NLRB Memoranda Encourage Cooperation Between OSHA, WHD and NLRB In Advising Employees of Possible Claims

Date: August 13, 2014

Recent memoranda issued by the General Counsel of the NLRB's Operations Management Division make it clear that OSHA, Labor's Wage and Hour Division, and the NLRB Regional Offices are going to be taking a more coordinated, less compartmentalized approach to addressing workplace complaints.  The memoranda also encourage personnel from those agencies to advise claimants about possible claims under other labor laws.

The National Labor Relations Board's Office of General Counsel, Operations Management Division, recently issued a Memorandum (OM 14-77) to the NLRB's Regional Directors, Officers-in-Charge and Resident Officers that promotes a more active role of NLRB officers in referring possible OSHA or Wage and Hour violations.  The Memorandum supplements an earlier one, OM 14-60, which instructed OSHA personnel to notify complainants who file an untimely OSHA retaliation charge of their right to file an unfair labor practice charge with the NLRB over the same conduct.  Memorandum OM 14-77 promotes similar involvement by NLRB personnel when they learn of possible OSHA or Wage and Hour violations.  According to the Memorandum, “[i]f the Region believes that an employer may have violated a substantive or anti-retaliation provision of the OSH Act or the FLSA (Fair Labor Standards Act), the Board agent should notify the charging party that he or she (or their representative) has the right to file a complaint with OSHA or WHD (Department of Labor Wage and Hour Division), respectively.”   The Memorandum also encourages the Regions to coordinate with OSHA or WHD if they learn of parallel investigations regarding the same employers. 

General Counsel stresses, however, that Regional personnel “are not expected to be experts in the construction of the OSH Act or the FLSA, or the rights that either agency protects.”  Nonetheless, the Memorandum suggests a low threshold for making recommendations to complainants:  “Board agents should invoke the procedures under this memorandum only where they believe that a possible violation of the OSH Act or the FLSA presents itself.”