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Guide to Review Commission Procedures

Occupational Safety and Health Review Commission

November 2007

Table of Contents

Section 1 -- Introduction

The Review Commission
Purpose of this Guide
Rules of Procedure
Using This Guide
Parties May Represent Themselves
Time is of the Essence
Sample Legal Documents
Questions Regarding Proper Procedure

Section 2 -- Preserving Rights and Choosing a Proceeding

OSHA Citation
Employer’s Notice of Contest
Informal Conference with OSHA
Content and Effect of Notice of Contest
Notice of Docketing
Employee Notification
Employees May Contest Abatement Period
Employees May Elect Party Status
Party Requests for Simplified Proceedings
Choosing Simplified Proceedings or Conventional Proceedings

Section 3 -- An Overview of Hearings Conducted Under Conventional Proceedings

The Complaint
The Answer
Discovery
Scheduling Order or Conference
Withdrawal of Notice of Contest
Settlement
Hearings
Hearing Transcripts
Post-hearing Briefs
Judge's Decision and Petition for Discretionary Review
Decisions Final in 30 Days

Section 4 -- Simplified Proceedings--An Overview for Employers and Employees

What are Simplified Proceedings?
Major Features of Simplified Proceedings
Cases Eligible for Simplified Proceedings
Employee or Union Participation
Should You Ask for Simplified Proceedings?
Complaint and Answer
Beginning Simplified Proceedings
Notifying Other Parties
Objections to and Discontinuing Simplified Proceedings
Pre-hearing Conference
Review of the Judge's Decision

Section 5 -- Other Important Things to Know

Appearances in Commission Procedures
Penalties
Private (Ex Parte) Discussions
Petition for Modification of Abatement
Expedited Proceedings
Maintaining Copies of Papers Filed with the Judge

Section 6 -- Descriptive Table of Conventional Proceedings for Contesting an OSHA Citation

Events Common to All Proceedings
Events Pertaining to Conventional Proceedings

Section 7 -- Descriptive Table of Contesting an OSHA Citation and Choosing Simplified Proceedings

Events Common to All Proceedings
Events Pertaining to Simplified Proceedings

Section 8 -- Descriptive Table of Events Pertaining to Review of an Administrative Law Judge’s Decision

Glossary

Appendixes/Sample Legal Documents

Notice of Contest
Complaint and Certificate of Service
Answer
Request for Simplified Proceedings
Notice of Decision
Petition for Discretionary Review
Direction for Review
Notice of Withdrawal


Section 1 - Introduction

The Review Commission

The Occupational Safety and Health Review Commission ("Review Commission") is an independent agency of the U.S. Government that was established by the Occupational Safety and Health Act of 1970 ("Act") to be 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 or any of its employees or an 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.

Purpose of this Guide

This Guide is intended to inform employers, employees, and other interested persons about Review Commission proceedings. It provides an overview of the proceedings conducted before the Administrative Law Judges and the Commission Members and it is primarily intended to assist persons in defending their business or their employer’s business after having contested an OSHA citation. It will also be useful to other persons who desire a general overview of the Review Commission and its procedures.

The Review Commission also publishes a Guide to Simplified Proceedings and an Employee Guide to Review Commission Procedures that may be obtained at the Review Commission website, located at http://www.oshrc.gov, or by writing or calling:

Executive Secretary
U.S. Occupational Safety and Health Review Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3457
(202) 606-5400

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.  They can also be obtained at the Review Commission Website, http://www.oshrc.gov, or by contacting the Review Commission's Office of The Executive Secretary at the address or telephone number above. References to the Rules in this Guide state "See Rule" and the appropriate number. (For example, "See Rule 4" refers to 29 C.F.R. § 2200.4.)

This guide is intended to provide an overview of the Review Commission’s procedures 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. Parties to cases should review the Rules and follow them in proceedings before judges and the Commission members.

Using This Guide

This guide describes many of the documents and steps in proceedings before the Commission members and judges. Throughout this Guide, 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, a union, or affected employee(s)--be represented by 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

Many of the documents parties are required to file, such as those needed to disagree with an OSHA citation or proposed penalty, 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, 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 the Guide.

