OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.
November 1, 1995
MEMORANDUM FOR: REGIONAL ADMINISTRATORS
AREA DIRECTORS
DIRECTORATE HEADS
FROM: JAMES W. STANLEY
DEPUTY ASSISTANT SECRETARY
SUBJECT: Review Commission E-Z Trial Process
The attached document is being distributed for your information. It is a guide which describes the E-Z Trial process and related documents the Review Commission developed to simplify legal proceedings before its judges.
The E-Z Trial is a simplified procedure designed to resolved small and relatively simply cases in a less formal, less costly, and less time-consuming manner. It has been instituted by the Review Commission on a one-year experimental basis.
It can be anticipated that a number of our OSHA cases will be tried via this E-Z Trial process. Area Directors and Compliance Officers especially should become familiar with the proceedings.
Occupation Safety and Health Review Commission
__________________________________________________________________________
OSHRC
__________________________________________________________________________
REVIEW COMMISSSION E-Z TRIAL PROCESS
__________________________________________________________________________
October 1995
__________________________________________________________________________
Table of Contents
__________________________________________________________________________
Page
Section 1 -- Introduction 1
The Review Commission 1
What is an E-Z Trial? 1
Time is of the Essence 1
Using this Guide 2
Section 2 -- E-Z Trial--An Overview for Employers
and Employees 3
Major Features 3
Cases Eligible 4
Employee or Union Participation 4
Should You Ask for E-Z Trial? 5
Beginning E-Z Trial 5
Notifying Other Parties 6
Objections to E-Z Trial 6
Discontinuing E-Z Trial 6
Restrictions on Obtaining Information and Flexibility
Regarding Evidence 7
Information Disclosure 7
Pre-hearing Conference 7
Hearings 9
Review of the Judge's Decision 10
Section 3 -- Other Important Things to Know 12
Appearances in Commission Procedures 12
Penalties 12
Private Communications 13
Maintaining Copies of Papers Filed with the Judge 14
Process for Seeking Review of Judge's Decision 14
Descriptive Table on Commission Process
E-Z Trial Step by Step 11
Glossary 15
Appendixes/Sample Legal Documents 16
Notices of Contest 16
Notice of Decision 18
Petition for Discretionary Review 19
Direction for Review 21
Notice of Withdrawal 22
Section 1
__________________________________________________________________________
Introduction to E-Z Trial
__________________________________________________________________________
The Review Commission The Occupational Safety and Health Review Commission
is an independent agency of the U.S. Government.
The Commission's only function is to resolve disputes
that 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 is an E-Z Trial? E-Z Trial is a method for hearing less complex cases
before the Review Commission Commission judges. It
is quicker, less costly and involves fewer legal
formalities than the conventional method of hearing
cases.
__________________________________________________________________________
Purpose of this Guide This guide is an explanation of how proceedings are
conducted before Commission judges under new E-Z Trial
procedures. It is published to assist you in
following the Commission's E-Z Trial 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
E-Z Trial. These regulations may be available in a
local library and can also be obtained by writing or
calling:
Office of Public Information
U.S. Occupational Safety and Health Review
Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3419
(202) 606-5398
__________________________________________________________________________
Time is of the Many of the documents parties are required to file
Essence such as those needed to disagree with an OSHA
citation or proposed penalty must be filed within a
specific time period. This means that failure to
file documents as required could result in a citation
becoming a final order without an opportunity to
appeal. Therefore, you must respond promptly 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 on page 12 summarizing the major steps for
using E-Z Trial. Important terms and requirements
are shown in bold italics the first time they appear
and are included in a Glossary for easy reference
(page 16).
It omits discussion of the Commission's more complex
conventional procedures, except where such
information is needed to understand E-Z Trial.
Conventional procedures are the standard way cases
are handled in which all legal formalities are
observed. It is more costly and time consuming, but
often necessary for more complex cases.
Finally, the Appendixes contain forms and sample
correspondence which may be used or referred to in
preparing your case.
__________________________________________________________________________
The Employer's Notice Most cases begin with the filing of a notice of
of Contest contest by an employer disagreeing with some part 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
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
in detail those matters being contested. (See
Appendix 1A-1C)
The notice of contest must be delivered in writing
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 Regarding If you have questions on proper procedure, call either
this Guide 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.
Section 2
__________________________________________________________________________
E-Z Trial--An Overview For Employers And Employees
__________________________________________________________________________
What is an E-Z Trial? E-Z Trial is a simplified procedure designed to
resolve small and relatively simple cases in a less
formal, less costly, and less time-consuming manner.
