TEXAS--The National Federation of Independent Business
(NFIB) has accused the Occupation Safety and Health Administration (OSHA) of
allowing unions to proselytize in non-union workplaces.
NFIB filed a complaint
with the district court in Northern Texas against Deputy Assistant Secretary of
Labor for the OSHA, Dorothy Dougherty, as well as the Regional Administrator
for Region 6, Eric Harbin.
The NFIB has questioned the practice of the walk-around
right that was legislated by the Williams-Steiger Occupational Safety and
Health Act, established in 1970.
The law outlined the way workplace inspections were
conducted, specifically the right of employees to participate in the
Traditionally the OSHA had allowed an employee from the
workplace was allowed to be a part of the inspection. They also allowed for
specialists like safety engineers to accompany the employee during the
“Prior to 2013, it was commonly accepted OSHA practice among
employers that, consistent with Section 1903.8, union representatives could not
accompany a compliance officer unless they were employees themselves, or they
had some specialized technical or site-specific knowledge that would assist the
compliance officer during the inspection,” the court document states.
However, in 2013 a letter
from the Deputy Assistant Secretary of the Department of Labor, Richard
Fairfax, issued a letter, called the Fairfax Memo. The NFIB claimed in court
documents that this letter “was to facilitate union access to open-shop
The NFIB has raised concerns that the union representative
has been trying to proselytize during the inspections.
They assert that changes to the traditional practice laid
out in the Act were changed when the OSHA inspected Professional Janitorial
Service in 2013. During those visits there was a labor dispute with the Service
Employees International Union going on. NFIB claims by allowing a non-employee representative
from the union as their third party for the safety inspection they gave the
union access to the workplace at a tense time in union relations.
The plaintiff said the Occupation Safety and Health Act only
allows for personal representatives as those with safety expertise but the
Fairfax Memo reduces the standard to anyone who “will make a positive
They also accuse the OSHA by changing the practice following
the Memo the organization made changes to the Act without public prior notice.
The revisions that the Fairfax Memo made have conflicted
with the Act that was put in place by Congress, NFIB stated.
The filing makes clear that Dougherty and Harbin are only
being sued in their official capacity as representatives of the OSHA.
The lawsuit was initially filed in September.
NFIB is a small business advocacy organization that was
founded in 1943. Their mission is to “promote and protect the right of its
members to own, operate, and grow their business.”
They have 325,000 small business members all over the United
States, according to their website.
They offer to advocate for their members and offer protection from government
“We are the only major business organization whose
policies and positions are established by the members directly, not by
executive staff or the Board of Directors,” their website states.