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.


Section 2 - Preserving Rights and Choosing a Proceeding

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 by issuing a written citation to the employer.

The period of time stated in the citation for an employer to correct the alleged violation is the abatement period.  OSHA likely will 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 an employee who has been exposed to or could be exposed to any hazard arising from the cited violations.

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 deadlinefor filing a notice of contest. Thus, if an informal conference is conducted that does not result in a written settlement agreement, if a notice of contest is not filed within the 15 working day deadline all citation items must be abated and all penalties must be paid.

Content and Effect of 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. (See Appendixes 1A, 1B.)

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.

Employee Notification

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.

Employees May Contest Abatement Period

Unions or affected employees 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 receipt 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.

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.  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.)

Employees May Elect Party Status

Employees may also elect party status to a case by filing a written notice of election at least ten days before the hearing. 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. It must be served on all other parties in accordance with Rule 7. (See Rule 20.)

Party Requests for Simplified Proceedings

Cases heard by Administrative Law Judges may proceed in one of two ways: conventional proceedings or simplified proceedings.  Each method is described in detail in Sections 3 and 4 of this Guide. 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. Simplified proceedings are covered in Section 4 of this Guide and 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:

Executive Secretary
U.S. Occupational Safety and Health
Review Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3457
(202) 606-5400


Section 3 - An Overview of Hearings Conducted Under Conventional Proceedings

This section describes the major features of the Commission's hearings conducted under the Conventional Proceedings method as opposed to hearings conducted under Simplified Proceedings. Simplified Proceedings are explained briefly in Section 4 and in a separate guide that should be consulted by those persons interested in that method of hearing cases.

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 2A for an example of a complaint. (See 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 that 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 it 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, its 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
U.S. Occupational Safety and Health
Review Commission
1120 20th Street N.W., 9th Floor
Washington, D.C. 20036-3457

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. (See Rule 34.)

Discovery

Discovery is a method used whereby one party obtains 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, except for depositions, which require that that parties agree to take depositions or that the judge order the taking of depositions after a party files a motion requesting permission to do so. (See Rules 51-57.)

Scheduling Order or Conference

In conventional cases, discovery takes place after the answer is filed 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.  (See Rule 51.)

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 8.  The withdrawal terminates the proceedings before the Commission with respect to the citation or citation items covered by the notice of withdrawal.  (See 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. (See Rule 100.)

Hearings

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.

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 based upon the evidence introduced at the hearing. 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.  (See Rule 74.)

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 (See Appendix 6 for an example.)  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.

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 likely will not be able to later appeal that decision to a court of appeals.


Section 4 - Simplified Proceedings--An Overview for Employers and Employees

What are Simplified Proceedings?

Simplified Proceedings are designed to resolve small and relatively simple cases in a less formal, less costly, and less time-consuming manner. The Commission’s Chief Administrative Law Judge (“Chief Judge”) or the judge assigned to your case notifies you that your case will be heard under Simplified Proceedings. Even though the legal process is streamlined, the proceedings are still a trial before an Administrative Law Judge with sworn testimony and witness cross-examination.

Major Features of Simplified Proceedings

Under Simplified Proceedings:

  1. Early discussions among the parties and the Administrative Law Judge are required to narrow and define the disputes between the parties.

  2. Motions, which are requests asking the judge to order some act to be done, such as having a party produce a document, are discouraged unless the parties try first to resolve the matter among themselves.

  3. Disclosure. The Secretary is required to provide the employer with inspection details early in the process. In some cases, the employer will also be required to provide certain documents, such as evidence of their safety program, to the Secretary.

  4. Discovery, which is the written exchange of information, documents and questionnaires between the parties before a hearing, is discouraged and permitted only when ordered by the judge.

  5. Appeals of actions taken by the judge before the trial and decision, such as asking the Commission to rule on the judge’s refusal to allow the introduction of a piece of evidence, called interlocutory appeals, are not permitted.

