United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v.

SCIENCE APPLICATIONS 

INTERNATIONAL CORP., dba SAIC,

Respondent.

OSHRC Docket No. 14-1668

BRIEFING NOTICE

Chair Attwood requests that the parties brief the issue raised in Respondent’s petition:

Did the judge err in concluding that the Secretary established Respondent’s recognition 

of the hazard, given what Respondent contends is its 50-year fatality-free history?

Commissioner MacDougall requests that the parties brief the following issues:

(1) Did the Secretary exceed his authority in issuing the citation? In answering this question, 

the parties may address whether:

(a) Congress intended, in enacting the OSH Act, to authorize the Secretary to regulate 

the cited activity via the general duty clause, 29 U.S.C. § 654(a)(1); and/or

(b) the Secretary’s decision to issue Citation 1, Item 1, was arbitrary and capricious.

(2) Did the judge err in concluding that the Secretary established Respondent’s recognition 

of the hazard? In answering this question, the parties may address whether:

(a) some activities, though dangerous, are among the “normal activities” intrinsic to 

an industry, such that they cannot be regulated under the general duty clause; 

and/or

(b) the judge’s finding of hazard recognition “eliminate[d] . . . the Secretary’s burden 

of proof and, in fact, almost . . . prove[d] the Secretary’s case by definition, since 

under such a formula the employer can never free the workplace of inherent risks 

incident to the business,” such as Respondent’s swimming operations. See Pelron 

Corp., 12 BNA OSHC 1833, 1835 (No. 82-388, 1986).

(3) Did the judge err in concluding that the Secretary established that the incidence of the 

hazard would be materially reduced by requiring that “[w]hen a single swimmer is 

deployed, a dedicated person must maintain contact with the swimmer at all times”?
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(4) Was the Secretary required to establish that a reasonably prudent employer in the 

industry would have known that this proposed abatement method was required? If so, 

did the Secretary make this showing here?

The parties are advised that when the merits or characterization of an item are before the 

Commission for review, the appropriateness of the penalty is also subject to review. 

Accordingly, the parties may address the amount of the penalty if they so choose.

All briefs are to be filed in accordance with Commission Rule 93.1 The first brief is to be filed 

within 40 days of this notice. A party who does not intend to file a brief must notify the 

Commission in writing setting forth the reason therefor within the applicable time for filing 

briefs, and shall serve a copy on all other parties. The time for filing briefs (or similar notices of 

intent) of opposing parties shall commence on the date of service.

BY DIRECTION OF THE COMMISSION

Dated: October 31, 2016 /s/

John X. Cerveny

Executive Secretary

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 The Commission requests that all briefs include an alphabetical table of authorities with 

references to the pages on which they are cited, and that an asterisk be placed in the left-hand 

margin of the table to indicate those authorities on which the brief principally relies. The 

Commission also requests that copies of cited authority, other than statutes, case law, law journal 

articles, and legal treatises, be provided to the Commission and to the opposing party. Parties 

should be cautioned that these materials will be considered only if appropriate.