## Biennial 97-96

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

**Fiscal Years 1996 and 1997**

 

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**FOREWORD**

This is the first biennial report of the Occupational Safety and Health Review Commission. The Review Commission's sole role in implementing the Occupational Safety and Health Act of 1970 is to carry out adjudicatory functions arising out of disputes over citations under the Act (section 2(b)(3) ).  In that regard, it serves as a quasi-court system in the Executive Branch of the government.

This report highlights some of the major decisions rendered by the Review Commission.  It also identifies Review Commission members and organizational structure during fiscal years 1996 and 1997.

The Commission's case load increased over these two fiscal years, from 1,670 new cases in 1996 to more than 2,070 in 1997. During that time, the agency also committed more resources to re-designing processes and procedures to meet the strategic goal of better and faster case resolutions. A streamlined case handling method was introduced for less complex cases, greater emphasis was placed on staff training, and automation continued apace with a new case tracking/case management system during this period.  The Commission also started gearing up for a World Wide Web site which you can now visit at http://www.oshrc.gov.

As the new Chairman of the Review Commission, I am pleased to present a report that identifies the achievements of the Commission during the 1996 and 1997 fiscal years.

Thomasina V. RogersChairmanSeptember 30, 1999

 

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**MISSION**

The Occupational Safety and Health Act of 1970 (the Act) (29 U.S.C. Sec. 651) created the U.S. Occupational Safety and Health Review Commission (OSHRC) to provide fair and timely decisions in legal disputes arising from workplace safety and health inspections. The inspections are conducted by the Occupational Safety and Health Administration in the U.S. Department of Labor, a separate Federal agency.  The Review Commission is completely independent of that agency and department and thus this quasi-judicial agency of the Executive branch helps ensure that the enforcement powers of the Department of Labor are exercised in accordance with the law and the requirements of due process. The Review Commission, also referred to as OSHRC, accomplishes its adjudicatory mission with:
    - Hearings before its Administrative Law Judges (ALJ) to determine whether employers complied with job safety and health standards and whether the time provided for correcting workplace hazards (the abatement period) is appropriate;	 
    - Review of selected ALJ decisions by Presidentially-appointed Commission members based on the record developed by the judge, providing consistency and continuity to the law.

 

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**JURISDICTION**

The Review Commission's work covers 33 states and territories including most of the industrial states.  The remaining jurisdictions exercise their ability under the OSH Act to administer their own safety and health programs, and therefore they conduct their own judicial review of allegations of non-compliance with workplace safety rules.

 

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**JUDICIAL REVIEW**

A party to a Review Commission case, typically the U.S. Department of Labor or an employer cited in violation of the Act, may seek review of a Review Commission final decision in the appropriate U.S. Courts of Appeals, provided that party has exhausted all remedies available at the agency.

 

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**COMMISSION MEMBERS**

**Stuart E. Weisberg**, Chairman

Stuart E. Weisberg received Senate confirmation on February 8, 1994, to a term expiring April 27, 1999.  President Clinton, who nominated Mr. Weisberg, also selected him as the eighth Chairman of the Occupational Safety and Health Review Commission.  He continued in office throughout 1996 and 1997, the period covered by this report.

Mr. Weisberg had served as staff director and chief counsel for the House Government Operations Subcommittee on Employment and Housing from 1984 to 1993.  From 1993 until his appointment at the Review Commission, he served as Assistant Chief Counsel to a member of the National Labor Relations Board (NLRB), where he previously had worked as an attorney and a supervisor in the agency's General Counsel's Office.

A 1971 magna cum laude graduate of Brandeis University, Mr. Weisberg earned his law degree from the University of Pennsylvania Law School.

**Velma Montoya**, Ph.D., Commissioner

Velma Montoya was nominated by President George Bush and confirmed by the Senate in July 1991 to a term expiring April 27, 1997. President Bush had also nominated her to complete the unexpired term of a former Commission member and she previously served the agency from May 1990 to April 1991.

Before first joining the Commission, Dr. Montoya had been an Associate Professor of Finance at the College of Business Administration at California State Polytechnic University at Pomona, California. She was an expert economist from 1983 to 1985 for the Office of Regulatory Analysis in the U. S. Department of Labor's Occupational Safety and Health Administration (OSHA).  From 1986 to 1989, Dr. Montoya was a non-lawyer member of the California State Bar Disciplinary Review Board, which handled civil attorney disciplinary cases. Dr. Montoya has also served as the Assistant Director for Strategy for the White House Office of Policy Development, from 1982 to 1983, and as a staff economist for the Rand Corporation in Santa Monica, California, from 1973 to 1982. She also taught at the Pepperdine University School of Business and Management.

