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Guide to Review Commission Procedures Section 3 - An Overview of Conventional Proceedings This section describes the major features of the Commission's Conventional Proceedings method. It describes each phase of the process and provides references to the Commission's detailed Rules of Procedure. If you decide to represent yourself you may wish to request a copy of those rules. Employee Notification At the time the employer receives notice (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 tell 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. The Complaint Within 20 calendar days of receipt of the employer's notice of contest, the Secretary of Labor must file a written complaint with the Commission. A copy must be sent to the employer and any other parties. The complaint sets forth the alleged violation(s), the abatement period and the amount of the proposed penalty. See Appendix 2 for an example of a complaint. (Rule 34) The Answer The employer must file a written answer to the complaint with the Commission within 20 calendar days after receiving the complaint from the Secretary of Labor. The answer must contain a short, plain statement denying allegations of the complaint which the employer wishes to contest. Any allegation not denied by the employer is considered to be admitted. In addition, if the employer has a specific defense he wishes to raise, such as (1) the violation was due to employee error or failure to follow instructions, or (2) compliance with a standard was infeasible, or (3) compliance with a standard posed an even greater hazard, the answer must describe that defense. If the employer fails to file an answer to the Complaint on time, his Notice of Contest may be dismissed, and the Citation and Penalties may become final. The Answer must be filed with the Commission by mailing it to: Executive Secretary or to the judge, if the case has been assigned to one. A copy of the answer must also be sent to the Secretary of Labor. See Appendix 3. (Rule 34) Contesting the Abatement Period When a notice of contest regarding the abatement period (see Appendix 1C) is filed by affected employees or their union, OSHA forwards this notice to the Commission, and within 10 calendar days after receiving the notice, the Secretary of Labor must file a statement with the Commission telling why the period allowed for abatement is reasonable. This statement is also referred to as a Complaint. No later than 10 calendar days after Affected Employees or their union receive this statement, they must file a response stating why the period given by OSHA is unreasonable. This statement is called the Answer. Procedures are similar to those for an employer contesting a citation or penalty, except that they are always expedited, meaning that they are considered before other cases already on the calendar. (Rules 38 and 103) Discovery Discovery is how one party gets information from another party or person before a hearing. Discovery techniques in Commission cases include (1) written questions, called interrogatories; (2) oral statements taken under oath, which are depositions; (3) asking a party to admit the truth of certain facts, called requests for admissions; and (4) requests that another party produce certain documents or objects for inspection or copying. In conventional proceedings, any party can use these discovery techniques without the judge's permission. In E-Z Trial proceedings, discovery is permitted only when requested and ordered by the Judge. See Rule 208. In conventional cases, discovery takes place after the answer and before the hearing date. After the answer to the complaint is filed, the judge will issue an order setting a schedule for the case and may also hold a conference with the parties to clarify the issues, consider settlement, or discuss other ways to expedite the hearing. (Rules 51-57) Interlocutory Appeals An Interlocutory Appeal is an appeal to the Commission of a judge's ruling on an issue that is made before the judge makes a final decision on the full case. Interlocutory appeals are not often brought, and are only allowed in conventional proceedings. When they are, they often involve whether certain information that a party wants to keep confidential, such as an employer's trade secrets or employee medical records, should become part of the public record in the case. (Rule 73) Withdrawal of Notice of Contest A party wishing to withdraw its notice of contest to all or parts of a case may do so at any time. The Notice of Withdrawal must be served on all affected employees and all other parties. A copy must also be sent to the judge. See example at Appendix 7A. The withdrawal terminates the proceedings before the Commission with respect to the citation or citation items covered by the notice of withdrawal. (Rule 102) Settlement The Commission encourages the Settlement of cases. Cases can be settled at any stage. The Secretary of Labor and the employer must agree to the settlement terms, and the affected employees or their union must be shown the settlement before it will be approved. Any party can also request that a Settlement Judge be appointed to help facilitate a settlement. (Rule 100) Hearings The parties will be notified of the time and place of the hearing at least 30 days in advance. The hearing notice must be posted by the employer 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. (Rules 60-74) Hearing Transcripts A transcript of the hearing will be made by a court reporter. A copy may be purchased from the reporter. Post-hearing Briefs After the hearing is completed and before the judge reaches a decision, each party is given an opportunity to submit to the judge proposed findings of fact and conclusions of law with reasons why the judge should decide in its favor. Proposed findings of fact are what a party believes actually happened in the circumstances of a case. Proposed conclusions of law are how a party believes the judge should apply the law to the facts of a case. The statement of reasons is known as a brief. (Rule 74) Judge's Decision and Petition for Discretionary Review After hearing the evidence and considering all arguments, the judge will prepare a decision 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 (see Appendix 5 for an example). Instructions for submitting such a petition will be stated in the judge's letter transmitting the decision. (Rule 91) 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 the address near the top of page 15. 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. (Rule 91) Sua Sponte Direction for Review On occasion a Commissioner may direct review of a judge's decision even though no petition for discretionary review has been filed, particularly where there are unusual questions of law in the case or there is a major question of policy. This is called a sua sponte direction for review; sua sponte is Latin for on one's own motion. If the Commission decides to review a judge's decision, the parties are notified. A party may respond by submitting a brief or a letter setting out why the party agrees or disagrees with the judge's decision. Parties are not usually required to appear in person at the Commission to argue their case when it is being reviewed by the full Commission. However, the Commission may grant a party's motion for an oral argument of a case under review. (Rules 92 through 95) Decisions Final in 30 Days If the Commission does not review a judge's decision, it becomes a final order of the Commission 30 days after the decision has been filed (see Appendix 4). If the Commission does direct review, it will ultimately issue its own written decision and that becomes a final order of the Commission. Any party who is adversely affected by a final order of the Commission can appeal to a United States Court of Appeals. However, the courts usually will not hear appeals from parties that have not taken advantage of all possible appeal rights earlier in the case. Thus, a party who failed to file a petition for review of the judge's decision with the Commission may not be able to later appeal that decision to a court of appeals.
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