NFIB Small Business Legal Center Executive Director Karen Harned explained to Law360, “Our members were very disturbed when this memo was released in 2013. The idea that unions could accompany OSHA inspectors, they thought was unfair… Every time I talk to a small business owner and they found out this was possible under this memo, they were aghast. We were just thrilled that the DOL came to their senses.”