Dr. Montoya graduated from Occidental College in Los Angeles, earned Master's degrees at the Fletcher School of Law and Diplomacy and at Stanford University and a Ph.D. in Economics at the University of California at Los Angeles (UCLA).

**Daniel Guttman**, Commissioner

Daniel Guttman received a recess appointment by President Clinton to become a Commissioner on April 12, 1996, and began work at the agency on April 16.  His February 6, 1996 nomination by the President to a term expiring April 27, 2001 was not confirmed by the Senate and he left the agency in November 1997 at the expiration of his recess appointment.

From April 1994 to October 1995, Mr. Guttman had been executive director of the Advisory Committee on Human Radiation Experiments, where he managed a staff of doctors, historians, scientists and lawyers.  The Advisory Committee presented its final report to President Clinton in October 1995 after conducting 31 days of public hearings and interviewing a host of researchers, officials, and citizens and analyzing numerous Cold War records.

Prior to serving at the Advisory Committee, he was a partner in the law firm of Spiegel and McDiarmid. Mr. Guttman has also been a special counsel to Senator David Pryor and a researcher for CBS News commentator Andy Rooney and for the Center for the Study of Responsive Law. A co-author of the book, *The Shadow Government*, he has also published articles in numerous journals and magazines including *The New Republic*, *The Washington Monthly* and *The Harvard Journal on Legislation*.  Mr. Guttman earned a Bachelor of Arts degree from the University of Rochester and a Juris Doctor from Yale Law School.

 

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**COMMISSION ORGANIZATION**

The agency adjudicates cases based on law and fact by providing two levels of review arising out of citations issued by the Occupational Safety and Health Administration (OSHA) in the U.S. Department of Labor. Initially, Review Commission Administrative Law Judges (ALJ) hear challenges to citations under the Act.  The Commission provides discretionary appeals from ALJ decisions.

The **Chairman**, by statute, is the chief administrative officer of the agency.

The **Chairman** and two **Commission Members** hold staggered, six-year terms upon an appointment by the President of the United States that the Senate confirms.  The Occupational Safety and Health Act provides that Commissioners be 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." While most Commission action on cases requires a quorum, a vote of two Commissioners, any one member may initiate Commission level review of matters decided by Review Commission Administrative Law Judges.

The **Executive Secretary** receives and processes new cases arriving at the Review Commission. Each case starts with a letter taking issue with some aspect of a job safety or health citation--the proposed penalty, the specific safety or health allegations, the time specified for correcting alleged violations.  An employer (and in some instances, a union) sends the letter, called a notice of contest, to the Labor Department office that conducted the workplace inspection.  That department sends the letter and all relevant documents to the Review Commission's Office of the Executive Secretary, which functions much like a court clerk's office.  This office also rules on certain procedural matters and enters orders and decisions into the official record.  The office also certifies official records to the courts and manages the use of agency case files.

The **Chief Administrative Law Judge** supervises the agency's **Administrative Law Judges** in Washington and in the agency's regional offices in Atlanta, Boston and Denver. The closing of the Dallas office in April 1996 is discussed under the section on Administration.  The judges function independently in making case decisions.  All new cases are assigned to an Administrative Law Judge (ALJ), who has full responsibility for pre-hearing and pre-trial procedures, including settlement where the parties agree. When settlement proves impossible, the judge provides an impartial hearing in an expeditious manner, after which a decision is rendered promptly. Hearings are held as close as possible to where the alleged violation occurred. Parties have 30 days from the issuance of an ALJ decision to appeal it to the full Commission.

The **General Counsel** supervises staff attorneys who prepare and present legal analyses to assist Commission members in adjudicating appeals from Administrative Law Judge decisions directed for review.  The office has primary responsibility for presenting cases to the Commission for disposition and for preparing drafts of the Commission's opinions. The office also provides advice to the Chairman and other agency organizational components on issues encountered in daily operations, such as personnel, procurement and ethics matters.

The **Executive Director**, appointed by the Chairman, is the chief management official of the agency and provides executive management in all mission-related activities. Along with the administrative functions of all agency components, these areas also include the following:
    - The **Office of Administration and Management**, which formulates The Review Commission's annual budget request, controls the obligation and disbursement of funds, provides personnel management functions, procures goods and services, maintains equipment and furniture and provides travel assistance to ALJs and others.	 
    - The **Public Information Office**, which distributes agency final decisions, answers all requests for information on agency activities and requests made under the Freedom of Information Act and the Privacy Act.	 
    - The **Computer Operations Office**, which implements, supports and maintains all automated information systems, including the case management and financial management systems, supports agency desk top computer users and provides technical guidance.

[Organizational Chart available at agency.]

 

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**COMMISSION ADJUDICATION**

The Review Commission undertook review of numerous cases involving significant issues during 1996 and 1997.  Summaries of selected important decisions follow.

