The Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) entered into a Memorandum of Understanding (MOU) whereby employees who file untimely complaints against their employers alleging violations of the OSH Act will be told to contact the NLRB. The statute of limitations to file a complaint with OSHA is just 30 days from the date of occurrence, but employees have 6 months from the date of occurrence to file unfair labor practice charges against their employers with the Board.
According to the MOU the Directorate of Whistleblower Protection Programs (DWPP) and the Office of the Solicitor (SOL) recommend that OSHA establish 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 follow their Region’s policy with respect to discussing the complainant’s rights under Section 11(c) and options with respect to untimely filed complaints (e.g. screen out or docket/dismiss).
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.
OSHA personnel are even supplied with the following talking points to advertise the NLRB to untimely OSHA complainants:
- 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).
Untimely OSHA complainers will also receive a follow up letter from OSHA reminding them to reach out to the NLRB for support. Part of the follow up letter template provided to OSHA personnel reads as follows:
I regret that OSHA is unable to assist you further in this matter. However, OSHA recommends that you contact the National Labor Relations Board (NLRB) as soon as possible to inquire about filing a charge alleging unfair labor practices. The NLRB is responsible for enforcing employee rights under the National Labor Relations Act (NLRA). Employees are protected under the NLRA to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union. The NLRB time limit is 6 months from the unfair labor practice.
OSHA estimates that up to 600 complaints are untimely filed each year. While this agreement does not necessarily give workers a second bite at the apple for lodging complaints related to safety and health, it does solicit and encourage employees to pursue alternative avenues of filing legal actions against their employers – avenues employees would otherwise not likely know are available.
Of course, the NLRB is embracing the MOU and has issued its own intra-agency memorandum instructing its intake officers to record whether the unfair labor practice charge was a referral from OSHA. The Board has even encouraged its employees to assist in training OSHA personnel in the nuances of the National Labor Relations Act to further help OSHA identify and market the Board’s purpose to employees.
While some MOUs result in a tremendous increase in charges at certain agencies, other MOUs have no impact on other agencies. Time will tell whether this MOU will increase the number of unfair labor practice charges filed against companies. Nonetheless, many businesses could learn an advertising and growth lesson from the Board over the past few years. Even though unionization rates continue to decline, the National Labor Relations Board effectively markets its services, enjoys increased workloads, and receives larger operating budgets year after year.