## Biennial

**Report of theU.S. Occupational Safety and Health Review Commission**

**Fiscal Years 2000 and 2001**

 

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**FOREWORD**

It is my pleasure to provide the biennial report of the Occupational Safety and Health Review Commission for fiscal years (FYs)2000 and 2001 (October 1, 1999 through September 30, 2001).

Our Executive Branch, quasi-court system adjudicates disputes that arise from job safety and health citations issued by a separate, U.S. Labor Department agency, the Occupational Safety and Health Administration (OSHA).

The Review Commission, like OSHA, exists due to the passage of the Occupational Safety and Health Act of 1970 (the Act or the OSH Act) (section 2(b) (3) ). It functions as an independent federal agency.

The Review Commission continued to strive for prompt and even handed justice for all parties that came before its Administrative Law Judges and Commissioners. It pared down its inventory of older cases, evaluated important programs, and enhanced the effectiveness of its programs and personnel during this period.

As the new Review Commission Chairman, I am pleased to provide the public with information on the workings of this unique federal body during the 2000 and 2001 fiscal years.

W. Scott RailtonChairman

 

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**MISSION**

The U.S. Occupational Safety and Health Review Commission (OSHRC) might well have been called a court, as this agency, also referred to as the Review Commission, functions as such. Our sole legal mandate is to serve as an administrative court system, providing fair and timely resolution of disputes over whether federal job safety and health rules were followed in the workplace. This mandate comes from the Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C. Sec. 651), which created the Review Commission as an independent federal adjudicatory agency.

When the Review Commission was created, it was the only agency of its kind in the federal government. That is, an agency functioning like a court without other responsibilities, such as regulatory powers, and independent of a department or other government subsidiary.

Though often confused with another federal agency, the Review Commission is completely separate from the Labor Department and the Occupational Safety and Health Administration (OSHA). This is the essence of the meaning of our status as an "independent" agency: we are not a part of the Labor Department, of OSHA, or of any other federal department or structure. The quasi-judicial, Executive branch Review Commission helps ensure that the enforcement powers of the U. S. Department of Labor are exercised in accordance with the law and the requirements of due process.

The legal disputes adjudicated by the Review Commission arise from workplace safety and health inspections conducted by an agency within the Department of Labor, OSHA. Also created by the OSH Act, OSHA devises the job safety and health rules, known as standards, and inspects workplaces for compliance with those rules. OSHA also issues citations and proposes fines for employers who allegedly violated those rules. OSHA functions, in effect, as the prosecutor of the disputes resolved by the independent, court-like Review Commission.

The Review Commission affords employers and employees or their representatives "their day in court" through:
    - Hearings before its Administrative Law Judges (ALJ) to determine whether employers complied with job safety and health standards. Hearings before the Review Commission's ALJs also present issues concerning whether the time provided for abatement (correction) of violations which are determined is appropriate. The law permits affected employees the right to contest the abatement period;	 
    - Review of selected ALJ decisions by Presidentially-appointed Commission members based on the record developed by the judge. Commission members function in a capacity equatable to appellate judges to review ALJ decisions upon petitions filed by aggrieved parties. The members provide uniformity in the decision making process, consistency and continuity to the law, and correct substantive errors in ALJ decisions.

**JURISDICTION**

In most instances, the Review Commission's work covers 33 states and territories including most of the industrial states in most instances. The remaining states exercise authority under the OSH Act to administer their own safety and health programs, as approved by the Department of Labor. Some states, however, have limited their coverage of potential hazards and are subject to federal oversight in some areas of workplace safety and health; when this occurs, the Review Commission also has decision making jurisdiction in these instances.

In addition, when military or Native America installations, no matter the state, are subject to federal OSHA inspections, and those inspection results are disputed, the Review Commission has jurisdiction to resolve the ensuing cases. And when United States Postal Service facilities receive and contest citations or proposed penalties for alleged safety and health violations, the Review Commission has jurisdiction in all 50 states, as OSHA exercises jurisdiction over postal facilities nationwide.

