OSHA and the NLRB have announced implementation of a joint referral agreement to redirect to the Labor Board 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 NLRA.  The accord was disclosed by NLRB Associate General Counsel Purcell in a May 21, 2014, memorandum to all Board field staff.

Section 11 (c) of the Occupational Safety and Health Act requires that discrimination complaints be filed with OSHA within thirty (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 safety 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 which 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 protected concerted activity claims, even in the absence of union-related activities.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.