**Ergonomics Issues and the General Duty Clause**

The Commission for the first time considered the applicability of the "general duty clause" to ergonomic issues in *Pepperidge Farm, Inc.*, 17 BNA OSHC 1993, 1995-97 CCH OSHD ¶31,301(OSHRC Docket No. 89-0265, April 26, 1997). A Commission majority ruled that the clause could be used to cite employers for safety hazards involving lifting and repetitive motions. The general duty clause, section 5(a)(1) of the OSH Act, requires employers to provide "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm," and may be cited by OSHA inspectors when no specific job safety rule covers a potentially unsafe condition.  OSHA had cited Pepperidge Farm for numerous alleged willful violations, many of which involved recordkeeping, at a Pennsylvania plant that produced cookies and other baked goods. The proposed penalty was nearly $1.4 million, and the ALJ assessed a total penalty of $394,603.  The ALJ affirmed 176 of 179 recordkeeping violations as willful, affirmed 21 of 27 lifting violations as willful, and vacated 175 alleged willful repetitive motion violations.  The Commission upheld 197 violations and assessed a $309,603 penalty. The Commission affirmed willful violations for the lifting hazards, but vacated the alleged repetitive motion items because the Secretary of Labor failed to show that further hazard abatement action was required in light of what the company had already done.

**The General Duty Clause**

Two other important Commission decisions further explained the "general duty clause."  In the case of *Wiley Organics, Inc.*, 17 BNA OSHC 1586, 1995-97 CCH OSHD ¶31,035 (OSHRC Docket No. 91-3275, March 25, 1996), an employee of the chemical manufacturer died when a chemical reactor vessel in a plant exploded.  In addition to the OSHA citations, criminal charges were filed, which resulted in a temporary stay of the Commission's proceedings.  Upon resolution of the criminal charges, the Commission addressed the two alleged violations of section 5(a)(1). It found that the employer created a "recognized hazard" when it changed the reducing agent in its chemical manufacturing process. The Commission also concluded that by failing to take appropriate precautions to prevent the build-up of the chemical that caused the explosion, the company violated its duty under section 5(a)(1).  The Commission also found a violation for allowing hazardous substances to be discharged into an employee work area.[1]

In the case of *Caterpillar, Inc.*, 17 BNA OSHC 1731, 1995-97 CCH OSHD ¶31,134 (OSHRC Docket No. 93-0373, Sept. 4, 1996), the OSHA inspection followed the serious injury of a Caterpillar employee who was hit in the head when a fragment of a steel stud was propelled more than 120 feet into the work area. The working circumstances involved a process of pulling gears to repair a 6,000 ton forging press. The device used for pulling the gears had four steel studs, which weighed 35-40 lbs. each. During the pulling, the studs sometimes broke, and the parts could fly a substantial distance.  This had occurred numerous times in the past and was known to former supervisory personnel. Although the company  had permitted its employees to explore a variety of methods to avoid the problem, company management never took any action to develop a satisfactory technique. At the time of the incident cited, the employees were simply putting up a tape barrier around the area where the work was being done. After an employee was seriously injured by the flying stud fragment, which flew well beyond the tape, Caterpillar received a willful citation for violating the general duty clause.  A violation is willful if committed with either intentional, knowing or voluntary disregard for the requirements of the Occupational Safety and Health (OSH) Act or plain indifference to employee safety. The Commission found that the violation was willful because the tape barrier was clearly not a reasonable measure, and the company's conduct demonstrated plain indifference to the safety of its employees.[2]

**Independent Contractor**

Following a fatal accident at an IBP plant in Madison, Nebraska, where the company employed an independent contractor to perform nightly cleanings of meat processing machinery, OSHA inspected and cited IBP for violations of the lockout-tagout standard; the Commission affirmed.  The Commission concluded in  *IBP, Inc.*, 17 BNA OSHC 2073, 1995-97 CCH OSHD ¶31,296 (OSHRC Docket No. 93-3059, April 18, 1997), that IBP was responsible for the violations because it had the supervisory authority and control over the worksite to have taken more steps toward achieving abatement of the cited hazards.  The Commission pointed out that since IBP owned the hazardous equipment and required the contractor's employees to work on it, IBP was required to do what was "reasonably expected" to abate the violations. The Commission characterized the violations as serious, not willful as OSHA charged, because the company had demonstrated sufficient good faith to negate the criteria for finding a violation willful--it did not exhibit intentional disregard of the OSH Act or plain indifference to employee safety.[3]

