Standard Interpretations - (Archived) Table of Contents|
November 1, 1995
MEMORANDUM FOR: REGIONAL ADMINISTRATORS AREA DIRECTORS DIRECTORATE HEADS FROM: JAMES W. STANLEY DEPUTY ASSISTANT SECRETARY SUBJECT: Review Commission E-Z Trial ProcessThe 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.
Edgar B. Loomis,
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.
William Metz, Director
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.
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.
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.
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:
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