Employee Guide to Review Commission Procedures:
Supplement to the Guide to Review Commission Procedures
Table of Contents
Purpose of this Supplement
Employees May Contest Abatement Date
Section 6 -- Descriptive Tables of Events - Electing Party Status and Filing Notice of Contest
First Page of OSHA Citation
Purpose of this Supplement
This Supplement provides an explanation of the rights that employees or their representatives have that permit them to participate in Review Commission proceedings. There are two rights: (1) election of party status in a Commission case; and (2) filing a notice contesting a citation issued to an employer. In the Commission’s experience most cases in which employees or their representatives exercise their rights involve an election of party status. The two rights are discussed in detail in Sections 3 and 4 of this Supplement.
Participation by an employee or an authorized employee representative occurs in a proceeding conducted before an Administrative Law Judge and before the Commission Members if the case continues for further review. This Supplement provides information to assist affected employees or employee representatives in understanding how to exercise those rights. It will also be useful to other persons who desire an understanding of employee rights.
This Supplement is limited in that it is intended to explain the rights of affected employees and employee representatives and is not intended to provide a thorough overview of all aspects of Review Commission procedures. Although other information is included in this Supplement, it is intended to be read together with the Guide to Review Commission Procedures and the Rules of Procedure to obtain a more detailed understanding of the procedures followed by the Administrative Law Judges and the Commission Members in deciding cases.
The Commission publishes its Guides and Rules of Procedure on its website at http://www.oshrc.gov. Printed copies may also be obtained by writing or calling:
The Review Commission
The Occupational Safety and Health Review Commission ("Review Commission") is an independent agency of the U.S. Government established with the passage of the Occupational Safety and Health Act of 1970 ("Act"). The Review Commission functions like a court that resolves certain disputes under the Act. The Review Commission is composed of three members who are appointed by the President of the United States and confirmed by the Senate for six-year terms. It employs Administrative Law Judges to hear cases.
The Act was passed by Congress to "assure safe and healthful working conditions for working men and women." The Act also established another agency, the Occupational Safety and Health Administration ("OSHA"), which is part of the U.S. Department of Labor, to enforce the law. OSHA issues regulations setting occupational safety and health standards that an employer must follow. As part of its enforcement responsibilities, OSHA may also conduct an inspection of a workplace. If OSHA's inspectors find what they believe are unsafe or unhealthy conditions, they may issue a citation to an employer. A citation includes allegations of workplace safety or health violations, proposed penalties, and proposed dates by which an employer must correct the alleged hazardous conditions.
If the cited employer, an affected employee, or an authorized employee representative disagrees with the citation, they may then file a timely notice of contest. The Review Commission (which is completely independent of OSHA) then comes into the picture to resolve the dispute over the citation. Contests by an affected employee or an authorized employee representative are subject to limitations explained in Section 4 of this Supplement.
Rules of Procedure
The Review Commission’s Rules of Procedure are published in Part 2200 of Title 29, Code of Federal Regulations (“C.F.R.”). These Rules may be available in a local library. As noted above, they can also be obtained at the Review Commission website, http://www.oshrc.gov, or by contacting the Executive Secretary’s Office at the address or telephone number above. References to the Rules in this Supplement state "See Rule" and the appropriate number. (For example, "See Rule 4" refers to 29 C.F.R. § 2200.4.)
This Supplement is intended to provide an overview of the Review Commission’s procedures with respect to affected employees and representatives of employees and it is not intended to be a substitute for the Rules of Procedure, which are followed in the Review Commission’s proceedings in deciding cases. Employees and employee representatives should review the Rules and follow them in proceedings before judges and the Commission members.
Using This Supplement
This Supplement describes many of the documents and steps in proceedings before the Commission members and judges. Throughout this Supplement, important terms are shown in bold italics and many are included in the Glossary.
Parties May Represent Themselves
The Review Commission's Rules do not require that a party -- an employer, an affected employee, or a representative of employees -- be a lawyer. However, proceedings before the Review Commission are legal in nature. Certain legal formalities must be followed. OSHA will be represented by lawyers from the Solicitor of Labor's Office, the employer may be represented by a lawyer, and the decision in the case may have consequences beyond the amount of the penalty. For example, a decision may require corrective actions at a worksite. Parties to cases should consider carefully whether to hire a lawyer to represent them in their case.
