With these changes, no one who is dissatisfied with an OSHA enforcement action affecting him, should have any trouble understanding what he must do to obtain a hearing on the matter, and, if he wants a hearing, there will no longer be any red tape or other legal barriers to achieving that desire. Very truly yours, ROBERT D. MORAN, Chairman. A GUIDE TO THE PROCEDURES OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION INTRODUCTION This pamphlet is an explanation of how proceedings are conducted in the Occupational Safety and Health Review Commission (OSAHRC). It is not an official supplement to the Commission's Rules of Procedure but is published as a guide so that some of the principal provisions of those Rules may be more readily understood. The Commission's Rules of Procedure may be obtained by writing to: Occupational Safety and Health Review Commission, 1825 K Street, N.W. Washington, D.C. 20006. They are also published in volume 29, Code of Federal Regulations, §§ 2200.12200.110. 1. The Commission The Occupational Safety and Health Review Commission is an independent agency of the U.S. Government. It is not affiliated in any way with the Department of Labor. There are three Commission Members who are appointed by the President of the United States for six year terms, and forty-five or more judges who have career tenure. The judges hold hearings and adjudicate disputes under the Occupational Safety and Health Act of 1970. The Commission Members review the judge's decision, and have the authority to change such decisions. Review Commission Judges are appointed by the Chairman of the Commission. Their offices are located in principal cities throughout the United States, but they generally travel to the community where an alleged violation of the Act has occurred to hold their hearings. 2. How OSHA Cases Are Initiated by the Department of Labor Cases which come before the Commission or its Judges begin with an inspec tion conducted by the Occupational Safety and Health Administration (OSHA) an agency of the United States Department of Labor. When the OSHA inspector finds what he believes to be a violation of the Act, the employer is notified in writing of the exact nature of the alleged violation and the period of time OSHA deems reasonable for its correction. This document is called a citation. The period of time specified in the citation for the correction of the alleged violation is called the abatement period. The Act requires that the employer post a copy of the citation. Within a reasonable time after the issuance of the citation, OSHA is required to notify the employer in writing of the penalty, if any, proposed to be assessed for each violation it has alleged. This document is called a notification of proposed penalty. It must be sent by certified mail. Many times both the citation and notification of proposed penalty are mailed to the employer in the same envelope. If neither the cited employer nor any affected employees take action to contest this action within fifteen working days (Mondays through Fridays, excluding Federal holidays), the citation and notification of proposed penalty will become the final order of the Commission and not subject to review by any court or agency. COMMISSION PROCEDURES 3. How an Employer Contests an OSIIA Action Initially there are 2 things to be done by an employer who wishes to contest the citation he has received from OSHA, or any part thereof, or the amount of any penalty proposed against him: (a) Within fifteen working days from his receipt of the notification of proposed penalty, he must notify the Labor Department, in writing, of his intent to contest (this is called a Notice of Contest), and (b) Upon receiving notice that the case has been docketed, he must notify his affected employees (and their union representative, if any) that he is contesting the case. This latter requirement has been included so that affected employees will know of the case in the event they wish to avail themselves of the opportunity to participate as a party. The Commission will supply forms to the employer for this (further explanation is contained in section 11D of this Guide). The notice of contest is a simple written statement by the employer or his representative that he intends to contest the action initiated against him by the Department of Labor. If the employer does not wish to contest everything in the citation and notification of proposed penalty, his letter should specify exactly what he is contesting. For example, there may be two citations and he wishes to contest only one of them. He should identify that one. Or there may be six different items alleged as violations in a citation and he only wishes to contest items 3, 4, an 6. He should so specify. If he wishes to contest the total amount of the proposed penalty or only the amount for one citation or specific items on one citation, or only the abatement period for some or all of the violations alleged, he should so state. For any citation or items listed on a citation which the employer does not contest, the employer must comply with the abatement period and pay to the Department of Labor whatever monetary penalty is specified for such citation or items. 4. Where to send a notice of contest The employer must mail his notice of contest to the Area Director of the OSHA office from which the citation came. Regular first class mail will be sufficient for this purpose. The appropriate Area Director's name and address will be listed on the citation. The employer must not send this notice to the Commission. Note: The filing of this notice of contest in good faith and not solely for purposes of delay or avoidance of penalties tolls the abatement period. In other words, the time specified for correcting the violation alleged in the citation does not begin to run until the entry of a final order of the Commission for those alleged violations which are contested.) 