  6. Hearings are less formal. The Federal Rules of Evidence, which govern other trials, do not apply. Each party may present oral argument at the close of the hearing. Post-hearing briefs (written arguments explaining your position in the case), will not be allowed except by order of the judge. (See Rule 209(e).) In some instances, the judge will render his or her decision "from the bench," which means the judge will state at the end of the hearing whether the evidence and testimony proved the alleged violations and will state the amount of the penalty the employer must pay, if a violation is found.

Cases Eligible for Simplified Proceedings

It is possible that not all relatively small cases eligible for Simplified Proceedings will be selected.  (See Rules 202 and 203(a).) The Chief Judge will assign cases for Simplified Proceedings or, if your case is not selected, you may request that it be chosen. Cases appropriate for Simplified Proceedings are those with one or more of the following characteristics:

  • relatively simple issues of law or fact with relatively few citation items,
  • total proposed penalty of not more than $30,000,
  • a hearing that is expected to take less than two days, or
  • a small employer whether appearing with or without an attorney.

Cases having willful or repeated violations or that involve a fatality are not deemed appropriate for Simplified Proceedings.

Employee or Union Participation

Affected employees or their unions who file a notice of contest may also request Simplified Proceedings. Unions or an affected employee (ones exposed to the alleged health or safety hazard) 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 in writing within 15 working days of the employer's receipt of the citation.You might consider Simplified Proceedings if you or your local union wish to avoid the time and expense of a full blown hearing. You might also participate by electing party status after the employer files a notice of contest, but must do so promptly.

When affected employees or their unions contest the time allowed for abatement, and the employer does not contest the citation, the employer may in turn elect to participate.  Once the abatement date has been contested, other employees or unions may likewise elect to participate.

An employee or a union must mail a written notice of contest to the Area Director of the OSHA office that issued 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. This process is governed by Section 10 of the Act and Commission Rules 20, 22 and 33.

Should You Ask for Simplified Proceedings?

If you are an employer, have received an OSHA citation, have filed a notice of contest, and the total proposed penalties in the citation are between $20,000 and $30,000, the Chief Judge may designate your case for Simplified Proceedings. If the penalties are $20,000 or less, you may file a request for Simplified Proceedings provided that there is no allegation of willfulness or a repeat violation, and the case does not involve a fatality.

You must file your request within 20 days of docketing of your case by the Executive Secretary’s Office. The request must be in writing and it is sufficient if you state: “I request Simplified Proceedings.” The Chief Judge or the assigned judge will then rule on your request.

Your case may be appropriate for Simplified Proceedings but that does not necessarily mean that your particular interests are best served by requesting Simplified Proceedings. In addition to considering time and expense, you should base your decision on the facts of your case, the nature of your objections to the citation, what you will try to show the judge at the hearing, the amount of paperwork involved if your case proceeds under conventional proceedings as compared to Simplified Proceedings, and whether you have legal representation.

You should also remember that, in most circumstances, your interests may be best served if you can reach a fair and equitable settlement of your case with OSHA before a hearing. Either way, Simplified Proceedings or conventional, the proceedings are legal and the Secretary of Labor will most likely be represented by an attorney. You have the right to represent yourself or to be represented by an attorney or by anyone of your choosing.

Complaint and Answer

Once your case is selected for Simplified Proceedings, the complaint and answer are not required. However, until an employer is notified that a case has been designated for Simplified Proceedings, conventional procedures should be followed and an answer must be filed. (See Rule 205(a).)

Beginning Simplified Proceedings

You need not give any reasons for requesting Simplified Proceedings. A letter saying simply "I request Simplified Proceedings," and indicating the Docket Number assigned to your case, is sufficient. (See Appendix 4.) The letter must be sent to:

Executive Secretary
U.S. Occupational Safety and Health
Review Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3457

Notifying Other Parties

It is required that a copy of your request for Simplified Proceedings must be sent to the Regional Solicitor of the Department of Labor office for your region. The address is on your Notice of Docketing.  All employee representatives, including an employee union, that have elected party status must also be sent a copy of your request for Simplified Proceedings. A brief statement indicating to whom, when, and how your request was served on the parties in the case must be received with the request for Simplified Proceedings.  An example of such a "Certificate of Service" follows:  (See Rule 203(b).)

