OSHA and the National Labor Relations Board (NLRB) have  teamed up to handle whistleblower complaints.

According to a May 21 NLRB memorandum,  whistleblowers who miss OSHA’s statutory 30-day  deadline for filing a complaint under Section 11(c) of the  Occupational Safety and Health (OSH) Act will be advised  to consider filing an unfair labor practice grievance with  NLRB.  Section 11(c) prohibits an employer from  discriminating against an employee because the employee  reports an injury or illness. According to the memo, OSHA  estimates some 300 to 600 cases per year are rejected as  untimely.  The much longer deadline for filing a charge with the NLRB is six months.

“It is likely that some of these cases may also raise claims  arising under the National Labor Relations Act; for  example, instances of employer retaliation for group  complaints concerning unsafe working conditions,” the  memo stated.  

Besides advising complainants to consider contacting  NLRB, OSHA also will provide them with a toll-free number  for that purpose.

The NLRB action comes in response to a March 6 decision  memorandum from OSHA administrators outlining a  cooperative effort between the two agencies, Bloomberg  BNA reported.  The OSHA memo stated that although  there may be safety and health activities by individuals  that are protected solely under the OSH Act, employee  safety efforts that involve group activities are protected by  the National Labor Relations Act.  It noted, in particular, Section 7 of the NLRA, which states that employees have  the right to “engage in concerted activities for the purpose  of collective bargaining or other mutual aid or protection.”

OSHA administrator David Michaels and some lawmakers  have pushed Congress to extend the OSHA deadline for  filing discrimination complaints to 180 days, but with no  success to date.  The OSHA-NLRB cooperative  arrangement could be viewed as a way to get around  congressional inaction.

Employers could face tougher sanctions from NLRB than  from OSHA.  Since NLRB is focused on groups of workers,  not individuals, it could demand changes to personnel  policies and seek injunctions, labor activist Eric Frumin told  Bloomberg BNA. Frumin is also a member of OSHA’s  whistleblower advisory committee.  OSHA typically does  not take either action in whistleblower cases. The OSHA-NLRB arrangement seems ill-advised.  The vast  majority of OSHA 11(c) complaints are likely to be solo  claims— that could not be considered by NLRB as  concerted activity. 

In addition, according to a recent analysis of OSHA 11(c)  complaints, more than half of the 12,502 claims filed  between fiscal years 2011 and 2013 were rejected.  Of  these, most ended because the worker either withdrew the  claim or the claim was dismissed, making it even less likely  that involving NLRB in OSHA whistleblower complaints  represents sensible policy.