OSHA Changes Course on Union’s Ability To Participate in Inspections of Non-Union Workplaces

On April 25, 2017, the Occupational Safety and Health Administration (“OSHA”) officially repealed the “Fairfax Memorandum,” a February 21, 2013 directive (an archived copy of the memo can be found here).  The Fairfax Memorandum explained that workers at a worksite without a collective bargaining agreement could designate a person affiliated with a union or community organization to act on their behalf in a walk-around OSHA inspection.  The OSHA “repeal” states that the February 21, 2013 guidance letter was unnecessary given the “express guidance” in the statute:

“Section 8(e) of the OSH Act provides that, ‘[s]ubject to the Secretary’s regulations, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace . . . for the purpose of aiding such inspection.’’ 29 U.S.C. § 657(e).  In turn, 29 CFR 1903.8(c) clarifies that although generally ‘[t]he representative(s) authorized by employees shall be an employee(s) of the employer,’ where good cause is shown and where ‘reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace,’ a Compliance Safety and Health Officer (CSHO) may allow a third party who is not an employee of the employer to accompany the CSHO during the inspection.”

This development is not surprising given the February decision of the U.S. District Court for the Northern District of Texas to allow a challenge to the guidance letter to move forward.  Specifically, the judge found that the National Federation of Independent Business had standing to challenge the rule and that the complaint asserted a claim upon which relief could be granted.  The judge’s language signaled the direction of the court:  “The [guidance] Letter flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee.”  Following the OSHA repeal of the Fairfax Memorandum, the NFIB dismissed the Texas lawsuit and declared victory in an April 28, 2017 press release.

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