The CWS is comprised of associations and employers who believe in improving workplace safety 

through cooperation, assistance, transparency, clarity, and accountability.

November 16, 2018

The Honorable Heather L. McDougall 

Chairman 

U.S. Occupational Safety and Health Review Commission 

One Lafayette Centre

1120 20th Street NW, Ninth Floor

Washington, DC 20036-3457

VIA ELECTRONIC SUBMISSION: rbailey@oshrc.gov

Re: Comments on Advance Notice of Proposed Rulemaking, 

29 CFR part 2200, 83 Fed. Reg. 45366, (September 7, 2018)

Dear Ms. McDougall:

The Coalition for Workplace Safety (“CWS”) is comprised of a group of associations and 

employers who believe in improving workplace safety through cooperation, assistance, 

transparency, clarity, and accountability. The CWS believes that workplace safety is everyone’s 

concern. Improving safety can only happen when all parties - employers, employees, and OSHA

- have a strong working relationship. The U.S. Occupational Safety and Health Review 

Commission’s (“OSHRC” or “Review Commission”) rules and procedures apply to CWS 

members and their membership when they elect to contest a Notification of Citation and Penalty 

issued by the Occupational Safety and Health Administration (“OSHA”). 

On behalf of its members, CWS submits the following recommendations to the 

Occupational Safety and Health Review Commission’s Advance Notice of Proposed 

Rulemaking, (“ANPR”) 29 CFR part 2200, 83 Fed. Reg. 45366, (September 7, 2018). OSHRC 

is currently reexamining the agency’s rules of procedure as set forth in 29 CFR part 2200. As 

part of this process, OSHRC has requested recommendations from the public as to which rules 

would benefit from revision. One specific aspect of the current rules and procedures on which 

the agency requested recommendations was the definition of “affected employee” pursuant to 29 

C.F.R § 2200.1(e) and whether that definition should be broadened. 83 Fed. Reg. at 45367. For 

the reasons outlined below, CWS recommends that the definition of “affected employee” does 

not need to be revised. 

I. The current definition of affected employee is well defined and easily applied 

by judges.

Section 2200.1(e) currently defines “affected employee” as an employee of a cited 

employer who is exposed to or has access to the hazard arising out of the allegedly violative 

circumstances, conditions, practices or operations. 29 C.F.R. § 2200.1(e). 
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In August 1971, the Review Commission published its first set of rules and procedures as 

interim rules pursuant to section 12(g) of the Occupational Safety and Health Act of 1970. 36 

Fed. Reg. 17409 (August 31, 1971). Those interim rules did not provide a definition for affected 

employee but provided that “affected employees or authorized employee representatives shall be 

deemed parties.” Id. Section 2200.5 addressed the individuals and entities that were considered 

to be parties to proceedings. At the time of the issuance of those interim rules, the Review 

Commission sought comments to the proposed interim rules. In August 1972, the Review 

Commission issued a Notice of Proposed Rulemaking (“NPRM”) revising the interim rules 

based on the public comments the agency received. 

As part of that NPRM, the Review Commission defined “affected employee” as “an 

employee of a cited employer who is exposed to the alleged hazard described in the citation, as a 

result of his assigned duties.” 37 Fed. Reg. 15470 (August 2, 1972). Affected employees were 

permitted to elect party status at any time before the beginning of the hearing. Id. at 15471. The 

final Rules of Procedure kept the definition of “affected employee” as proposed. 37 Fed. Reg. 

20238 (September 28, 1972). 

In 1986 the definition of affected employee was revised to mean “an employee of a cited 

employer who is exposed to or has access to the hazard arising out of the allegedly violative 

circumstances, conditions, practices or operations.” 51 Fed. Reg. 23184, 23195 (June 25, 1986). 

Thus, the definition of affected employee has held essentially the same meaning since 

1972. In fact, a review of Administrative Law Judge (“ALJ”) and Review Commission case law 

establishes only a few cases that even mention Section 2200.1(e). CWS does not believe there is 

evidence to support a basis or need for revising this definition, which has been in place and 

applied consistently over the last forty-five years. 

