CONN MACIEL CAREY LLP | 5335 Wisconsin Avenue, NW – Suite 660 | Washington DC 20015 | www.connmaciel.com

Eric J. Conn

econn@connmaciel.com

202-909-2737

November 16, 2018

By E-Mail (rbailey@oshrc.gov)

Mr. Ron Bailey

Attorney-Advisor

Occupational Safety and Health Review Commission

One Lafayette Centre

1120 20th Street, NW, 9th Floor

Washington, DC 20036-3419

 Re: Advance Notice of Proposed Rulemaking, 29 CFR 2200, Docket #OSHRC-2018-0007

Dear Mr. Bailey:

We provide these comments on behalf of the OSHA defense attorneys and paralegals 

in the national OSHA Practice Group at the law firm Conn Maciel Carey LLP. The attorneys 

and professionals at the firm who focus their practice on OSHA law have a combined 125+ 

years of experience practicing before the Occupational Safety and Health Review 

Commission (“Commission” or “OSHRC”). 

We thank you for the opportunity to respond to the Commission’s request for 

comments regarding various rules of procedure, as set forth at 83 Fed. Reg. 45336 (Sept. 7, 

2018). Our comments below address the specific areas about which the Commission seeks

comments, and also discuss a number of other procedural rules that we believe the 

Commission also should consider amending.

1. Should the threshold amount for cases referred for mandatory settlement 

proceedings be increased (from the current threshold of $100,000)?

No. If anything, the rules for triggering mandatory settlement proceedings should 

be amended to sweep in more, not fewer cases.

As an initial point, the attorneys at Conn Maciel Carey believe OSHRC’s Mandatory 

Settlement Proceedings program is extremely effective. So often a case that feels virtually 
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impossible to settle is either settled at the in-person mediation with the OSHRC ALJ or

following the mediation as a result of the ALJ’s effective mediation. As a general rule, 

alternative dispute resolution is worthwhile, but the Mandatory Settlement Proceedings 

Program in particular, is effective because the “mediator,” in these cases an experienced 

OSHRC ALJ, has a unique perspective to offer to the Parties. The ALJ’s are uniquely 

knowledgeable about the underlying legal issues in dispute, can project for the Parties the 

litigation that will follow if the case is not settled, and have earned the respect and 

credibility of the OSHA Bar (both the defense bar and the Department of Labor’s Solicitor’s 

office), so they are especially well-positioned to move tough cases to settlement. We rarely 

have a case that starts in Mandatory Settlement Proceedings and is then referred back out. 

We have not seen the statistics in a few years, but we know our experience is not unique –

the Program has an extremely high success rate. In short, the Program works. It saves 

employers, OSHA and OSHRC valuable resources.

Second, in our experience, cases with penalties greater than $100,000 but less than 

$400,000 are the real sweet spot for successful Mandatory Settlement Proceedings. Note, it 

is possible, in fact quite likely, that cases with lower initial penalties also would fare 

particularly well in the Mandatory Settlement Proceedings, but those cases are not 

included in the Program today. On the flip side, in our experience, large cases (e.g., half 

million dollar-plus cases) are less likely to be resolved in the Mandatory Settlement 

Proceedings, often requiring at least some discovery and sometimes a full hearing to 

achieve resolution. So it seems to us that shifting the threshold upwards from $100,000 

would be a move in the wrong direction, excluding the very cases that are most likely to 

benefit from an OSHRC ALJ mediator.
Mr. Ron Bailey

November 16, 2018

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Third, we understand the origin of this possible rule change is the 2016 civil 

penalties inflation adjustment that has significantly increased OSHA’s maximum civil 

penalty authority. However, regardless of OSHA’s penalty authority, or how OSHA may 

choose to define for itself what is a “significant case,” the impact of a $100,000 fine on an 

employer has not changed. Likewise, the fact that the penalty authority increase has 

resulted in an increase in $100,000-plus enforcement actions, that also does not change 

what a $100,000 fine feels like to an employer, particularly the average employer impacted 

by OSHA enforcement (the majority of which are small and medium sized employers).

If a motivating factor for this potential rule change is the increased burden on 

OSHRC ALJs because of the increasing number of $100,000-plus cases, we reiterate that the 

Mandatory Settlement Proceedings, on balance, save OSHRC resources because mandated 

mediation for those low $100,000 cases will continue to drive settlements earlier in the 

process.

In sum, we believe $100,000 remains an appropriate threshold to trigger Mandatory 

Settlement Proceedings. If anything, we would encourage OSHRC to lower the threshold to 

$75,000, or, alternatively, for the Program to provide a better mechanism to facilitate the 

Parties mutually agreeing to move an otherwise ineligible case into Mandatory Settlement 

Proceedings.

