Guide to Simplified Proceedings
Occupational Safety and Health Review Commission
Table of Contents
The Review Commission
The Occupational Safety and Health Review Commission (“Commission”) is an independent agency of the U.S. Government. The Commission's only function is to resolve disputesthat result from inspections carried out under the Occupational Safety and Health Act of 1970, which we will refer to simply as the Act. The Commission is completely independent of the Department of Labor and the Department's Occupational Safety and Health Administration (“OSHA”). It is composed of three Commission members who are appointed by the President of the United States for six-year terms, and it employs Administrative Law Judges to hear cases.
What are Simplified Proceedings?
Simplified Proceedings are a method for hearing less complex cases before the Commission judges. They are quicker, less costly and involve fewer legal formalities than the conventional method of hearing cases. 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.
Purpose of this Guide
This guide is an explanation of how proceedings are conducted before Commission judges under Simplified Proceedings. It is published to assist you in following the Commission's Simplified Proceedings Rules. The guide is not, however, a substitute for the Rules. In the event of a perceived inconsistency, the formal Rules of Procedure will govern. References to the "Rules" in this guide simply state "See Rule," followed by the rule number.
Rules of Procedure
The Commission's Rules of Procedure are published in part 2200 of Title 29, Code of Federal Regulations (“C.F.R.”); Subpart M (Rules 2200.200-2200.211) covers Simplified Proceedings. These regulations, along with the Act, may be available in a local library and can also be obtained at the Commission website, located at http://www.oshrc.gov, or by writing or calling:
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. File means to send papers to the Commission Executive Secretary, or judge assigned to a case, and to give copies of those papers to the other parties in the case. Failure to file documents as required could result in a citation becoming a final order without an opportunity to have your case tried. Therefore, you must respond promptly and within the time limits ordered to communications you receive from either the judge, the Commission, or any of the parties to the dispute.
Using this Guide
This guide describes the process and related documents the Commission has developed to simplify legal proceedings before its judges. It includes a table summarizing the major steps for using Simplified Proceedings in Section 3 of this Guide. Important terms and requirements are shown in bold italics the first time they appear and are included in a Glossary for easy reference. It omits discussion of the Commission's more complex conventional procedures, except where such information is needed to understand Simplified Proceedings. Conventional procedures are the standard way cases are handled in which all legal formalities are observed. They are more costly and time consuming, but often necessary for more complex cases.
Employer's Notice of Contest
Most cases begin with the filing of a notice of contest by an employer disagreeing with some part or all of the OSHA citation. The employer must notify OSHA in writing of that disagreement within 15 working days (Mondays through Fridays, excluding Federal holidays) of receiving the citation. This written notification is called a notice of contest. If the notice of contest is late, the employer is not usually entitled to have the dispute resolved by the Commission.
The notice of contest 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 those matters being contested. (See Appendixes 1A, 1B.)
The notice of contest must be in writing and delivered to the Area Director of the OSHA office that mailed the citation. If delivered by mail, first-class mail is sufficient. The Area Director's name and address will be listed on the citation. A notice of contest must not be sent to the Commission.
Notice of Docketing
Once OSHA notifies the Commission of the case, our Executive Secretary issues a notice of docketing, which confirms that we have received the case. He also assigns a Docket Number that must be included on every document subsequently filed in the case.
Questions About this Guide
If you have questions on proper procedure, call either the judge assigned to your case or the Chief Administrative Law Judge's office at (202) 606-5405. They cannot give legal advice or discuss the merits of a case, but they can explain our procedures.
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:
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:
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.” (See Appendix 2.) 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 2.) The letter must be sent to:
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 6.)
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.
Restrictions on Obtaining Information and Flexibility Regarding Evidence
Discovery (the process by which one party obtains information from another party before a hearing) is restricted under Simplified Proceedings. Unlike conventional procedures, discovery is discouraged and will occur only when ordered by the judge. Rules governing the admissibility of evidence are also modified in Simplified Proceedings. The judge is not bound by the technical requirements of the Federal Rules of Evidence. This means that the judge may be more flexible in determining what evidence is submitted and how those submissions can be made. (See Rules 208 and 209.)
Required Information Disclosures
In cases designated for Simplified Proceedings, the Secretary of Labor must give the employer, free of charge, a copy of documents generally called the OSHA investigatory report (OSHA forms 1-A and 1-B, the narrative and worksheet) within 12 working days after a case has been designated for Simplified Proceedings, and, within 30 calendar days, copies of photographs and videotapes. The Secretary must also give the employer any evidence in her possession, which is information that may clear one of a charge or of fault or of guilt.
When an employer admits that the violation occurred, but offers an excuse for the violation (an "affirmative defense"), the judge will order the employer to disclose to the Secretary documents relevant to the defense. (See Rules 206(a) and (b).)
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.)