**JUDICIAL REVIEW**

A party in a Review Commission case may seek further review of a Review Commission final decision in an appropriate U.S. Court of Appeals. This is contingent on the conditions that the party has:
    - Timely petitioned for review;
    - Exhausted all remedies available at the Review Commission; and
    - Is aggrieved by the decision it received.

**COMMISSION MEMBERS**

The U.S. President nominates, and the U.S. Senate confirms, Commission members to staggered, six-year terms.

**Thomasina V. Rogers,**Chairman

Thomasina V. Rogers served as agency chairman throughout this period. A Commission member since November 1998, upon appointment by President Bill Clinton, she became the agency Chairman in June 1999. Her term on the Commission expires April 27, 2003.

**Stuart E. Weisberg,** Commissioner

Stuart E. Weisberg rejoined the Commission in December 1999 upon a recess appointment by President Clinton, and remained on the tribunal until December 2000. He previously served the agency, upon appointment by President Clinton, as Commission member and chairman from February 1994 through April 27, 1999, when that term expired. The president nominated Mr. Weisberg to a new six-year term at the end of FY 1999 but the Senate did not confirm that nomination.

A recess appointment is made by a President when Congress is in recess and therefore, does not require Senate confirmation. Such an appointee may serve until the end of the next session of the Senate unless confirmed by the Senate to a full, six-year term.

**Gary L. Visscher,** Commissioner

Gary L. Visscher joined the agency in July 1999 after receiving Senate confirmation in May to serve as an agency Commission member. He was nominated by President Clinton in October 1998 to a term expiring April 27, 2001, but resigned the position in November 2000.

**Ross E. Eisenbrey,** Commissioner

Ross Eisenbrey became a Commission member in January 2001 after a recess appointment by President Bill Clinton. He served throughout FY2001.

**COMMISSION ORGANIZATION**

The agency provides two levels of review to adjudicate cases based on law and fact. Initially, Review Commission Administrative Law Judges (ALJs) hear challenges to citations issued by OSHA to employers. The Review Commission provides parties discretionary appeal from ALJ decisions.

The **Chairman**, by statute, is the chief management officer of the agency responsible for its operations.

The **Chairman** and the two **Commission Members:**
    - Hold staggered, six-year terms upon appointments by the President of the United States and confirmation by the U.S. Senate;	 
    - Are selected "from among persons who by reason of training, education, or experience are qualified to carry out the functions of the Commission under this Act," that is, the Occupational Safety and Health Act of 1970; and	 
    - May each initiate Commission level review of matters decided by Review Commission ALJs.

**The Chief Administrative Law Judge:**
    - Is responsible for the conduct of trial proceedings in accordance with the Administrative Procedures Act (5U.S.C. 556-7), which arise under the Occupational Safety and Health Act.;	 
    - Reports to the Chairman;	 
    - Provides guidance and leadership to the Commission ALJs in the conduct of trial proceedings before the agency;	 
    - Assigns cases;	 
    - Consults with the ALJs on their trial needs (law assistants, reporters, etc.); and	 
    - Provides case management assistance to the ALJs to aid in timely and expeditious disposition of cases.

The **General Counsel:**

Supervises staff attorneys who prepare and present legal analyses to assist Commission members in adjudicating appeals from ALJ decisions;

Presents cases to the Commission for disposition;

Prepares drafts of the Commission's opinions; and

Provides advice to the Chairman and other agency organizational components on issues such as personnel, procurement, and ethics.

The **Executive Secretary's Office:**
    - Functions for the Commission as the clerk of the court;	 
    - Receives and processes new cases arriving at the Review Commission;	 
    - Responds to procedural questions raised by parties in proceedings before the Review Commission.	 
    - Rules on certain procedural matters and enters orders and decisions into the official record;	 
    - Certifies official records to the courts and manages the use of agency case files.

