§ 661 TITLE 29—LABOR Page 162

of himself or others of any right afforded by this

chapter.

(2) Any employee who believes that he has

been discharged or otherwise discriminated

against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary

alleging such discrimination. Upon receipt of

such complaint, the Secretary shall cause such

investigation to be made as he deems appropriate. If upon such investigation, the Secretary

determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district

court against such person. In any such action

the United States district courts shall have jurisdiction, for cause shown to restrain violations

of paragraph (1) of this subsection and order all

appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.

(3) Within 90 days of the receipt of a complaint

filed under this subsection the Secretary shall

notify the complainant of his determination

under paragraph (2) of this subsection.

(Pub. L. 91–596, §11, Dec. 29, 1970, 84 Stat. 1602;

Pub. L. 98–620, title IV, §402(32), Nov. 8, 1984, 98

Stat. 3360.)

AMENDMENTS

1984—Subsec. (a). Pub. L. 98–620 struck out provision

requiring expeditious hearing of petitions filed under

this subsection.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98–620 not applicable to cases

pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620,

set out as a note under section 1657 of Title 28, Judiciary and Judicial Procedure.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 15 section 2651.

§ 661. Occupational Safety and Health Review

Commission

(a) Establishment; membership; appointment;

Chairman

The Occupational Safety and Health Review

Commission is hereby established. The Commission shall be composed of three members who

shall be appointed by the President, by and with

the advice and consent of the Senate, from

among persons who by reason of training, education, or experience are qualified to carry out

the functions of the Commission under this

chapter. The President shall designate one of

the members of the Commission to serve as

Chairman.

(b) Terms of office; removal by President

The terms of members of the Commission

shall be six years except that (1) the members of

the Commission first taking office shall serve,

as designated by the President at the time of appointment, one for a term of two years, one for

a term of four years, and one for a term of six

years, and (2) a vacancy caused by the death,

resignation, or removal of a member prior to the

expiration of the term for which he was appointed shall be filled only for the remainder of

such unexpired term. A member of the Commission may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.

(c) Omitted

(d) Principal office; hearings or other proceedings at other places

The principal office of the Commission shall

be in the District of Columbia. Whenever the

Commission deems that the convenience of the

public or of the parties may be promoted, or

delay or expense may be minimized, it may hold

hearings or conduct other proceedings at any

other place.

(e) Functions and duties of Chairman; appointment and compensation of administrative

law judges and other employees

The Chairman shall be responsible on behalf of

the Commission for the administrative operations of the Commission and shall appoint such

administrative law judges and other employees

as he deems necessary to assist in the performance of the Commission’s functions and to fix

their compensation in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and

General Schedule pay rates: Provided, That assignment, removal and compensation of administrative law judges shall be in accordance with

sections 3105, 3344, 5372, and 7521 of title 5.

(f) Quorum; official action

For the purpose of carrying out its functions

under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote

of at least two members.

(g) Hearings and records open to public; promulgation of rules; applicability of Federal Rules

of Civil Procedure

Every official act of the Commission shall be

entered of record, and its hearings and records

shall be open to the public. The Commission is

authorized to make such rules as are necessary

for the orderly transaction of its proceedings.

Unless the Commission has adopted a different

rule, its proceedings shall be in accordance with

the Federal Rules of Civil Procedure.

(h) Depositions and production of documentary

evidence; fees

The Commission may order testimony to be

taken by deposition in any proceeding pending

before it at any state of such proceeding. Any

person may be compelled to appear and depose,

and to produce books, papers, or documents, in

the same manner as witnesses may be compelled

to appear and testify and produce like documentary evidence before the Commission. Witnesses

whose depositions are taken under this subsection, and the persons taking such depositions, shall be entitled to the same fees as are

paid for like services in the courts of the United

States.

(i) Investigatory powers

For the purpose of any proceeding before the

Commission, the provisions of section 161 of this

title are hereby made applicable to the jurisdiction and powers of the Commission.
Page 163 TITLE 29—LABOR § 662

1So in original. Probably should be ‘‘An’’.

(j) Administrative law judges; determinations; report as final order of Commission

A1 administrative law judge appointed by the

Commission shall hear, and make a determination upon, any proceeding instituted before the

Commission and any motion in connection

therewith, assigned to such administrative law

judge by the Chairman of the Commission, and

shall make a report of any such determination

which constitutes his final disposition of the

proceedings. The report of the administrative

law judge shall become the final order of the

Commission within thirty days after such report

by the administrative law judge, unless within

such period any Commission member has directed that such report shall be reviewed by the

Commission.