It has been instituted by the Commission on a
one-year experimental basis. The Commission's
Chief Administrative Law Judge or the judge assigned
to your case notifies you that your case will be
heard under E-Z trial.
__________________________________________________________________________
Major Features of E-Z Under E-Z Trial procedures:
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
proceeding. 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.
Instead of submitting briefs (written arguments
explaining your position in the case), the parties
argue their case orally before the judge at the
conclusion of the hearing. In many 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 Because this is an experimental program, it is likely
for E-Z Trial that not all relatively simple cases eligible for E-Z
(Rules 202 and 203(a)) Trial will be selected. The Chief Judge will assign
cases for E-Z Trial or, if your case is not selected,
you may request that it be chosen. Cases appropriate
for E-Z Trial 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 $10,000,
* no allegation of willfulness,
* a hearing that is expected to take less than two
days, or
* a small employer whether appearing with or without
an attorney.
__________________________________________________________________________
Employee or Union Affected employees or their unions who file a
Participation notice of contest may also request E-Z Trial.
Unions or an affected employee (those 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 within 15 working days of
the employer's posting 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. You might
consider E-Z Trial if you or your local union wish to
avoid the time and expense of a full blown hearing.
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 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 If you are an employer and your case was not
E-Z Trial? designated for E-Z Trial, you might consider E-Z Trial
if you received a citation from the Occupational
Safety and Health Administration, OSHA, and want to
fight it but the time and expense of a conventional
hearing may cost more than either the penalty or
abatement.
Your case may be appropriate for E-Z Trial but that
does not necessarily mean that your particular
interests are best served by requesting an E-Z Trial.
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, and
what you will try to show the Judge at the hearing.
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, E-Z Trial or
conventional, the proceedings are legal and the
Secretary of Labor will probably 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 E-Z Trial, the
(Rule 205(a)) complaint and answer are not required. However, until
an employer is notified that a case has been
designated for E-Z Trial, conventional procedures
should be followed and an answer must be filed.
__________________________________________________________________________
Beginning E-Z Trial Once the Commission receives a notice of contest,
(Rule 203) the Chief Administrative Law Judge may assign a case
for E-Z Trial. A party may also request E-Z Trial in
writing within 20 days of the date on the notice of
docketing. You need not give any reasons for
requesting E-Z Trial. A letter saying simply "I
request E-Z Trial," and indicating the Docket Number
assigned to your case, is sufficient. 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. 20036-3419
__________________________________________________________________________
Notifying Other It is required that a copy of your request for E-Z
Parties Trial must be sent to the Regional Solicitor of the
(Rule 203(b)) 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 E-Z Trial. 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 E-Z Trial. An example of such
a "Certificate of Service" follows:
Example: I certify that on October 1, 1995, a copy
of my request for E-Z Trial was sent by first class
mail to Jane Doe, Office of the Solicitor, U.S.
Department of Labor, 123 Any Avenue, Anytown, NC
99999 and to John Doe, President, Local 111,
International Brotherhood of Machinists, 123 B
Street, Othertown, NC 99990.
__________________________________________________________________________
Objections to E-Z Should you decide to object to another party's request
Trial for E-Z Trial, 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 Administrative Law Judge, explaining why
your case is inappropriate for E-Z Trial. The judge
is required to rule on a request for E-Z Trial within
15 days. Therefore, you must file your objections as
soon as possible.
__________________________________________________________________________
Discontinuing E-Z If it appears that a case is inappropriate for E-Z
Trial Trial, the use of this method may be discontinued by
(Rule (204(b)) the judge at his or her discretion. A party may also
request that the judge discontinue E-Z Trial. The
request must explain why the requesting party believes
that the case is inappropriate for E-Z Trial. If you
agree with another party's request to discontinue
E-Z Trial, you should submit a letter saying so.
When all parties agree that a case is inappropriate for
E-Z Trial, the judge is required to grant the request.
If the judge orders that a case be taken out of E-Z
Trial, the case will proceed under the Commission's
conventional procedures.
If you disagree with another party's request to
discontinue E-Z Trial and you want your case to
continue under E-Z Trial rules, you have seven days
to file a letter explaining why you disagree.
__________________________________________________________________________
Restrictions on Discovery (the process by which one party obtains
Obtaining information from another party before a hearing) is
Information and restricted under E-Z Trial. Unlike conventional
Flexibility procedures, discovery is discouraged and will occur
Regarding Evidence only when ordered by the judge. Rules governing the
(Rules 208 and 209(b)) admissibility of evidence are also modified in E-Z
Trial. 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.
