National Federation of Independent Business sues key members of Occupational Safety administration

By Chandra Lye | Dec 19, 2016

The organization has accused the OSHA of violating the law and letting union representatives have access to non-union workplaces.

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 inspections.

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 inspection.

“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 workplaces.”

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 contribution.”

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 interference.

“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.

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