OSHA to Refer Stale Whistleblower Claims to NLRB

The National Labor Relations Board (“NLRB”) and the Occupational Safety and Health Administration (“OSHA”) have entered into a program together for the referral of untimely whistleblower claims, according to a May 21 memo from NLRB Associate General Counsel Anne Purcell to NLRB regional directors and officers. Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) prohibits employers from retaliating against an employee for filing a complaint with OSHA or otherwise exercising rights under the OSH Act.  The statute further provides that the employee has only 30 days from the date of the alleged retaliation to file a charge of retaliation with OSHA.  According to OSHA, hundreds of such “whistleblower” complaints are screened out or dismissed each year because the employee failed to complain to OSHA in a timely manner.  In contrast, the National Labor Relations Act (“NLRA”) gives employees six months to file an unfair labor practice charge with the NLRB.  In some cases, the basis of a Section 11(c) retaliation claim under OSHA also raises a claim of an unfair labor practice under the NLRA.  Recognizing that, and “in an effort to improve customer service for these complainants,” OSHA established a new policy and process for referring untimely Section 11(c) charges to the NLRB. A March 6 OSHA memo attached to the May 21 NLRB memo describes this policy and process.  It explains that OSHA personnel will inform all employees who have filed or attempt to file a Section 11(c) charge past the 30-day limit of their ability to file a charge with the NLRB within six months and will provide such employees with the NLRB’s contact information.  To help prepare them for these tasks, OSHA staff will be given brief talking points about the NLRB.  Draft talking points are attached to the NRLB memo.  Also attached is a template letter for OSHA regional administrators to send to employees about the untimeliness of their Section 11(c) complaint and the option of contacting the NLRB. The NLRB memo further advises that the NLRB wishes to track the number of contacts it receives and charges it dockets as a result of such OSHA referrals.  The agency has established a special toll-free number for such referrals and is revising its internal systems to facilitate such tracking.  The memo also encourages NLRB regional offices to reach out to local OSHA offices “to provide briefings on the NLRB and to encourage referrals in appropriate cases.” The new program could result in a significant uptick in unfair labor practice charges in the construction industry, both in the union and open shop sectors.  Contractors served with such a charge are well-advised to promptly consult qualified labor counsel.  Meanwhile, the program reinforces the need for all contractors to take steps to establish, and continually reinforce, a company culture that promotes safety and shuns retaliation against employees who raise questions about potentially unsafe conditions.