**OSHA Jurisdiction**

The Commission found that OSHA had jurisdiction to inspect a space shuttle launch site in a case where four employers allowed employees to be exposed to falls of up to 90 feet.  The legal question concerned whether OSHA's jurisdiction to regulate certain working conditions had been preempted by the regulatory action of another federal agency under section 4(b)(1) of the OSH Act. That section preempts OSHA jurisdiction when another Federal agency prescribes or enforces job safety and health rules in a workplace. The Commission's decision in *Rockwell International Corp.*, 17 BNA OSHC 1801, 1995-97 CCH OSHD ¶31,150 (OSHRC Docket No. 93-0054, Sept. 30, 1996, Consolidated) followed an OSHA inspection of the Kennedy Space Center on Cape Canaveral, Florida in response to a complaint of unsafe conditions. During the inspection, OSHA's compliance officers observed the launch of the space shuttle and the activities immediately following the launch, in which members of the "debris team" inspected the launching platform for evidence that the shuttle had been damaged during the launch.  Because NASA considered time to be of the essence, this activity was conducted before other employees went onto the platform to install guardrails.  This consolidated decision involved four employers who were contractors to NASA on the space shuttle program: Martin Marrietta Manned Space Systems, Thiokol Corp., and U.S.B.I. Co. The four employers each had a representative on the debris team and were all cited for allowing their employees to be exposed the 90-foot fall hazard.

The employers argued that NASA so thoroughly regulated activities on the launching platform that it preempted OSHA's jurisdiction. The Commission requested NASA to state its position on this question.  After NASA said it had not regulated the working conditions cited by OSHA, the Commission found that NASA's position was supported by the record and held that OSHA's jurisdiction had not been preempted. The Commission also rejected the employers' claim that they should not be considered the debris team's employers because NASA organized and led the team.  The Commission concluded that NASA's high level of control over the debris team's activity did not alter the employment relationship between the employers and the members of the debris team.  Rejecting various other defenses, the Commission affirmed OSHA's citations to the four employers.

In another decision involving section 4(b)(1), OSHA was again found to have jurisdiction.  In *Yellow Freight Systems, Inc.*, 17 BNA OSHC 1699, 1995-97 CCH OSHD ¶31,105 (OSHRC Docket No. 93-3292, July 31, 1996), employees did not receive personal protective equipment for use in cleaning up substances containing hazardous components. The employer claimed that OSHA's jurisdiction was preempted by regulatory action of the Department of Transportation (DOT).  Examining language in the Hazardous Materials Transportation Act (Hazmat Act), the Commission determined that, although DOT may have the authority to regulate the working conditions cited by OSHA, Congress specifically provided that no such regulations under the Hazmat Act would preempt OSHA's jurisdiction.[4]

Similarly, in *American Airlines, Inc.*, 17 BNA OSHC 1552, 1995-97 CCH OSHD (OSHRC Docket No. 93-1817, Feb. 23, 1996), the employer argued that OSHA jurisdiction over the cited working conditions was preempted by Federal Aviation Administration (FAA) regulations. The Commission again sought the position of the federal agency assertedly regulating the conditions.  The record showed that, although the FAA requires airlines to have a ground operations manual, it does not review and approve those manuals in such a way as to give them the force and effect of law.  Accordingly, the Commission found that the FAA had not exercised its regulatory authority in such a manner as to preempt OSHA from regulating the working conditions in question.

In a case involving a ship temporarily stationed in U.S. territorial waters, the issue of OSHA jurisdiction was again considered. The Commission ruled that, while located in U.S. territorial waters,  the ship was a "workplace in a state" subject to OSHA standards.  In *Tidewater Pacific, Inc.*, 17 BNA OSHC 1920, 1995-97 CCH OSHD ¶31,267 (OSHRC Docket No. 93-2529, March 24, 1997), the company argued that Coast Guard regulations preempted OSHA jurisdiction.  The ship, the M.V.Dr. Jack, was engaged in vessel escort and oil spill emergency response activities near the Valdez Oil Terminal in Alaska when the inspection occurred.  The Commission, agreeing with the judge, found that Tidewater violated OSHA standards governing blood-borne pathogen exposure control plans, machine guarding and confined space.  It said that the Coast Guard did not have comprehensive regulations of these conditions, and that OSHA jurisdiction was not preempted.

The final charge before the Commission in *Tidewater* involved an alleged violation of OSHA's recordkeeping rule.  On this issue the Commission said that OSHA was not preempted from enforcing this rule with respect to illnesses. However, because the Coast Guard had sufficient regulations regarding injury recordkeeping, this warranted preemption of the OSHA injury recordkeeping obligation.[5]

**Default Judgment**

The Commission has instituted E-Z Trial procedures, which eliminated or streamlined several legal formalities, and revised its explanation of the procedural requirements of its rules into a more user-friendly format.  Nonetheless, at times employers still fail to comply with the those rules. In two cases before the Commission this period, the administrative law judges issued show cause orders for the employers to explain why they should not be held in default for failing to comply with procedural requirements.  In both cases, the employers had failed to respond to the show cause orders, and the judges had entered default judgments against the employers, thus finding them in violation of the cited job safety rules and requiring that they pay penalties.

