For small businesses, the most valuable asset is their employees. Without productive workers and a positive workplace environment, a business cannot thrive against tough competition from other firms, large and small.
The National Federation of Independent Business (NFIB) represents hundreds of thousands of employers nationwide – proud members of the small-business sector that is a prime engine of American job creation. Pacific Legal Foundation (PLF) is a public interest organization that litigates for entrepreneurs’ rights, including the freedom to grow their businesses without unjustified regulatory restraints.
Recently, our two organizations teamed up to challenge a serious assault by the Obama administration on business owners’ freedom to manage their employees flexibly and effectively. The administration has spent eight years subtly tweaking federal labor laws to favor the interests of unions over the rights of businesses and their workers.
A few years ago, the administration completely upended long-standing rules on inspections by the Occupational Safety and Health Administration (OSHA), to give labor activists a foot in the door at businesses that aren’t unionized. It is this radical change that NFIB, represented by PLF attorneys, is targeting with a federal lawsuit.
OSHA has an important role in protecting against workplace hazards. This is why Congress gave it extraordinary powers. It can show up unexpectedly to inspect workplaces, find violations and issue fines.
Unfortunately, the Obama administration has politicized this process by allowing unions to piggyback onto workplace inspections for an entirely different goal: recruiting new dues-paying members.
For decades, when OSHA inspected businesses, the practice was to allow one of the employees of the business to accompany the inspectors. This is entirely reasonable. The workforce should be aware of any serious safety lapses at their job site.
But under a recently imposed change, OSHA now allows outside union officials to stand in for employee representatives on these walk-throughs – even if the business is not unionised, and even if the union intruder has no specialized knowledge of how the business functions or any practical understanding of safety protocol.
Under this arbitrary expansion of OSHA’s “walk around” inspection rule, the agency has fixed it so that labor representatives are able to gain entrance to private businesses in order to circulate among employees and lobby (or pressure) them into signing up with the union.
It should go without saying that having union activists foisted on their premises can come as a severe shock to small business owners.
In Texas, for instance, one janitorial business, an NFIB member, had organizers from the Service Employees International Union show up four times along with OSHA inspectors. The SEIU agents had no expertise in the company’s operations, such as its state-of-the-art “systematized” cleaning of facilities through a strategic team-based approach.
SEIU backed off only after the owner went on national television to bring light to the harassment. How did OSHA impose this dramatic change in who can accompany its inspectors? Through a simple letter from a deputy assistant secretary. In other words, a major transformation in OSHA regulations was implemented by mere bureaucratic fiat.
As our lawsuit argues, in an open, representative democracy, this kind of government-by-decree is not allowable. Administrative rules must be proposed and considered through the formal rule-making process, with careful weighing of evidence, extensive opportunity for comment from affected businesses and the general public – and, ultimately, review by the courts if appropriate.
Beyond the procedural violations, the expanded “walk around” rule is illegal in terms of substance. Congress’ purpose behind allowing inspections was to protect worker safety. It was not to give outside union agents, with no safety expertise, an opportunity to lobby for and recruit members, or sow seeds of discord. As we noted, this illegal rule is part of a broad push by the Obama administration to promote union organizing. The most vulnerable targets are small businesses lacking the resources to offer much resistance and without the deep pockets to meet new union demands for compensation and benefits.
Indeed, when small businesses are confronted by union-organizing campaigns, the typical David versus Goliath script is flipped. Unlike large corporations with legions of lawyers, human resources staff, and even labor compliance specialists, small-business owners typically have no one to help them navigate a union-organizing effort. Meanwhile, a union will come in with organizers and lawyers, promising workers the moon, all the time trying to intimidate business owners into giving up their rights in the process. OSHA’s inspection process should not be corrupted by being turned into an instrument for union membership crusades. And regulators must not be allowed to issue sweeping government rules and regulations by personal whim. Our lawsuit asks the courts to affirm those two legally based principles, and in so doing shield businesses and employees from harmful administrative overreach, and protect OSHA’s health-and-safety mission from being compromised by a union-driven agenda.