The federal Occupational Safety and Health Administration (“OSHA”) announced late last week that it was rescinding its 2013 “Fairfax” memorandum, which allowed union representatives to participate in workplace safety walk-throughs.
Here is the background. Soon after the Occupational Health and Safety Act (“the Act”) passed in 1970, OSHA interpreted the law to allow employees to accompany safety inspectors during safety walk-throughs. Historically, OSHA had also allowed third parties like industrial safety specialists to join the walk-throughs if “reasonably necessary.” In 2013, OSHA expanded its definition of allowable third parties to include union representatives, even if the union did not represent the company’s employees. (OSHA’s position was contained in a memorandum issued by Richard Fairfax, who at the time served as the Deputy Assistant Labor Secretary). OSHA justified its position as the natural consequence of its longstanding view that when “employees have chosen a representative, they have a right to have that representative accompany the [OSHA investigator] during a workplace inspection.”
In September 2016, the National Federation of Independent Businesses (“NFIB”) sued OSHA, arguing that OSHA had exceeded its administrative authority by issuing the Fairfax memorandum without allowing notice and comment from interested parties. Substantively, NFIB (and other business groups) opposed the Fairfax memorandum because they viewed its union-access requirement as a boon to union-organizing activity that had little to do with employee safety. NFIB received a favorable ruling from the trial court in February of this year, with the court largely accepting its argument that OSHA was required (but had failed) to engage in the notice and comment process. Although OSHA has confirmed its withdrawal of the Fairfax memorandum (and NFIB voluntarily dismissed its lawsuit), as yet the agency has not commented publicly about its reasons for doing so.
Without comment from OSHA, it is difficult to speculate about how the withdrawal fits into the Trump administration’s overall approach to labor law issues generally or to workplace safety issues in particular. At a minimum, however, it seems clear that organized labor will not view the withdrawal positively, and that the withdrawal is a victory for businesses that wish to keep union organizers away from their workplaces.