OSHA and the NLRB have announced implementation of a joint referral agreement to redirect to the Labor Board OSHA complainants whose claims of discrimination under the OSH Act are time barred, but may form the basis of timely unfair labor practice charges under the NLRA. The accord was disclosed by NLRB Associate General Counsel Purcell in a May 21, 2014, memorandum to all Board field staff.
Section 11 (c) of the Occupational Safety and Health Act requires that discrimination complaints be filed with OSHA within thirty (30) days of the wrongful conduct. By OSHA’s estimate, between 300 and 600 complaints are screened out or dismissed each year because the complaining employee fails to file a complaint with the safety agency within 30 days. Beginning in March 2014, the OSHA Office of Whistleblower Protection Programs has instructed OSHA staff to advise complainants who miss the OSHA filing deadline of their right to file a charge relating to the same conduct with the NLRB within the six-month statute of limitations of the National Labor Relations Act. The agencies reason that in a number of cases, the complained-of conduct may be “concerted” in nature and thus implicate the NLRA’s protections as well as OSHA’s.
OSHA’s policy is to advise complainants with untimely charges of the right to file charges with the NLRB, that the statute of limitations for doing so is six months, and that OSHA “recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.” OSHA personnel are also to provide the complainant contact information for the nearest NLRB Field Office, the NLRB website, and the NLRB’s toll-free number.
NLRB AGC Purcell directed Board field staff to be alert for such referrals, and to record the number of OSHA-referred charging parties. The agreement between OSHA and NLRB builds on the cooperation between the two agencies pursuant to a Memorandum of Understanding signed in 1975 for handling workers’ safety retaliation complaints which might be filed with either or both agencies. In that MOU, it was agreed that enforcement actions should be taken primarily under the OSH Act, rather than the National Labor Relations Act. The new agreement reflects in part the NLRB’s continuing emphasis on the expansion protected concerted activity claims, even in the absence of union-related activities.