Commission Decisions - 2006

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Occupational Safety and Health Review Commission

FY 2006 

Performance Accountability Report

Section I: 

Management’s Discussion and Analysis

Overview

The Occupational Safety and Health Review Commission (OSHRC) is an independent, adjudicatory

agency created by the Occupational Safety and Health Act of 1970. Its sole statutory mandate is to serve

as an administrative court providing just and expeditious resolution of disputes involving the Department of

Labor’s Occupational Safety and Health Administration (OSHA), employers charged with violations of

Federal safety and health standards, and employees and/or their representatives. The Review

Commission was created by Congress as an agency completely independent of the Department of Labor

to ensure that OSHA’s enforcement actions are carried out in accordance with the law, and that all parties

are treated consistent with due process when disputes arise with OSHA.

The Occupational Safety and Health Act and the Review Commission’s Rules of Procedure (which by law

mirror the federal rules) provide two levels of adjudication when an employer timely contests an OSHA

citation for alleged violations of the Act or failure to abate such alleged violations. The first is a hearing

level. This level affords an opportunity for a hearing before a Review Commission Administrative Law

Judge (ALJ) for employers and affected employees who have filed a timely notice of contest. The judge’s

decision becomes final unless the Commissioners choose to review the decision. The second level is a

discretionary appellate review of the judge’s decision by the Commission members. The Review

Commission provides fair and impartial adjudication of cases concerning the safety and health of

employees’ working conditions in the United States.

Mission and Organizational Structure

The mission of the Occupational Safety and Health Review Commission is to provide an impartial forum

for the just and prompt adjudication of workplace safety and health disputes involving the Department of

Labor, employers and employees, and/or their representatives under the Occupational Safety and Health

Act of 1970.

The Occupational Safety and Health Review Commission has three members, appointed by the President

and confirmed by the Senate, who serve six year terms. One of the members also serves as Chairman of

the agency. The Review Commission has three major functions. They are: the Commission function, the

Administrative Law Judge function, and the Office of Administration function.

The principal (national) office of the Review Commission is located in Washington, DC. There are also

regional offices in Atlanta and Denver.

OSHRC’s vision is to continue to strive to be:

A quasi judicial body that is -- and is recognized for being -- objective, fair, prompt, and

professional;

An agency that creates a body of law through decisions that define and explain the rights and

responsibilities of employers and employees under the Occupational Safety and Health Act of 1970;

A model Federal agency with highly effective processes, a highly motivated, qualified and diverse

workforce, and modern information management, communications, and administrative systems; and

An agency that values team work, develops its employees, and strives to improve its performance,
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service, and value to the American people.

Challenges and Opportunities

The Review Commission’s ability to meet its case disposition goals depends on a variety of factors. These

include: (1) continued presence of a quorum at the Commission level; (2) the magnitude and nature of the

cases received; (3) the success of the parties’ settlement negotiations and the Agency’s Simplified

Proceedings and Mandatory Settlement programs in reducing the number of hearings needed; and (4) the

number, location, length and complexity of hearings held. Although these factors are largely outside the

Review Commission’s control, the agency is committed to working within such constraints to improve its

service to the public.

The Commission consists of three members appointed by the President. The Occupational Safety and

Health Act requires a quorum of two Commissioners. By statue, decisions can only be decided on the

affirmative vote of two Commissioners. During periods when the Commission lacks a quorum, no cases

can be decided. In addition, with only two Commissioners, it may be more difficult to reach agreement

sufficient to dispose of some cases. In cases where such agreement cannot be reached, deadlocks

result. As a result, action on important issues may be postponed and issuance of some pending cases

will be delayed.

During the period of April 2005 until June 2006, the Review Commission had only two sitting

Commissioners. In June 2006, a vacancy on the Commission was filled and the Commission now has its

full complement of three Members. As a result of this third Commissioner assuming his seat, much of the

Commission’s FY 2006 case decision output was concentrated in the last quarter of the fiscal year.

The number of safety and health inspections carried out by OSHA each year, the nature of those

inspections, and the rate at which employers choose to contest the citations issued and penalties

proposed by OSHA all have an impact on the number of cases contested before the Review Commission.

In addition, OSHA’s emphasis during recent years on more serious workplace hazards, and the

consequent increase in proposed penalties, has translated into more complicated cases, and more costly

trials. Consequently, the complexity and size of the cases both at the Administrative Law Judge level and

at the Commission level has increased steadily in recent years.

The Commission’s inventory of cases includes a number of extremely large and difficult cases.

Preparation of each of these cases consumes a large amount of attorney and Commissioner time. This, in

turn, slows work on other cases. The size and complexity of these cases have had an impact on the

ability of the Office of the General Counsel to prepare and present a steady flow of cases to the

Commission for disposition and to prepare the initial drafts of the Commission’s opinions.

