NLRB to Salvage Stale OSHA Whistleblower Claims | Practical Law

NLRB to Salvage Stale OSHA Whistleblower Claims | Practical Law

The National Labor Relations Board (NLRB) announced a new cooperative effort with the Department of Labor's Occupational Safety and Health Administration (OSHA) to effectively salvage health and safety whistleblower retaliation complaints that were untimely under Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act). Where OSHA agents receive whistleblower claims beyond Section 11(c)'s 30-day limitations period, they must instruct tardy complainants about the NLRB and their prospective National Labor Relations Act (NLRA) rights and suggest they immediately contact the NLRB to file an unfair labor practice (ULP) charge based on the substance of their untimely OSHA complaint.

NLRB to Salvage Stale OSHA Whistleblower Claims

Practical Law Legal Update 7-569-1526 (Approx. 5 pages)

NLRB to Salvage Stale OSHA Whistleblower Claims

by Practical Law Labor & Employment
Published on 28 May 2014 • USA (National/Federal)
The National Labor Relations Board (NLRB) announced a new cooperative effort with the Department of Labor's Occupational Safety and Health Administration (OSHA) to effectively salvage health and safety whistleblower retaliation complaints that were untimely under Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act). Where OSHA agents receive whistleblower claims beyond Section 11(c)'s 30-day limitations period, they must instruct tardy complainants about the NLRB and their prospective National Labor Relations Act (NLRA) rights and suggest they immediately contact the NLRB to file an unfair labor practice (ULP) charge based on the substance of their untimely OSHA complaint.
On May 21, 2014, the Office of the General Counsel of the NLRB released a memorandum announcing that it has entered into a new cooperative effort with OSHA to effectively salvage health and safety whistleblower retaliation complaints that were untimely under Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act). Where OSHA agents receive whistleblower claims beyond Section 11(c)'s 30-day limitations period, they must:
  • Instruct tardy complainants about the NLRB and the employees' prospective NLRA rights.
  • Suggest they immediately contact the NLRB to file an unfair labor practices (ULP) charge based on the substance of their untimely OSHA complaint.
The NLRA provides a more generous six month limitations period for filing ULP charges.
The NLRB's memorandum states that in 300 to 600 cases each year, complainants seeking to assert an OSH Act whistleblower claim learn that their complaint is untimely under Section 11(c). Some of these cases may also raise claims under the NLRA, for example, retaliation against employees who complain of health and safety issues with or for the benefit of other employees.
To address these situations, on March 6, 2014, OSHA Assistant Secretary David Michaels signed a memorandum agreeing to notify all complainants who file an untimely whistleblower complaint under the OSH Act of their right to file a charge with the NLRB. Michael's memorandum states that to improve customer service and cooperation between OSHA and the NLRB, the Directorate of Whistleblower Protection Programs and the NLRB's Office of the Solicitor recommend that OSHA refer complainants who have filed untimely complaints under Section 11(c) of the OSH Act to the NLRB.
To implement this recommendation, OSHA will provide its agents with the following documents that include the NLRB's contact information for use in telephone, in-person or written communications with tardy OSH Act whistleblower complainants:
To track OSHA referrals, the NLRB plans to:
  • Include a "Referred by OSHA" and a "Referred by Other Agency" option in the Method of Contact field of its IO Inquiry record.
  • Set up a separate toll-free number for OSHA-referred complainants to use.
The NLRB will also provide training and information about the NLRA to staff in OSHA's regional offices.
This new cooperative effort between the NLRB and OSHA continues a trend of the NLRB engaging in outreach and inter-agency cooperation to cast a broader net for prospective NLRA violations. For example, see Legal Updates, DOJ and NLRB Agree to Share Information and Coordinate Investigations and NLRB Releases Mobile App.