Ergo Lawsuit: Industry and Labor State the Issues

An alliance of industry opponents to OSHA's ergonomics rule has\r\ncome up with 18 reasons why a federal appeals court should kill the\r\ncontroversial regulation.

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An alliance of industry opponents to OSHA''s ergonomics rule has come up with 18 reasons why a federal appeals court should kill the controversial regulation.

On the other side of the debate, the Union of Needletrades, Industrial & Textile Employees (UNITE) produced four arguments why OSHA''s rule has not gone far enough to protect workers.

The petitioners were responding to a Feb. 15, D.C. Circuit Court deadline to file a "preliminary statement of the issues" in the ergonomics lawsuit.

The business petitioners include the National Association of Manufacturers (NAM) and the National Coalition on Ergonomics (NCE), two of the most outspoken adversaries of the rule.

The filing is the first formal statement of the issues of the case, according to Quentin Riegel, NAM''s deputy general counsel.

"It gives the court an idea of the complexity of the litigation, and it allows the parties to see what everyone else is arguing," said Riegel.

There are a total of 25 business and six union petitioners in the case. Riegel said he thought the NAM-NCE statement "fairly comprehensive" and representative of the business point of view. "It''s unlikely we''ll be adding to it," he added.

Highlights from the statement include:

  • Six arguments allege OSHA failed to follow proper administrative procedures during ergonomics rulemaking. One of these arguments cites the six days the rule spent before the Office of Management and Budget, and questions whether this was enough time to perform oversight of the "costliest OSHA rule every promulgated."
  • Seven issues are tied to lack of evidence supporting the rule and charges that OSHA acted in a manner that was "arbitrary and capricious."
  • Two arguments allege that OSHA exceeded its authority under the OSH Act.

The most ambitious argument echoes a claim made against EPA on the Clean Air Act in a case now being heard by the Supreme Court. The statement alleges the construction of the OSH Act required to support ergonomics renders the Act an unconstitutional delegation of authority to the agency.

UNITE argued that OSHA''s ergonomics rule:

  • excludes whole sectors of workers from coverage;
  • does not require employers to take any action to reduce hazards until a worker is hurt;
  • allows employers too much time to implement needed controls
  • fails to require feasible protective measures that are necessary to reduce or eliminate risks to workers.

Riegel said no decision has yet been made on whether industry would seek a stay, noting that right now NAM''s focus is winning congressional support to kill the ergonomics rule legislatively, by means of the Congressional Review Act.

The next deadline on the legal front is March 2 when OSHA is to file a 3,000-page index of the public record on the rulemaking.

Riegel said he did not expect a final decision on the case until next year.

by James Nash

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