A motion is a request asking that the judge direct some act to be done in favor of the party making the motion. Simplified Proceedings are designed to eliminate, when possible, motions and similar documents. Aside from motions to begin or discontinue Simplified Proceedings, motions made to the judge will not be received favorably if the parties have not first discussed the matter and tried to resolve the problem without filing the motion. (See Rule 205(b).)
The judge will hold a hearing as soon as possible after the pre-hearing conference on the issues the parties have not resolved. A court reporter will be present and will prepare a transcript of the hearing. At the beginning of the hearing, the judge will officially enter into the record agreements reached by the parties as well as all defenses raised at the pre-hearing conference. The record includes all papers served on the other parties, all judges' rulings, transcripts and exhibits presented at the hearing. The judge will determine whether other agreements can be reached and if so, enter these into the record. The judge will then conduct a hearing on any remaining areas of dispute. Although the Federal Rules of Evidence will not apply, each party will have the right to question all witnesses and to introduce relevant evidence. All testimony will be under oath or affirmation. (See Rules 209(b)-(f).)
Copies of the transcript may be purchased at your own expense. At the close of the hearing, you may make an oral summary of your case to explain your position on the record.
Although it is not required, you may ask the judge for permission to file a brief (written arguments) after the hearing. It is expected that, in the usual Simplified Proceedings case, the judge will not find such written arguments necessary to aid him or her to reach a decision. If you intend to file a brief, you should inform the judge of your intention to do so during the hearing. The judge will then set a due date for your brief if permission to file is granted.
If a brief is allowed, it should contain a summary of the facts as established at the hearing, the parts of the OSH Act or the regulations or standards that are involved, and an explanation, or argument, of how the law or past Commission decisions support your position.
In some instances, the judge may issue a decision at the hearing immediately after the oral arguments of the parties. This is called ruling "from the bench." In such a situation, the judge, within 45 days after the hearing ends, will place a written version of the oral decision in the record. When the judge finds it necessary to deliberate further and does not rule "from the bench," he or she will write a decision that generally will be sent to you within 45 days after the close of the hearing (see Appendix 3).
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 4). 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 5). If it is granted, your case will then proceed under the Commission's conventional rules.
Remember: failure to meet deadlines may have serious consequences.
If case designated for Simplified Proceedings:
If all disputed issues are not resolved at the prehearing conference, then parties:
Judge then issues decision either from the bench or in writing within 45 days.
If dissatisfied, any party may ask for Commission review of the decision.
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, other than those who file an initial notice of contest as noted above, must write a letter to the Commission, and send a copy to all other parties, stating whom they are appearing on behalf of. This is known as filing an appearance. (See Rules 22 and 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.
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:
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, 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 case participants who are then 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 the offending party losing their 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 procedure. (See Rule 105.)
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. 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 documents filed in the case so they can be read at reasonable times by Affected Employees.
Seeking Review of the Judge's Decision
Once the parties receive the judge's decision and are dissatisfied with the outcome, they can object to the decision and ask the Commission members to review it by filing a Petition for Discretionary Review (see Appendix 4 for an example). Instructions for submitting such a petition will be stated in the judge's letter transmitting the decision. Cases on review are heard using the Commission's conventional proceedings. 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:
Each issue in a petition should be separately numbered and stated simply. The issue should also refer to specific pages of the transcript of the hearing, to the evidence, or to other authorities that the party thinks support its position. A petitioning party should file only the original petition for discretionary review and no copies. 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.
Abatement Period -- Period of time specified in citation for correcting alleged workplace safety or health violation.
Answer -- Written document filed in response to a complaint, consisting of short plain statements denying those allegations in the complaint that the employer contests.
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.
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.
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. 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.
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.
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.
Settlement -- An agreement reached by the parties resolving the disputed issues in a case.
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 1 and 4 (Notice of Contest 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
February 26, 2004
ABC, Area Director
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,
Appendix 1B. Notice Of Contest To Proposed Penalties Only
ABC, Area Director
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.
Appendix 1C. Notice of Contest By Employee Representative
GHI International Union
ABC, Area Director
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.
Appendix 2 – Request for Simplified Proceedings
March 26, 2004
Dear Executive Secretary;
I request Simplified Proceedings. The Review Commission Docket Number assigned to my case is 99-9999.
Very truly yours,
Appendix 3 - Notice of Decision
Notice of Decision
In Reference To:
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:
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.
December 1, 2004
Appendix 4 - Petition for Discretionary Review
U.S. Occupational Safety and Health Review Commission
Secretary of Labor,
v. OSHRC Docket No. 99-9999
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.
Appendix 5 - Direction for Review
U.S. Occupational Safety and Health Review Commission
Secretary of Labor,
v. OSHRC Docket No. 99-9999
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.
Appendix 6 – 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:
* A similar document must accompany all other documents requiring a certificate of service.
Last Updated: August 1, 2005