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The U.S. Occupational Safety and Health Administration has released a proposed rule that would set new workplace permissible exposure limits (PELs) for respirable crystalline silica at half of what is currently permissible in Oregon. Here, the PEL allowed for crystalline silica is 0.1 milligrams per cubic meter of air averaged over an eight-hour period. The proposed federal rule would be 0.05 milligrams.

The proposed rule includes other ancillary provisions for employee protection, such as preferred methods for controlling exposure, respiratory protection, medical surveillance, hazard communication and recordkeeping.

Occupational exposure to airborne silica dust occurs in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products, and in operations using sand products, such as glass manufacturing, foundries and sand blasting.

The proposed rule sets separate standards for construction versus general industry and maritime employment. The standard applicable to the construction industry would require employers to:

鈥� measure the amount of silica to which workers are exposed if the exposure amount may be at or above 25 micrograms of silica per cubic meter of air, averaged over an eight-hour day;

鈥� protect workers from respirable crystalline silica exposures above the PEL of 50 micrograms, averaged over an eight-hour day;

鈥� limit workers鈥� access to areas where they could be exposed to levels above the PEL;

鈥� use dust controls to protect workers from silica exposure to levels above the PEL;

鈥� provide respirators to workers when dust controls cannot limit exposure to the PEL;

鈥� offer medical exams 鈥� including chest X-rays and lung function tests 鈥� every three years for workers exposed to levels above the PEL for 30 or more days per year;

鈥� train workers on work operations that result in silica exposure and ways to limit exposure; and

鈥� keep records of workers鈥� silica exposure and medical exams.

OSHA will begin holding public meetings on the proposed rule in March 2014.

NLRB woes not over yet

A Washington state federal court has determined that National Labor Relations Board Acting General Counsel Lafe Solomon was not properly appointed to his position. This decision comes on the heels of recent challenges to the NLRB鈥檚 authority under President Obama鈥檚 recess appointments of board members Sharon Block and Richard Griffin.

Hundreds of NLRB decisions reached after Block鈥檚 and Griffin鈥檚 appointments have been called into question as the courts, including the U.S. Supreme Court, determine whether those appointments were valid.

Last month, a federal district court in Washington granted an employer鈥檚 motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating employees for engaging in concerted activity. In reviewing the employer鈥檚 arguments, the court found that the NLRB did not have the power to issue a complaint against the employer in the first instance, because the NLRB lacked a properly appointed quorum of at least three members.

Because President Obama appointed two of the three sitting board members through recess appointment power when the U.S. Senate was technically still in session, the court found that those two appointments were invalid. Thus, the court reasoned, the board did not have a quorum to act and, without a quorum, could not have legally issued the complaint that served as the basis for the injunction petition.

In response, the NLRB argued that even if it did not have the legal authority to issue a complaint, Solomon, whose office investigates and prosecutes unfair labor practice charges, could delegate his statutory authority to the regional director to initiate a suit for injunctive relief against the employer.

The court dismissed that argument as well, finding that Solomon鈥檚 appointment was also invalid. President Obama appointed Solomon to the position pursuant to the Federal Vacancies Reform Act.聽 The FVRA, however, authorizes the appointment of an individual to acting general counsel only if the appointee within the past year served as the 鈥渇irst assistant鈥� or deputy general counsel. After discovering that Solomon never served as deputy general counsel, the court ruled that Solomon鈥檚 appointment was invalid. Accordingly, Solomon could not have lawfully delegated authority to the regional director to file a petition for injunction in federal court.

This decision may prompt a strong response from employers facing unfair labor practice litigation before the NLRB. The questionable validity of Solomon鈥檚 appointment may provide an additional affirmative defense for employers. However, it seems unlikely that the NLRB will change its approach to litigation based on Solomon鈥檚 status unless and until the U.S. Supreme Court affirms the ruling.

NLRB undaunted by notice decision

Now that two federal appellate courts have invalidated the NLRB鈥檚 rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act, the NLRB has developed a new way to disseminate this information. On Aug. 30, the board launched a mobile app that provides employers, employees and unions with information regarding their rights and obligations under the NLRA.

This app links to sections of the NLRA describing the rights enforced by the NLRB, as well as contact information for NLRB regional offices. In addition, the app 鈥渄etails the process the NLRB uses in elections held to determine whether employees wish to be collectively represented.鈥� The free app is available for both iPhone and Android users.

聽Don Stait is Special Counsel in Littler Mendelson鈥檚 Portland office. Contact him at 503-889-8874 or [email protected].