In a January 23, 2015, letter to Thomasina Rogers, then Chair of the Review 

Commission, the Occupational Safety & Health Law Project, on behalf of several labor 

organizations and union alliances, urged OSHRC to broaden the definition of “affected 

employee.” Specifically, the letter requested that OSHRC “amend the definition of ‘affected 

employee’...to eliminate the requirement that only employees of the cited employer may be 

‘affected employees.’” Instead, they proposed to define an affected employee as “any employee 

who performs work at the site and who is exposed to or has access to the hazard arising out of 

the allegedly violative circumstances, conditions, practices or operations.”

Assuming the Review Commission would propose the definition recommended by the 

Occupational Safety & Health Law Project, the definition and its application to Commission 

proceedings would become unmanageable for judges and would invite any employee on a multiemployer site to claim party status as an affected employee. By implication, this change in the 

definition of “affected employee” would allow a labor organization with a collective bargaining 

relationship that represents “affected employees” to claim party status. Section 2200.20(a). 

Moreover, by broadening the definition it would require judges to analyze whether 

employees of non-cited employers had access to the hazard. Currently there is a bright line rule 
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for who can be an “affected employee” - an individual either is or is not an employee of the cited 

employer. If the definition is broadened, where would the line be drawn as to which employees 

have access to the hazard? Would it be appropriate for a labor organization to have party status 

merely because one of its members walked past equipment with a non-compliant ground-fault 

circuit interrupter? Would that be an example of an employee who has access to a hazard? 

Similarly, what about a laborer who is not exposed to excessive noise on an 8-hour time 

weighted average but walks near a high noise area at various points during his shift? Or, what 

about employees who walk through a construction site where a crane is being used? Would it be 

appropriate to consider employees of a subcontractor who regularly walk past a regulated silica 

area in a foundry to have access to the hazard? The examples of scenarios that could arguably 

give rise to party status by broadening the definition of affected employee to those who merely 

have access to the alleged hazard are endless. 

Further, OSHA itself defines an affected employee as an employee who is exposed to the 

hazards identified as violations in a citation. CPL-02-00-160, Field Operations Manual, August 

2, 2016. So in a multi-employer scenario, if an employee is exposed to a hazard, irrespective of 

who created, controlled or corrects the hazard, the employee’s employer will be cited as an 

exposing employer and therefore would have an opportunity to participate in proceedings before 

the Review Commission as an affected employee. 

CWS’s comments are not intended to imply that employees or entities who have

legitimate legal interests should be denied the ability to participate in proceedings before the 

Review Commission. To the contrary, CWS does believe that employees or entities with 

legitimate legal interests should have an opportunity to participate and that the current definition, 

in conjunction with intervention rights, adequately protects all interested parties and provides 

sufficient opportunity to participate in Review Commission proceedings. Broadening the current 

definition is judicially inefficient, particularly in light of other legally available avenues of 

obtaining party status, such as intervention. 

II. There are other legal avenues available to participate in proceedings before 

OSHRC without having to broaden the definition of affected employee. 

Section 2200.21 of the Commission’s Rules grants non-parties the ability to participate in 

contested citation proceedings by filing a petition for leave to intervene. A non-party can obtain 

status as an intervener by showing their interest in the proceeding and that their participation will 

assist in the determination of issues and such participation will not delay the proceeding. 29 

C.F.R. 2200.21(b). 