Time is of the Essence
If affected employees or employee representatives participate in a case as parties, they may be required to file various documents, such as those needed to obtain their position about an OSHA citation or proposed penalty, and they must be filed within a specific time period. Failure to file documents as required could result in a citation becoming a final order without an opportunity to appeal. Therefore, affected employees or employee representatives who become parties to cases must respond promptly to communications received from the judge, the Commission, or any of the other parties to the dispute.
Sample Legal Documents
The Appendixes contain forms and sample correspondence that may be used or referred to in preparing a case. These are mentioned as appropriate throughout this Supplement.
Questions Regarding Proper Procedure
Parties to cases having questions regarding the Commission’s procedures in cases pending before a judge should call the judge’s office. At other stages of the proceedings, inquiries should be directed to the Executive Secretary’s Office at 202-606-5400. Commission employees cannot give legal advice or advise a party how to proceed. However, they can provide information about the Rules of Procedure and the Commission’s methods of processing cases.
If OSHA inspects a workplace and concludes that the employer has violated one or more of OSHA’s safety standards, OSHA will issue a citation to the employer. The citation will state the standards allegedly violated, the date that the alleged violation must be abated (corrected), and the proposed penalty. The Act requires that the employer immediately post a copy of the citation in a place where affected employees will see it so that they will have legal notice of it. An affected employee is an employee who has been exposed to or could be exposed to any hazard arising from the cited violations.
The employer has 15 working days to contest the citation. If the citation is not contested by the employer, or by the affected employees as discussed in section 4 of this Supplement, the citation will become a final order of the Commission.
Employer's Notice of Contest
If an employer disagrees with any part of the OSHA citation--the alleged violation, the abatement period, or proposed penalty-- it must notify OSHA in writing of that disagreement within 15 working days (Mondays through Fridays, excluding Federal holidays) of receiving the citation. This written notification is referred to as a notice of contest, and if it is filed late with OSHA, the employer is not usually entitled to have the dispute resolved by the Commission.
The notice of contest must be delivered in writing to the Area Director of the OSHA office that mailed the citation. The Area Director's name and address will be listed on the citation. A notice of contest must not be sent to the Commission.
Informal Conference with OSHA
If a citation is issued, an employer may schedule an informal conference or engage in settlement discussions with the OSHA Area Director, but this does not delay the 15 working day deadline for filing a notice of contest. Thus, if an informal conference is conducted that does not result in a written settlement agreement and a notice of contest has not been filed within the 15 working day deadline, all citation items must be abated and all penalties must be paid.
Content and Effect of Employer’s Notice of Contest
The notice of contest is a statement that an employer intends to contest (1) the alleged violations, (2) the specific abatement periods, and/or (3) the penalties proposed by OSHA. The notice should state in detail those matters being contested.
For example, if there are two citations and the employer wishes to contest only one of them, the citation being contested should be identified. If there are six different items alleged as violations in a single citation and the employer wishes to contest items 3, 4, and 6, those items should be specified.
If the employer wishes to contest the entire penalty, or only the amount for one citation or specific items of one citation, or only the abatement period for some or all of the violations alleged, this should also be specified.
For any item (violation) not contested, the abatement requirements must be fully satisfied and any related penalty must be paid to the Department of Labor. If the employer contests whether a violation occurred, the abatement period and the proposed penalty for that item is suspended until the Commission issues a final decision.
Notice of Docketing
The OSHA Area Director sends the notice of contest to the Commission. The Executive Secretary’s Office then notifies the employer that the case has been received and assigns a docket number. This docket number must be printed on all documents sent to the Commission.
At the time the employer receives the Notice of Docketing that the case has been filed and given a docket number, the Commission will furnish a copy of a notice to be used to inform affected employees of the case. A pre-printed post card is sent to the employer with this notice; the employer returns the post card to the Commission to inform it that affected employees have been notified.
