Rulemaking may be needed for OSHA to include union reps in inspections of non-union worksites, judge finds

As you may recall, the Occupational Safety and Health Administration issued a doozy of an Interpretation Letter back in 2013 allowing employees at non-union workplaces to designate non-employees, including “outsider” union officials or community representatives (i.e., organizers), as their representatives for what are commonly known as OSHA “walkaround” inspections. The Interpretation Letter generated heated backlash from the employer community because many employers viewed it as a further effort by the Obama Administration to give unions more opportunities to find (and organize) audiences inside non-union workplaces.

Predictably, an employer group called the National Federation of Independent Business challenged the interpretation in a federal court in Texas arguing, among other things, that it amounted to a rule change made in violation of the Administrative Procedure Act. The NFIB also argued that OSHA lacked the authority to allow union representatives to accompany its compliance officers at non-union worksites. OSHA requested that the lawsuit, filed in 2016, be dismissed on summary judgment.

On February 3, 2017, Judge Sidney Fitzwater denied part of OSHA’s motion and decided to allow the APA claim to proceed to trial. Judge Fitzwater ruled that the OSHA letter was, in effect, a final agency rule change for which OSHA was required under the APA to comply with certain procedures. That means the NFIB may argue at trial that OSHA was required first to issue the change as a proposed rule with an opportunity for comment from the public, to possibly hold one or more public hearings, and to then issue a final rule with a “reasoned analysis” of the significant comments received and OSHA’s reasons for accepting or rejecting them. In short, the NFIB can argue at trial that it was not enough to unilaterally make the change in the form of an interpretation letter.

On the other hand, Judge Fitzwater found that OSHA did have the legal authority to make the change to its inspection policy and to include non-employee union representatives in the walkaround portion of inspections – as long as OSHA first complied with the requirements of the APA.

Although the court’s ruling allows the case to proceed to trial, it is more likely that OSHA under the Trump Administration will decide instead to withdraw the interpretation letter and return to the Agency’s pre-2013 inspection policy. Under the prior policy, non-employee participation was restricted to those unusual cases where OSHA could show (1) a specific need for the non-employee’s presence, or (2) that the non-employee was specifically chosen by the employees to represent them during the inspection.

We will, of course, continue to watch for, and keep you informed of, important OSHA developments as they occur under the new Administration.

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