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NLRB partners with other agencies on enforcement efforts

August 28th, 2014  |  David Stephanides

On August 8, National Labor Relations Board Associate General Counsel Anne Purcell announced in Memorandum OM 14-77 that there may be occasions during the processing of an NLRB charge where it also would be appropriate to apprise a charging party or a witness of his or her right to contact OSHA and/or the Wage and Hour Division (WHD) of the Department of Labor to discuss the filing of a complaint with those agencies. Purcell’s memorandum compliments an earlier directive (Memorandum OM 14-60, “OSHA Referred Charges”) wherein it was announced that the NLRB had entered into a program with OSHA under which that agency will notify all complainants who file an untimely OSHA retaliation charge of their right to file an unfair labor practice charge over the same conduct with the NLRB.

In her latest memo, Purcell stresses that “regional staff are not expected to be experts” in the construction of the OSH Act or the FLSA, or the rights that either agency protects. Board agents should invoke the procedures under the memorandum only where they believe that a possible violation of the OSH Act or the FLSA presents itself.

These memos, clearly indicating the Board’s continued staunch commitment to worker rights, have spurred words of caution from practitioners across the country. Noteably, Board agents only have to suspect a violation of the OSH Act or the FLSA. Employers have been warned that other agencies could become involved once an unfair labor practice charge has been initiated. Example: An employee, a union member, complains to a Board agent that she has been disciplined for using break time for nursing mothers; time that is lawfully set aside in FLSA, Sec. 207(r). Given the potentially illegal infringement her FLSA rights, this employer may expect an investigation from both the NLRB and the DOL WHD.