In *Hudson Wood Recycling, Inc.*, 17 BNA OSHC 1638, 1995-97 CCH OSHD ¶31,069 (OSHRC Docket No. 95-1767, June 6, 1996), the Commission set aside the default judgment because the company raised the jurisdictional question of whether it was an employer, claiming that it had not yet begun operating its business and never had any employees.  The Commission remanded the case back to the ALJ for the employer to present evidence solely on that question.  In contrast, the Commission upheld the judge's order of default in *Badger Underground Construction, Inc.*, 17 BNA OSHC 1696, 1995-97 CCH OSHD ¶31,096 (OSHRC Docket No. 94-3251, July 25, 1996). In this case, the employer claimed not to have received various notices, but the record contained a certified mail receipt showing that Badger did receive the judge's show cause order. Badger never responded to that order and waited more than a year to contact the Review Commission.  The Commission, therefore, found that Badger had received adequate notice and had an opportunity to be heard.

**Administrative Law Judge Authority**

Another case involving *Caterpillar, Inc.*, 17 BNA OSHC 1507, 1995-97 CCH OSHD ¶30,096 (OSHRC Docket No. 94-347, Jan. 26, 1996) afforded the Commission the opportunity to elaborate on the powers of its administrative law judges. The parties agreed to settle the case, but the employer failed to submit the signed agreement to the judge in a timely manner. Safety violations involving confined space, lockout-tagout and hazard communication were alleged.  Although the judge ultimately approved the settlement agreement resolving the disputed issues, he raised the penalty amount agreed to by the parties as a sanction for Caterpillar's failure to act in a timely manner. The Commission found that the judge abused his discretion because he did not have the authority to amend the agreement reached by the parties.  The Commission found that, although the employer had failed to proceed in a timely manner and a sanction might be appropriate, the sanction imposed by the judge was beyond his authority. The Commission did note that a number of other sanctions might be available and remanded the case for the judge to consider them.

The Commission overruled an ALJ on the matter of subpoenaing a senior government executive in  *Manganas Painting Co.*, 17 BNA OSHC 1457, 1995-97 CCH OSHD ¶30,914 (OSHRC Docket No. 94-588, Nov. 21, 1995).  The employer  issued a subpoena for the Assistant Secretary of Labor for Occupational Safety and Health to testify about circumstances surrounding the issuance of the citation.  When the Department of Labor moved to quash that subpoena, the administrative law judge denied the motion. The Commission reversed the judge's ruling and revoked the subpoena because the evidence sought was available from other witnesses and there were no extraordinary circumstances to justify requiring a senior executive branch official to testify about his reasons for taking an official action. The Commission's ruling came on the Labor Department's interlocutory appeal, which is an appeal of a judge's ruling on a preliminary issue in a case.

In *Trico Technologies Corp.*, 17 BNA OSHC 1497, 1996 CCH OSHD ¶31,009 (OSHRC Docket No. 91-110, Jan. 19, 1996), the Secretary of Labor cited the employer for failing to abate a violation that had been the subject of a prior Commission final order more than two years earlier.  The continuing violation was discovered during a second inspection unrelated to the previous citation.  The judge concluded that the failure-to-abate (FTA) notice was an unreasonable tool in those circumstances, as it had not been issued with reasonable promptness, and found a single violation, which carried a maximum penalty of $1,000, rather than a failure to abate, which permitted a penalty of $1,000 per day. The Commission reversed the judge's decision, holding that nothing in section 10(b) of the Act, 29 U.S.C. § 659(c), which authorizes the issuance of failure-to-abate notices, requires the Secretary to conduct a follow-up inspection, or imposes a time limit on FTA notices. Moreover, the Commission noted that shortly after the prescribed abatement date in the original order, the employer notified OSHA that the violations had been corrected and that OSHA consequently closed its file on the case.  The Commission, therefore, found that the FTA notice was not unreasonable, inequitable or unfair.