Party Requests for Simplified Proceedings
Cases heard by Administrative Law Judges may proceed in one of two ways: conventional proceedings or simplified proceedings. The Chief Administrative Law Judge may designate a case for simplified proceedings soon after the notice of contest is received at the Review Commission. Parties may also request simplified proceedings within 20 days of the date on the notice of docketing. If a case is not designated for simplified proceedings, conventional proceedings are in effect.
Choosing Simplified Proceedings or Conventional Proceedings
Simplified proceedings are appropriate for cases that involve less complex issues and for which more formal procedures used in conventional proceedings are deemed unnecessary to assure the parties a fair and complete contest. The Commission has developed a Guide to Simplified Proceedings that is published on the Commission’s website at http://www.oshrc.gov or may be obtained by writing or calling:
Hearings are governed by Rules 60-74. The parties will be notified of the time and place of the hearing at least 30 days in advance. The employer must post the hearing notice if there are any employees who do not have a representative and served on all unions representing affected employees. The hearing is usually conducted as near the work place as possible.
At the hearing, a Commission Judge presides. The hearing enables the parties to present evidence on the issues raised in the complaint and answer. Each party to the proceedings may call witnesses, introduce documentary or physical evidence, and cross-examine opposing witnesses.
In conventional proceedings, the Commission follows the Federal Rules of Evidence. Under these rules, evidence is only admitted into the record if it meets certain criteria that are designed to assure that the evidence is reliable and relevant.
In Simplified Proceedings, hearings are less formal. The Federal Rules of Evidence do not apply. Instead of briefs, the parties will argue their case orally before the judge at the conclusion of the hearing. In many instances, the judge will render his or her decision from the bench.
Judge's Decision and Petition for Discretionary Review
After hearing the evidence and considering all arguments, the judge will prepare a decision based upon all of the evidence placed in the hearing record and mail copies of that decision to all parties. The parties then can object to the judge's decision by filing a Petition for Discretionary Review. Instructions for submitting such a petition will be stated in the judge’s letter transmitting the decision and in a Notice of Docketing of Administrative Law Judge’s Decision issued by the Executive Secretary’s Office. See Rule 91 for further information on filing Petitions for Discretionary Review.
Decisions Final in 30 Days
If a Commissioner does not order review of a judge's decision, it becomes a final order of the Commission 30 days after the decision has been filed. If a Commissioner does direct review, it will ultimately issue its own written decision and that decision becomes the final order of the Commission.
This section describes how an affected employee or an authorized employee representative may elect party status in a Commission case that has been contested by an employer. The Guide to Review Commission Procedures should be consulted for a more detailed analysis of other events that may occur in a case.
Election of Party Status by Affected Employees or Their Representatives
When an affected employee or an authorized employee representative participates in a Commission case the most frequent method used is to elect party status to the case. If an employer contests a Citation and Notification of Penalty the Executive Secretary notifies the employer that the case has been received and assigns a docket number. An affected employee or an authorized employee representative may then file a Notice of Election of Party Status. (See Rules 7(g), 20, 22, and 100 and Appendixes 3A and 3B). The employer is sent documents pertaining to the case and is required to post a notice to employees stating their right to elect party status. A notice of election filed less than ten days prior to the hearing is ineffective unless good cause is shown for not timely filing the notice. (See Rule 20(a)).
If an authorized employee representative of a collective bargaining unit elects party status, affected employees who are members of the collective bargaining unit may not separately elect party status. (See Rule 22(b)).Affected employees who are not members of a collective bargaining unit may elect party status. If more than one affected employee so elects, the judge shall treat them as one party. (See Rule 22(c)).
Affected employees or authorized employee representatives do not need to be represented by an attorney, however, they may obtain the services of an attorney if they choose to do so. (See Rule 22(a)).
What to File When Filing a Notice of Election Party Status.
A Notice of Election of Party Status may be filed by letter and at a minimum need only provide the case name, docket number, the address of the affected employee or authorized employee representative electing party status, and a statement electing party status. Sample letters are provided in Appendixes 3A and 3B.
