Fiscal Year 2005
Performance Report
November 2005
Occupational Safety and Health Review Commission
Performance Accountability Report
Fiscal Year (FY) 2005
Overview
The Review Commission is an independent, adjudicatory agency created by the Occupational Safety and Health Act of 1970. Its sole statutory mandate is to serve as an administrative court providing just and expeditious resolution of disputes involving the Department of Labor’s Occupational Safety and Health Administration (OSHA), employers charged with violations of Federal safety and health standards, and employees and/or their representatives. The Review Commission was created by Congress as an agency completely independent of the Department of Labor to ensure that OSHA’s enforcement actions are carried out in accordance with the law, and that all parties are treated consistent with due process when disputes arise with OSHA.
The Occupational Safety and Health Act and the Review Commission’s Rules of Procedure (which by law mirror the federal rules) provide two levels of adjudication when an employer timely contests an OSHA citation for alleged violations of the Act or failure to abate such alleged violations. The first is a hearing level. This level affords an opportunity for a hearing before a Review Commission Administrative Law Judge for employers and affected employees who have filed a timely notice of contest. The judge’s decision becomes final unless the Commission chooses to review the decision. The second level is a discretionary appellate review of the judge’s decision by the Commission members. Both before its judges and the Commissioners, the Review Commission provides fair and impartial adjudication of cases concerning the safety and health of employees’ working conditions in the United States.
Mission and Organizational Structure
The mission of the Occupational Safety and Health Review Commission is to provide an impartial forum for the just and prompt adjudication of workplace safety and health disputes involving the Department of Labor, employers and employees, and/or their representatives under the Occupational Safety and Health Act of 1970.
The Occupational Safety and Health Review Commission has three members, appointed by the President and confirmed by the Senate, who serve six-year terms. One of the members also serves as Chairman of the agency. The Review Commission has three major functions. They are: the Commission function, the Administrative Law Judge function, and the Office of Administration function.
The principal (national) office of the Review Commission is located in Washington, D.C. There are also regional offices in Atlanta and Denver.
OSHRC’s vision is to continue to strive to be:
a quasi judicial body that is -- and is recognized for being -- objective, fair, prompt, and professional;
an agency that creates a body of law through decisions that define and explain the rights and responsibilities of employers and employees under the Occupational Safety and Health Act of 1970;
a model Federal agency with highly effective processes, a highly motivated, qualified and diverse workforce, and modern information management, communications, and administrative systems; and
an agency that values team work, develops its employees, and strives to improve its performance, service, and value to the American people.
Challenges and Opportunities
The Review Commission’s ability to meet its case disposition goals depends on a variety of factors. These include: (1) continued presence of a quorum at the Commission level; (2) the magnitude and nature of the cases received; (3) the success of the parties’ settlement negotiations and the Agency’s Simplified Proceedings and Mandatory Settlement programs in reducing the number of hearings needed; and (4) the number, location, length and complexity of trials held. Although these factors are largely outside the Review Commission’s control, the Review Commission is committed to working within such constraints to improve its service to the public.
The Occupational Safety and Health Act requires a quorum of two Commissioners. By statute cases can only be decided on the affirmative vote of two Commissioners. During periods when the Commission lacks a quorum, no cases can be decided. In addition, with only two Commissioners, it may be more difficult to reach agreement sufficient to dispose of some cases. In cases where such agreement cannot be reached, deadlocks result. As a result, action on important issues may be postponed and issuance of some pending cases will be delayed.
The Commission is now operating with two members because one Commissioner’s term expired during 2005. President Bush has nominated a new Commissioner. If he is confirmed the Commission will have a full complement of commissioners until late April of 2007.
The number of safety and health inspections carried out by OSHA each year, the nature of those inspections, and the rate at which employers choose to contest the citations issued and penalties proposed by OSHA all impact on the number of cases contested before the Review Commission. In addition, OSHA’s emphasis during recent years on more serious workplace hazards, and the consequent increase in proposed penalties, has translated into more complicated cases, and more costly trials. Consequently, the complexity and size of the cases both at the Administrative Law Judge level and at the Commission level has increased steadily in recent years.
The Commission’s inventory of cases includes a number of extremely large and difficult cases. Preparation of each of these cases consumes a huge amount of attorney and Commissioner time. This, in turn, slows work on all other cases. The size and complexity of these cases have impacted the ability of the Office of the General Counsel to prepare and present a steady flow of cases to the Commission for disposition and to prepare the initial drafts of the Commission’s opinions.
