Jun 13, 2014

NLRB Attempts to Expand its Reach with OSHA Referral Agreement

On May 21, 2014, the National Labor Relations Board (“NLRB”) began a joint-referral program with the Occupational Safety and Health Administration (“OSHA”) that will assist whistleblowers who fail to bring their claim in a timely manner pursuant to OSH Act’s Section 11(c).  Section 11(c) establishes a 30-day statute of limitations for any employee who instituted an action under the OSH Act to bring a claim of discrimination.  However, OSHA estimates that 300 to 600 complainants each year either decline to file charges or their charges are dismissed because they failed to adhere to the 30-day limit.

The NLRB asserts that many of the complaints arising under the OSH Act may also give rise to unfair labor practices that violate the National Labor Relations Act (“NLRA”), which provides for a six-month statute of limitations.  Specifically, the NLRB points to the potential for handling claims involving employer retaliation for group complaints concerning unsafe working conditions.  To address these situations, OSHA Assistant Secretary David Michaels signed a memorandum agreeing to notify all complainants who file an untimely whistleblower charge with OSHA of their right to file a charge with the NLRB.

Furthermore, OSHA intends to educate its agents on the NLRB and to provide contact information for use in telephone or in-person conversations with complainants with untimely whistleblower claims.  OSHA will also provide information regarding the NLRB and the potential for claimants to file timely unfair labor practice claims in their letters administratively closing claims that are untimely under Section 11(c).  The NLRB will also track the number of contacts received as a result of OSHA referrals and provide a separate toll-free number for use by those referred by OSHA.

The agreement builds on a Memorandum of Understanding signed in 1975 between OSHA and the NLRB for handling workers’ safety retaliation complaints that stated such claims should be primarily handled under the OSH Act rather than the NLRA.  The agreement is indicative of the NLRB’s continued attempts to expand its regulatory function over protected concerted activity claims, regardless of whether the parties were involved in any union-related activity.  If you have any questions or concerns regarding the referral agreement, please do not hesitate to contact your Labor & Employment Counsel at Smith, Gambrell & Russell, LLP.

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