__________________________________________________________________________
Required Information In cases designated for E-Z Trial, the Secretary of
Disclosures Labor must give the employer, free of charge, a copy
(Rule 206(a) and (b)) 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 E-Z Trial. When an employer
admits that the violation occurred, but offers an
excuse for the violation (an "affirmative defense"),
the judge will likely order the employer to disclose
to the Secretary documents relevant to the defense.
__________________________________________________________________________
Pre-hearing Soon after the parties exchange the required
Conference information, the judge will hold a pre-hearing
(Rule 207) conference to either reach a settlement in the case
or to find out which factual and legal issues the
parties agree on. This discussion may be conducted in
person or 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:
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 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 is excused
from a 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.
__________________________________________________________________________
Motions A motion is a request asking that the judge direct
(Rule 205(b)) some act to be done in favor of the party making the
motion. E-Z Trial is designed to eliminate, when
possible, motions and similar documents. Aside from
motions to begin or discontinue E-Z Trial, 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.
__________________________________________________________________________
Hearings The judge will hold a hearing as soon as possible
(Rules 209(b)-(f)) 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.
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 E-Z
Trial 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, which 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.
__________________________________________________________________________
Review of the Judge's Any party dissatisfied with the judge's decision may
Decision petition the Commission for review of that decision.
(Rules 91 and 210) No particular form is required for the petition.
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.
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. If it is granted, your case will
then proceed under the Commission's conventional
rules.
__________________________________________________________________________
E-Z Trial Step by Step
__________________________________________________________________________
Remember, failure to meet deadlines could have serious Pages
consequences.
* Employer files notice of contest with OSHA office that mailed 2
citation--within 15 working days of receiving the citation.
* Employer receives notification (Notice of Docketing) from 2
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 4
abatement period; notice of contest is sent to citing OSHA
office within 15 working days of employer's posting of citation.
If case designated for E-Z Trial:
* The employer receives the OSHA investigatory documents from the 7
Secretary of Labor within 12 days after the case is designated
for E-Z Trial.
* The parties participate in a mandatory pre-hearing conference
with the judge to narrow disputed issues, agree upon facts and
list employer defenses. 7-8
* Employer sends the Secretary of Labor documents relating to
affirmative defenses. 7
If all disputed issues are not resolved at the prehearing conference,
then parties:
* List witnesses and exhibits. 8
* Prepare for and participate in a hearing, and present oral
arguments at the close of the hearing. 9
* May purchase a copy of the hearing transcript. 9
* Decide whether to request permission to file a brief. 9
Judge then issues decision from the bench or in writing within 45 days.
If dissatisfied, any party may ask for Commission review of the decision.
__________________________________________________________________________
Section 3
Other Important Things To Know
__________________________________________________________________________
Appearances in Any employer, employee, or union which initially
Commission Procedures files a notice of contest is automatically a party
(Rule 22) to the proceedings. Affected employees or their
union may also choose to participate as a party where
the employer has filed a notice of contest. Any
party may appear in a Commission proceeding either
personally, through an attorney, or through any
competent person chosen by the party. See Rule 22.
Such a person need not be an attorney. However, all
representatives of parties must 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 Rule 23.
Every party to the case must serve every other party
or representative with copies of every document it
files with the Commission or judge. Service is made
by either personal delivery or first class mail.
NOTE: All notices the Commission sends to the parties
will list the name and address of all parties or their
representatives.
__________________________________________________________________________
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) Parties to cases before the Commission may not
(Rule 105) Communication 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. See Rule 105. This prohibition does not,
however, preclude asking questions about the
scheduling of a hearing or other matters that deal
only with process.
__________________________________________________________________________
Petition for An employer who does not contest a citation is
Modification of required to correct all violations within the
Abatement 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. PMA cases
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
(Rule 103) certain procedures are shortened. The Commission's
Rules of Procedure provide that an Expedited
Proceeding may be ordered by the Commission. If an
order is made to speed up proceedings, all parties in
the case will be specifically notified. All Petitions
for Modification of Abatement and all employee
contests are automatically expedited. See Rule 103.
Expedited proceedings are different from E-Z Trial.
__________________________________________________________________________
Maintaining Copies of In order that Affected Employees may have the
Papers Filed With Opportunity to be kept informed of the status of the
the Judge 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.
__________________________________________________________________________
Process for Seeking Once the parties receive the judge's decision and are
Review Judge's dissatisfied with the outcome, they can object to the
Decision decision and ask the Commission members to review it
by filing a Petition for Discretionary Review (see
Appendix 3 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:
Executive Secretary
U.S. Occupational Safety and Health Review
Commission
1120 20th Street N.W., 9th Floor
Washington, D.C. 20036-3419
Each issue in a petition should be separately
numbered and simply stated. The issue should also
make reference to specific pages of the transcript of
the hearing, to the evidence, or to other authorities
that the party thinks are supportive of its position.
