Search form

Lawsuit Filed Against OSHA on Walk-Arounds

By Carla J. Gunnin
  • September 27, 2016

The Occupational Safety and Health Administration overstepped its authority in expanding union representation at “walk-arounds” in non-union workplaces, the National Federation of Independent Business has alleged in a lawsuit against the agency filed in Texas. Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Sept. 8, 2016).

The complaint alleges that unions are inappropriately proselytizing in the workplace during OSHA safety inspections.

The Occupational Safety and Health Act of 1970 and OSHA’s Field Operations Manual recognizes the right of workers to have an “employee representative” accompany OSHA inspectors during a workplace safety inspection.

In a controversial February 21, 2013, letter of interpretation, OSHA Deputy Assistant Secretary Richard E. Fairfax wrote that workers can designate “a person who is affiliated with a union without a collective bargaining agreement at their workplace or with a community organization” to act as their “personal representative.”

He continued, “It is OSHA’s view that representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.… [T]here are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection.”

The letter, known now as the “Fairfax Memo,” raised concern among employers that unions would use the right to gain entry into workplaces they normally would not be allowed.

The new complaint alleges that, in 2013, OSHA inspected Professional Janitorial Service, a Houston-based cleaning company, four times in four months in the midst of a labor dispute with the Service Employees International Union. It alleges that nonemployee representatives from the SEIU accompanied the inspector, giving the union access to the workplace at a tense time in union relations.

The lawsuit argues the Occupational Safety and Health Act allows only the “personal representative” to be employees and persons with specialized safety expertise, such as industrial hygienists. It alleges the “Fairfax Memo” unlawfully reduces the standard to anyone who “will make a positive contribution.”

Jackson Lewis is available to help employers understand their rights during safety inspections.

©2016 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

August 8, 2018

Missouri Right-to-Work Rejected by Voters

August 8, 2018

Missouri voters have rejected the state right-to-work law. Senate Bill 19, which would have made Missouri the nation’s 28th right-to-work state, was passed by the Missouri legislature on February 2, 2017, and signed into law by then-Governor Eric Greitens. Labor organizations and their supporters gathered enough signatures to keep the... Read More

July 19, 2018

Top Five Labor Law Developments for June 2018

July 19, 2018

Public sector employees who are non-members of a union cannot be legally required to pay agency or “fair share” fees as a condition of employment, the U.S. Supreme Court has held in a 5-4 ruling. Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018). The Court decided that a state’s enforcement of a provision in a collective... Read More

July 9, 2018

Brett Kavanaugh Nominated to U.S. Supreme Court

July 9, 2018

In the wake of Justice Anthony Kennedy’s retirement, President Donald Trump was presented with the rare opportunity to make his second U.S. Supreme Court nomination in as many years, nominating the Honorable Brett M. Kavanaugh to succeed Justice Kennedy. If confirmed by the Senate, Judge Kavanaugh would bring more than a dozen years of... Read More