The **Executive Director** reports to the Chairman and is responsible for oversight of some agency administrative support functions including:

The**Office of Financial and Administrative Services** (OFAS)

The **Public Information Office**(PIO):

The **Information Technology Office:**

The **Library Office:**
    - Leadership for and oversight of the agency's strategic and performance plans.
    - Provides support agency-wide in the areas of finance, budget, procurement, personnel, equal opportunity, and administration;	 
    - Provides personnel, payroll, benefits, reproduction, and mail services, and travel assistance to agency employees; and	 
    - Procures goods and services, needed repairs, training, reference materials, supplies, and office space.
    - Responds to inquiries from members of the general public, media and Congress;	 
    - Serves as the agency Freedom of Information Act office;	 
    - Manages the publication of agency decisions through the Government Printing Office (GPO)on CD-ROM for the nations's depository libraries; serves as liaison to GPO for the agency website hosted by GPO;	 
    - Answers questions about creating, maintaining, and disposing of administrative and program records;	 
    - Drafts and edits press releases and other publications.
    - Develops, supports, and maintains all agency-wide automated information systems;	 
    - Supports agency desktop computer users;	 
    - Assists in the implementation of the agency's computer information security program.
    - Manages and maintains the agency's national and regional office libraries;	 
    - Provides reference services.

**ADMINISTRATION**

**Agency Workload**

The agency experienced a slight decrease in its workload in FY 2000 and FY 2001. The Commission's case load is driven by the number of inspections OSHA conducts, the nature of the citations issued and the amount of penalties proposed by OSHA.

OSHA considers citations involving penalties of $200,000 and above to be "egregious" cases involving alleged willful offenders of its statute. Frequently, these citations result in protracted litigation.

Other OSHA enforcement initiatives also result in complex cases which often involve protracted litigation. For example, when OSHA places enforcement emphasis on the bloodborne pathogen, inorganic lead, and silica standards and on ergonomics, the result for the Review Commission is protracted contested cases usually involving competing expert witnesses, complex discovery, and complex trials.

The agency received 2,407 new cases in FY 2000 and 2,316 in FY 2001. The Chief ALJ's office assigns all new cases to individual Review Commission ALJs. Despite the slight decrease over these two years in the roster of new cases, we continued to see particularly complex issues presented in a large portion of new cases.

At the Commission level, we maintained a full complement of three members, or a quorum of two members, for all but three months of fiscal years 2000 and 2001. In FY 2000, the Commissioners disposed of 36 cases, compared to 52 dispositions in FY 2001.

Case production at the Commission level in FY 2000 reflects the fact it focused on more of the older, complex cases. A series of temporary agency hires helped expedite the processing of newer and less complex cases while freeing up more senior, permanent staff attorneys to concentrate on older, more difficult cases. The success of this strategy is without precedent at the agency and allowed it to issue 12 cases this fiscal year that had a cumulative age at the Commission level of 57 years.

**The Settlement Part Program**

Employers who receive job safety or health citations that include proposed penalties of $200,000 or more must participate in formal settlement talks under the Settlement Part (SP) program, a pilot program launched in FY 1998. In addition, the Chief ALJ may assign other cases to this program when he finds such cases appropriate for it, based on case complexity.

After a formal evaluation of the this pilot program was completed in FY 2000, the Commission voted to make it permanent.

Settlement part procedures provide for a negotiation period of 120 days and for a one-time, 30 day extension of that time at the ALJ's discretion. An ALJ who will not hear the case, should the effort fail to resolve the issues, presides over the settlement negotiations. The Review Commission's Chief ALJ may also act as a settlement judge. The evaluation showed generally positive results, including substantial satisfaction among the program's participants. The agency Chairman will continue monitoring the program to ensure its effectiveness. In FY 2000, 42 cases were assigned to settlement part, compared to 28 cases in FY 2001.

