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 material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm with more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries. Having built its reputation on providing premier workplace law representation to management, the firm has grown to include leading practices in the areas of government relations, healthcare and sports law. For more information, visit www.jacksonlewis.com.

See AllRelated Articles You May Like

February 15, 2019

Labor Board Returns to Pre-2014 Test for Determining if Individual Is an Independent Contractor

February 15, 2019

The National Labor Relations Board (NLRB) has held that in deciding whether an individual is an independent contractor or an employee, it will return to focusing on the extent to which the arrangement between the ostensible employer and the alleged employee provided an “entrepreneurial opportunity” to the individual, overruling a 2014... Read More

February 14, 2019

Top Five Labor Law Developments for January 2019

February 14, 2019

The National Labor Relations Board (NLRB) reinstated its pre-2014 standard for determining whether an individual is an independent contractor or an employee. SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019). The NLRB determined that the employer’s shuttle van drivers were not employees, but independent contractors. Thus, they... Read More

January 29, 2019

Labor Board Narrows What May Be Considered Concerted Activity

January 29, 2019

The National Labor Relations Board (NLRB) has narrowed the circumstances under which a complaint made by an individual employee is considered concerted activity under Section 7 of the National Labor Relations Act (NLRA). Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019). In doing so, the Board reaffirmed and applied the... Read More