Thankfully, the National Federation of Independent Business (“NFIB”) has challenged a rule that has been around for only a short period of time called the Union Walk Around Rule.
For background, when OSHA inspects a workplace, an OSHA Compliance Officer does a “walk around” where he literally walks around the workplace looking for violations of the OSH Act. Employers and/or their representative (OSHA consultant) are permitted to accompany the Officer during the walk around. Pursuant to the 2013 Union Walk Around Rule, a union official is permitted to accompany an employee during a walk around of a non-union workplace. Let me repeat that. A non-union workplace must allow a union official, whose job is to organize workers, complete access throughout the workplace during an OSHA inspection.
This is how it plays out: a union is trying to organize a workplace and some employees support the organizing drive. To show the employees that the union is working for them, the union instructs an employee to call OSHA and allege a violation of the OSH Act. There doesn’t need to be merit to the allegation; it’s just an allegation that triggers the OSHA investigation. When the inspector shows up to inspect, the union organizer is permitted to walk with the inspector. This grandstanding allows all workers to see the organizer, gives the organizer the opportunity to speak with workers while they are working, and provides an opportunity for the union to see “behind the scenes” of the company it is trying to organize.
NFIB argues that nothing in the OSH Act allows a non-employee to accompany the compliance officer. Stay tuned for the outcome. This will be interesting.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.