In another case stemming from workplace fatalities, the Commission found the judge incorrectly dismissed the citation.  Two employees of *Pitt-Des Moines, Inc.*, 17 BNA OSHC 1936, 1995-97 CCH OSHD ¶31,273 (OSHRC Docket No. 94-1355, March 24, 1997) died and five suffered injuries when a beam support failed, causing the collapse of a portion of a building where the company was performing structural steel assembly at the construction site of a U.S. Postal Service facility in Chicago, Illinois. While the Review Commission's civil proceeding was in progress, a criminal proceeding against Pitt-Des Moines was under consideration.  Pitt-Des Moines began discovery in the civil case, the Secretary asked for a stay in the civil matter and in response, the judged granted a six-month stay.  The judge later lifted the stay of the civil proceedings and ordered the Secretary to comply with Pitt-Des Moines' written discovery request.  The Secretary refused to comply with the discovery request, stating that the risk of interference with the potential criminal proceedings were unacceptable and paramount where abatement was not an issue. The judge dismissed the case because of "the [G]overnment's failure to bring a criminal proceeding and its refusal to proceed in the civil proceedings."  Eighteen months later, the government issued a two-count criminal indictment against Pitt-Des Moines. On review, the Commission overturned the judge's dismissal of the citations, finding "that the factors favoring a stay in this case significantly outweigh our concern for limiting its duration."  The case was remanded to the judge for reinstatement and issuance of a stay pending completion of the criminal prosecution.

**Multiple Citations**

In *Andrew Catapano Enterprises, Inc.*, 17 BNA OSHC 1776, 1996 CCH OSHD ¶31,180  (OSHRC Docket No. 90-50, Sept. 30, 1996), the employer was replacing water mains at nine separate worksites under Eighth Avenue in New York City.  The Secretary had issued nine citations alleging a number of violations, including violations of the standards governing safety in trenches, personal protective equipment and employee training.  The employer asserted that the issuance of separate citations for each of the worksites, which carried separate penalties, was an abuse of discretion by the Secretary because the citations covered the same job.  Therefore, the employer reasoned, it was being subjected to multiple prosecutions for the same offense. With the exception of the employee training allegations, the Commission disagreed.  The Commission found that the citations covered different work- sites located blocks apart from each other and that abatement of a violation at one worksite would not abate the same violation at the other worksites.  It therefore concluded that the company was not being prosecuted multiple times for the same offense.

**Appearing Without an Attorney**

In *Talasila, Inc.*, 17 BNA OSHC 1550, 1996 CCH OSHD ¶30,980 (OSHRC Docket No. 93-1181, Feb. 21, 1996), the Commission administrative law judge encountered a number of problems in dealing with an employer who appeared without an attorney. The employer was building a new pump station for the Houston, Texas sewer system and was cited for violating rules on safe excavations, among other things.  The cited employer had been issued three different citations as a result of three separate inspections.  The cases were consolidated for hearing and the employer was represented at the hearing by a professional engineer who was a partner in the company. At the hearing, despite repeated admonitions from the judge, the employer's representative persisted in pursuing issues that were not relevant to the proceeding and was generally obstructive. On the third day of the hearing, the judge barred the individual from representing the company, leaving the company without representation.  Consequently, the company could not cross-examine the Secretary of Labor's witnesses, nor present witnesses on its own behalf.  The Commission held that the judge abused his discretion in not affording the company the opportunity to obtain another representative before proceeding with the hearing. The case was therefore remanded to allow the company the opportunity to obtain a representative to try the case on its behalf.[6]

**Applicability of Construction Standards to Professionals**

The Commission explained under what circumstances construction standards apply to professionals such as architects and engineers who provide services at construction sites in *CH2M Hill Central, Inc.*, 17 BNA OSHC 1961, 1995-97 CCH OSHD ¶31,303 (OSHRC Docket No. 89-1712, April 21, 1997) and *Foit-Albert Associates, Architects and Engineers, P.C.*, 17 BNA OSHC 1975, 1995-97 CCH OSHD ¶31,299 (OSHRC Docket No. 92-0654, April 21, 1997). Such standards do apply to an engineering firm with broad construction-related responsibilities at a worksite where the firm is also directly and substantially engaged in safety-related activities, the Commission ruled in *CH2M Hill*. In these circumstances, the construction standards would apply even if the firm contractually disclaimed safety responsibilities.  The company received safety citations while providing services to the Milwaukee Metropolitan Sewerage District in connection with its Water Pollution Abatement Project. OSHA inspected the multi-employer worksite after three employees of another contractor died following a methane gas explosion.[7]

The construction standards do not apply to professionals such as architects and engineers when their contract limits them to inspecting work for conformity with contract specifications, the Commission ruled in *Foit-Albert Associates, Architects and Engineers, P.C.* This case was unlike *CH2M Hill Central, Inc.*, the Commission said, because here *Foit-Albert* had no authority to give any direction or instruction to the trade contractors. Foit-Albert, an engineering company, contracted with the architect of a building under construction for the State University of New York in Amherst, New York to review contract documents and project specifications and to inspect the work to ensure compliance with contracts and specifications.  OSHA inspected the site after concrete collapsed from the fourth floor onto the third floor of that building.

