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OSHA and NLRB Update Referral Agreement

The Occupational Safety and Health Administration and National Labor Relations Board have implemented a joint referral agreement to redirect to the NLRB OSHA complainants whose claims of discrimination under the OSH Act are time barred, but may form the basis of timely unfair labor practice charges under the National Labor Relations Act. NLRB Associate General Counsel Anne Purcell disclosed the accord in a May memorandum.

Section 11 (c) of the Occupational Safety and Health Act requires that discrimination complaints be filed with OSHA within 30 days of the wrongful conduct.  By OSHA’s estimate, between 300 and 600 complaints are screened out or dismissed each year because the complaining employee fails to file a complaint with the agency within 30 days. Beginning in March 2014, the OSHA Office of Whistleblower Protection Programs has instructed OSHA staff to advise complainants who miss the OSHA filing deadline of their right to file a charge relating to the same conduct with the NLRB within the six-month statute of limitations of the National Labor Relations Act. The agencies reason that in a number of cases, the complained-of conduct may be “concerted” in nature and thus implicate the NLRA’s protections as well as OSHA’s.

OSHA’s policy is to advise complainants with untimely charges of the right to file charges with the NLRB, that the statute of limitations for doing so is six months, and that OSHA “recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.” OSHA personnel are also to provide the complainant contact information for the nearest NLRB Field Office, the NLRB website, and the NLRB’s toll-free number.

NLRB AGC Purcell directed Board field staff to be alert for such referrals, and to record the number of OSHA-referred charging parties. The agreement between OSHA and NLRB builds on the cooperation between the two agencies pursuant to a Memorandum of Understanding signed in 1975 for handling workers’ safety retaliation complaints that might be filed with either or both agencies. In that MOU, it was agreed that enforcement actions should be taken primarily under the OSH Act, rather than the National Labor Relations Act. The new agreement reflects in part the NLRB’s continuing emphasis on the expansion of protected concerted activity claims.

By Thomas Lucas, Roger Kaplan, Howard Bloom and Phil Rosen of the Washington, D.C., office of Jackson Lewis P.C., a national workplace law firm. Reprinted from www.jacksonlewis.com with permission.


Operating Engineers take narrow election

The National Labor Relations Board has certified International Union of Operating Engineers Local 77 in Suitland, Md., as collective-bargaining representative for equipment operators and mechanics at the Structural Concrete Products LLC plant in Manassas, Va. The Board adopted a regional director’s January 2014 decision on the prior month’s representation vote—four in favor, three opposed—among proposed bargaining unit employees. Woodbridge, Va.-based Structural Concrete had challenged the election, citing a Local 77 agent’s presence in a parked vehicle from which employees en route to casting ballots could be observed.