Page 161 TITLE 29—LABOR § 660

of such notification, and the Commission shall

afford an opportunity for a hearing (in accordance with section 554 of title 5 but without regard to subsection (a)(3) of such section). The

Commission shall thereafter issue an order,

based on findings of fact, affirming, modifying,

or vacating the Secretary’s citation or proposed

penalty, or directing other appropriate relief,

and such order shall become final thirty days

after its issuance. Upon a showing by an employer of a good faith effort to comply with the

abatement requirements of a citation, and that

abatement has not been completed because of

factors beyond his reasonable control, the Secretary, after an opportunity for a hearing as

provided in this subsection, shall issue an order

affirming or modifying the abatement requirements in such citation. The rules of procedure

prescribed by the Commission shall provide affected employees or representatives of affected

employees an opportunity to participate as parties to hearings under this subsection.

(Pub. L. 91–596, §10, Dec. 29, 1970, 84 Stat. 1601.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 660, 666, 667 of

this title; title 2 section 1341; title 3 section 425.

§ 660. Judicial review

(a) Filing of petition by persons adversely affected or aggrieved; orders subject to review;

jurisdiction; venue; procedure; conclusiveness of record and findings of Commission;

appropriate relief; finality of judgment

Any person adversely affected or aggrieved by

an order of the Commission issued under subsection (c) of section 659 of this title may obtain

a review of such order in any United States

court of appeals for the circuit in which the violation is alleged to have occurred or where the

employer has its principal office, or in the Court

of Appeals for the District of Columbia Circuit,

by filing in such court within sixty days following the issuance of such order a written petition

praying that the order be modified or set aside.

A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and thereupon the

Commission shall file in the court the record in

the proceeding as provided in section 2112 of

title 28. Upon such filing, the court shall have

jurisdiction of the proceeding and of the question determined therein, and shall have power to

grant such temporary relief or restraining order

as it deems just and proper, and to make and

enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in

part, the order of the Commission and enforcing

the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless

ordered by the court, operate as a stay of the

order of the Commission. No objection that has

not been urged before the Commission shall be

considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall

be conclusive. If any party shall apply to the

court for leave to adduce additional evidence

and shall show to the satisfaction of the court

that such additional evidence is material and

that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court may order such

additional evidence to be taken before the Commission and to be made a part of the record. The

Commission may modify its findings as to the

facts, or make new findings, by reason of additional evidence so taken and filed, and it shall

file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record

considered as a whole, shall be conclusive, and

its recommendations, if any, for the modification or setting aside of its original order. Upon

the filing of the record with it, the jurisdiction

of the court shall be exclusive and its judgment

and decree shall be final, except that the same

shall be subject to review by the Supreme Court

of the United States, as provided in section 1254

of title 28.

(b) Filing of petition by Secretary; orders subject

to review; jurisdiction; venue; procedure;

conclusiveness of record and findings of

Commission; enforcement of orders; contempt proceedings

The Secretary may also obtain review or enforcement of any final order of the Commission

by filing a petition for such relief in the United

States court of appeals for the circuit in which

the alleged violation occurred or in which the

employer has its principal office, and the provisions of subsection (a) of this section shall govern such proceedings to the extent applicable. If

no petition for review, as provided in subsection

(a) of this section, is filed within sixty days

after service of the Commission’s order, the

Commission’s findings of fact and order shall be

conclusive in connection with any petition for

enforcement which is filed by the Secretary

after the expiration of such sixty-day period. In

any such case, as well as in the case of a noncontested citation or notification by the Secretary

which has become a final order of the Commission under subsection (a) or (b) of section 659 of

this title, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter

a decree enforcing the order and shall transmit

a copy of such decree to the Secretary and the

employer named in the petition. In any contempt proceeding brought to enforce a decree of

a court of appeals entered pursuant to this subsection or subsection (a) of this section, the

court of appeals may assess the penalties provided in section 666 of this title, in addition to

invoking any other available remedies.

(c) Discharge or discrimination against employee

for exercise of rights under this chapter; prohibition; procedure for relief

(1) No person shall discharge or in any manner

discriminate against any employee because such

employee has filed any complaint or instituted

or caused to be instituted any proceeding under

or related to this chapter or has testified or is

about to testify in any such proceeding or because of the exercise by such employee on behalf
§ 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.