Where to File a Notice of Election of Party Status
An affected employee or authorized employee representative who files a Notice of Election of Party Status must send the original Notice to:
If the case has been assigned to an Administrative Law Judge, the original Notice must be sent to the judge’ office. The affected employee or authorized employee representative must also send a copy of the Notice to the other parties to the case and attach a Certificate of Serviceto that effect.See Rule 7(a) and Appendix 4.
Participation Rights After Electing Party Status
An affected employee or a representative of affected employees who elects party status has several rights:
Participation by Employees or Employee Representatives at a Hearing
If a case goes to hearing, the affected employee or an authorized representative of affected employees who have elected party status are afforded the right to present their own witnesses and other evidence and to cross-examine witnesses for other parties.
Participation by Employees or Employee Representatives in Settlements
The Secretary and the employer may settle a case at any time including before a hearing has commenced. In these instances, an affected employee or an authorized representative of affected employees must be afforded an opportunity for input. However, under Commission case law, the settlement may be approved by the Commission if the Secretary and the employer agree to an abatement date even though an affected employee or an authorized representative of affected employees disagrees with the abatement date agreed to.
After the Administrative Law Judge has issued a decision, affected employee or an authorized representative of affected employees who have elected party status may file a petition for discretionary review with the Commission if they are dissatisfied with the decision of the judge. See the Guide to Review Commission Procedures for further information on filing a petition for discretionary review.
Employees May Contest Abatement Date
As described in Section 3 above, the most frequent method that affected employees or their representatives participate in a case is by electing party status after the employer files a notice of contest of the citation. However, if the employer does not file a contest of the citation within fifteen working days after the citation has been issued, the citation will become a final order of the Commission unless an employee or representative of employees files a notice of contest with respect to the abatement date. See Section 10(a) of the Act and Commission Rules 20(b), 22, and 33(c).
When and Where to File a Notice of Contest of the Abatement Date
An employee or representative of employees who intends to file a Notice of Contest of the Abatement Date must file it within 15 working days of the employer’s receipt of a citation.The contest must be mailed to the U.S. Department of Labor Area Office at the address shown on the Citation and Notification of Penalty and postmarked within 15 working days (excluding weekends and Federal holidays) of the receipt by the employer of the Citation and Notification of Penalty. See Section 10(a) of the Act and Commission Rules 20(b), 22, and 33(c). The notice of contest must not be mailed to the Commission.
An authorized employee representative who files a notice of contest is responsible for serving any other authorized employee representative whose members are affected employees. Rules 7(a), 7(m) and Appendix 4.
When the OSHA Area Office receives the notice of contest from an employee or representative of employees, the OSHA Area Office will forward the notice of contest to the Commission’s Executive Secretary. The case will then be docketed and processed in accordance with Rule 38.
Secretary Must State Why the Abatement Date is Reasonable
Within ten days from receipt of the notice of contest the Secretary shall file a clear and concise statement of the reasons showing why the abatement period prescribed in the Citation is not unreasonable. The employee or representative of employees must then file a written response with ten days after receipt of the Secretary’s statement. See Rule 38.The case will then be assigned for hearing.
Employer May Elect Party Status
If an employee or employee representative files a notice of contest, the employer may elect party status by a notice filed at least ten days before the hearing. The employer may then participate in the hearing and present evidence concerning the abatement date.
After the Administrative Law Judge has issued a decision, an employee or employee representative who has filed a notice of contest may file a petition for discretionary review with the Commission if they are dissatisfied with the decision of the judge with respect to abatement dates. See the Guide to Review Commission Procedures for further information on filing a petition for discretionary review.
Commission Does Not Investigate Alleged Safety Hazards
If an employee or representative of employees believes that a safety hazard exists at their workplace and they want to request that Federal officials conduct an investigation, they must contact the OSHA area office closest to their place of employment. The Review Commission does not investigate alleged safety hazards.
The addresses and telephone numbers of OSHA area offices as well as information on how to file a complaint are listed on OSHA’s website at www.osha.gov .
Commission Does Not Decide Employee Discrimination Claims
Section 11 of the Act prohibits employers from discharging or discriminating against an employee because the employee has exercised rights under the Act. The Review Commission does not decide employee discrimination claims.
