Foulke, Edwin G., Jr.

Strickler, Scott H.

English

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Journal of the National Association of Administrative LawJudiciaryVolume 11 | Issue 2 Article 310-15-1991The Occupational Safety and Health ReviewCommission: An OverviewEdwin G. Foulke Jr.Scott H. StricklerFollow this and additional works at: http://digitalcommons.pepperdine.edu/naaljPart of the Administrative Law Commons, and the Labor and Employment Law CommonsThis Article is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion inJournal of the National Association of Administrative Law Judiciary by an authorized administrator of Pepperdine Digital Commons. For moreinformation, please contact Kevin.Miller3@pepperdine.edu.Recommended CitationEdwin G. Foulke Jr. and Scott H. Strickler, The Occupational Safety and Health Review Commission: An Overview, 11 J. Nat’l Ass’nAdmin. L. Judges. (1991)available at http://digitalcommons.pepperdine.edu/naalj/vol11/iss2/3THE OCCUPATIONAL SAFETY AND HEALTHREVIEW COMMISSION: AN OVERVIEWBy Edwin G. Foulke, Jr. and Scott H. Strickler'Congress enacted the Occupational Safety and Health Act of 1970" toassure so far as possible ... safe and healthful working conditions [for] every working manand woman in the nation. "' Enforcement and adjudicatory powers are divided primarilybetween two agencies under the Act. The United States Department of Labor hasenforcement authority and the Occupational Safety and Health Review Commission(OSHRC) has adjudicatory authority.The Secretary of Labor has delegated many of her powers under theAct to the Assistant Secretary for Occupational Safety and Health, who heads theOccupational Safety and Health Administration (OSHA). Therefore, OSHA is the agencywithin the Department of Labor that is responsible for enforcing most of the key provisionsof the Act.The Act provides the Secretary (and thus OSHA) with a broad arrayof enforcement and regulatory powers. Specifically, the Secretary has the power to:" promulgate, modify, or revoke any occupational safety or health standard; " conductinvestigations and worksite inspections to assure compliance with safety and healthstandards and regulations, as well as with the Act's " general duty clause; " and issuecitations to employers whenever she believes that an employer has violated its duty under§ 5 of the Act or any standard, rule, regulation, or order promulgated by the Secretary.3The principal obligations of employers under the Act are set forth in § 5 (a) of the ActEach employer (1) shall furnish to each of his employees employment and a placeof employment which are free from recognized hazards that are causing or are likelyto cause death or serious physical harm to his employees; (2) shall comply withoccupational safety and health standards and all rules, regulations, and orders issuedpursuant to this Act which are applicable to his own actions and conduct.'Section 5 (a)(1) is commonly referred to as " the general duty clause. "'Edwin G. Foulke, Jr. is Chairman of the Occupational Safety and Health Review Commission and Scott H. Strickleris Chief Counsel to Commissioner Velma Montoya. This article first appeared in labor law Journal, January 1991, and isreprinted here with permission.'29 U.S.C. 651(b); Public Law 91-596, 84 Stat. 1590, codified at 29 U.S.C. 651 et seq. (1970).329 U.S.C. 655(b); 857(a); 658.429 U.s.C. 654(a).The Occupational Safety and Health Review Commission: An OverviewVol. X1 Fall 1991In addition to authorizing the issuance of citations, the Act, also,authorizes the Secretary to propose penalties for the violations she alleges in her citationsand to establish abatement requirements for those violations. The obligations to paypenalties and to abate violations are suspended when administrative review proceedingsare instituted in good faith. " If the Secretary has reason to believe that an employer hasfailed to correct a violation for which a citation has been issued within the period permittedfor its correction... " she may issue a notification of failure to abate and propose additionaldaily penalties. 5Indegpdent Adjudicatory Agency.The Cocupational Safety and Health Review Commission was createdfor the purpose of " carrying out adjudicatory functions " under the Act. The ReviewCommission is an independent adjudicative agency that is part of the Executive Branch.However, it is not associated with the Department of Labor. The agency is headed by athree-member Commission, consisting of a Chairman and two Commissioners, who areappointed by the President with the advice and consent of the United States Senate. TheReview Commission, which is located in Washington, D.C., utilizes Administrative LawJudges (ALJs) to hear cases. The ALJs are distributed among four regional offices inAtlanta, Boston, Dallas, and Denver, and the national office in Washington.6When an employer receives a citation from OSHA, the employer hasthe option of either contesting the citation within fifteen (15) worlng days of receipt orallowing the citation to become a final order of OSHRC by operation of law. The employeralso has the option of contesting only the proposed penalties. An employee or authorizedrepresentative (labor organization) may contest the amount of time allowed by the Secretaryfor abatement of the allegedly violative conditions. Any party contesting a citation orproposed abatement date is entitled to a hearing before an ALJ.7Proceedings before the Commission are governed by the Commission'sRules of Procedure.8 In addition to the employer that was cited, " affected employees "or their " authorized representatives " are allowed under the Commission's Rules to electparty status in a proceeding initiated by an