Last week, the Office of the General Counsel for the NLRB issued an Operations-Management Memo (OM 14-60) to all Regional Offices announcing a new program between the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) that will almost certainly result in increased unfair labor practice (ULP) charges filed against employers.

Under the new inter-agency program, OSHA agents are instructed to notify potential OSHA whistleblower complainants who failed to timely file under the OSH Act that they may still have the right to file a ULP charge with the NLRB.  According to OSHA, complainants attempting to assert whistleblower claims fail to properly file  a charge within the 30-day statute of limitations provided under OSH Act Section 11(c) in somewhere between 300-600 cases per year. In these situations, the complainants either decline to file charges or their charges are dismissed as untimely.

According to the GC Memorandum, it is likely that in at least some of the nearly 600 cases per year, the whistleblower allegations may also raise potential claims arising under the National Labor Relations Act — situations in which the  employer takes retaliatory actions for group complaints that concern unsafe working conditions.

In contrast to OSHA’s 30-day window, employees have six (6) months from the date of the adverse action within which to file an unfair labor practice charge under Section 10(b) the NLRA — considerably longer than the limitations period under the OSHA. Under the new program, OSHA agents are required to inform employees who file untimely complaints that they instead have the right to file a charge with the NLRB.

When informing employees of the right to file ULP charges, OSHA agents will use a set of talking points that specifically explain the functions of the NLRB and how the NLRA’s unfair labor practice process can be used in the context of OSHA whistleblower claims. To further facilitate this process, OSHA agents also provide employees a separate toll-free number established by the NLRB exclusively to advise the employees how they should file with the NLRB. In addition, the closure letter OSHA sends to the employee disposing of the untimely complaint will contain information similar to the talking points.

Notably, both the talking points and the administrative closure letter urge the employee to contact the NLRB “as soon as possible” to file an unfair labor practice charge. The letter and talking points also expressly state that employees engaged in “protected concerted activity” do not need to be in a union for the NLRA  to protect those activities.

While it would be impossible to speculate how many additional unfair labor practices may be filed against employers as a result of the OSHA recommendations, there is little doubt the new inter-agency program imposes new risks for union and non-union employers alike — and provides another avenue for the Board to extend its reach into the non-union workplace.

For more information regarding this Management Alert, please contact John F. Bowen at 952-921-8442 or via e-mail at jfbowen@johnfbowen.com.                                                                                                     

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