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Guide to Review Commission Procedures Section 2 - Preserving Your Rights and Choosing A Proceeding Met OSHA Citation Cases that come before a Review Commission judge arise from inspections conducted by OSHA, an agency of the United States Department of Labor. When OSHA finds what it believes to be a violation at a worksite, it will notify the employer in writing of the alleged violation and the period of time it thinks reasonable for correction. This document is called a citation. The period of time stated in the citation for an employer to correct the alleged violation is called the abatement period . OSHA may also propose that the employer pay a monetary penalty. The Act requires that the employer immediately post a copy of the citation in a place where affected employees will see it, to have legal notice of it. 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. 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 called a notice of contest . If the notice of contest is late, 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 . If delivered by mail, first-class mail is sufficient. 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 Employers 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. Content and Effect of Notice 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. (See Appendix 1A - 1B.) Informing Employees The OSHA Area Director sends the notice of contest to the Commission. The Commission then notifies the employer that the case has been received and sends forms that employers can use to notify affected employees (and their union, if any) that the citation is being contested. If a union represents affected employees, the employer must provide the union a copy of the notice of contest by personal delivery or first class mail. If any affected employees do not have a representative, the notice of contest must be posted where the citation is posted. Employees May Contest Abatement Period Unions or an affected employee wishing to participate in a dispute may file a notice of contest (see Appendix 1C) challenging the reasonableness of the period of time given to the employer for abating (correcting) an alleged violation. Even if the employer does not contest the citation, unions or affected employees can object to the abatement period. This must be done within 15 working days of the employer's posting of the citation. The notice of contest should state that the signer is an affected employee or a union that represents affected employees and that the signer wishes to contest the reasonableness of the abatement period. When affected employees or their unions contest the time allowed for abatement, and the employer does not contest the citation, the employer may also elect to participate. Additionally, employees who did not sign the notice of contest and those not in a union may likewise elect to participate. The employee or the union must mail the notice of contest to the Area Director of the OSHA office that mailed the citation, not the Commission . First-class mail will be sufficient for this purpose. The Area Director's name and address will be listed on the citation. See Section 10 of the Act and Rules 20, 22 and 33. Notice of Docketing Once OSHA notifies the Commission of the case, our Executive Secretary issues a notice of docketing , which confirms that we have received the case and assigned it a Docket Number. This number allows us to keep track of the case and must be included on every document subsequently filed in the case. Party Requests for E-Z Trial Cases heard by Administrative Law Judges may proceed in one of two ways: conventional proceedings or E-Z Trial proceedings. Each method is described in detail in Sections 3 and 4 of this Guide. The decision of the Chief Administrative Law Judge to designate a case for E-Z Trial is made soon after the notice of contest is received at the Review Commission. However, in the event the Chief Administrative Law Judge does not assign a case for E-Z Trial, parties may also request the use of this method within 20 days of the date on the notice of docketing. Some aspects to consider in making this request are discussed below. If your case is not designated for E-Z Trial, conventional proceedings are in effect. Choosing E-Z Trial or Conventional E-Z Trial is appropriate for cases that involve less complex issues and for which more formal procedures are deemed unnecessary to assure the parties a fair and complete contest. For such cases, the Commission has developed simplified rules in which most of the formal legal procedures are eliminated. The kinds of cases generally eligible are shown on page 22. E-Z Trial Eliminates Paper Work E-Z Trial is meant to make the resolution of cases faster, to make it easier for those appearing before the Commission "pro se" (Latin word for without an attorney), to reduce their paper work, and to reduce legal expenses. The majority of cases before the Commission still follow the conventional option with formal pleadings, discovery and trial procedures. The conventional option is more labor-intensive but is meant to assure all parties to a controversy a full, fair, and equal opportunity to present their side of the case. As noted earlier, conventional proceedings automatically apply unless a case is designated for E-Z Trial. Whether or not your case is designated for E-Z Trial, you may represent yourself or retain an attorney or another person you choose who is not an attorney. Either way, OSHA will be represented by a Department of Labor attorney. Thus, if you proceed without an attorney, this could put you at some disadvantage. Summaries of the two procedures are shown on pages 6 through 9 and will familiarize you with the two methods and the choices you must make in electing one over the other. See Sections 3 and 4 for detailed descriptions of both methods.
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