 |
|
|
|
 |
|||
 |
|||
|
Guide to E-Z Trial Procedures Section 3 - Other Important Things To Know Appearances In Commission Procedures Any employer, employee, or union which initially files a notice of contest is automatically a party to the proceedings. Affected employees or their union may also choose to participate as a party where the employer has filed a notice of contest. Any party may appear in a Commission proceeding either personally, through an attorney, or through any competent person chosen by the party. See Rule 22. Such a person need not be an attorney. However, all representatives of parties must write a letter to the Commission, and send a copy to all other parties, stating whom they are appearing on behalf of. This is known as filing an appearance. (Rules 22 and 23). Every party to the case must serve every other party or representative with copies of every document it files with the Commission or judge. Service is made by either personal delivery or first class mail. NOTE: All notices the Commission sends to the parties will list the name and address of all parties or their representatives. Penalties OSHA only proposes amounts which it believes are appropriate as penalties. These proposals automatically become penalties assessed against the cited employer when the enforcement action is not contested. Once a citation or Proposed Penalty is contested, the amount of the penalty for that citation, if any, will be decided by the Commission or a judge. When a case goes to hearing before a Review Commission judge, the employer's evidence and argument on what penalty, if any, should be assessed, receives the same consideration as the evidence and argument of the Secretary of Labor. The four factors that the law requires the Commission to consider in determining the appropriateness of civil penalties are:
The amounts that may be assessed as civil penalties by the Commission under Section 17 of the Act are as follows:
Private (Ex Parte) Discussions Parties to cases before the Commission may not communicate ex parte (without the knowledge or consent of the other parties) with respect to the merits of a case with the judge, a Commissioner, or any employee of the Commission. In other words, no participant, directly or indirectly, may discuss the case or make any argument about a matter in a case to any of these people unless done in the presence of the other case participants who are then given an equal opportunity to present their side, or unless it is done in writing and copies are sent to all other parties. Violation of this rule may result in the offending party losing their case before the Commission. This prohibition does not, however, preclude asking questions about the scheduling of a hearing or other matters that deal only with procedure. (Rule 105) Petition for Modification of Abatement An employer who does not contest a citation is required to correct all violations within the abatement period specified in the citation . If the Com mission upholds a contested citation, the employer must then correct the violation, with the abatement period starting on the date of the Commission's final order. If the employer has made a good faith effort to correct a violation within the abatement period but has not been able to do so because of reasons beyond his or her control, the employer may file a Petition for Modification of Abatement (PMA). This petition is filed with the OSHA area director and should be filed no later than the end of the next working day following the day on which abatement was to have been completed. It must state why the abatement cannot be completed within the given time. The PMA must be posted in a conspicuous place where all affected employees can see it or near the location where the violation occurred. The PMA must remain posted for 10 days. The Secretary of Labor may not approve a PMA until the expiration of 15 working days from its receipt. At the end of the 15-day period, if the Secretary of Labor, affected employees, or their union object to the petition, the Secretary of Labor is required to forward the PMA to the Commission. After notice by the Commission to the employer and the objecting parties of its receipt of the PMA, each objecting party has 10 calendar days in which to file a response to the PMA setting out the reasons for opposing it. PMA cases are conducted in the same way as notice-of-contest cases, except that they are expedited. The employer must establish that abatement cannot be completed for reasons beyond the employer's control, and has the burden of proving the petition should be granted. In cases of this kind, the employer is called the Petitioner, the Secretary of Labor is called the Respondent. Rules 37 and 103. Expedited Proceedings In certain situations, time periods allowed for certain procedures are shortened. The Commission's Rules of Procedure provide that an Expedited Proceeding may be ordered by the Commission. If an order is made to speed up proceedings, all parties in the case will be specifically notified. All Petitions for Modification of Abatement and all employee contests are automatically expedited. Expedited proceedings are different from E-Z Trial. (Rule 103) Maintaining Copies of Papers Filed with the Judge In order that Affected Employees may have the opportunity to be kept informed of the status of the case, the employer must keep available at some convenient place copies of all documents filed in the case so they can be read at reasonable times by Affected Employees. Seeking Review of the Judge's Decision Once the parties receive the judge's decision and are dissatisfied with the outcome, they can object to the decision and ask the Commission members to review it by filing a Petition for Discretionary Review (see Appendix 3 for an example). Instructions for submitting such a petition will be stated in the judge's letter transmitting the decision. Cases on review are heard using the Commission's conventional proceedings. A party may petition the Commission in Washington, D.C. to review the judge's decision if the party believes that the judge (1) made findings of material facts which are not supported by the evidence; (2) that the judge's decision is contrary to law; (3) that a substantial question of law, policy, or abuse of discretion is involved; or (4) that a prejudicial error was committed. These petitions should be sent to: Executive Secretary Each issue in a petition should be separately numbered and simply stated. The issue should also make reference to specific pages of the transcript of the hearing, to the evidence, or to other authorities that the party thinks are supportive of its position. An original and three copies of the petition for discretionary review should be filed. These steps permit a prompt and fair review of each petition. If a party fails to request review on an aspect or issue in the judge's decision, the Commission may assume thereafter that the party approves of the judge's decision in that aspect and probably will not direct review on that issue.
|
|||
 |
|||
|
Home
| About OSHRC
| Procedural
Rules | Decisions
| Strategic
Plan | Performance
Report | Budget | Publications |
|||