Hunton Employment & Labor Perspectives

The National Labor Relations Board (NLRB) and the Occupational Safety Health Administration (OSHA) recently signed a Memorandum of Understanding (MOU) to coordinate investigations and enforcement actions between the two agencies.  The MOU is the latest step by OSHA to blur the lines between workplace safety law and labor law, and could result in more workplace citations from OSHA or unfair labor practice charges filed with the NLRB.

In September 2023, OSHA announced a proposed rule that would allow an outside third party selected by employees to accompany an OSHA compliance safety and health officer (CSHO) during a “walk around” inspection of a worksite.  CSHOs conduct walk arounds as part of a workplace safety inspection or under an OSHA emphasis program.  Current regulations specify that a CSHO can be accompanied during these inspections by an employee representative or a third party representative with specialized safety knowledge.  But under the proposed rule, employees may select any third-party representative so long as their participation is reasonably necessary to the inspection.  So, under OSHA’s proposed rule, employees at a workplace may designate a third-party union official to serve as their walkaround representative, even if the union does not represent the relevant employees in collective bargaining or have any safety experience.

The MOU is consistent in theme with the proposed rule.  Under the MOU, the NLRB and OSHA have agreed to facilitate the exchange of information, including information about complaint referrals and investigative files relating to the National Labor Relations Act and laws enforced by OSHA.  The MOU directs OSHA to counsel employees who have failed to meet OSHA deadlines for 11(c) retaliation claims to file unfair labor practice charges (ULPs) with the NLRB.  NLRB has a longer time period within which to file ULPs than the time period within which OSHA retaliation claims must be filed.  And, the NLRB will likewise “promptly share with OSHA information related to workers currently or likely exposed to safety hazards or suspected violations that OSHA enforces and/or encourage affected individual(s), representatives, or labor organizations to promptly contact OSHA.”  This exchange of information will lead to NLRB officials interpreting workplace safety law and OSHA officials interpreting labor law.  The MOU concedes as much, as it directs the agencies to conduct reciprocal training for their employees on labor and workplace safety laws to help implement the MOU’s directives.

Under Section IV, the NLRB and OSHA expressly agree to coordinate investigations and inspections with the purpose of “facilitat[ing] enforcement actions.” This cooperation could pose particular risks for employers. OSHA has the authority to enter an employer’s premises to conduct safety inspections for specific legally authorized reasons, none of which includes the possible violation of labor law. If OSHA now seeks to expand that authority to investigate labor law compliance issues under the MOU, it could provide the NLRB with access to information it otherwise could not obtain directly. It also increases the likelihood that employees or unions will simultaneously file unfair labor practice charges along with OSHA complaints to encourage the agencies to conduct joint investigations.

The MOU raises the stakes for employers subject to union organizing or activity to focus on workplace safety issues.  Employers without any union activity at their sites may not see much impact from the MOU; but, at sites with active or potential union activity, it is reasonable to expect employees to turn to OSHA as an additional ally to exert pressure on employers.  Employers should be sure they know their rights under both the OSH Act and the National Labor Relations Act so they will be prepared if they are subject to coordinated investigation from the two agencies.