NLRB and OSHA Create Interagency Program to Extend the Life of Whistleblower Claims

Volume 13, Issue 7
May 28, 2014

On May 21, 2014, the National Labor Relations Board's Office of the General Counsel issued an operations management memorandum (OM 14-60) to inform all of its regional directors and resident officers of a new program between the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) in which OSHA investigators will notify all complainants who file untimely whistleblower charges of their right to file charges with the NLRB. A revised administrative closure letter and a set of talking points have already been issued to OSHA investigators so they can provide untimely complainants with a toll-free number to contact the NLRB and instructions on how to find the nearest NLRB office.

OSHA estimates between 300 to 600 whistleblower cases are dismissed each year given the 30-day statute of limitation period imposed by Section 11(c) of the Occupational Safety and Health Act (29 U.S.C. § 660(c)). Whereas unfair labor practice charges under the National Labor Relations Act (NLRA) are subject to a 6-month statute of limitation. The two agencies seek to exploit the overlap they sometimes share when actions illegal under OSHA are also illegal under the NLRA. For example, employer retaliation against a group of employees expressing concerns about unsafe working conditions can violate both § 11(c) of OSHA, as well as § 7 of the NLRA, which prohibits taking adverse action against employees for working together to improve their workplace conditions, regardless of whether they are in a union or not.

As most safety-related concerns rarely apply to only one employee, it is highly probable the NLRB will view the vast majority of such safety-related complaints as involving some form of group action for employees' mutual aid and protection protected by the NLRA. Thus, employers should anticipate an increase in the number of NLRB charges that ordinarily would have been dismissed as time-barred OSHA whistleblower complaints.

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