There’s no longer a union walk-around rule

Today, we’re happy to announce that the union walk-around rule is no more. This rule was promulgated by OSHA back in 2013 and it permitted non-employee union operatives to accompany governmental workplace inspections — even when the workforce was not unionized. This made two fundamental changes to the walk-around rule as it had existed for four decades. First, it allowed non-employees to be designated as the walk around representative.  Second, it significantly lowered the bar for when union operatives could accompany worksite inspections as third party reps.

As to the latter, OSHA argued that this rule was consistent with the OSH Act, because union operatives could make a “positive contribution” to the government inspections. What the regulation actually says, though is that someone who accompanies a workplace walk-around must be “reasonably necessary.”  By changing the standard to one that only requires a “positive contribution,” OSHA under the Obama Administration significantly lowered the standard for when non-employees — including unions reps — are permitted on these inspections. For example, if the union rep brought a pot of coffee to the walk-around it could be seen as a “positive contribution,” but that’s a far cry from being “reasonably necessary” as the regulation requires.

Of course, these union officials would then use this “walk-around right” not to make a “positive contribution,” but to proselytize to workers and urge them to start a union. That’s why PLF, representing the National Federation of Independent Business, challenged the rule under the APA.  And you’ll remember that in February PLF won an important first step in its challenge to the walk-around rule.  The federal court ruled against OSHA in its attempt to get our lawsuit dismissed.  And, as I explained at the time, that essentially meant that the rule was illegal.  We were just waiting to see if OSHA wanted to try some new defense, if it wanted to appeal, or if the new Trump Administration would abandon its defense of the walk-around rule.

Today, we’re happy to report that the Trump Administration has rescinded the walk-around rule. In a letter to OSHA regional administrators, the Department of Labor explained that 2013 Fairfax Memo that established the walk-around right is rescinded and that the OSHA field operations manual will be updated to reflect its rescission. This is a total victory for NFIB. Its members, like PJS of Houston, will no longer be subjected to union-led workplace walk-arounds.