The Occupational Safety Health Administration (“OSHA”) and the National Labor Relations Board (“NLRB”) recently joined forces through a new Memorandum of Understanding (“MOU”). Their goal, to further enhance collaboration between the two agencies during investigations and enforcement actions against employers. The move is expected to further blur the lines between the two agencies and the laws they look to enforce. The likely result is increased unfair labor practice charges filed with the NLRB and citations from OSHA.
In a joint press release, the agencies hailed the MOU because many worker efforts to improve safety and health in their workplaces are protected under both the Occupational Health and Safety Act (“OSH Act”) and the National Labor Relations Act (“NLRA”, the NLRA and OSH Act, collectively referred to as the “Acts”). The NLRB and OSHA have historically engaged in cooperative efforts and have entered into formal Memoranda of Understandings to engage in interagency coordination since 1975.
Last month’s MOU allows the agencies to more broadly share information, conduct cross-training for staff at each agency, partner on investigative efforts within each agency’s authority, and enforce anti-retaliation provisions.
Specifically, the MOU expands upon a previously proposed OSHA rule that allows employees to select an outside third party to accompany an OSHA compliance safety and health officer (the “CSHO”) during on-site inspections. Current regulations limit this choice of who can accompany the CSHO to only current employees or a third party with specialized safety knowledge. However, the newly proposed rule will significantly broaden who is permitted to attend such an investigation by allowing any third-party representative “reasonably necessary” for the inspection. Does this mean any union representative is “reasonably necessary?” Time will tell, but you can be sure that is the union’s interpretation.
What does this mean to you and your Business?
It means, among other things, employees could designate a union official to attend the inspection as their third-party representative even if the employees are not currently unionized, and even if the union representative has no safety experience.
The MOU encourages the exchange of information between the agencies, including the referrals of complaints, as well as investigative files. Further, the MOU guides OSHA to advise employees who miss OSHA deadlines for claims (which are only a matter of days) to file a ULP with the NLRB instead (and use their six-month deadline). This collaboration even goes as far as fostering cross-training each agency’s employees to enforce the other’s statute.
Additionally, the MOU goes on to have the NLRB and OSHA commit to coordinating investigations and inspections to “facilitate enforcement actions.”
This last piece is a real concern for employers as it poses the risk that the NLRB may be provided with information beyond its usual reach, which could lead to the potential of simultaneous filing of ULP charges and OSHA complaints.
For companies currently dealing with union activity, the MOU heightens the need to stay vigilant regarding workplace safety. Companies with active or potential union engagement may witness employees leveraging OSHA as an additional pain point for owners.
We encourage all employers to familiarize themselves with their rights under both Acts and seek competent employment law counsel to best navigate and defend a coordinated investigation should one arise.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at firstname.lastname@example.org or 203.454.0560.