The Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) have agreed to make sure that that some worker complaints to OSHA under its compliance provisions will be handed over to the NLRB as unfair labor practice complaints. Specifically, OSHA will advise any worker who misses its deadline for registering a complaint to turn his or her complaint into an unfair labor practice charge with the NLRB instead. The agreement came in the form of a Memorandum of Understanding (MOU) between the two agencies.
According to the MOU, the Directorate of Whistleblower Protection Programs (DWPP) and the Office of the Solicitor (SOL) recommended that OSHA now adopts the following policy:
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. OSHA personnel must first . . . (discuss) . . . the complainant’s rights under Section 11(c) and options with respect to untimely filed complaints . . .
After such discussions, OSHA personnel will then advise complainants regarding their ability to contact the NLRB. OSHA will advise the complainants 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.”
Under Section 11(c) of OSHA, a worker who suffers or sees a violation of the law only has 30 days to make a complaint against an employer to OSHA. However the National Labor Relations Act has a six-month statute of limitations for complaint filings. Therefore, this agreement effectively gives the worker an extension of up to five months to file the complaint.
Although the OSH Act gives the employee protection against retaliation by the employer for making a complaint to OSHA, it is thought that being able to go to the NLRB gives the employee who is wary of the consequences of filing a complaint a convenient alternative strategy for pursuing his or her concerns.
Attorney Mathew Austin reports the actions the OSHA representatives are to take, per the MOU, if they receive a complaint outside the 30-day statute of limitations in the OSHA law:
- 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 National Labor Relations Act (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.
- You may also locate your nearest NLRB Field Office at www.nlrb.gov/who-we-are/regional-offices (OSHA may want to look up the nearest office and provide the number and address).
As reported in recent articles in everythingpeople.™ This Week!, the NLRB is taking non-union employers’ handbooks and other policies to task if they in any way can be perceived as a hindrance to union organizing. Even policies intended to promote employee etiquette have become suspect.
These actions are further indications that the NLRB wants to become the agency of last resort for employees with issues of any kind vs. their employers. It was once a backwater agency that focused on union or soon to be unionized employers only. But the dramatic reduction in union membership has compelled the agency to break out of its shell and become the agency for disgruntled workers to go to if they have nowhere else to plead their case.