**E-Z Trial Process**

Initiated in 1995, the E-Z trial process allows parties in relatively simple cases to resolve disputes before ALJs with fewer legal formalities than those employed in the conventional method of handling cases. Goals for this case resolution method include providing swifter decisions more inexpensively.

An outside evaluation of the E-Z Trial process in FY 2001 provided agency managers with useful feedback on this streamlined case resolution method.

E-Z Trial cases include one or more of the following characteristics: relatively simple issues of law or fact with relatively few citation items, a total proposed penalty of not more than $20,000, no allegations of willfulness or repeated violations, no fatalities, a hearing that is expected to take less than two days or a small employer appearing with or without an attorney. The independent evaluation of E-Z Trial showed that program implementation was effective and that it was generally being implemented in accordance with its goals. The evaluation revealed that participants did not believe the program should be mandatory. However, participants were generally satisfied with the fairness of the outcomes in the pre-hearing telephone conference call and in the overall E-Z Trial hearing.

**Performance Reporting under the Government Performance and Results Act (GPRA)**

During FY 2000, the Review Commission met 80 percent of the FY 2000 goals set forth in its our FY 2000 Annual Performance Plan (APP). The agency performed well in the areas of conventional case settlement dispositions, assignment of cases to the settlement part and E-Z Trial programs, external communications, information technology enhancements, employee and management development programs, and quality business processing improvements.

During FY 2001, the Review Commission met 89% percent of the FY 2001 goals set forth in its FY 2001 APP. The agency performed well in the areas of case adjudication for cases that proceeded to hearing at the trial level or were directed for review by the Commissioners, case settlement disposition within six months, and external communications. It also performed well in goals for technology enhancements, human resource management programs, and quality business processing improvements. We missed, by a slight margin, our goal of reducing the percent of settlements at the trial level that exceed the one year cycle time. We also failed to meet our goal for placing our scanned Commission decisions dating back to 1980 on our website, due to contractor delays.

While we did not meet all our FY 2001 APP goals, there was overall significant improvement in performance compared to fiscal years 1999 and 2000. In fact, the agency met 89% percent of its goals in FY 2001, compared to 80 percent of its FY 2000 goals and 68 percent of its FY 1999 goals.

The Government Performance and Results Act (GPRA) of 1993 requires Federal agencies to submit a program performance report to the President and Congress each year. You may view the full report on our website, http://www.oshrc.gov.

**Training Workshop**

The Review Commission held an all-employee training workshop in FY 2000. Agency staff received training in automation, computer-assisted legal research, customer service, team building, quality management and ethics. In addition, staff members participated in forums that developed plans for future action, including how to better meet training needs for the coming fiscal year. Thanks to information discussed at this workshop, customized training was offered to employees in FY 2001. These workshops focused on evidence, business writing, and healthy computing.

**Improved Agency World Wide Web Site**

In FY 2000, the Review Commission placed an improved search engine on its website. This enabled the public to perform key word searches of all documents on the site, no matter the format of the materials. Previously, visitors could only search documents in the Hyper Text Mark-up Language format; the new search engine allows visitors to also search documents in the Portable Document Format.

We added four additional years of older Commission decisions (from 1992 1989) to the site to aid the public in researching job safety and health case law. This enhancement came after learning from stakeholders that they would find it valuable and useful to locate, on one site, all Commission decisions rendered by our agency. The site continued to receive more than 10,000 hits per month.

**Published New Guide**

"The Employee Guide to Review Commission Procedures," went to press in FY 2000. The idea for the publication came from public comments that many would find such a booklet useful. Designed as an easy-to-read publication to assist employees and their representatives in participating in agency adjudicative proceedings, it was mailed to a host of unions, associations and other potentially-interested parties and placed on the agency website. It provides plain language explanations on how workers and their union representatives can have their views officially heard in Review Commission proceedings.
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Last Updated: March 27, 2003