Earlier this week, the NLRB announced (pdf) that it had entered into a new program with the Occupational Safety and Health Administration (“OSHA”). The new program will likely result in the filing of more unfair labor practice charge complaints with the NLRB.
Under existing law, an employee who believes that she is being retaliated against for complaining about workplace safety issues may submit a complaint to OSHA. However, that complaint must be filed within thirty days of the alleged retaliatory conduct. According to the NLRB’s memorandum announcing the new program, OSHA estimates that every year approximately 300-600 individuals who want to file a OSHA whistleblower claim learn that they have complained too late for OSHA to do anything about their complaint.
Under the NLRA, however, an employee has six months within which to file an unfair labor practice charge, considerably longer than is available under the Occupational Safety and Health (OSH) Act. Because an employee’s whistleblower claim under the OSH Act may, in certain cases, also have facts that would reveal a violation of the NLRA, the employee could potentially still obtain relief if the claim is filed with the correct agency. For example, an employee asserting that he was retaliated against as part of a group complaint about safety issues may have a valid claim under the NLRA.
The new program between OSHA and NLRB provides that OSHA agents will tell those employees filing untimely complaints with OSHA that they can instead file a complaint with the NLRB, which may be timely. OSHA agents will use talking points that briefly explain what the NLRA is and how the NLRB can enforce it. The NLRB has even established a separate toll-free number that OSHA agents will provide to employees making untimely whistleblower complaints. The administrative closure letter that OSHA will send to the employee will contain similar information. Significantly, in both the administrative closure letter and the talking points, OSHA will “recommend” that the employee contact the NLRB “as soon as possible” about filing an unfair labor practice charge. Moreover, both the letter and the talking points explicitly reference protected, concerted activity and that employees do not have to be in a union for the NLRA to protect them.
It is, of course, far too early to speculate on how many additional NLRB charges this new program may generate. That is a statistic we may see in next year’s report of the General Counsel’s meeting with the ABA Labor and Employment Law Section’s Practice and Procedure Committee. In any event, the new program is a good reminder about the wide range of conduct that can be protected under the NLRA, whether or not the employer’s workforce is unionized.