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.