**Interpretation of Safety Standards**

The Commission found in *Anderson Excavating and Wrecking Co.*, 17 BNA OSHC 1890, 1995-97 CCH OSHD ¶31,228 (OSHRC Docket No. 92-3684, January 28, 1997) that the employer willfully violated a fall protection standard. An OSHA inspector observed Anderson employees without any fall protection standing approximately 35 feet above ground while on the second floor of a bank vault in Galesburg, Illinois that was being demolished.  The Commission affirmed the violation as willful and increased the penalty from $1,000 to $5,000. The Commission found Anderson showed indifference to employee safety, as its working foreman simply yelled at the exposed workers to be careful not to fall.  The company, which had been notified of the fall protection standard's requirements by two previous citations in 1992, should have provided its employees with a safety program, training, and fall protection equipment, the Commission said.[8]

The Commission elaborated on a standard covering spray finishing with flammable materials in *Cincinnati, Inc.*, 17 BNA OSHC 1984, 1995-97 CCH OSHD ¶31,304 (OSHRC Docket No. 95-0711, April 25, 1997), and vacated a citation where the Secretary's monitoring results showed that the flammable vapors did not reach a dangerous level.  Cincinnati, Inc. manufactures metal shaping machinery and uses a compressed air spray gun to apply primer and paint, which are flammable mixtures, to the equipment after assembly. OSHA charged the company with violating a standard regulating the location of electrical outlets in relation to a spraying area where flammable materials are used.  The compliance officer's monitoring of the vapors and mists failed to establish their presence in dangerous quantities.  However, the Secretary's expert witness testified that, theoretically, whenever a flammable mixture is used during spray painting there will be quantities of flammable vapors or mists that exceed the lower explosive limit for that mixture at some point in the direct path of the spray.  The Commission, relying on the physical evidence, agreed with its judge that the Secretary failed to establish by a preponderance of the evidence that the spraying operation produced dangerous quantities of flammable vapors or mists.[9]

 

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**ADMINISTRATION**

**Agency Workload**

The agency received 2,072 new cases in FY 1997, compared to 1,670 in FY 1996.  Not only did the judicial workload increase quantitatively, it also continued to increase qualitatively, as more cases of a complex nature are being brought to the Review Commission. Although an independent Executive Branch agency, the Review Commission's workload is strongly influenced by OSHA's enforcement activities.  OSHA continued during these years to emphasize inspections of more serious workplace hazards, resulting in higher proposed penalties. For the Review Commission, this translates into more complicated cases involving difficult technical issues and longer trials. In turn, higher proposed penalties increase the likelihood that employers will litigate more aggressively to resist the potentially higher penalty payments and potential Review Commission decisions that could affect their civil liability. Nearly 10 per cent of new cases carried proposed penalties of more than $50,000 in FY 1996, compared to about 12 percent in FY 1997. Another illustration of increased case complexity is the fact that the average penalty of cases going to trial was $200,000 in FY 1997, compared to $84,951 in FY 1996.

**Government Performance and Results Act**

The Review Commission's goals, as described in its strategic plan submitted to the Office of Management and Budget in accordance with requirements of the Government Performance and Results Act, focused on improving the performance of its staff through appropriate training and management, redesigning processes and procedures and modernizing computer information management systems.  Concentrating on these integral aspects of its operation, Commission management concluded, would foster efforts to improve the Commission's provision of speedy and fair resolutions to the disputes Congress created it to handle.

**Office Closed**

The Commission operated with a maximum of 74 employees, including 15 judges, throughout much of fiscal years 1996 and 1997. The principal and national office of the agency is in Washington, D.C. Regional offices existed in Atlanta, Boston, Dallas and Denver at the start of fiscal year 1996. In April 1996 the Dallas office was closed as part of a consolidation of regional offices.  Judges working out of the Denver office are now receiving Dallas cases.

**Training as a Priority**

Commission managers and supervisors identified annual and long term training priorities  to strengthen and expand performance, particularly in the area of technology. The importance of this endeavor was elevated by requiring measurement of training goals in each employees' performance appraisal plan.

**New Developments**

In late 1995, the Commission instituted E-Z Trial, a method for hearing less complicated cases before Review Commission judges. It involves fewer legal formalities than the conventional method of handling cases.  Cases appropriate for E-Z Trial are those with 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 of repeated violations, no fatalities, a hearing that is expected to take less than two days or a small employer whether appearing with or without an attorney. This streamlined method of handling cases yielded major improvements in timeliness.  In FY 1997, the typical E-Z Trial case that went to hearing was resolved in 159 days, whereas before E-Z Trial, similar types of cases averaged 400 days to completion, resulting in a nearly two-thirds cycle time reduction.

