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Guide to Review Commission Procedures Section 5 - 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 file an appearance with the Commission, and a copy must be sent to all other parties. See Rule 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. (Rule 22) 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:
Criminal Prosecution A willful violation causing death to an employee is a criminal violation of Section 17(e) of the Act. Pursuant to the Comprehensive Crime Control Act, 18 U.S.C. § 3571, a first conviction can result in a fine up to $250,000.00 if the violator is an individual and $500,000.00 if the violator is an organization, or six months imprisonment, or both. Criminal prosecutions are conducted by the Department of Justice in Federal district court; they are not within the jurisdiction of the Commission. 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 (except a Settlement 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 participants who are 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 dismissal of the offending party's case before the Commission. See Rule 105. This prohibition does not, however, preclude asking questions about the scheduling of a hearing or other matters that deal only with procedures. (Rule 105) Petition for Modification of Abatement An employer who does not contest a citation is required to correct all of the violations within the abatement period specified in the citation . If the Commission 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. Proceedings before the Commission 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. See 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. See Rule 103. 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 pleadings and other documents filed in the case so they can be read at reasonable times by Affected Employees.
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