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Court rejects Big Labor petition to force OSHA’s hand on Covid-19 standard

The U.S. Court of Appeals for the District of Columbia Circuit dismissed an American Federation of Labor–Council of Industrial Organizations petition seeking an order compelling the Occupational Safety and Health Administration to issue an emergency temporary standard (ETS) for infectious disease and Covid-19 workplace exposure. AFL-CIO had filed a writ of mandamus petition in May after initially petitioning OSHA in March to issue an ETS addressing the virus outbreak.

“The agency is authorized to issue an ETS if it determines that ‘employees are exposed to grave danger’ from a new hazard in the workplace, and an ETS is ‘necessary’ to protect them from that danger,” a three-judge panel concludes. “The OSHA’s decision not to issue an ETS is entitled to considerable deference.”

“The decision affirms that OSHA’s comprehensive response to the outbreak eliminates the need for an emergency temporary standard,” noted Associated Builders and Contractors Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore and National Association of Home Builders Chief Executive Officer Jerry Howard in a joint statement. “The government is learning new information about Covid-19 and how best to mitigate related hazards on an almost daily and sometimes even hourly basis, which is why a static, intransigent rule would not be an appropriate response. OSHA’s resources are better deployed by developing situational-specific guidance documents, which can be adjusted as the agency and public health authorities better understand the pandemic.”

“Even without a Covid-19 outbreak, safety and health is always our Number 1 priority. As representatives of residential, nonresidential and industrial construction contractors across the country, we remain committed to collaborating with state and local health officials, as well as across market sectors, to diligently identify and implement new health and safety protocols on our jobsites,” they added.

ABC, NAHB, American Road and Transportation Builders Association, Mason Contractors Association of America and the U.S. Chamber of Commerce had urged the D.C. Circuit Court not to grant the AFL-CIO request in a brief. Workers are better protected from the virus by construction industry best practices rather than a rigid “one-size-fits-all” regulation, the groups argued, noting: “Guidance on how to maintain the spread of Covid-19 in the aviation industry would naturally be quite different from guidance directed at the banking industry, or the construction industry.”

“The Post-it length response to our petition acknowledges the ‘unprecedented nature of the Covid-19 pandemic’ but repeats the false claim by Big Business that the Occupational Safety and Health Administration already has done what is needed to protect workers,” AFL-CIO President Richard Trumpka observed in a statement on the Appellate Court decision. “In fact, none of the other ‘regulatory tools,’ short of an emergency temporary standard, require employers to do anything at all. An unprecedented pandemic calls for unprecedented action, and the court’s action fell woefully short of fulfilling its duty to ensure that the Occupational Safety and Health Act is enforced.”

WORKPLACE RETURN STANDARD

Ahead of widespread lifting of state orders limiting public and private gatherings, OSHA issued guidance to assist employers reopening non-essential businesses and their employees returning to work during the evolving coronavirus pandemic. The guidance supplements the U.S. Department of Labor and U.S. Department of Health and Human Services’ previously developed Guidance on Preparing Workplaces for Covid-19 and the White House’s Guidelines for Opening Up America Again. The guidelines provide general principles for updating restrictions originally put in place to slow the spread of the coronavirus. During each phase of the reopening process, OSHA officials note, employers should continue to focus on strategies for basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and employee training.

Non-essential businesses should reopen as state and local governments lift stay-at-home or shelter-in-place orders and follow public health recommendations from the Centers for Disease Control and Prevention and other federal requirements or guidelines. Employers should continue to consider ways to use workplace flexibilities, such as remote work and alternative business operations, to provide goods and services to customers. OSHA likewise recommends that employers continually monitor federal, state, and local government guidelines for updated information about ongoing community transmission and mitigation measures, as well as for evolving guidance on disinfection and other best practices for worker protection.

NLRB ELECTION RULE

The National Labor Relations Board will implement in full all Representation Procedures rule changes unaffected by a U.S. District Court order. Issued in late May, it responded to an American Federation of Labor–Council of Industrial Organizations petition challenging new guidelines for bargaining unit elections. While the order prevents the Board from implementing five provisions of the December 2019 amendments, agency officials note, the Court did not vacate the majority of the rule. Accordingly, the Board has directed the amendments unaffected by the Court’s order to remain in place—consistent with the National Labor Relations Act and the Administrative Procedure Act.

The Court order granted summary judgment as to count one of the AFL-CIO complaint, which challenged the following provisions contained in the December 2019 amendments: reinstitution of pre-election hearings for litigating eligibility issues; timing of the date of election; voter list timing; election observer eligibility; and, timing of Regional Director certification of representatives.

The remaining provisions, effective now, include: scheduling the hearing at least 14 days from issuance of the notice of hearing; posting the notice of election within five days instead of two; changes in timeline for serving the non-petitioning party’s statement of position; requiring petitioner to serve a responsive statement of position; reinstatement of post-hearing briefs; reinstating Regional Director discretion on the timing of a notice of election after the direction of an election; ballot impoundment procedures when a request for review is pending; prohibition on bifurcated requests for review; certain changes in formatting for pleadings and other documents; and, terminology changes and defining days as “business” days.

The NLRB General Counsel has issued a guidance memorandum regarding implementation of the rule. The Board continues to believe that it followed all legal requirements in issuing the December 2019 amendments to its procedural rules, and intends to appeal the order to the D.C. Court of Appeals once the lower court issues a memorandum opinion.