NLRB and Department of Labor: One Hand Washes the Other to Promote Cross-Filed Complaints

Our colleagues at Jackson Lewis’ OSHA Law Blog recently reported that the Occupational Safety and Health Administration of the Department of Labor (DOL) and the NLRB had entered into an agreement whereby OSHA would notify complainants who file untimely OSHA retaliation charges of their right to file an unfair labor practice charge with the NLRB. NLRB GC MEMORANDUM OM 14-60, May 21, 2014. (See OSHA Law Blog, OSHA and NLRB Update Referral Agreement.)

Now comes word that the NLRB intends to reciprocate. Supplementing its earlier memorandum, the Board’s General Counsel’s Office reminds the agency’s regional directors that “there may be occasions during the processing of an NLRB charge when it may be appropriate to apprise the Charging Party or a witness of his or her right to contact OSHA and/or the Wage and Hour Division [WHD] of the … [DOL] to discuss the filing of a complaint with those agencies.”(OM 14_77 OSHA Wage and Hour Referral Procedures). This may occur at any stage of the case intake or investigative process, the Memorandum instructs, whenever the regional office believes an employer may have violated a substantive or anti-retaliation provision of the OSH Act or the Fair Labor Standards Act.

Furthermore, if the NLRB learns during the processing of an unfair labor practice charge that OSHA or the WHD “is handling a parallel investigation into a violation of their statutes, the Region should coordinate case processing with the DOL” by contacting the local DOL Regional Solicitor (not the Labor Department office investigating the alleged DOL violation).

The General Counsel’s Office cautions that Regional personnel are not expected to become experts on the construction of the DOL statutes, and that a referral is appropriate only where the regional officials “believe that a possible violation of the OSH Act or the FLSA present themselves,” but encourages referring to DOL website informational pages and even suggests that NLRB regional offices “develop training vehicles” for their personnel.