Double the TroubleDec 14, 2023
Preparing for Enhanced Coordination Between the NLRB and OSHA
While inter-agency coordination and “information-sharing” goes on to some extent at all levels of government all the time, the recent Memorandum of Understanding (MOU) between the National Labor Relations Board (NLRB) and the Occupational Health and Safety Administration (OSHA) is just the latest in a series of aggressively pro-labor actions by the federal government this year.
Last summer, OSHA issued a notice of proposed rulemaking that would redefine our understanding of “authorized employee representation” and enable third-party employee representatives — including union reps — to join OSHA inspections. If the rule goes into effect as proposed, OSHA’s compliance officers will soon have broad discretion in including a range of “outsiders” (non-employees) in an inspection. These individuals could consist of union representatives, bi-lingual language interpreters, experts on specialized equipment, and others — as long as they contribute positively to the inspection.
Then, in October, the NLRB changed the definition of “joint employer” under the NLRA. The new rule significantly broadens the standard for when two employers can be considered joint employers — and thus potentially liable for one another’s alleged unfair labor practices. The new rule also makes it easier for union organizers to include a “joint employer” in organizing activities and election petition (RM petition) initiatives.
The Current MOU
Under the new arrangement, the NLRB and OSHA have agreed to foster inter-agency cooperation through information sharing, referrals, training, and outreach. The MOU explicitly focuses on enforcing the anti-retaliation provisions of the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH).
Information Sharing: OSHA and the NLRB will now share any information or data supporting enforcement mandates, regardless of whether the information or data was obtained through investigations or from “other sources.”
OSHA has promised to provide potential victims of unfair labor practices with NLRB’s contact information. Likewise, the NLRB has pledged to give workers with health or safety concerns OSHA’s contact information. Both agencies have promised to work together to facilitate referrals from state agencies that operate their own occupational health and safety programs.
Coordinated Investigations and Inspections: If either OSHA or the NRLB has evidence of overlapping statutory violations, both agencies promise to “coordinate investigations and inspections with the other “in appropriate cases and to the extent allowable under law.”
Guidance and Training: The MOU provides guidance for employees at both agencies in informing the workers they meet about their rights under the NLRA and various OSHA regulations.
The NLRB is training OSHA personnel on what constitutes unfair labor practices and the procedures for investigating unfair labor practices. OSHA is training NLRB personnel about basic rules and standards — recordkeeping and reporting regulations, the general duty clause, whistleblower provisions, employee rights under section 11(c) of the OSH Act, and all the jurisdictional and procedural requirements related to those regulations and laws.
Public Outreach: OSHA and the NLRB plan to jointly engage in public outreach efforts, including posts about safety and employee rights on social media. The agencies also plan to develop joint policy statements, technical assistance documents, and guidance materials.
Most recently, the agencies jointly published a resource entitled “Building Safe & Healthy Workplaces by Promoting Worker Voices.” This document is designed as a one-page employee handout that provides a quick overview of a worker’s rights related to safety and health.
Employers Take Note
Enhanced inter-agency cooperation and coordinated investigation and enforcement efforts will inevitably expose more employers to more penalties and other enforcement actions. It promises to be a busy year for OSHA and employment law attorneys.
Ensure that your managers and other supervisors know how to prepare and manage an OSHA inspection — given the labor-friendly realities of the current administration. The MOU does not require OSHA or the NLRB to notify employers when they share employers’ information, so it’s wise to assume they are.
It’s always good business to train managers and supervisors on basic OSHA and NLRA worker protections to reinforce overall compliance. Well-trained employees can also help employers identify problems before they become big ones. Employers should review and strengthen their systems to manage and respond to employee safety concerns so they can address these concerns promptly.
Employers can realistically expect an uptick in enforcement activity — particularly related to employee allegations of unlawful retaliation. As always, if you have any questions about any aspect of your safety program — or have received a citation for any reason — don’t hesitate to contact Orr & Reno for assistance.
About the author: James F. Laboe