OSHA conducted approximately 37,700 inspections in FY 2005. The number of OSHA inspections, and their likely focus on the highest hazard workplaces affects the Review Commission’s caseload. These inspections tend to result in more complex and contentious cases, which consume extensive judicial time. Their discovery process is lengthy and time consuming, motion practice is expanded, legal research and decision-writing time is protracted and, of necessity, the trial process is elongated and complicated.
Effective August 1, 2005, the Review Commission eased entry requirements to its Mandatory Settlement and Simplified Proceedings programs. These programs grant full due process rights to all parties in adjudicating these cases without bogging them down in legal formalities.
Under Commission Rule 2200.120, where the parties consent thereto, the Chief Administrative Judge may assign a Settlement Judge to a pending proceeding to aid the party’s in disposing of cases. Where the aggregate amount of the penalty sought by the Secretary of Labor is $100,000 or greater, the Mandatory Settlement procedure goes into effect. The Settlement Judge appointed by the Chief Administrative Judge has full control of the proceeding and may require that the party’s’ representatives be accompanied by officials having full settlement authority. This procedure has aided the Commission in disposing of some extremely complex cases, with the approval of all parties.
The Simplified Proceedings process (formerly E-Z Trial) was enlarged to include cases where proposed penalties are not more than $20,000, and up to $30,000, when found eligible by the Chief Judge. The Simplified Proceedings process allows parties with relatively simple cases to have their “day in court” unencumbered by the formal Rules of Procedure and evidence, while assuring that due process requirements will be maintained. Under this process, a business, with or without counsel, can present its case before a Review Commission judge and receive a prompt decision. Most paperwork, including legal filings, has been eliminated so that justice can be rendered swiftly and inexpensively. The process is intended to reduce the time and legal expenses to employers contesting relatively small penalty cases.
Analysis of Financial Statements
The Review Commission had biennial audits of its financial statements from 1996 through 2002. Consistent with the Accountability of Tax Dollars Act of 2002, OSHRC began annual audits in FY 2003, and has received an "unqualified" opinion for each biennial and annual review by independent auditors.
Since 2002, the Review Commission has contracted with the Bureau of Public Debt, Administrative Resource Center for accounting services. The Administrative Resources Center prepared the Review Commission’s FY 2005 financial statements. The principal financial statements include the Balance Sheet, Statement of Net Cost, Statement of Net Position, Statement of Budgetary Resources, Statement of Financing, and the Statement of Custodial Activity.
Limitations of the Financial Statements
The principal financial statements have been prepared to report the financial position and results of operations of the Review Commission, pursuant to the requirements of 31 U.S.C. 3515 (b).
The statements have been prepared from the books and records of the Review Commission in accordance with generally accepted accounting principles (GAAP) for Federal entities and formats prescribed by the Office of Management and Budget (OMB). The statements are in addition to the financial reports used to monitor and control budgetary resources, which are prepared from the same books and records. These statements should be read with the realization that they are for a component of the United States Government, a sovereign entity.
Systems, Controls, and Legal Compliance
The Occupational Safety and Health Review Commission is a small agency and does not have a separate Inspector General Office. Therefore, the Review Commission’s management team assumes the responsibility for assessing or overseeing the assessment of the Agency’s internal operations and determining if there are any weaknesses that need correction.
In FY 2005, two program reviews took place: an audit of FY 2005 financial statements, and an audit of computer and information security. The financial audit was clean, with no reported material weaknesses in any area.
The Agency contracted for an FY 2005 independent audit of its computer and information security, consistent with the Federal Information Security Management Act (December 17, 2002) signed into law as part of the E-Government Act (Public Law 107-347). This independent evaluation revealed that there was a material weakness in policies and procedures, specifically in Certification and Accreditation. Recommendations for improvement were made for the Agency’s security program and plan. The Agency is using recommendations generated from the audit to develop management initiatives.
The system of internal controls for this Agency is functioning well. It provides reasonable assurance as to the efficiency and effectiveness of programs and operations, reliability of financial and performance information, and compliance with laws and regulations. These controls satisfy the requirements of the Federal Managers' Financial Integrity Act. As previously mentioned, the Review Commission has had biennial, and more recently, annual audits of its financial statements, including reviews of the adequacy of the Review Commission’s internal control systems. The Review Commission has received an unqualified opinion for each audit conducted.
The Review Commission has contracted with the Treasury Franchise Fund, Administrative Resource Center, [Bureau of Public Debt (BPD)], for accounting, disbursement, and travel services and with the National Finance Center for payroll and personnel services. In addition to the Agency’s internal controls and procedures that safeguard assets and ensure that obligations and disbursements are made consistent with management’s direction, the BPD and the National Finance Center have established practices and procedures that assure appropriate internal controls. The two agencies’ internal control systems are evaluated independently.