An original and three copies of the petition for
discretionary review should be filed. 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.
__________________________________________________________________________
Glossary
__________________________________________________________________________
Abatement Period Period of time specified in citation for correcting
alleged workplace safety and/or health violation.
Answer Written document filed in response to a complaint,
consisting of short plain statements denying the
allegations in the complaint which 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.
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.
Notice of Withdrawal A written document from a party withdrawing its notice
of contest and thus terminating the proceedings
before the Commission.
Party Anyone who files a notice of contest or chooses to
participate in a proceeding before the Commission judge.
Petition for A written request from a party in a case asking the
Discretionary Review Commission in Washington, D.C. to review and change
the judge's decision. The grounds on which a party
may request discretionary review are these: (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 A consensual agreement reached by the parties resolving
the disputed issues in a case.
__________________________________________________________________________
Notices of Contest Appendix 1
__________________________________________________________________________
Chandler Concrete Corporation
211 Valley Road
Pines, Utah 84001
February 26, 1994
Mr. ABC, Area Director
Occupational Safety and Health Administration
U.S. Department of Labor, Federal Building
City, State 12235
Dear Mr. ABC:
This is to notify you that Chandler Concrete Corporation intends to contest all of the items and penalties alleged in the Citation and Proposed Penalty which we received February 20, 1994, which was dated February 19, 1994 (a copy is attached).
Very truly yours,
Norman B. Chandler, President
A-1 Lumber Company
P.O. Box 92
Savannah, Georgia 30311
September 14, 1994
U.S. Department of Labor/Occupational
Safety and Health Administration
Some St., Suite 210
City, State 12221
Dear Mr. DEF:
I wish to contest the Proposed Penalties of $1,200 issued September 9, 1994, based on the violations cited by you during your recent inspection. I believe that they are unreasonable for a number of reasons.
Sincerely,
Edgar B. Loomis,
General Manager
Metal Workers International Union
589 22nd Street, NW
Washington, DC 20006
June 9, 1994
Mr. GHI, Area Director
U.S. Department of Labor
Occupational Safety and Health Administration
Room 224-Some Building
700 Some Road
City, State 13359
Dear Mr. GHI:
We have been authorized by the employee representative, Local 15 of the Metal Workers International Union, to file this notice of contest to the OSHA citations issued on June 2, 1994, against the employer, Carbine Corporation, Columbus, Ohio. The abatement dates of June 27, 1995, for Items No. 1 and No. 3 of the non-serious citation, and January 5, 1995, for Item No. 1 of the serious citation, are unreasonable and will continue to expose workers to safety hazards.
Sincerely,
William Metz, Director
Safety Department
__________________________________________________________________________
Notice Of Decision Appendix 2
__________________________________________________________________________
In Reference To:
Secretary of Labor v. Janeman Roofing Company
OSHRC Docket No. 94-3395
1. Enclosed is a copy of my decision. It will be submitted to the Commission's Executive Secretary on January 3, 1995. 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 twenty (20) days from the date of this notice. Thereafter, any petition must be filed with the Review Commission's Executive Secretary within thirty (30) 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.
__________________________
Judge
DATED: December 1, 1994
__________________________________________________________________________
Petition for Discretionary Review Appendix 3
__________________________________________________________________________
__________________________________
:
Secretary Of Labor, :
:
Complainant, :
:
v. : OSHRC Docket No. 94-3395
:
Janeman Roofing, :
:
Respondent, :
__________________________________:
Comes now Respondent, Janeman Roofing Co. (Janeman), 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.
1. Janeman takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held Janeman in serious violation of the standard published at 29 CFR 1926.28(a) in applying the "reasonable person" test with regard to such a violation rather than in applying the "ordinary custom and practice of the industry test" (Judge's Decision pp. 11-13).
2. Janeman takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held Janeman in serious violation of the standard published at 29 CFR 1926.500(g)(1) for the reasons that:
(a) The evidence does not support a conclusion that there was a violation of such standard;
(b) The impracticality of the requirement of the standard in this case voids its effectiveness. (Judge's Decision at pp. 16 and 17).
3. Janeman takes exception to that portion of the Decision and Order wherein the Administrative Law Judge held that the action of the employee of Janeman who fell to his death was not unpreventable employee misconduct (Judge's Decision at pp. 9-11).
