OSHA and NLRB Memo of Understanding: Expanded analysis

Editor's Note: The following information is based in part on the NFFS Government Affairs Committee briefing materials from their December 6, 2023, meeting. It provides expanded discussion and analysis on the NLRB/OSHA Memorandum of Understanding dated October 2023. 

The National Labor Relations Board (NLRB) and Occupational Safety and Health Administration (OSHA) executed a Memorandum of Understanding (MOU) on October 31, 2023, regarding a partnership designed to strengthen their efforts to protect workers who either speak out about health and safety working conditions or engage in potential protected activity that triggers anti-discrimination and/or whistleblower protection under both federal labor law and health and safety laws.

The MOU announced that the two agencies will work together to enhance information sharing and referrals, training, and outreach. The MOU illustrates the Biden administration's "whole of government" approach—involving executive orders, memoranda of understanding, interagency task forces, initiatives, agency rulemaking, federal funding, and a concerted enforcement strategy to extend federal protections as broadly as possible and promote employee and union organizing efforts. Now that federal labor and workplace safety officials have entered a partnership, employers face even more scrutiny from multiple agencies and should prepare for increased labor and safety enforcement efforts.

Under the five-year partnership, the information sharing will support each agency’s enforcement mandates. This information sharing may include complaint referrals and information in complaint or investigative files relating to alleged violations of the NLRA and the laws enforced by OSHA. For example, if, during an investigation, OSHA encounters potential victims of unfair labor practices who have not filed a charge with the NLRB, OSHA will provide them or their collective bargaining representative with the NLRB’s phone number and website.

More directly, the MOU states that if an employee who is the potential victim of an unfair labor practice files an untimely Section 11 (c) complaint with OSHA (i.e., beyond the 30-day limitations period), OSHA will expressly advise the complainant that they may file a charge with the NLRB up to six months after the protected activity, and recommend that the complainant contact the NLRB “as soon as possible” to discuss their rights, while again providing the NLRB’s phone number and website to the complainant.

Likewise, the NLRB will share with OSHA information related to workers currently or likely exposed to health or safety hazards or related to suspected violations of the laws OSHA enforces. The MOU also provides that the NLRB may encourage the affected individuals, their representatives, or labor organizations to “promptly” contact OSHA via phone or by filing an online safety and health or whistleblower complaint via OSHA’s website. Employers should assume the two agencies will cooperate with each other moving forward and freely share information.

In addition to sharing information, the MOU explains that “in appropriate cases and to the extent allowable under law,” the agencies may decide to conduct coordinated investigation and inspections if doing so would facilitate enforcement action. In matters where both agencies find overlapping statutory violations, the agencies will confer to determine what enforcement actions are appropriate for each agency to pursue. Such coordination may not only increase enforcement activity but will, in practice, provide greater leverage to unions attempting to organize employees or engage in collective bargaining by citing to safety-related issues, safety-related complaints, and coordinated government action to investigate and/or prosecute the targeted employers.

The MOU also establishes an agreement to engage in reciprocal training and education whereby each agency will provide ongoing training to appropriate personnel from the other agency. This training between the NLRB and OSHA will focus on specific, limited topics. Appropriate NLRB personnel, likely Board agents and field examiners, will be trained on OSHA standards, recordkeeping and reporting regulations, the general duty clause, and whistleblower protections.

Appropriate OSHA personnel, such as compliance safety and health officers and whistleblower investigators—including those in states that operate their own occupational safety and health programs under an OSHA-approved state plan (e.g., California, Michigan, and Virginia) will be trained on which activities constitute concerted activity under Section 7 of the NLRA, what constitutes an unfair labor practice under Section 8(a) of the NLRA, and on the basic procedures for investigating and adjudicating unfair labor practice charges.

Finally, the MOU states that, when appropriate, OSHA and the NLRB shall jointly engage in various public-facing outreach efforts, such as attendance at conferences and events, posts on social media, and co-developing joint policy statements and other guidance materials. Indeed, the agencies released a joint resource, Building Safe & Healthy Workplaces by Promoting Worker Voice, which provides federally endorsed tools for employers and employees on efforts to create and maintain safe workplaces.

KEY TAKEAWAYS

Employers faced with OSHA-related investigations should involve labor law counsel when submitting any responses and/or engaging with agency officials on employee complaints and/or disciplinary situations that easily could trigger unfair labor practice charges under the NLRA.

Statements or admissions made in one forum will impact the other. With the NLRB generally deeming all forms of employee advocacy at work, even a single employee raising a purported group safety concern or issue, as legitimate protected, concerted activity, employers should anticipate that the interagency dealings will result in dual-tracked investigation and/or litigation over the same conduct.

This MOU also could take on much broader implications if OSHA finalizes its proposed rule, Worker Walkaround Representative Designation Process, where OSHA seeks to amend 29 CFR § 1903.8, Representatives of employers and employees (“walkaround rule”). The proposed walkaround seeks to empower OSHA compliance safety and health officers to designate union organizers, community activists, or any other third-party representatives to accompany OSHA on an inspection of a workplace simply on the basis of an employee request.

Evaluating the strength of safety and health programs and identifying areas of proactive enhancement will offer protections from the coordinated enforcement efforts of OSHA and the NLRB, and employers will benefit from knowing their rights during OSHA inspections and investigations.