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• Status: Archived

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

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
__________________________________________________________________________
Appendix 1A. Notice Of Contest To Citation And Proposed Penalties

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




Appendix 1B. Notice Of Contest To Proposed Penalties Only

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




Appendix 1C. Notice of Contest By Employee Representative

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
__________________________________________________________________________

Notice of Decision

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:

Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th Street, N.W. - 9th Floor
Washington, D.C. 20036-3419

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,            :
__________________________________:
PETITION FOR DISCRETIONARY REVIEW

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.

Statement Of Portions Of The Decision And Order To Which
Exception Is Taken

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).

Statement Of Reasons For Which Exceptions Are Taken

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,          :
                               :
________________________________:
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. 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
__________________________________________________________________________
Appendix 7A. Notice of Withdrawal




______________________________
Secretary Of Labor,           :
                             :
              Complainant    :
                             :
              v.             :      Docket No. 94-0123
                             :
Chandler Concrete Corporation :
                             :
              Respondent     :
                             :
______________________________:
RESPONDENT'S WITHDRAWAL OF NOTICE OF CONTEST

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

Appendix 7B. Certificate of Service

CERTIFICATE OF SERVICE

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:

Mr. ABC
Area Director, OSHA
U.S. Department of Labor
Federal Building
City, State 19915




_____________________________
Jane Chandler
Vice President

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


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