Performance Goals and Results
The Review Commission’s strategic goal is to provide fair, just, and expeditious adjudication of disputes brought before the Commission and its judges. To this end, the Review Commission’s Strategic Plan and associated Outcome Goals for the period FY 2006 through FY 2011 reflect objectives for the Commission and Administrative law functions.
Commission Function
The function of the Commissioners is to review and decide cases contested under the Act, following an initial decision by an Administrative Law Judge. This higher level of review must be prompt, fair, and protective of the parties’ rights. Overall, this is our public service goal.
The Commission is now operating with two members because one Commissioner’s term expired on April 27, 2005, but it still expects to make substantial progress in addressing its caseload. The Commission previously estimated that a total of 59 cases would be pending at the end of FY 2005, however, the Commission actually had 40 cases pending at the end of the fiscal year, a significant reduction in its backlog. If a new Commissioner is confirmed in FY 2006, the Commission will have a full complement of commissioners until late April 2007. This period of full membership should enable the Commission to issue decisions in a number of large, difficult cases now pending before it. Issuing decisions in these large cases will also allow the Commissioners, their staffs, and the Office of General Counsel to consider and decide the other cases on the backlog more expeditiously.
To facilitate workflow, the Office of the Executive Secretary was moved from the Office of the Executive Director to the Office of the Chairman in FY 2005. The Executive Secretary dockets incoming cases resulting from OSHA appeals, and communicates with the public in general and case parties in particular.
The following table lists the performance goals and results for this function in FY 2005.
Performance Goals
Performance Indicators
FY 2003
Actual
(Target)
FY 2004
Actual
(Target)
FY 2005
Actual
(Target)
Reduce the length of time to resolve Commission-level cases
Percent of cases over 2 years old disposed of at the Commission level
New for FY 04
42%
(100%)
52% - Target not met. (100%)
Reduce the length of time to resolve priority cases
Percent of priority cases disposed of within 6 months
New for FY 04
100%
(100%)
100 % - Target met (100%)
Administrative Law Judge Function
The function of the Review Commission’s Administrative Law Judge Division is to conduct formal hearings and related proceedings in a fair, just, and expeditious manner. The function is directly related to the public service goal. The following table lists the performance goals and results for this function in FY 2005.
Performance Goals Performance Indicators FY 2003
Actual
(Target) FY 2004
Actual
(Target) FY 2005
Actual
(Target)
Increase the percent of non-complex cases at the ALJ level that are resolved in less than one year
Percent within 365 days
New for
FY 04
98%
(93%)
99.5 - Target exceeded
(94%)
Increase the percent of complex cases at the ALJ level that are resolved within 18 months
Percent within 540 days
New for
FY 04
98%
(93%)
98.2 - Target exceeded
(94%)
Office of Administration Function
The function of the Office of Administration is to provide administrative support services for the Review Commission, to assure its success in fulfilling its mission.
The Administration function provides strategic planning and operational management of the organization. Administration also includes the office of public information, technology management, computer and information security, financial, and administrative services. The day-to-day tasks performed under the direction of the Executive Officer include:
Supporting the development and implementation of the Agency’s strategic goal
Maintaining a public information office, including providing case decisions to the public
Responding to Congressional, and public inquiries
Maintaining and enhancing a website to provide the public with greater access to Review Commission information
Providing support agency-wide in the areas of finance, budget, procurement, personnel, equal opportunity and administration
Providing personnel, payroll, benefits, reproduction, and mail services, and travel assistance to agency employees
Procuring goods and services, maintenance and needed repairs of equipment, training, reference materials, supplies and office space
Maintaining a library in the national office and in each regional office for legal and technical research
Implementing improved computerized case management and administrative systems through hardware and software
Developing computer systems and information security enhancements enhancing telecommunications and improving technology efficiency and effectiveness
Performance Data Verification
For each strategic goal and its related objectives, the Review Commission formulated performance measures and numerical annual targets, whenever possible. A few measures are necessarily qualitative in nature. Case processing and adjudication measurements are used for several objectives contained in our Public Service Goal. Most of the data related to the Public Service Goal resides in the Review Commission’s case management/tracking system. In FY 2005, each of the more than 2,150 new cases filed with the agency was entered into the case management system, and progress on all cases was tracked. In order to assure the quality of the data, management periodically reviews the information in the case management/tracking system. The agency conducts test runs of the data to ensure that information is entered and updated on a timely basis. Semi-annual and annual reviews are conducted by the appropriate managers to ensure the accuracy of the data, to monitor performance goals and progress, and produce reports. The reports are used to assess workload and make workload adjustments, when necessary. At the end of the year, this data is used by the offices to measure performance related to the goal and improve management.