The Labor Department has been using a provision in the Occupational Safety and Health Act as a way to give labor representatives access to nonunion workplaces they wouldn’t otherwise be able to get into.
The department started the move three years ago by reinterpreting a section of the act that was meant to ensure that a worker or outside expert was present when an OSHA official did a spot inspection of a workplace.
In 2013, the department quietly changed the rule to allow a union official to be present, even if the union did not represent the workers. The administration made the move without congressional approval, arguing it was reinterpreting the existing law.
“Congress never intended union people to be the ones accompanying the inspectors,” said Karen Harned, an attorney with the National Federation of Independent Business.
NFIB sued the government over the issue and has won a partial victory. A federal judge ruled Feb. 3 that the department failed to use the proper rulemaking procedure. The government has appealed.
It is not clear what — if anything — the Trump administration will do about the issue. The department doesn’t have an official secretary, and President Trump’s pick, fast food businessman Andrew Puzder, has yet to have his first Senate confirmation hearing.
Worksite inspections are a regular practice under OSHA rules. They can be prompted by worker complaints or simply be routine checkups. The law says a “worker representative” can accompany the inspectors.
The purpose of the representative is to ensure that the worker could act as a representative for colleagues and discuss concerns directly with the official as well as provide context for what the inspection uncovers.
Alternately, the inspectors could bring along an outside person if he or she could offer a “substantial contribution.”
“The outside person would be brought in if, say, they were a specialist in cleaning up industrial sites and the inspector needed their expertise,” Harned said.
That rule was changed by the department in February 2013 in response to an inquiry by the United Steel Workers. The change said that the worker representative can be an outside union official when “in the judgment of the OSHA compliance officer” such an individual is “reasonably necessary.”
The letter has since been dubbed the “Fairfax Memo” since Richard Fairfax, then the department’s deputy assistant secretary, authored it. The change was even included in the official field manual for OSHA inspectors.
The new rule allows any worker to recommend that a union official accompany the inspector. For a worker to recommend anyone to accompany an OSHA inspector, he would have to know that one is coming. The main way that would happen is if they made the complaint themselves.
Labor Department spokeswoman Amy Louviere said all OSHA offices have policies to ensure that “inspections are randomized and neutral.”
“Regarding the lawsuit, we will not be commenting,” Louviere said.
Labor groups have a long history of having agents covertly apply for jobs at workplaces to agitate on behalf of the union. The practice is commonly known as “salting.”
Once a union official is included as part of the OSHA inspection, the business cannot prevent the representative from being on the worksite.
That was the situation Professional Janitorial Services, a Houston cleaning service company, found itself in when it was subjected to four-spot OSHA inspections by department officials from 2013 to 2014. All four included representatives from the Service Employees International Union, which organizes janitorial workers but didn’t present the company’s employees.
The department has turned the rule into “just another tool for unions in their organizing campaigns to effectively proselytize employees as to why they should organize, and why they should use that particular union,” said Damien Schiff, a lawyer for the Pacific Legal Foundation, which is handling the NFIB’s lawsuit.
The rule change is being challenged on two grounds. First, that the department overstepped its authority by making a change that only Congress could. Second, that the department failed to properly follow the Administrative Procedures Act, the law governing federal rulemakings.
Reinterpreting existing rules was a favorite practice of the Obama administration since it allowed it to effectively circumvent Congress. The department has, for example, expanded the rule on when one company can be a considered a “joint employer” responsible for another company’s employees.
“We have definitely raised the issue with the new administration,” Harned said. “Whether this is a priority for them, I don’t know.”