2. Should electronic filing be mandatory?

Yes, the use of the OSHRC E-File System should be mandatory. The electronic filing system 

is much more efficient and reliable than filing by other methods because all parties obtain

an immediate confirmation that a pleading has been submitted, and, assuming the filing is 

in order, a confirmation that the pleading has been accepted is received soon after the 
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submission. The instructions for using the E-File System are also clear and easy to follow. 

And the OSHRC E-File System is user-friendly; it does not pose a challenge for even the 

least technologically savvy among us. 

We do not believe express exceptions are necessary, but of course, the Commission 

can always retain discretion to grant an exception upon request in the rare circumstance 

that an employer has no access to the internet, even at a public library.

3. Computation of Time, 29 C.F.R. 1910.2200.4 

Paragraph (a) of 1910.2200.4 is clear and unambiguous, but we believe paragraph 

(b) is convoluted. The paragraph begins by stating that you should not apply paragraph (a) 

if serving by mail, and then goes on to state in the last sentence that you should comply 

with paragraph (a) by not counting Saturday, Sunday or Federal Holidays if the prescribed 

period is less than 11 days. We understand the meaning of the section, but newcomers

generally find it confusing. It would be easier to follow if the rule were amended to simply 

state:

(b) Service by mail. Where service of a document, including documents 

issued by the Commission or Judge, is made by mail pursuant to §2200.7, a 

separate period of 3 days shall be allowed, in addition to the prescribed 

period, for the filing of a response. This additional 3-day period shall 

commence on the first calendar day following the day on which service has 

been made. Where the period is 11 days or more, begin counting on the first 

day following the expiration of the 3-day period. If the prescribed period is 

less than 11 days, begin counting on the first day after service that is not a 

Saturday, Sunday or Federal Holiday.

4. Definition of affected employee—should it be broadened?

No. To remain in accord with the OSH Act, the OSHRC Rules should continue to limit 

litigation rights to employees of the employer who have a potential to be exposed to the 

subject hazard. The current rule is reasonably tailored to the nature of litigation before the 
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Review Commission and to the interests of employees and employers affected by that 

litigation. Expanding the parties to an OSHRC litigation beyond the employees of the 

employer, or beyond employees who may be exposed to the subject hazard, would 

complicate, lengthen, and likely confuse the process–in sum, this expansion would simply

muck up the process. Non-employees and those not working in areas affected by the 

citations could not reasonably provide better value to the litigation process than those 

employees actually exposed to the hazard. Furthermore, expanding the definition may

create a slippery slope to opening up participation in OSHRC proceedings to a host of other 

interests; e.g., interest groups, trade associations, the general public, other agencies or 

governmental entities, like the Chemical Safety Board or local building inspectors, etc. This 

could create a circus environment around a system that currently effectively serves the 

interests of all employees, and such expansion would most certainly increase the cost of the 

litigation for all parties and strain the resources of the Commission. 

5. Should the Commission allow Parties to cite to cases contained in OSHRC’s 

website under “Decisions”?

Yes. Although these cases may not carry the precedential weight of published cases, 

they are still instructive as to the Commission’s reasoning. Simply because a decision has 

not been published should not preclude it from being cited in pleadings in cases before an 

ALJ or the Commission.

Federal Rule of Appellate Procedure 32.1, which became effective in 2007, allows 

attorneys to cite unpublished opinions that were decided on or after January 1, 2007 in the 

federal circuit courts. The new federal rule does not dictate the precedential value that 

federal circuit courts shall assign to unpublished opinions, but attorneys may cite them to 

the courts. As the Commission follows many of the Federal Rules already, it makes sense 
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for the Commission to adopt this rule as well. It will be clear to the ALJs or the Commission 

that a case is unpublished, and they can determine the appropriate weight to give the 

referenced case.

6. Other OSHRC Rule Changes to Consider

Although the request for comment did not address the rules we comment on below, 

our OSHA Practice would like to ask the Commission to consider our comments and 

feedback, and consider our suggested amendments to these rules. 

a. §2200.57 Issuance of subpoenas - Choice to issue ex parte.

We have puzzled for years why, pursuant to OSHRC Rule §2200.57(a), third party

subpoenas may issue upon applications made either with notice to the other party or ex 

parte. The rule establishes no standard or circumstances for the issuance of an ex parte

subpoena, so it is hard to imagine a scenario when the Secretary would opt to give notice to 

the employer when seeking a third-party subpoena. Employers ought to have an 

opportunity to bring valid objections and motions to quash such subpoenas in all instances.

As an anecdote, in a recent case, the Secretary subpoenaed records from one of our 

client’s insurers. Due to what seemed to be some intimidation by the Solicitors office, the 

insurer did not separately notify our client about the subpoena or its response to the 

subpoena. Had our client known about the subpoena, it could have raised several 

legitimate bases to quash the subpoena.

b. Automatic disclosure of OSHA inspection file.