Employees who believe that they have been discriminated against in various ways, including discrimination based on complaints to OSHA and for seeking an OSHA inspection, participating in an OSHA inspection, and participating or testifying in any proceeding related to an OSHA inspection, may file a complaint with OSHA. See OSHA’s website at www.osha.gov or contact an OSHA area office for further information.
Descriptive Table of Events When Employee Files Election of Party Status
Descriptive Table of Events When Employee Files Notice of Contest
If a party is dissatisfied with an administrative law judge’s decision and wishes to seek review by the Commission members, the employer:
If the case is not directed for review, the judge’s decision is a final order of the Commission and the employer may file a petition for review in a Court of Appeals.
If the case is directed for review, all parties:
See also Rules 90-96
Abatement Period -- Period of time specified in citation for correcting alleged workplace safety or health violation.
Affected Employee -- An affected employee is one who has been exposed to or could be exposed to any hazard arising from the cited violations -- that is the circumstances, conditions, practices, or operations creating the hazard.
Answer -- Written document filed in response to a complaint, consisting of short plain statements denying the allegations in the complaint which the employer contests.
Authorized Employee Representative -- A labor organization, such as a union, that has a collective bargaining relationship with the employer and represents affected employees or may be an affected employee(s) in cases where unions do not represent the employees.
Brief -- A written document in which a party states what the party believes are the facts of the case and argues how the law should be applied.
Certificate of Service -- A document stating the date and manner in which the parties were served (given) a document. See Appendix 4 for sample certificate. (Also see definition of 'service.')
Citation -- Written notification from OSHA of alleged workplace violation(s), proposed penalty(ies), and abatement period.
Complaint -- Written document filed by the Secretary of Labor detailing the alleged violations contained in a citation.
Conventional Proceedings -- Typical Review Commission proceedings, which are similar to, but less formal than, court proceedings.
Discovery -- The process by which one party obtains information from another party prior to a hearing.
Exculpatory Evidence -- Information that may clear one of a charge or of fault or of guilt; in the context of OSHRC cases, information that might help the employer's case.
Exhibit -- Something, e.g., a document, video, etc., that is formally introduced as evidence at a hearing.
File -- To send papers to the Commission Executive Secretary, or to the judge assigned to a case, and to give copies of those papers to the other parties in the case.
Interlocutory Appeal -- An appeal of a judge's ruling on a preliminary issue in a case that is made before the judge issues a final decision on the full case. These types of appeals are infrequently made and are infrequently allowed. One example of an issue often raised in an interlocutory appeal is whether certain material that a party wants kept confidential, such as an employer's trade secrets or employee medical records, should become part of the public record in a case.
Motion -- A request asking that the judge direct some act to be done in favor of the party making the request or motion.
Notice of Appearance -- A written letter informing the Review Commission of the name and address of the person or persons who will represent a party (that is, the employer or a union or OSHA) in a case.
Notice of Contest -- Written document disagreeing with any part of an OSHA citation.
Notice of Docketing -- Written document from the Review Commission's Executive Secretary telling an employer, the Secretary of Labor, and any other parties in a case that the case has been received by the Commission and given an OSHRC docket number.
Notice of Withdrawal -- A written document from a party withdrawing its notice of contest or the citation and thus terminating the proceedings before the Commission.
Party -- The Secretary of Labor, anyone who files a notice of contest, or a union or affected employee(s) that requests party status.
Petition for Discretionary Review -- A written request from a party in a case asking the Commission in Washington, D.C. to review and change the judge's decision. The grounds on which a party may request discretionary review are: (1) it believes the judge made findings of material facts which are not supported by the evidence; (2) it believes that the judge's decision is contrary to law; (3) it believes that a substantial question of law, policy, or abuse of discretion is involved; or (4) it believes that a prejudicial error was committed.
Pro Se -- Latin for without an attorney.
Secretary of Labor -- The head of the U.S. Department of Labor. OSHA is part of that Department.
Service -- Sending by first class mail or personal delivery a copy of documents filed in a case to all parties in the case. See Definition of "Certificate of Service." (See Rule 7.)
