Heralding a shift at the Occupational Safety and Health Administration (OSHA), the Department of Labor has confirmed that an Obama administration OSHA memorandum permitting union or community organization representatives to take part in OSHA workplace walkthroughs of non-union employers has been rescinded. That announcement caused the National Federation of Independent Businesses (NFIB) to voluntarily dismiss a legal challenge to that memorandum.  

The 2013 OSHA guidance memorandum allowed union representatives to accompany OSHA inspectors on inspection walkarounds when, in the discretion of the OSHA inspector, the union representative would make a positive contribution to a more thorough and effective inspection (and where the individual was authorized by the employees to serve as their representative). Previously, OSHA had allowed only certain third-party specialists such as industrial hygienists and safety engineers to accompany the inspector, and only when their presence was reasonably necessary. 

Employer groups decried the OSHA memorandum as nothing more than a gift to unions seeking access to employees they might seek to organize. That access could be especially valuable to a union when it is framed in the context of scrutinizing and commenting upon an employer’s safety practices and/or alleged safety conditions.

The NFIB sued OSHA, claiming that:

• The guidance unlawfully evaded the Administrative Procedure Act’s requirements that an agency give the public notice and the opportunity to comment on such a change.
• OSHA exceeded the authority Congress had granted it.  

The United States District Court for the Northern District of Texas dismissed the second claim in an opinion issued on February 3, 2017.  

Despite its partial preliminary victory (and following the post-election change in administration), OSHA stopped trying to defend the memorandum. On April 27, 2017, the NFIB voluntarily dismissed its complaint, announcing to the court that OSHA had formally rescinded its 2013 memorandum. Rescindment may signal the possibility of additional changes to or rollbacks of Obama administration initiatives relating to OSHA under the Trump administration.