OSHA conducted approximately 37,700 inspections in FY 2006. The number of OSHA inspections, and

their likely focus on the highest hazard workplaces affects the Review Commission’s ALJ caseload. These

inspections tend to result in more complex and contentious cases, which consume extensive judicial time.

The discovery process is lengthy and time consuming, motion practice is expanded, legal research and

decision writing time is protracted and, of necessity, the hearing process is elongated and complicated.

In recent years, the Review Commission eased entry requirements to its Mandatory Settlement and

Simplified Proceedings programs. These programs grant full due process rights to all parties in

adjudicating these cases without bogging them down in legal formalities.

Under Commission Rule 2200.120, where the parties consent thereto, the Chief Administrative Law Judge

may assign a Settlement Judge to a pending proceeding to aid the parties in disposing of cases. Where

the aggregate amount of the penalty sought by the Secretary of Labor is $100,000 or greater, the

Mandatory Settlement procedure goes into effect. The Settlement Judge appointed by the Chief

Administrative Law Judge has full control of the proceeding and may require that the parties’

representatives be accompanied by officials having full settlement authority. This procedure has aided the

Commission in disposing of some extremely complex cases, with the approval of all parties.

The Simplified Proceedings process (formerly known as E-Z Trial) was enlarged to include cases where

proposed penalties are not more than $20,000, and up to $30,000, when found eligible by the Chief

Administrative Law Judge. The Simplified Proceedings process allows parties with relatively simple cases

to have their “day in court” unencumbered by the formal Rules of Procedure and evidence, while assuring

that due process requirements will be maintained. Under this process, an OSHA cited entity, with or

without counsel, can present its case before a Review Commission judge and receive a prompt decision.
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Most paperwork, including legal filings, have been eliminated so that justice can be rendered swiftly and

inexpensively. This process is intended to reduce the time and legal expenses to employers contesting

relatively small penalty cases.

Analysis of Financial Statements

The Review Commission had biennial audits of its financial statements from 1996 through 2002.

Consistent with the Accountability of Tax Dollars Act of 2002, OSHRC began annual audits in FY 2003,

and has received an "unqualified opinion" for each biennial and annual review by independent auditors.

Since 2002, the Review Commission has contracted with the Bureau of Public Debt for accounting

services. The Administrative Resources Center prepared the Review Commission’s FY 2006 financial

statements. The principal financial statements include the Balance Sheet, Statement of Net Cost,

Statement of Net Position, Statement of Budgetary Resources, Statement of Financing, and the Statement

of Custodial Activity.

Limitations of the Financial Statements

The principal financial statements have been prepared to report the financial position and results of

operations of the Review Commission, pursuant to the requirements of 31 U.S.C. 3515 (b).

The statements have been prepared from the books and records of the Review Commission in

accordance with Generally Accepted Accounting Principles (GAAP) for Federal entities and formats

prescribed by the Office of Management and Budget (OMB). The statements are in addition to the

financial reports used to monitor and control budgetary resources, which are prepared from the same

books and records. These statements should be read with the realization that they are for a component of

the United States Government, a sovereign entity.

Performance Goals and Results

The Review Commission’s strategic goal is to provide fair, just, and expeditious adjudication of disputes

brought before the Commission and its ALJs. To this end, the Review Commission’s Strategic Plan and

associated Outcome Goals for the period FY 2006 through FY 2011, reflect objectives for the Commission

and Administrative Law Judge functions.

Commission Function

The function of the Commissioners is to review and decide cases contested under the Act, following an

initial decision by an Administrative Law Judge. This higher level of review must be prompt, fair, and

protective of the parties’ rights. Overall, this is our public service goal.

At the beginning of FY 2006, the Commission had 40 pending cases on its docket. It received 13 new

cases and issued 26 decisions by year end. Thus, the Commission will enter FY 2007 with 27 cases

pending on review.

A vacancy on the Commission was filled in June 2006, and the Commission now has three Members. As

a result, the Commission expects to make substantial progress in further decreasing its caseload in FY

2007.

The following table lists the performance goals and results for this function in FY 2006.

Performance Goals Performance

Indicators

FY 2004

Actual

(Target)

FY 2005

Actual

(Target)

FY 2006

Actual

(Target)

Reduce the length

of time to resolve

Commission-level

cases

Percent of cases

over two years old

disposed of at the

Commission level

42%

(100%)

52%

Target not met.

(100%)

22%

Target not met.

(100%)
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Reduce the length

of time to resolve

priority cases

Percent of priority

cases disposed of

within six months

100 % - Target

met

(100%)

100 % - Target met

(100%)

100 % - Target met

(100%)

Administrative Law Judge Function

The function of the Review Commission’s Administrative Law Judges is to conduct formal hearings and

related proceedings in a fair, just, and expeditious manner. The function is directly related to the public

service goal. The following table lists the performance goals and results for this function in FY 2006.

