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Aug. 11 - National Labor Relations Board regional offices that discover an employer's apparent violation of federal safety or wage and hour laws should advise employee charging parties of their rights to file Labor Department complaints, according to an Aug. 8 memorandum by an NLRB official.
NLRB Associate General Counsel Anne Purcell wrote in Memorandum OM 14-77 to the regional offices that witnesses in unfair labor practice investigations may divulge "facts that suggest" an employer has violated the Occupational Safety and Health Act or the Fair Labor Standards Act.
In such a case, an NLRB agent should notify the charging party or appropriate representative that safety complaints may be filed with the DOL's Occupational Safety and Health Administration, and wage and hour complaints can be directed to the DOL's Wage and Hour Division, the associate general counsel wrote.
Purcell said her memorandum supplements Memorandum OM 14-60, which described an OSHA program to inform whistle-blowers who fail to file timely retaliation complaints with DOL under Section 11(c) of the federal workplace health and safety law that they may file charges with the NLRB alleging that the same conduct interfered with the right of employees under the National Labor Relations Act to engage in concerted activity for their mutual aid or protection.
"Conversely," Purcell wrote, "there may be occasions during the processing of an NLRB charge where it also would be appropriate to apprise the Charging Party or a witness of his or her rights to contact OSHA and/or the Wage and Hour Division (WHD) of the Department of Labor (DOL) to discuss the filing of a complaint with those agencies."
Information obtained in NLRB investigations could suggest the presence of OSHA or FLSA violations if witnesses disclose facts indicating that an employer required employees to work under unsafe or unhealthy conditions or failed to properly pay employees for all the hours they work, the memorandum said.
Purcell wrote that regional offices may "coordinate case processing" if they learn that OSHA or WHD is handling an investigation that parallels an NLRB unfair labor practice proceeding, but contacts with DOL should be made through the Solicitor of Labor rather than directly with OSHA or WHD.
The associate general counsel said NLRB employees are not expected to be experts in the construction of the FLSA or the OSH Act, and they "should invoke the procedures under this memorandum only where they believe that a possible violation of the OSH Act or the FLSA presents itself."
Purcell said regional office management may consider partnering with OSHA or WHD to develop training programs for NLRB employees.
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Text of Memorandum OM 14-77 is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9mvmcv .
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