By Kerry M. Mohan and Craig B. Simonsen
In a remarkable announcement, OSHA Administrator Dr. David Michaels has just issued a Decision on Referring Untimely 11(c) Complainants to the National Labor Relations Board (Decision), OM-14-60 (May 21, 2014).
This announcement comes just weeks after Dr. Michaels testified at a hearing before the Senate Subcommittee on Employment & Workplace Safety. We had previously blogged about the topic of discussion, which was “Whistleblowers and Job Safety: Are Protections Adequate to Build a Safer Workplace?” One of the suggestions that Dr. Michaels made was to extend the statute of limitations for filing Section 11(c) complaints.
Section 11(c) of the Occupational Safety and Health Act of 1970 provides that “no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.” Employees may file complaints with OSHA alleging retaliation prohibited by Section 11(c).
The Decision notes that many employee OSHA related safety activities involve “concerted activity protected under the National Labor Relations Act” that may be protected under both Acts. OSHA and the NLRB had previously signed an Memorandum of Understanding (MOU) in 1975 that outlined the procedures for handling worker safety retaliation complaints filed with both or either agency. The MOU generally provided that where a complaint was filed with both agencies, enforcement actions would primarily be taken under the OSH Act, rather than the NLRA.
Section 11(c) requires that complaints be filed with OSHA within 30 days of the alleged adverse action. According to the Decision, hundreds of Section 11(c) complaints are “screened out or dismissed each year” because the complaint was not filed in a timely manner. The Decision, though, comments that some of these complainants may be able to file a charge alleging unfair labor practices with the NLRB:
In an effort to improve customer service for these complainants, as well as improve cooperation between OSHA and the NLRB, the Directorate of Whistleblower Protection Programs and the Office of the Solicitor recommend that OSHA refer complainants who have filed, or attempted to file, untimely complaints under Section 11(c) to the NLRB.
The Decision recommends that “OSHA personnel will advise all complainants who have filed, or attempted to file, an untimely Section 11(c) complaint to also contact the NLRB to inquire about filing a charge alleging unfair labor practices” (emphasis added). The Decision also states that:
OSHA will advise the complainant that they may file a charge with the NLRB and that the NLRB time limit to file (6 months) is longer than OSHA’s (1 month) and therefore OSHA recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights. OSHA personnel should then give the complainant the contact information for the complainant’s appropriate NLRB Field Office, which can be found at http://www.nlrb.gov/who-we-are/regional-offices, and the NLRB’s toll-free number, 1-866-667-NLRB.
This top-down enhancement of OSHA’s whistleblower program enforcement activities, pushing otherwise failed cases over to the NLRB for litigating is something that employers should note. When it’s over, it may not be over.