Performance

Goals

Performance

Indicators

FY 2004

Actual

(Target)

FY 2005

Actual

(Target)

FY 2006

Actual

(Target)

Increase the

percent of noncomplex cases at

the ALJ level

that are resolved

in less than one

year

Percent within

365 days

98%

(93%)

98%

(93%)

99 %

Target exceeded

(94%)

Increase the

percent of

complex cases at

the ALJ level

that are resolved

within 18 months

Percent within

540 days

98%

(93%)

98%

(93%)

99%

Target exceeded

(94%)

Office of Administration Function

The function of the Office of Administration is to provide administrative support services for the Review

Commission, and to assure its success in fulfilling its mission.

The administration function provides strategic planning and operational management of the organization.

Administration also includes technology management, computer and information security, financial, and

administrative services. The day-to-day tasks performed include:

Supporting the development and implementation of the Review Commission’s strategic goal;

Maintaining and enhancing a website to provide the public with greater access to Review

Commission information;

Providing support agency-wide in the areas of finance, budget, procurement, personnel, equal

opportunity and general administration;

Providing personnel, payroll, salary benefits, mail services, and travel assistance to agency

employees;

Procuring goods and services, maintenance and needed repairs of equipment, training, reference

materials, supplies, and office space;

Implementing improved computerized case management and administrative systems; and

Developing computer systems and information security enhancements enhancing

telecommunications and improving technology efficiency and effectiveness.

Section II:

The Occupational Safety and Health Review Commission is a small agency and does not have a separate

Inspector General Office. Therefore, the Review Commission’s management team assumes the

responsibility for assessing or overseeing the assessment of the agency’s internal operations and

determining if there are any weaknesses that need correction.

A. Information Technology

The agency contracted for an FY 2006 independent audit of its computer and information security,
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consistent with the Federal Information Security Management Act (December 17, 2002) signed into law as

part of the E-Government Act (Public Law 107-347). This independent evaluation revealed that there was

a material weakness in policies and procedures, specifically in Certification and Authorization.

Recommendations for improvement were made for the agency’s security program and plan. The agency

is using recommendations generated from the audit to develop management initiatives.

B. Federal Managers Financial Integrity Act and A-123 Reporting

The Review Commission is in compliance with the Federal Managers Financial Integrity Act and OMB

Circular A-123, Management’s Responsibility for Internal Control. The system of internal controls for this

agency is functioning well. It provides reasonable assurance as to the efficiency and effectiveness of

programs and operations, reliability of financial and performance information, and compliance with laws

and regulations. These controls satisfy the requirements of the Federal Managers' Financial Integrity Act.

The Review Commission has had biennial, and more recently, annual audits of its financial statements,

including reviews of the adequacy of the Review Commission’s internal control systems. The Review

Commission has received an unqualified opinion for each financial audit conducted, including FY 2006.

With regard to financial management, the National Finance Center (NFC) provided payroll services, and

the Bureau of Public Debt (BPD) provided accounting, disbursement, and financial statement preparation

services for the agency. Accordingly, certain aspects of the Review Commission=s financial management

system are largely influenced by the practices and procedures of the NFC and the BPD.

In addition to the practices and procedures of the NFC and BPD, the Review Commission has established

certain internal controls and procedures that safeguard assets and ensure that obligations and

disbursements are made consistent with management=s direction. For example, BPD reports are

reviewed and reconciled to assure that the agency=s obligation and disbursement actions are properly

recorded and that the year end financial statements are correctly stated. The agency=s Budget and

Finance Office also prospectively certifies funds availability for all payments and conducts periodic reviews

of internal systems including travel, payroll, and procurement.

Section III:

Performance Data Verification

For each strategic goal and its related objectives, the Review Commission formulated performance

measures and numerical annual targets, whenever possible. A few measures are necessarily qualitative

in nature. Case processing and adjudication measurements are used for several objectives contained in

our Public Service Goal. Most of the data related to the Public Service Goal resides in the Review

Commission’s case management/tracking system. In FY 2006, each of the approximately 1,950 new

cases filed with the Review Commission was entered into the case management system, and progress on

all cases was tracked. In order to assure the quality of the data, management periodically reviews the

information in the case management/tracking system. The agency conducts test runs of the data to

ensure that information is entered and updated on a timely basis. Semi-annual and annual reviews are

conducted by the appropriate managers to ensure the accuracy of the data, to monitor performance goals

and progress, and produce reports. The reports are used to assess workload and make workload

adjustments, when necessary. At the end of the year, this data is used by the offices to measure

performance related to the goal and improve management.

Last Updated: November 27, 2006

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