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On May 21, 2014, the National Labor Relations Board (NLRB) published a memo discussing a new agreement about a back-door route for employees to file safety-related whistleblower claims that are too stale to be filed with the Occupational Safety and Health Administration.

The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” 

NLRB via Eric Conn

A new NLRB memo about an agreement with OSHA opens a "back door" to safety complainants who miss OSHA's deadlines.

As a result of this agreement, employers should expect an increase in unfair-labor-practice claims by employees alleging retaliation for protected safety-related whistleblower activity.

Differing Deadlines

Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file such complaints within 30 days of the triggering adverse action.

The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before a Senate subcommittee that between 300 and 600 such complaints per year (roughly 10 percent) were filed beyond the 30-day deadline.

At least 100 of these complaints missed the deadline by less than a month, he said.

Wikimedia Commons

OSHA's whistleblower program enforces 20-plus statutes protecting employees who report workplace safety violations in pipelines and other industries.

The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and provides for a much longer statute of limitations.

Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.”  Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

The NLRA has a six-month statute of limitations for claims of unfair labor practices.

New Advice

Because the NLRA’s statute of limitations is longer than OSHA’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA.

OSHA

Some complainants who miss OSHA's 30-day deadline may get a second chance with the NLRB.

The agents will explain the employee's right to file such claims with the NLRB, where their claims could still be timely.

However, the claim must involve "concerted activities" to qualify for protection as an unfair labor practice. Thus, not every employee who was unable to file a timely OSHA complaint will have a viable claim, even if it is timely under the NLRA.

Talking Points

The NLRB has provided a set of talking points to OSHA to help its agents discuss these rights with employees. They include:

• OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge alleging unfair labor practices.
• The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
• The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
• OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.

OSHA via Eric J. Conn

New talking points will guide OSHA agents in advising employees who complain of safety issues.

OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.

Safety First

Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement.  Congress intended that employees file safety-related whistleblower complaints very quickly, which is why it set such a short limitations period.

The short deadline makes sense because safety and health issues pose special risks. It is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting could have grave consequences.

maritimetrades.org

Lengthening the tight deadlines for safety-related whistleblower complaints in the maritime and other industries could compromise safety.

Creating a loophole or back door to extend the filing deadline for such claims could discourage timely reporting under the OSH Act. Moreover, this policy increases the likelihood that the NLRB, which lacks OSHA's knowledge of safety and health regulations, will be making decisions and setting precedent regarding OSHA regulatory issues.

Masquerading Claims

This will almost certainly lead to inconsistent and unintended applications of OSHA’s regulatory scheme, as well as confusion for employers and employees.

The anticipated surge in stale safety whistleblower claims masquerading as unfair-labor-practice charges will likely drive up the costs of investigating and litigating meritless claims.

Employers should also be aware of the potentially harsher sanctions associated with safety whistleblower issues. The NLRB can seek remedies not available to OSHA, such as injunctive relief and orders that require employers to change policies and procedures.

Finally, this new policy will likely result in unions involving themselves more frequently in safety issues because of their familiarity with NLRB procedures and personnel.

ABOUT THE THE BLOGGER Eric J. Conn Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric. SEE ALL CONTENT FROM THIS CONTRIBUTOR