The Occupational Safety and Health Administration overstepped its authority in expanding union representation at “walk-arounds” in non-union workplaces, the National Federation of Independent Business has alleged in a lawsuit against the agency filed in Texas. Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Sept. 8, 2016).

The complaint alleges that unions are inappropriately proselytizing in the workplace during OSHA safety inspections.

The Occupational Safety and Health Act of 1970 and OSHA’s Field Operations Manual recognizes the right of workers to have an “employee representative” accompany OSHA inspectors during a workplace safety inspection.

In a controversial February 21, 2013, letter of interpretation, OSHA Deputy Assistant Secretary Richard E. Fairfax wrote that workers can designate “a person who is affiliated with a union without a collective bargaining agreement at their workplace or with a community organization” to act as their “personal representative.”

He continued, “It is OSHA’s view that representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.… [T]here are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection.”

The letter, known now as the “Fairfax Memo,” raised concern among employers that unions would use the right to gain entry into workplaces they normally would not be allowed.

The new complaint alleges that, in 2013, OSHA inspected Professional Janitorial Service, a Houston-based cleaning company, four times in four months in the midst of a labor dispute with the Service Employees International Union. It alleges that nonemployee representatives from the SEIU accompanied the inspector, giving the union access to the workplace at a tense time in union relations.

The lawsuit argues the Occupational Safety and Health Act allows only the “personal representative” to be employees and persons with specialized safety expertise, such as industrial hygienists. It alleges the “Fairfax Memo” unlawfully reduces the standard to anyone who “will make a positive contribution.”