Business group sues OSHA over ‘union walk around rule’

The National Federation of Independent Business (NFIB) is suing the Occupational Safety and Health Administration (OSHA) over its so-called union walk around rule.

The lawsuit, which the Pacific Legal Foundation filed on behalf of the small business advocacy group, charges that OSHA’s rule illegally foists union activists onto non-unionized businesses.

{mosads}Attorneys with the legal foundation say OSHA has for decades allowed an employee representative to accompany an OSHA investigator on a workplace inspection, so long as the representative is in fact an employee.

But in 2013, the agency issued a memo that said an employee representative could be someone who is not an employee and, according to NFIB’s complaint, “lowered the standard for determining whether a third-party specialist may accompany the compliance officer.”

Before non-employees were allowed only if they were “reasonably necessary.” In the memo, OSHA said non-employees are allowed if they “will make a positive contribution.”

The change, the NFIB claims hurt its members.

“This ‘walk around’ rule essentially provides cover for what amounts to trespassing by union officials,” PLF Principal Attorney Joshua Thompson said in a statement.

“It gives union organizers the power to intrude on private workplaces and button-hole non-union employees, by deputizing these officials as government inspectors.”

In the complaint filed in the District Court for the Northern District of Texas, the NFIB says OSHA’s memo constitutes a rule and should have followed proper notice and comment rulemaking procedures under the Administrative Procedures Act.