The Commission's Guide to E-Z Trial Procedures was revised and more broadly distributed to small businesses and unions around the nation. The plain English booklet was converted into a more portable size and its step-by-step instructions on contesting  job safety and health citations and penalties were refined based on comments received from the public.

Along with improving the timeliness of decisions through use of E-Z Trial, the Review Commission embarked on steps to improve case handling at its review level.  These re-engineering changes include placing a greater emphasis on establishing milestones, targets and goals to ensure that issues are discussed and decisions are drafted in as timely a manner as possible. In addition, motions for extensions of time are scrutinized more carefully to avoid unnecessary delays in the progress of a case.

**Automation**

Enhancements in methods to accomplish the Review Commission mandate were greatly aided by its new case tracking/case management system, which automates many clerical tasks and provides judges and senior management with timely information on the status of pending cases. With the acquisition and maintenance over the last few years of state-of-the-art desktop computers and software to meet the job needs of all employees, use of the completed case tracking/management system now augments improved internal data communications and data retrieval.  Judges use the new system to manage their caseloads, management uses it for oversight and other staff members use it to gather information and generate responses.

**STATISTICAL HIGHLIGHTS, FISCAL YEARS 1996 AND 1997**

 

 

 

 

 

 

 

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1 The Commission decision was upheld by the U.S. Court of Appeals for the Sixth Circuit in *Wiley Organics, Inc. v. Occupational Safety and Health Review Commission and Robert B. Reich, Secretary of Labor*, 124 F 3d 201 (6th Cir., 1997), 17 BNA OSHC 2125 (6th Cir., 1997).

2 The Commission decision was upheld by the U.S. Court of Appeals for the Seventh Circuit in *Caterpillar Inc. v. Occupational Safety and Health Review Commission*, 122 F3d 437 (7th Cir., 1997), 17 BNA OSHC 2121 (7th Cir. 1997)

3 The Commission decision was subsequently reversed by the D.C. Circuit in *IBP Inc. v. Secretary of Labor*, 144 F3d 861 (D.C. Cir., 1998), 18 BNA OSHC 1353 (D.C. Cir. 1998)

4 Yellow Freight petitioned the United States Court of Appeals for the D.C. Circuit for review of this case twice in *Yellow Freight System, Inc. v. The Secretary of Labor* (D.C. Cir. 1996 and 1997).  The first case (D.C. Cir. No. 96-1359), was dismissed for lack of jurisdiction on Feb. 12, 1997; the second case (D.C. Cir. No. 97-1090) was dismissed when *Yellow Freight* voluntarily withdrew its petition.

5 The Commission decision was substantially upheld by the U.S. Court of Appeals for the Ninth Circuit in *Secretary of Labor v. Tidewater Pacific Inc.*, 160 F3d 1239 (9th Cir., 1998), 18 BNA OSHC 1545 (9th Cir. 1998).  However, the Court reversed the Commission with respect to the recordkeeping citation, holding that the Secretary had jurisdiction to also require injury recordkeeping.

6 Talasila petitioned the United States Court of Appeals for the Fifth Circuit for review of this case in *Talasila, Inc., v. Robert B. Reich, Secretary of Labor* (D.C. Cir. No. 96-60588). The court granted the respondent's motion to dismiss the petition for review.

7 CH2M Hill petitioned the U.S. Court of Appeals for the Seventh Circuit for review of this decision in *CH2M Hill v. Alexis M. Herman, Secretary of Labor, and Occupational Safety and Health Review Commission*, 131 F3d 1244 (7th Cir., 1997), 18 BNA OSHC 1106 (7th Cir. Nos. 97-2403 & 97-2504. 1997). The court stated that it lacked jurisdiction to grant the petition for review and remanded the case to the Commission for further proceedings.  After further Review Commission proceedings, CH2M Hill again petitioned the Seventh Circuit for review. The court reversed the Commission in *CH2M Hill v. Alexis M. Herman, Secretary of Labor, and Occupational Safety and Health Review Commission*, 1999 US App LEXIS 23172, 1999 WL 743605 (7th Cir. No. 98-3282, 1999), finding insufficient factual evidence to establish applicability of the construction standards.

8 The Commission decision was upheld by the U.S. Court of Appeals for the Eighth Circuit in Anderson Excavating & Wrecking Co., v. Secretary of Labor, 131 F3d 1254 (8th Cir., 1997) 18 BNA OSHC 1113 (8th Cir. No. 97-1711, 1997).

9 The Secretary of Labor petitioned the U.S. Court of Appeals for the Sixth Circuit for review of this case in *Alexis M. Herman, Secretary of Labor v. Cincinnati, Inc., and the Occupational Safety and Health Review Commission* (6th Cir. No. 97-3629, 1997). Subsequently, the court granted the Secretary's motion to voluntarily withdraw the petition.

Last Updated: March 27, 2003