Example: I certify that on October 1, 2004, a copy of my request for Simplified Proceedings was sent by first class mail to Jane Doe, Office of the Solicitor, U.S. Department of Labor, 123 Street, City, State Zip Code and to John Doe, President, Local 111, GHI International Union, 456 Street, City, State Zip Code. (See Appendix 2B.)

Objections to and Discontinuing Simplified Proceedings

Should you decide to object to the Chief Judge’s assignment of your case to Simplified Proceedings or another party's request for Simplified Proceedings, all you need to do is file a brief written statement with the judge assigned to your case or, if the case has not been assigned to a judge, with the Chief Judge, explaining why your case is inappropriate for Simplified Proceedings. The judge is required to rule on a request for Simplified Proceedings within 15 days. Therefore, you must file your objections as soon as possible.

If you disagree with another party's request to discontinue Simplified Proceedings and you want your case to continue under Simplified Proceedings rules, you have seven days to file a letter explaining why you disagree. (See Rule 204(b).)

If it appears that a case is inappropriate for Simplified Proceedings, the use of this method may be discontinued by the judge at his or her discretion. A party may also request that the judge discontinue Simplified Proceedings. The request must explain why the requesting party believes that the case is inappropriate for Simplified Proceedings. If you agree with another party's request to discontinue Simplified Proceedings, you should submit a letter saying so. When all parties agree that a case is inappropriate for Simplified Proceedings, the judge is required to grant the request. If the judge orders that a case be taken out of Simplified Proceedings, the case will proceed under the Commission's conventional procedures.

Pre-hearing Conference

Soon after the parties exchange the required information, the judge will hold a pre-hearing conference to either reach settlement in the case or to find out which factual and legal issues the parties agree on.  This discussion may be conducted in person but is usually conducted by a telephone conference call. The purpose of the pre-hearing conference is to settle the case or, if settlement is not possible, to determine what areas of dispute must be resolved at a hearing.  Even if a settlement of the entire case cannot be reached, the parties are required to attempt agreement on as many facts and issues as possible.  The discussion will include the following topics:  (See Rule 207.)

  1. Narrowing of Issues. The parties will be expected to discuss all areas in dispute and to resolve as many as possible. Where matters remain unresolved, the judge will list the issues to be resolved at the hearing. 

  2. A Statement of Facts. The parties are expected to agree on as many of the facts as possible.  Examples of these facts may include: the size and nature of the business, its safety history, details of the inspection, and the physical nature of the worksite. 

  3. A Statement of Defenses. You will be required to list any specific defenses you might have to the citation. The burden is on the Secretary to establish that each violation occurred.  However, you should be prepared to tell the judge all reasons why you believe that the Secretary's allegations are wrong.

    You might also have what is called an "affirmative defense." An affirmative defense is a recognized set of circumstances in which an employer will be found not in violation even though the employer did not comply with the cited standard.  For example, you may believe that the alleged violation was the result of an employee acting contrary to a work rule that has been effectively communicated and enforced. Or, you may think that compliance with the standard was impossible or infeasible, or would have resulted in a danger to employees that was greater than the danger that the standard was designed to prevent.

    You should be aware that the burden of proving an affirmative defense is on you, the employer.  Therefore, if you argue that the violation was the result of employee misconduct, at the hearing you will have to prove to the judge that you had an effectively communicated and enforced work rule.  As will be discussed later, if you raise an affirmative defense, the judge may require you to provide the Secretary of Labor with certain documents before the hearing regarding the defense. For example, if you claim that an employee violated a written work rule, you will probably be required to provide the Secretary with a copy of your company's safety rules.

    It is critical that you set forth your defenses at the pre-hearing conference.You may be prohibited from later asserting any defenses not raised at the pre-hearing conference. Remember, even if your defense does not excuse the violation, the judge may find it relevant in determining the penalty amount.

