Union Effort to Compel OSHA Rule Regarding Personal Protective Equipment
In re AFL- CIO and United Food and Commercial Workers International UnionsNo. 07-1001
United States Court of Appeals for the District of Columbia Circuit
In response to a petition for writ of mandamus filed by the AFL-CIO and UFCW compelling OSHA to issue a rule requiring employers to pay for nearly all personal protective equipment, NCLC filed an amicus curiae brief outlining the serious negative consequences the proposed rule could have on employers' existing methods of purchasing and distributing personal protective equipment, collective bargaining relationships and day-to-day management of the workplace. Among other things, NCLC explained that the court could not grant relief requested by the unions requested because OSHA lacks the authority to issue the proposed rule, which is an economic regulation that has no direct or substantial relationship to employee safety and health.
Amicus brief filed 3/5/07. Court order dated 4/5/07 holding case in abeyance until OSHA issues rule regarding personal protective equipment in November 2007. OSHA issued PPE Rule 11/15/07. AFL and DOL filed Joint Motion to Dismiss on 12/11/07. Case dismissed 12/18/07.
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Michigan Occupational Safety and Health Administration ("MIOSHA")United Parcel Service v. Bureau of Safety and Regulation, General Industry Safety Division
Case No. 269720
Michigan Court of Appeals
As urged by NCLC, the Michigan Court of Appeals reversed Safety Board citations issued against United Parcel Service for failing to conduct a hazard assessment in every workplace – even where no hazards requiring personal protective equipment could possibly be present (i.e., in an office setting). In a brief filed jointly with NFIB, NCLC argued that the Safety Board overstepped its bounds by requiring employers to assess their workplace at every location to determine if hazards that necessitate the use of personal protective equipment (i.e., goggles, work gloves, etc.) are present or likely to be present. NCLC cautioned the court that the requirement of having to perform assessments at every single location will be costly to Michigan businesses, and will unnecessarily expose them to penalties and fines under MIOSHA, where such penalties would not exist under federal law.
Amicus brief filed 5/24/06. Court granted motion to file amicus brief 10/6/06. Amicus brief filed 1/25/07. Oral argument held 9/11/07. Decision 11/15/07.
OSHA Egress Regulations
Secretary of Labor v. United Parcel Service, et al.No. 05-1115
Occupational Safety and Health Review Commission
As urged by NCLC, the Occupational Safety and Health Review Commission granted UPS's petition for review challenging an Administrative Law Judge's interpretation of egress regulations. Of particular concern, the ALJ held that nothing can be put in an aisle, passageway, or work area—even temporarily or for the briefest period of time—that diminishes the area around an employee to less than 28 inches. In its brief, NCLC argued this absolute prohibition is impractical for business and does not consider workplace realities.
Amicus brief filed 8/31/07. Review granted 10/3/07.
Challenge to OSHA's Incorporation of Threshold Limit Values for Chemical Substances
National Association of Manufacturers, et al. v. OSHACase No. 06-1122
U. S. Court of Appeals for the District of Columbia Circuit
The Chamber intervenes and joins other business organizations in challenging the Occupational Safety and Health Administration's (OSHA) practice of incorporating the "latest edition" of the American Conference of Governmental Industrial Hygienists' (ACGIH) recommended workplace exposure limits for chemical substances into OSHA's Hazard Communication Standard (HCS). Each year the ACGIH, which is a private, not-for-profit-non-governmental corporation, publishes recommended workplace exposure limits, known as Threshold Limit Values (TLV). ACGIH's process does not permit outside parties to participate in the determination of TLVs. The Chamber argues that because of OSHA's practice of automatically incorporating the latest TLVs into the HCS, these TLV standards are never subject to the fundamental principles of due process and violate rulemaking requirements imposed on OSHA by the U.S. Constitution and other statutes and regulations.
Petition for Review filed 3/31/06. Motion to Leave to Intervene filed 4/25/06. Motion to Intervene granted 8/2/06. Consolidated brief filed 11/28/06. Decision 5/11/07.
OSHA's Hazard Communication Standard
Secretary of Labor v. Cagle's, Inc.No. 98-485
Occupational Safety and Health Review Commission
The Occupational Safety and Health Review Commission agreed with NCLC that OSHA's Hazard Communication Standard -- which requires training in the physical and health hazards of the chemicals in employee work areas -- does not require an employer to name each chemical and tell employees of its specific hazards, but instead allows employers to cover categories of hazards.
Amicus brief in support of employer filed 4/19/00. Decision 9/29/06.
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Secretary of Labor v. Altor, Inc, et al.
OSHRC Docket No. 99-0958
Secretary of Labor v. Sharon and Walter Construction, Inc.
OSHRC Docket No. 00-1402
NCLC argues that the Occupational Safety and Health (OSH) Review Commission should not expand the definition of "employer" and pierce the corporate veil to hold individuals personally liable for safety violations in the above consolidated cases. Recognizing a corporation's separate legal entity is important to encouraging entrepreneurship in this country. Adopting the Secretary of Labor's recommendations in these cases would create a harsh and ultimately counterproductive result for business.
Amicus brief filed 3/24/04.
NCLC challenged the constitutionality and statutory validity of the Ergonomics Program Standard issued on 11/13/2000 by the United States Department of Labor, Occupational Safety and Health Administration. While NCLC was battling in the courtroom, the Chamber and other business groups launched an unprecedented campaign to overturn this unworkable rule in Congress. The campaign resulted in a resolution under the Congressional Review Act nullifying the ergonomics standard. The D.C. Circuit subsequently dismissed all petitions challenging the standard as moot.
Petition for review filed 11/13/00. Petitioner's motion to dismiss as moot filed 4/20/01. Case dismissed 5/3/01.
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