employer's notice of contest. There are also'29 U.S.C. 658(a); 659(a) and (b); 666(d).629 U.S.C. 659(b)(3); 661(a).729 U.S.C. 659(a) and (c); 661(j).'29 CFR 2200 et seq.Journal of the NationalAssociation of Administrative Law Judgesprovisions permitting intervention by other non-parties.9 Once review has been directedand a case is docketed, following transmission of the notice of contest and underlyingcitation to the Commission's Executive Secretary, the case proceeds to the pleading stage.However, if both parties are agreeable, pleadings and other formalities may be dispensedwith, and the case can proceed under " Simplified Proceedings, " which are provided forin Subpart M of Part 2200.If Simplified Proceedings are not agreed to, then the case will bereviewed through conventional proceedings. A complaint must be filed by the Secretaryand a response in the form of an answer is required to be filed by the employer.'"Discovery normally follows the initial pleading stage. Discovery is governed by Subpart Dof the Commission's Rules of Procedure. OSHRC discovery rules are similar to, but notidentical to, those found in the Federal Rules of Civil Procedure.Disputes concerning discovery are normally resolved by the ALJ, whois assigned responsibility for the case shortly after it is docketed with the Commission. TheAQ conducts the hearing in accordance with the procedures set out in Subpart E of theCommission's regulations. Subpart E also governs the filing of post-hearing briefs andpetitions for interlocutory review. " Interlocutory review is " discretionary with theCommission " and may be granted only where the petition asserts and the Commissionfinds: that the review involves an important question of law or policy about which thereis substantial ground for difference of opinion and that immediate review of the ruling maymaterially expedite the final disposition of the proceedings; or that the ruling will result ina disclosure before the Commission may review the ALJ's report of information that isalleged to be privileged. 12 The issue of privileged information generally arises in thecontext of interpreting and applying the Commission's Rule on the confidentiality of tradesecrets. 13 After the hearing, the ALJ makes a decision on the merits, including findingsof fact and conclusions of law, and files a decision and order with the Commissionaffirming, modifying, or vacating the Secretary/s citation or proposed penalty' 4 While theAct gives authority to the Secretary to propose penalties, it gives authority to theCommission to assess penalties: " The Commission shall have authority to assess all civil'29 CFR 2200.20(a) and 2200.21.1029 CFR 2200.33-36.129 CFR 2200.73 and 2200.74.229 CFR 2200.73(a)."329 CFR 2200.11."29 U.S.C. 659(c).The Occupational Safety and Health Review Commission: An OverviewVol. X1 Fall 1991penalties provided in this section, giving due consideration to the appropriateness of thepenalty with respect to the size of the business of the employer being charged, the gravityof the violation, the good faith of the employer, and the history of previous violations.Discretionary ReviewIf no review of the case is directed by the Commission within thirty (30)days of the filing of the AL's decision, it becomes a final order of the Commission byoperation of law. Any one of the three Commissioners can direct that the ALJ's decisionbe reviewed by the full Review Commission. A party may petition the ReviewCommission to review the AL's decision, if the party believes that: the ALJ made findingsof material facts that are not supported by the evidence; the decision is contrary to law; asubstantial question of law, policy, or abuse of discretion is involved; or a preudicial errorwas committed. This is accomplished by the filing of a petition for discretionary review(PDR).Usually, a case does not come before the Commission until the ALJ hasissued his final decision. Post-hearing procedures are set forth in Subpart F of Part 2200.In accordance with statute, the Commission has a thirty-day period, beginning at the timethe ALJ's report is docketed with the Commission, to decide whether to direct the case forfull Commission review. Any Commission member may direct a case for review, eitherat the request of a party or on his or her own motion (sua sponte). However, " in theabsence of a petition for discretionary review, a Commissioner will not normally directreview unless the case raises novel questions of law or policy, or questions involvingconflict in Administrative Law Judges' decisions. 16Most often, review is directed in response to the filing of a PDR by oneor more of the parties." A petition should state why review should be directed, including.Whether the Judge's decision raises an important question of law, policy or discretion;whether review by the Commission will resolve a question about which the Commission'sJudges have rendered differing opinions; whether the Judge's decision is contrary to lawor Commission precedent; whether a finding of material fact is not supported by apreponderance of the evidence; (and/or) whether a prejudicial error of procedure or anabuse of discretion was committed. "17 A PDR may be filed with the ALJ before hisdecision is docketed or with the Executive Secretary of the Commission up to twenty (20)days following docketing. Cross-petitions and oppositions to petitions may be filed during'529 U.S.C. 666j).1629 CFR 2200.92(b).1729 CFR 2200.91 (d).Journal of the NationalAssociation of Administrative Law Judgesthe review period. "Under the Act, " review by the Commission is not a ight. " Usually,the PDR or a subsequent briefing notice will state the issues to be reviewed, giving theparties the opportunity