5. Procedures before hearing Within seven days of receipt, the OSHA Area Director must forward the employer's notice of contest to the Commission. The Commission's Executive Secretary then notifies the employer, the Secretary of Labor, and all other parties to the case of the Commission's receipt of the notice of contest and the docket number assigned to the case. The Secretary of Labor then becomes the Complainant in that case, and the contesting employer is the Respondent. At the time the employer is notified that his case has been docketed, the Commission will furnish him with a copy of a notice to be used in advising his affected employees and a return postcard so the Commission will know that this has been done. Pleadings are then filed as specified below: Within 20 days of the date on which OSHA receives the employer's notice of contest, counsel for the Secretary of Labor must file a written COMPLAINT with the Commission. A copy must be sent to the employer and all other parties to the case, if any (See section 11B of this Guide). The Complaint sets forth the alleged violation (or violations), which the employer is contesting, in more specific detail than was listed on the citation, and recites certain jurisdictional matters. It also relates the basis for the abatement period, and a justification of the proposed penalty. The employer must file a written Answer to the Complaint with the Commission within 15 days of the date the Secretary files the Complaint. A copy must be sent to counsel for the Secretary and to all other parties to the case, if any. The Answer must be either a general denial of the Complaint or specify those statements in the Complaint which the employer denies or wishes to explain. Any allegation in the Complaint not denied in the Answer will be deemed to have been admitted. Between the filing of the Answer and the date of the hearing, various motions or petitions may be filed by any party. After all pleadings are completed, the parties will be notified of the assignment of the case to a Commission Judge. Prehearing conferences may then be scheduled by the Commission. The parties will be notified of the time and place of the hearing at least 10 days in advance thereof. This notice must be posted by the employer. A form to accomplish this will be supplied by the Commission. 87-382 O - 73 - 27 6. Withdrawal of Notice of Contest An employer who has filed a notice of contest and later determines that he wishes to withdraw his case may do so at any stage of the proceedings if he: 1. Shows that the alleged violation has been abated (or shows when it will be abated). 2. Pays the amount of the proposed penalty to the Secretary of Labor. 3. Serves notice thereof upon affected empolyees and their authorized representative, if any. 7. Settlement The Commission encourages settlement at any stage of the proceedings. The Secretary of Labor must agree to the settlement terms and affected employees or their authorized representative must be advised of the terms thereof. The Commission must also approve. 8. Hearings Hearings are adversary proceedings conducted like trials in court. The hearing is usually conducted in or near the community where the alleged violation occurred. At the hearing, a Review Commission judge will preside. The Secretary of Labor has the burden of proof (except as stated in section 10 of this Guide). He must establish each contested violation through evidence introduced in open court. Each party to the proceeding may call witnesses, introduce evidence, and cross-examine opposing witnesses. In making his decision, the judge is only permitted to consider matters received during the hearing. Thus, each party must be sure to see that their case is fully presented. After the hearing is over, and before the judge makes his decision, each party is given an opportunity to submit to the judge, written briefs and proposed conclusions of law. 9. Procedure after hearing After the Judge has heard the evidence, he will issue a written decision and file it with the Commission. Each party will receive a copy. This decision becomes final 30 days after its receipt by the Commission, unless within that 30-day period any Commission member directs that the case be reviewed by the full Commission. Review by the Commission is not a matter of right. It is solely within the discretion of the members of the Commission. However, any party may file a petition with the Commission during the 30-day review period requesting that the Commission review the decision of the Judge. The petition should state the reasons the petitioner believes the Judge's decision should be reviewed. It should be sent to the Commission in Washington, D.C. so that it will be received no later than 25 days after the judge's decision. When the Commission does decide to review a judge's decision, the parties are notified and given an opportunity to submit written briefs and exceptions to the judge's decision. No party is required to appear in person before the Commission. However, the Commission may, on occasion, request an oral presentation. Where the Commission does not grant review of a judge's decision, the judge's decision automatically becomes the final order of the Commission 30 days after it is filed. It may then be appealed by any aggrieved party to an appropriate U.S. Circuit Court of Appeals. This right of appeal also applies to Commission decisions issued after a direction for review. 10. Petition for modification of abatement There are some instances where u employer has not contested an OSHA citation (or appealed a Commission order) but wishes to have a change in the abatement date with which he is required to comply. If the employer has made a good faith effort to comply with that abatement period but has not been able to do so by the prescribed date because of factors beyond his control, he may file a Petition for Modification of Abatement. This Petition is filed with the OSHA Area Director in the same manner as a notice of contest and must be filed no later than the end of the next working day following the date on which abatement was to have been completed. It should state why the abatement is not completed. Affected employees and their union (if any) must also be notified (see section 11D of this guide). OSHA is required to forward the Petition to the Commission within 3 days of receipt. Various pleadings are then filed as indicated below. Within 10 days, the Secretary of Labor is required to file a Response. Procedures are otherwise the same as with a notice of contest, except that the em |