Settlement -- An agreement reached by the parties resolving the disputed issues in a case.
Simplified Proceedings -- Review Commission proceedings that are less formal than Conventional Proceedings and designed for smaller and relatively simple cases. A complaint and answer are not required and discovery occurs only if the judge permits it.
Solicitor of Labor -- The U.S. Department of Labor's chief lawyer who has offices throughout the country. Lawyers from these offices represent the Secretary of Labor and OSHA in Review Commission cases
Appendix 1-- First Page of OSHA Citation
[Note: The citation contains a number of pages. Shown here is an example of the first page, which is what would be on top when the citation is posted.]
U.S. Department of Labor
Citation and Notification of Penalty
This Citation and Notification of Penalty (this Citation) describes violations of the Occupational Safety and Health Act of 1970. The penalty(ies) listed herein is (are) based on these violations. You must abate the violations referred to in this Citation by the dates listed and pay the penalties proposed, unless within 15 working days (excluding weekends and Federal holidays) from your receipt of this Citation and Notification of Penalty you mail a notice of contest to the U.S. Department of Labor Area Office at the address shown above. Please refer to the enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and which should be read in conjunction with this form. Issuance of this Citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless this Citation is affirmed by the Review Commission or a court.
Posting - The law requires that a copy of this Citation and Notification of Penalty be posted immediately in a prominent place at or near the location of the violation(s) cited herein, or, if it is not practicable because of the nature of the employer's operations, where it will be readily observable by all affected employees. This Citation must remain posted until the violation(s) cited herein has (have) been abated, or for 3 working days (excluding weekends and Federal holidays), whichever is longer. The penalty dollar amounts need not be posted and may be marked out or covered up prior to posting.
Informal Conference - An informal conference is not required. However, if you wish to have such a conference you may request one with the Area Director during the 15 working day contest period. During such an informal conference you may present any evidence or views which you believe would support an adjustment to the citation(s) and/or penalty(ies).
Appendix 2--Notices of Contest
Appendix 2A--Notice of Contest by Authorized Employee Representative (Union)
Mr. ABC, Area Director
Dear Mr. ABC:
Local 123 of the International Union, the authorized employee representative for affected employees of JKL Corp. of City, State, contests the OSHA citations issued on June 2, 2005, against JKL Corp. as a result of Inspection No. 191919191. The proposed abatement dates of March 27, 2006, for Item No. 1 of the serious citation, and January 5, 2006 for Item No. 2 of the willful citation, are unreasonable and will continue to expose workers to safety and health hazards.
Appendix 2B--Notice of Contest by Employee
Ms. GHI, Area Director
Dear Ms. GHI:
As an employee affected by the hazards cited by OSHA when it inspected my employer, VXY Corp. of City, State, I contest the abatement dates OSHA proposed in the citation it issued to VXY Corp. on June 24, 2005. The abatement dates of March 15, 2006, for Items No. 1 and No. 3 of the serious citation, and December 5, 2005, for Item No. 1 of the non-serious citation, are unreasonable and will continue to expose workers to safety hazards.
Appendix 3--Letters Electing Party Status
Appendix 3A--Letter Electing Party Status by Authorized Employee Representative (Union)
Dear Sir or Madam:
Local 101 of the Workers Union, the authorized employee representative for affected employees of QRS, Inc. of City, State, elects party status in OSHRC Docket No. 99-9999. We request that copies of documents and correspondence in this case be sent to us at the address above. We are also interested in participating in settlement discussions.
Appendix 3B--Letter Electing Party Status by Affected Employee
As an employee affected by the hazards cited by OSHA when it inspected my employer, DEF Co. of City, State, I elect party status in OSHRC Docket No. 99-9999. I request that copies of documents and correspondence in this case be sent to me at the address above. I am also interested in participating in settlement discussions.
Appendix 4--Certificate of Service
I certify that the foregoing letter to the Executive Secretary electing party status in OSHRC Docket No. 99-9999 was served on June 10, 2005, by mailing copies by first class mail to:
Last Updated: May 15, 2006