There is no reason to believe that the current process of party status and intervention in 

any way denies employees who are not employed by the cited employer a fair opportunity to 

participate in such proceedings. See, Georgia-Pacific Corp., 15 BNA OSHC 1127 (No. 89-

2713, 1991(noting that if a former employee’s interests were not adequately protected by the 

authorized employee representative the employee could seek intervention;); Brown & Root, Inc.,

7 BNA OSHC 1526(No. 78-127, 1979) (holding that a union which represents employees of a 

subcontractor but does not represent employees of the cited employer cannot be granted party 

status, but can move for leave to enter the proceeding as an intervener.)
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In Brown & Root, Inc., for example, a labor organization represented three employees of 

a subcontractor at the worksite who was not the cited employer. These employees were 

allegedly exposed to the hazardous condition for which Brown & Root was cited. While the 

labor organization was denied party status under 2200.1(e) because it did not represent affected 

employees as the term is defined, it was granted intervention because 

[a]s the authorized representative of employees allegedly exposed to a hazard that 

was cited as a serious violation of the Act, petitioner has shown sufficient interest 

in the proceeding. Respondent does not contest that the union has expertise in the 

steel erection industry that would assist in determining whether respondent failed 

to brace adequately the structural steel framing of the boiler structure that 

collapsed. The union's knowledge of structural steel construction techniques and 

procedures may lend significant assistance to a complete determination of the 

facts and issues in question. Finally, there has been no showing that granting the 

petitioner leave to intervene will unnecessarily delay the proceeding. Certainly 

some delay may be occasioned by the introduction of another party to a 

proceeding, but we emphasize the word "unnecessarily” in rule 21(b). In view of 

the union's interest in protecting its members and its potential contribution as 

outlined herein, we conclude that intervention will not “unnecessarily" delay the 

proceedings. 

Brown & Root, Inc., 7 BNA OSHC at 1526. 

Moreover, the Commission stressed that “intervention should be freely granted to 

petitioners unless their participation in the proceeding unduly hinders efficient resolution of the 

case.” Id. 

In urging the Review Commission to broaden the definition of affected employees, the 

Occupational Safety & Health Law Project’s 2015 letter suggests that employees on multiemployer construction sites, as well as temporary or contract workers “can actively assist in the 

Commission’s proceedings...and the employees affected by the citation should be allowed to 

participate in OSHRC’s proceedings. Under the current rules, they would not be permitted to do 

so.” 

While it is true such employees would not be affected employees under the current 

definition, there is no basis to believe that such employees would be denied intervener status 

upon adequately showing their interest in such a proceeding. See, Southern Scrap Materials Co., Inc. 

23 BNA OSHC 1596, 2012 OSHD (CCH) P33,177 (No. 94-3393, 2011) (holding a former employee 

was entitled to party status as an affected employee and that the employee “would have otherwise 

satisfied the requirements for intervention under Commission Rule 21, 29 C.F.R. § 2200.21.”)

For the reasons stated above, CWS asserts that the definition of affected employee at 29 C.F.R. 

§ 2200.1(e) does not need to be revised since the current Review Commission rules afford employees 

and other interested parties mechanisms for meaningful participation in Review Commission 

proceedings. 
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For the Coalition for Workplace Safety,

Air Conditioning Contractors of America

American Bakers Association

American Road & Transportation Builders Association

American Trucking Associations

Associated Builders and Contractors

Associated General Contractors

Building Service Contractors Association International

California Chamber of Commerce

Flexible Packaging Association

Global Cold Chain Alliance

Industrial Fasteners Institute

Industrial Minerals Association - North America

Institute of Makers of Explosives

Mason Contractors Association of America

Mechanical Contractors Association of America

Motor & Equipment Manufacturers Association

National Automobile Dealers Association

National Cotton Ginners’ Association

National Electrical Contractors Association

National Lumber & Building Material Dealers Association

National Tooling and Machining Association

National Utility Contractors Association 

National Association of Home Builders

North American Meat Institute

Precision Machined Products Association

Retail Industry Leaders Association

Sheet Metal and Air Conditioning Contractors’ National Association (SMACNA)

Southeastern Cotton Ginners Association

Texas Cotton Ginners’ Association

U.S. Chamber of Commerce

Of Counsel

Tressi Cordaro, Esq.

Attorney at Law

JACKSON LEWIS P.C.

10701 Parkridge Blvd

Suite 300

Reston, VA 20191