4. Janeman takes exception to that portion of the Decision and Order wherein the Administration Law Judge held that compliance with the standard published at 29 CFR 1926.500(d)(1) did not create a greater hazard to employees than the manner in which the employees actually performed their respective job tasks (Judge's Decision at pp. 6-8).
1. In his Decision, the Administrative Law Judge expressly and specifically states that he will not follow the law of the Fifth Circuit Court of Appeals although the Fifth Circuit Court of Appeals is the Appellate Court with jurisdiction over the area of the project. To take such a position on is to make it impossible for any employer to determine the requirements of the standard published at 29 CFR 1926.28(a) when operating within the Fifth Circuit Court of Appeals.
2. The evidence of the record supports that the job being performed by the employee who fell would have taken only 10 to 15 minutes to perform and that while properly performing it he was in absolutely no danger of falling over the edge even though he was within 2 1/2 to 3 feet of the edge. On the contrary, however, it would have taken 3 to 4 man-hours to erect guardrails working right at the edge of the perimeter and another 1 1/2 to 3 man-hours to take the guardrails down. To require guardrails to be erected in such a situation voids the effectiveness of the standard published at 29 CFR 1926.500(d)(1) and renders its requirements impractical.
3. It is uncontroverted in the record that no one knows why the employee who fell was at the edge of the unguarded floor. There was nothing for him to do, he should not have been there, and his being there was in direct violation of Janeman's work rule prohibiting being near the edge of an unguarded floor without any work task to do. This work rule was understood by the Janeman employees and it was enforced consistently and uniformly.
4. Erecting guardrails along the perimeter of the unguarded floor would create a greater hazards to employees. Employees would have been working right at the edge of the unguarded floor in erecting and taking down guardrails for up to 7 man-hours to guard an employee performing 10 to 15 minutes worth of work 3 feet from the unguarded edge with no danger of falling.
For the reasons stated herein, Janeman Roofing Co. 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 Janeman Roofing Company
227 Rockway Building
705 Main Street
Anning, Maryland 20777
Tel. No. (410) 525-6318
__________________________________________________________________________
Direction for Review Appendix 4
__________________________________________________________________________
________________________________
:
Secretary of Labor, :
:
Complainant, :
:
: OSHRC Docket No.94-3395
v. :
:
Janeman Roofing Company, :
:
Respondent, :
:
________________________________:
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. Based on a preliminary examination of the record and the report, the issues to be considered are:
(1) Whether the judge erred in concluding that the deceased would have been exposed to the hazard of a fall even if he had performed the work in the manner intended by Janeman.
(2) Whether the judge erred in rejecting the contention that the deceased's failure to perform his work in the proper manner was shown to have been unpreventable? The parties are also requested to consider whether as opposed to a defense based on unpreventability, the Secretary as part of his case affirmatively established knowledge of the violation by Janeman. The parties' attention is directed to the judge's finding of fact no.5 regarding knowledge; the parties are requested to address the significance of this finding in terms of the question of whether Janeman knew or reasonably could have known that the deceased would come closer to the edge than the distance necessary for the performance of the work.
(3) Whether the judge erred in rejecting Janeman's contentions that compliance with the requirements of section 1926.500(g)(1) in the circumstances of this case would have been impractical or unreasonable and would have exposed other employees to hazards.
(4) Should section 1926.28(a) be interpreted to require the use of personal protection equipment only where the use of such equipment is customary in the employer's industry, unless the employer otherwise has actual knowledge of a need to use such equipment?
(5) Assuming section 1926.28(a) is to be interpreted in this manner, does the evidence in this case show a violation of that standard?
(6) Should the citation have been vacated on the ground that Janeman as a subcontractor at the worksite neither created nor controlled the hazardous condition, was not responsible for providing guardrail protection, and took other reasonable measures to protect its employees?
This briefing order to follow may designate additional issues.
__________________________________________________________________________
Notice of Withdrawal Appendix 5
__________________________________________________________________________
______________________________
Secretary Of Labor, :
:
Complainant :
:
v. : Docket No. 94-0123
:
Chandler Concrete Corporation :
:
Respondent :
:
______________________________:
Respondent, Chandler Concrete Corporation, 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.
___________________________
Jane Chandler
Vice President
Chandler Concrete Corporation
211 Valley Road
Pines, Utah 84001
March 30, 1994
I certify that a copy of the foregoing Respondent's Withdrawal of Notice of Contest have been served on complainant this 30 day of March, 1994, by serving the aforesaid copy by certified mail, return receipt requested to:
_____________________________
Jane Chandler
Vice President