We recommend the Commission consider a new rule to require the Secretary to 

provide the employer with certain automatic disclosures shortly after receipt of a Notice of 

Contest or after the employer files an Answer and Affirmative Defenses. Rule 2200.200

covering Simplified Proceedings already requires such disclosures of basic records from 
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the inspection file, and that disclosure, in our experience, has often facilitated much more 

productive early settlement discussions. Likewise, litigation before the Cal/OSHA Appeals 

Board requires a very simple, early disclosure to employers of the entire inspection file. 

Our experience is that these disclosures also lead to productive, early settlement 

discussions in Cal/OSHA cases.

We have found that Informal Conferences and post-Conference formal settlement 

discussions are often hampered because the parties are not operating from the same basic 

set of facts. This problem would be much improved with early, automatic disclosure of the 

OSHA inspection file.

c. Reply briefs should be allowed without a motion for leave.

Under current Commission procedure, Parties are not permitted an automatic Reply 

to Opposition motions. We have seen motions for leave to Reply denied more often than 

they are granted. That process creates perverse incentives to engage in bad faith litigation. 

For example, we had a Solicitor refuse to make various OSHA representatives available for 

depositions, without providing an explanation of the basis for the refusal. We were forced 

to move for leave to depose the OSHA representatives. For the first time in the Opposition 

to our motion, the Solicitor introduced arguments about a senior executive exception to the 

general rule in favor of liberal discovery. Without foreknowledge of that exception being 

raised, the employer could not dispute the application of the exception in its motion. Yet, 

the ALJ denied the employer’s motion for leave to Reply, denying our client the 

opportunity, for the first time, to argue against the discovery limitation. Likewise, in a 

recent motion for summary judgment, we relied heavily on admissions made by OSHA’s 

30(b)(6) witness. Inexplicably, in the government’s Opposition to the motion, OSHA “ran 
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away” from the admissions and entirely changed its rationale for the decision to issue the 

citation. Our motion for leave to Reply to address the new theory of the government’s case 

was denied.

In short, by not allowing Reply briefs as an automatic right, the Rules incentivize 

hiding the ball in litigation, rewarding those parties who do so because new positions and 

theories can be presented without challenge. A rule allowing for an automatic Reply could 

include reasonable limitations (e.g., page limits and/or restrictions on scope to new 

arguments or positions introduced in an Opposition motion). The appropriate place for 

such a rule would be at §2200.40, between current subparts (c) and (d).

d. Automatic stay of discovery for cases involving a fatality and an alleged 

willful violation pending notice regarding the Secretary’s intent to make a 

criminal referral.

Our experience informs us that OSHA’s solicitors are waiting longer and longer to 

declare the government’s intentions around potential criminal investigations. Indeed, we 

have seen multiple cases where the decision to refer the file to the U.S. Attorney’s Office 

was made on the eve of a scheduled mediation under the Mandatory Settlement 

Proceedings. In those instances, the Solicitors are able to take advantage of agreements

with the employer and the ALJ about limited discovery; i.e., the Solicitor has taken some 

limited discovery under the civil discovery standard, and provided the information 

obtained to a criminal prosecutor. The current unchecked discretion available to solicitors 

in this area provides an opportunity for abuse of the civil litigation process, with potentially 

dire consequences to employers. 

Establishing deadlines for solicitors to provide notice of their intention regarding a 

criminal referral, or setting an automatic stay of discovery until those intentions are 
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communicated to the ALJ and the employer are ways this potential for abuse can be 

remedied.

e. Include Case Name in the E-File System Auto-generated Emails.

Because many attorneys and legal assistants are involved in multiple cases before 

the Commission simultaneously, it would be helpful to have the auto-generated E-File 

system emails include the case name, not just the docket number, in the subject line of the

emails issued without an attachment. It is time consuming to look up the docket number 

identified in the email, then log into the system only to find out that someone filed a notice 

of appearance or other non-pressing filing.

f. Consider amending the discovery rules regarding Interrogatories and 

Requests for Admission to allow Parties to propound the greater of either 

twenty-five or five times the number of citation items. 

The limit of twenty-five interrogatories and requests for admission is often 

insufficient in cases involving numerous citation items. A case with dozens of citation 

items should not involve the same discovery limit as a case involving only a single citation 

item. This is especially true of cases with citations for willful or repeat violations. 

Expanding the number of discovery requests based on the size of the enforcement action 

will assist the parties in understanding the issues in dispute, without wasting the ALJ’s time 

dealing with discovery motions and disputes. We recommend the limit be set at the greater 

of twenty-five, or some multiplier (we propose five) of the number of citation items in 

dispute. 

* * * * * * *
Mr. Ron Bailey

November 16, 2018

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We hope our comments are useful to the Commission in its review of the OSHRC 

Rules of Procedure.

Respectfully,

Eric J. Conn

On behalf of the OSHA Practice Group at Conn Maciel Carey LLP