  4. Witnesses and Exhibits. The parties are expected to list the witnesses they intend to call if there is a hearing, and to list any documents or physical evidence they intend to introduce to support their positions. For example, you should list any photographs that you believe show the existence of a safety device that the Secretary claims you failed to provide.

Review of the Judge's Decision

Any party dissatisfied with the judge's decision may petition the Commission for review of that decision.

No particular form is required for the petition (see Appendix 6).  However, it should clearly explain why you believe that the judge's decision is in error on either the facts or the law or both.  Review of a judge's decision is at the discretion of the Commission. It is not a right. (See Rules 91 and 210.)

Your petition should be filed no later than 20 days after issuance of the judge's written decision.  Under the law, the Commission cannot grant any petition for review more than 30 days after the judge's decision is filed. Therefore, your petition must be filed as soon as possible to obtain maximum consideration.

The Commission will notify you whether your petition has been granted (see Appendix 7).  If it is granted, your case will then proceed under the Commission's conventional rules.


Section 5 - Other Important Things to Know

Appearances in Commission Procedures

Any employer, employee, or union that 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 another representative.  (See Rule 22.)  Such a person need not be an attorney.  However, all representatives of parties must either enter an appearance by signing the first document filed on behalf of the party or intervenor, or thereafter by filing an entry of appearance. (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 first class mail, electronic transmission, or personal delivery. (See Rule 7(c).)

All notices the Commission sends to the parties will list the name and address of all parties or their representatives.  (See Rule 22.) Parties must do the same.

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 size of the business of the employer being charged,
  • The gravity of the violation,
  • The good faith of the employer, and
  • The employer's history of previous violations.

The amounts that may be assessed as civil penalties by the Commission under Section 17 of the Act are as follows:

  • For a serious or non-serious violation:  up to $7,000.00
  • For violations committed willfully or repeatedly:  up to $70,000.00
  • For failure to correct a violation within the period permitted:  up to $7,000.00 for each day it remains uncorrected.

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.  This prohibition does not, however, preclude asking questions about the scheduling of a hearing or other matters that deal only with procedures. (See 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 Proceedingmay 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 Simplified Proceedings. (See 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.


Section 6 – Descriptive Table of Conventional Proceedings for Contesting an OSHA Citation

Events Common to All Proceedings

  • Employer files notice of contest with OSHA office that mailed citation -- within 15 working days of receiving the citation.

  • Employer receives notification (notice of docketing) from Commission of case, docket number and forms to notify employees.

  • Employer posts notification to employees of case in progress.

  • Union and/or affected employees may contest reasonableness of abatement period; notice of contest is sent to citing OSHA office within 15 working days of the employer’s receipt of the citation.

  • If the Chief Administrative Law Judge has not assigned the case for Simplified Proceedings, and if a party has not requested Simplified Proceedings within 20 days of the notice of docketing and the request is not granted, conventional proceedings will be used. (See Rule 203.)

Events Pertaining to Conventional Proceedings

The Employer:

  • Receives a complaint from OSHA's attorneys.

  • Files an answer to the complaint within 20 calendar days of receiving the complaint.

  • Discusses discovery techniques with the judge when applicable.

  • Participates in a conference call to discuss issues and a possible settlement.

  • Engages in discovery; exchanges interrogatories and depositions.

  • Discusses settlement in another conference call with OSHA and judge. If not settled, then:

    • Prepares for and participates in the hearing.

    • May purchase a copy of the hearing transcript and may choose to submit a brief to the judge.

  • Judge issues a decision. (If dissatisfied, any party may ask for Commission review of the decision.


Section 7 – Descriptive Table of Contesting an OSHA Citation and Choosing Simplified Proceedings

Events Common to All Proceedings

  • Employer files notice of contest with OSHA office that mailed citation -- within 15 working days of receiving the citation. 

  • Employer receives notification (notice of docketing) from Commission of case, docket number and forms to notify employees.

  • Employer posts notification to employees of case in progress. 