to address those issues in briefs to the Commission. Nevertheless," [u]nless the Commission orders otherwise, a direction for review establishes jurisdictionin the Commission to review the entire case. "19Adverse decisions of the Commission (including ALJ decisions thathave become final without review) may be appealed to the U.S. courts of appeals. TheSecretary must file her appeal either in the circuit where the alleged violation occurred orin the circuit where the employer has its principal office. The employer or " [a]ny [other]person adversely affected or aggrieved "by the Commission's decision has these same twooptions, as well as the third option of filing the appeal in the US. Court of Appeals for theDistrict of Columbia Circuit.2oIn consideration of such appeals, the appellate courts are governed bythe following restrictions: " No objection that has not been urged before the Commissionshall be considered by the court, unless the failure or neglect to urge such objection shallbe excused because of extraordinary circumstances. The findings of the Commission withrespect to questions of fact, if supported by substantial evidence on the record as a whole,shall be conclusive. " 2The Congressional intent in establishing the Commission as anindependent agency, and the legislative history leading up to this decision, were recentlydescribed by an appellate court as follows: "When first proposed, the Occupational Safetyand Health Act vested the power to adjudicate alleged safety violations with the Secretary.However, in response to business concerns that combining prosecutorial and adjudicativeauthority in the Secretary would produce decisions biased against employers, Congresscreated the Commission by adopting a floor amendment which withdrew adjudicativeauthority from the Secretary. Congress envisioned the Commission as an autonomous,independent, and quasi-judicial body. Subsequent judicial interpretation has emphasizedthat the prosecutorial power vested in the Secretary remains separate and distinct from theadjudicative power vested in the Commission ... Congress sought to endow theCommission with the normal complement of adjudicative powers possessed by traditional"29 CFR 2200.91.'29 CFR 2200.91(a); 2200.93; 2200.92(a).'029 U.S.C. 660(a) and (b).129 U.S.C. 660(a).The Occupational Safety and Health Review Commission: An OverviewVol. XI Fall 1991administrative agencies. Such an adjudicative function necessarily encompasses the powerto 'declare' the law. " ' Among the " normal complement of adjudicative powers "granted the Commission by Congress are the powers to compel the attendance ofwitnesses, the production of documents, and the taking of evidence.'Case law emphasizes the importance of the Commission'sindependence from the Department of Labor. Prosecutorial and adjudicative responsibilitiesare divided so that the Commission may act as a check on the Secretary's enforcementpowers. For example, the Supreme Court held in Cuyahoga Valley Railhawy v. UnitedTransportation Union that " [tihe Commission's function is to act as a neutral arbiter anddetermine whether the Secretary's citations should be enforced over employee or union (or,more commonly, employer) objections. " ' In DEnovan v. Amorello & Sons, Ina, the Courtexplained that the Review Commission's " role is to hear charges of violations... and itseeks to guarantee that those charges are adjudicated fairly-in particular without the biasthat can arise from placing prosecutorial and adjudicative functions within a single agency.it 25The Commission has statutory responsibility to develop and integratea national body of occupational safety and health law. In ruling on the effect of adverseappellate court decisions, the Commission stated: "Congress established the OccupationalSafety and Health Review Commission in an effort to achieve uniformity in adjudicationsinvolving national occupational safety and health policy .... In fulfilling this statutorypurpose, the Commission, like the National Labor Relations Board, adheres to the principlethat an administrative agency charged with the duty of formulating uniform and orderlynational policy in adjudications is not bound to acquiesce in the views of US. courts ofappeals that conflict with those of the agency .... Naturally, the Commission gives duedeference to the views of the circuits, but unless reversed by the US. Supreme Court, thecommission is obligated to establish its own precedent in carrying out its adjudicatoryfunctions under the Act Thus, the Commission must independently decide the issuespresented ... .26The Commission has also held that unreviewed ALJ decisions are"Dotev. OSHRC, 891 F2d 1495,1498 (CA-10, 1989), cert. granted No. 89-1541 (June 25,1990), citing S. 2193, 91st Cong,1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 11-13, 462-465 (1971) and Brennan v. GilesColing, 504 F2d 1255, 1261-62 (CA-4, 1974)."a29 U.S.C. 661(h) and (i).U1985 OSHD 1 27,413; 474 US 3,7; 106 S.Ct. 286, 288 (S.Ct., 1985).'781 F2d 61, 65 (CA-1, 1985).S & H Rigers & Erectors, Inc., 1979 CCH OSHD 23,480; rev'd 1981 CCH OSHD 1 25,733; 659 F.2d 1273 (CA-5, 1981).Journal of the NationalAssociation of Administrative Law Judgesbinding only on the parties to the case. They have no broader precedential effect.27 Thenet effect of these rulings is that only the Commission (or the Supreme Court) has theability to make legal pronouncements with respect to occupational safety and health lawthat are to be applied consistently and uniformly throughout our Nation.Vlone Construction Co., 1975-76 CCH OSHD 20,387 (No. 4090, 1976).

The Occupational Safety and Health Review Commission: An Overview

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