The National Labor Relations Board (the Board) and the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently announced the signing of a renewed Memorandum of Understanding (MOU), This latest MOU marks the second interagency agreement signed by the Board this year aimed at strengthening and reinforcing the Board’s expanding enforcement efforts.

The MOU outlines procedures for interagency information-sharing, referrals, training and outreach that explain federal anti-retaliation protections. Under the terms of the MOU, the Board and OSHA may share, either upon request or upon the respective agency’s own initiative, any information or data that supports each agency’s enforcement mandates, whether obtained during an investigation or through any other sources to the extent permitted by law. Such actions may include complaint referrals and other sharing of information in complaint or investigative files relating to alleged violations of the National Labor Relations Act and laws enforced by OSHA.

Historically engaged in coordinated enforcement efforts, this latest MOU continues the practice “where doing so would facilitate” the enforcement actions of one or both agencies. Cooperation efforts encompass not only federal but state Board agencies and OSH administrations via the OSH Act State Plans.

While cooperation between the two agencies encompasses a broad range of statutory protections, the MOU calls specific attention to OSHA anti-retaliation statutory provisions including various whistleblower protections. Generally, employers may not discharge or retaliate against an employee because the employee has filed a complaint or otherwise exercised other rights provided to employees under various OSHA anti-retaliation provisions.

Employers can take the following steps to help mitigate their risk of potential violations:

• Audit internal OSHA and Cal/OSHA mandated safety practices to assure compliance with state and federal OSH Act laws.
• Train all personnel on proper safety practices and whistleblower protections (e.g., anti-retaliation provisions).
• Provide in-depth training on proper safety practices and whistleblower protections for supervisory personnel.
• Audit existing safety policies to ensure compliance with state and federal laws.
• Hold employees accountable for violations of company safety policies and practices.
• Review all company policies – including safety policies – to ensure they do not conflict with National Labor Relations Act protections.

Employers with questions concerning safety and health practices/audits or potential National Labor Relations conflicts should contact Western Growers.