  • Union and/or affected employees may contest reasonableness of abatement period; notice of contest is sent to citing OSHA office within 15 working days of citation's posting at work place. 

  • If the Chief Administrative Law Judge has assigned the case for Simplified Proceedings, or if a party has requested Simplified Proceedings and the request is granted, Simplified Proceedings will be in effect. (See Rule 203.)

Events Pertaining to Simplified Proceedings

If all disputed issues not resolved at the prehearing conference, then parties:

  • List witnesses and exhibits.

  • Prepare for and participate in the hearing.

  • Present oral arguments at the close of the hearing.

  • May purchase a copy of the hearing transcript.

  • Decide whether to request permission to file a brief.

Judge issues decision.

  • If dissatisfied, any party may ask for Commission review of the decision.

Section 8 - Descriptive Table of Events

Pertaining to Review of an Administrative Law Judge’s Decision

If an employer is dissatisfied with an administrative law judge’s decision and wishes to seek review by the Commission members, the employer:

  • Receives judge's decision; dissatisfied with the outcome.

  • Files petition for discretionary review of the judge's decision.

  • Receives notification from Commission that case is or is not directed for review.

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:

  • Receive a request from Commission for briefs on review.

  • File briefs on review before Commission.

  • Receive Commission decision that may supercede the judge’s decision and affirm, modify or reverse it. In some cases, the judge’s decision may be remanded for further proceedings.

  • Files petition for review in Court of Appeals if dissatisfied with Commission decision.

See also Rules 90-96


Glossary

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 2B 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 (See Appendix 8.)

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


Appendixes/Sample Legal Documents

This section is not intended to be a manual of forms, and the sample legal documents here are limited in number. The sample legal documents are intended for illustration to familiarize the reader with the general nature of some of the documents received and issued. Many of the documents received by the Commission, such as those in Appendixes 2, 3, and 6 (Complaint, Answer, and Petition for Discretionary Review), vary significantly from case to case.

Appendix 1 - Notice of Contest

Appendix 1A. Notice Of Contest To Citation And Proposed Penalties

XYZ Corp.
123 Street
City, State Zip Code

February 26, 2004

ABC, Area Director
Occupational Safety and Health Administration
U.S. Department of Labor, Federal Building
City, State Zip Code

Dear Mr. ABC:

This is to notify you that XYZ Corp. intends to contest all of the items and penalties alleged in the Citation and Proposed Penalty, received February 20, 2004, and dated February 19, 2004 (a copy is attached).

Very truly yours,

XYZ, President


Appendix 1B. Notice Of Contest To Proposed Penalties Only

XYZ Corp.
123 Street
City, State Zip Code
September 14, 2004

ABC, Area Director
Occupational Safety and Health Administration
U.S. Department of Labor, Federal Building
City, State Zip Code

Dear Mr. ABC:

I wish to contest the amount of the Proposed Penalties of $1,200 issued September 9, 2004, based on the violations cited by you during your recent inspection.

Sincerely,

XYZ, President
General Manager


Appendix 1C. Notice of Contest By Employee Representative

GHI International Union
456 Street
City, State Zip Code
June 9, 2004

ABC, Area Director
Occupational Safety and Health Administration
U.S. Department of Labor, Federal Building
City, State Zip Code

Dear Mr. ABC:

We have been authorized by the employee representative, GHI International Union, to file this notice of contest to the OSHA citations issued on June 2, 2004, against the employer, XYZ Co. The abatement dates of June 27, 2004, for Items No. 1 and No. 3 of the non-serious citation, and January 5, 2005, for Item No. 1 of the serious citation, are unreasonable and will continue to expose workers to safety hazards.

Sincerely,

­­JKL, Director
Safety Department
GHI International Union


Appendix 2 - Complaint and Certificate of Service

Appendix 2A. Complaint

U. S. Occupational Safety and Health Review Commission

Secretary of Labor,
               Complainant,

               v.                          OSHRC Docket No. 99-9999

XYZ Co.,
               Respondent,

COMPLAINT

This action is brought to affirm the Citations and Notifications of penalty issued under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651, et seq., hereinafter the Act, of violations of  §5(a) of the Act and the Safety and Health Regulations promulgated thereunder.