(k) Appointment and compensation of administrative law judges

Except as otherwise provided in this chapter,

the administrative law judges shall be subject to

the laws governing employees in the classified

civil service, except that appointments shall be

made without regard to section 5108 of title 5.

Each administrative law judge shall receive

compensation at a rate not less than that prescribed for GS–16 under section 5332 of title 5.

(Pub. L. 91–596, §12, Dec. 29, 1970, 84 Stat. 1603;

Pub. L. 95–251, §2(a)(7), Mar. 27, 1978, 92 Stat.

183.)

REFERENCES IN TEXT

The General Schedule, referred to in subsec. (e), is set

out under section 5332 of Title 5, Government Organization and Employees.

The Federal Rules of Civil Procedure, referred to in

subsec. (g), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

CODIFICATION

Subsec. (c) of this section amended sections 5314 and

5315 of Title 5, Government Organization and Employees.

In subsec. (e), reference to section 5372 of title 5 was

substituted for section 5362 on authority of Pub. L.

95–454, §801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221, which

redesignated sections 5361 through 5365 of title 5 as sections 5371 through 5375.

AMENDMENTS

1978—Subsecs. (e), (j), (k). Pub. L. 95–251 substituted

‘‘administrative law judge’’ and ‘‘administrative law

judges’’ for ‘‘hearing examiner’’ and ‘‘hearing examiners’’, respectively, wherever appearing.

REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY

RATES

References in laws to the rates of pay for GS–16, 17,

or 18, or to maximum rates of pay under the General

Schedule, to be considered references to rates payable

under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)]

of Pub. L. 101–509, set out in a note under section 5376

of Title 5.

§ 662. Injunction proceedings

(a) Petition by Secretary to restrain imminent

dangers; scope of order

The United States district courts shall have

jurisdiction, upon petition of the Secretary, to

restrain any conditions or practices in any place

of employment which are such that a danger exists which could reasonably be expected to cause

death or serious physical harm immediately or

before the imminence of such danger can be

eliminated through the enforcement procedures

otherwise provided by this chapter. Any order

issued under this section may require such steps

to be taken as may be necessary to avoid, correct, or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where

such imminent danger exists, except individuals

whose presence is necessary to avoid, correct, or

remove such imminent danger or to maintain

the capacity of a continuous process operation

to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such

to be accomplished in a safe and orderly manner.

(b) Appropriate injunctive relief or temporary

restraining order pending outcome of enforcement proceeding; applicability of Rule

65 of Federal Rules of Civil Procedure

Upon the filing of any such petition the district court shall have jurisdiction to grant such

injunctive relief or temporary restraining order

pending the outcome of an enforcement proceeding pursuant to this chapter. The proceeding

shall be as provided by Rule 65 of the Federal

Rules, Civil Procedure, except that no temporary restraining order issued without notice

shall be effective for a period longer than five

days.

(c) Notification of affected employees and employers by inspector of danger and of recommendation to Secretary to seek relief

Whenever and as soon as an inspector concludes that conditions or practices described in

subsection (a) of this section exist in any place

of employment, he shall inform the affected employees and employers of the danger and that he

is recommending to the Secretary that relief be

sought.

(d) Failure of Secretary to seek relief; writ of

mandamus

If the Secretary arbitrarily or capriciously

fails to seek relief under this section, any employee who may be injured by reason of such

failure, or the representative of such employees,

might bring an action against the Secretary in

the United States district court for the district

in which the imminent danger is alleged to exist

or the employer has its principal office, or for

the District of Columbia, for a writ of mandamus to compel the Secretary to seek such an

order and for such further relief as may be appropriate.

(Pub. L. 91–596, §13, Dec. 29, 1970, 84 Stat. 1605.)

REFERENCES IN TEXT

Rule 65 of the Federal Rules of Civil Procedures, referred to in subsec. (b), is set out in the Appendix to

Title 28, Judiciary and Judicial Procedure.

FEDERAL RULES OF CIVIL PROCEDURE

Writ of mandamus abolished in United States district

courts, but relief available by appropriate action or