I

Jurisdiction of this action is conferred upon the Commission by  §10(a) of the Act.

II

Respondent, XYZ Co., is an employer engaged in a business affecting commerce within the meaning of §3(5) of the Act.

III

The principal place of business of respondent is at 123 Street, City, State, Zip Code, where it was engaged in retail sales as of the date of the alleged violations.

IV

The violations occurred on or about June 9, 2004, at 123 Street, City, State, Zip Code (hereinafter "workplace").

V

As a result of an inspection at said workplace by an authorized representative of the complainant, respondent was issued three Citations and Notifications of Penalty pursuant to §9(a) of the Act.

VI

The Citations and Notifications of Penalty, copies of which are attached hereto and made a part hereof as Exhibits "A", "B", and "C" (consisting of one page each) identify and describe the specific violations alleged, the corresponding abatement dates fixed, and the penalties proposed.

VII

On or about July 29, 2004, by a document dated July 26, 2004, the complainant received notification, pursuant to §10(a) of the Act, of respondent's intention to contest the aforesaid Citations and Notifications of Penalty.

VIII

The penalties proposed, as set forth in Exhibits "A", "B", and "C" are appropriate within the meaning of §17(j) of the Act.  The abatement dates fixed were and are reasonable.

WHEREFORE, cause having been show, complainant prays for an Order affirming the Citations and Notifications of Penalty, as aforesaid.

JKL, Attorney
Office of the Solicitor
U.S. Department of Labor, Federal Building
City, State Zip Code


Appendix 2B. Certificate of Service*

I certify that the foregoing Complaint was served this 19th day of August, 2004, by mailing true copies thereof, by first class mail to:

XYZ
XYZ Corp.
123 Street
City, State Zip Code

PQR
Attorney

* A similar document must accompany all other documents requiring a certificate of service.


Appendix 3 - Answer

U. S. Occupational Safety and Health Review Commission

Secretary of Labor,
               Complainant,

               v.                          OSHRC Docket No. 99-9999

XYZ Corp.,
               Respondent,

ANSWER

I, II, III

Respondent admits Paragraphs I, II and III.

IV

Respondent denies Paragraph IV.

V

Respondent neither admits nor denies the allegations at Paragraph V.

VI

Respondent denies Paragraph VI.

VII

Respondent neither admits nor denies the allegations at Paragraph VII.

VIII

Respondent denies the allegations at Paragraph VIII. The penalties are excessive under § 17(j) of the Act based upon the small size of the employer, which has only twelve employees, and the low gravity of the alleged violations.

IX

Respondent pleads the affirmative defense of "greater hazard." Abatement of the alleged violations will increase the safety risk to employees. Respondent also pleads the affirmative defense of "unpreventable employee misconduct."  The alleged conditions were the result of unauthorized actions by certain employees which resulted in the conditions referred to in the alleged violations.

RESPONDENT
By _______________________
Attorney
XYZ Corp.
123 Street
City, State Zip Code


Appendix 4 – Request for Simplified Proceedings

XYZ Corp.
123 Street
City, State Zip Code

March 26, 2004

Executive Secretary
U.S. Occupational Safety and Health
Review Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3457

Dear Executive Secretary;

I request Simplified Proceedings. The Review Commission Docket Number assigned to my case is 99-9999.

Very truly yours,

XYZ, President


Appendix 5 - Notice of Decision

Notice of Decision

In Reference To:
Secretary of Labor v. XYZ Corp.
OSHRC Docket No.   99-9999

1. Enclosed is a copy of my decision. It will be submitted to the Commission's Executive Secretary on January 3, 2004.  The decision will become the final order of the Commission at the expiration of thirty (30) days from the date of docketing by the Executive Secretary, unless within that time a member of the Commission directs that it be reviewed.  All parties will be notified by the Executive Secretary of the date of docketing.

2. Any party that is adversely affected or aggrieved by the decision may file a petition for discretionary review by the Review Commission. A petition may be filed with the Judge within ten (10) days from the date of this notice.  Thereafter, any petition must be filed with the Review Commission's Executive Secretary within twenty (20) days from the date of the Executive Secretary's notice of docketing. See Paragraph No. 1. The Executive Secretary's address is as follows:

Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th Street, N.W. - 9th Floor
Washington, D.C. 20036-3457

3. The full text of the rule governing the filing of a petition for discretionary review is 29 C.F.R. 2200.91. It is appended hereto for easy reference, as are related rules prescribing post-hearing procedure.

MNO
Administrative Law Judge

December 1, 2004


Appendix 6- Petition for Discretionary Review

U.S. Occupational Safety and Health Review Commission

Secretary of Labor,
               Complainant,

               v.                          OSHRC Docket No. 99-9999

XYZ Corp.,
               Respondent,

PETITION FOR DISCRETIONARY REVIEW

Comes now Respondent, XYZ Corp., being aggrieved by the Decision and Order of the Administration Law Judge in the above-styled matter, and hereby submits its Petition for Discretionary Review pursuant to 29 CFR 2200.91-Rule 91, Rules of Procedure of the Occupational Safety and Health Review Commission.

Statement Of Portions Of The Decision And Order To Which Exception Is Taken

1. XYZ Corp. takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held XYZ Corp. in serious violation of the standard published at 29 CFR 1926.28(a) as alleged in Serious Citation 1, Item 1, in finding that XYZ’s employee John Jones was exposed to the alleged violation. (Judge’s Decision at pp. 8 - 12.)

2. XYZ Corp. takes exception to that portion of the Decision and Order pertaining to Serious Citation 1, Item 1, wherein the Administrative Law Judge held that action of employee John Jones was not unpreventable employee misconduct. (Judge’s Decision at pp. 13 - 17.)

Statement Of Reasons For Which Exceptions Are Taken

1. In his Decision, the Administrative Law Judge failed to follow the test set forth for the Fifth Circuit’s Decision in Secretary of Labor v. RPQ Corp.for determining the existence of employee exposure. The testimony at transcript pages 25 - 45 clearly shows that John Jones was not in the zone of danger because he was on a work break and outside of the definition of the zone.

2. The evidence of record supports XYZ’s position that the actions taken by employee John Jones were unpreventable. The Commission has set forth the test for determining unpreventable employee misconduct at Secretary of Labor v. ROM Corp. The testimony of XYZ’s employees at transcript pp. 46 - 59 met all of the requirements of ROM Corp. to prove John Jones’s actions were unpreventable.

For the reasons stated herein, XYZ Corp. hereby submits that the Occupational Safety and Health Review Commission should direct review of the Decision and Order of the Administrative Law Judge.

Respectfully submitted,

By ________________________
Attorney for
XYZ Corp.
123 Street
City, State Zip Code
Tel. No. (999) 999-9999


Appendix 7 - Direction for Review

U.S. Occupational Safety and Health Review Commission

Secretary of Labor,
               Complainant,

               v.                          OSHRC Docket No. 99-9999

XYZ Corp.
               Respondent,

DIRECTION FOR REVIEW

Pursuant to 29 U.S.C. § 66(j) and 29 C.F.R. § 2200.92(a), the report of the Administration Law Judge is directed for review.  A briefing order will follow.

COMMISSIONER

Dated:


Appendix 8 - Notice of Withdrawal

U.S. Occupational Safety and Health Review Commission

Secretary of Labor,
               Complainant,

               v.                          OSHRC Docket No. 99-9999

XYZ Corp,
               Respondent,

Respondent's Withdrawal of Notice of Contest

Respondent, XYZ Corp., by the undersigned representative, hereby withdraws its Notice of Contest in the case with the docket number above, pursuant to 29 CFR 2200.102 of the Rules of Procedure for the Commission.

XYZ
XYZ Corp.
123 Street
City, State Zip Code
March 30, 2004

 

Last Updated: November 13, 2007

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