cation and to achieve coordination between this Act and
other Federal laws.’’.
(b) PURPOSES.—Section 4 (29 U.S.C. 653) is amend-
ed by adding at the end the following:
‘‘(c) In order to carry out the purposes of this Act
to encourage employer and employees in their efforts to
reduce the number of occupational safety and health haz-
ards—
‘‘(1) an employee participation committee or
plan—
‘‘(A) in which employees participate,
‘‘(B) which exists for the purpose, in whole
or in part, of dealing with employees concerning
the safety or health of working conditions or re-
lated matters, and
‘‘(C) which does not have, claim, or seek
authority to negotiate or enter into collective
bargaining agreements with the employer or to
amend existing collective bargaining agreements
between the employer and any labor organiza-
tion,
shall not constitute a ‘labor organization’ for pur-
poses of section 8(a)(2) of the National Labor Rela-
tions Act or a representative for purposes of sections
1 and 2 of the Railway Labor Act, and
‘‘(2) records of safety and health inspections,
audits, or reviews conducted by an employer and not
required by this Act shall not be required to be dis-
closed to the Secretary except as may be necessary
to determine eligibility for an exemption from in-
spection under section 8A.’’.
SEC. 5. VARIANCES.
Section 6(d) (29 U.S.C. 655(d)) is amended by add-
ing at the end the following: ‘‘No citation shall be issued
for a violation of an occupational safety and health stand-
ard, which is the subject of an application for a variance
and which application has been pending before the Sec-
retary for at least 90 days, during the period the applica-
tion is pending before the Secretary.’’.
SEC. 6. INSPECTIONS.
(a) TRAINING AND AUTHORITY OF SECRETARY.—
Section 8 (29 U.S.C. 657) is amended by redesignating
subsection (g) as subsection (l) and by adding after sub-
section (f) the following:
‘‘(g) Inspections conducted under this section shall
be conducted by at least one individual who has training
in and is knowledgeable of the industry or types of hazards
being inspected.
‘‘(h) The Secretary shall enter into agreements with
other Federal agencies and with States to train inspection
personnel of agencies which conduct inspections of employ-
ers to inspect places of employment to determine if em-
ployee fire protection is adequate and to identify recogniz-
able dangerous conditions and shall establish a system for
referral of fire hazards and such dangerous conditions to
the Secretary.
‘‘(i)(1) Except as provided in paragraph (2), the Sec-
retary shall not conduct routine inspections of, or enforce
any standard, rule, regulation, or order under this Act
with respect to, any person who is engaged in a farming
operation which does not maintain a temporary labor
camp and employs 10 or fewer employees or any employer
of not more than 10 employees if such employer is in-
cluded within a category of employers having an occupa-
tional injury or a lost work day case rate (determined
under the Standard Industrial Classification Code for
which such data are published) which is less than the na-
tional average rate as most recently published by the Sec-
retary acting through the Bureau of Labor Statistics
under section 24.
‘‘(2) Paragraph (1) shall, in the case of persons who
are not engaged in farming operations, not prevent the
Secretary from—
‘‘(A) providing under this Act consultations,
technical assistance, and educational and training
services and conducting under this Act surveys and
studies;
‘‘(B) conducting inspections or investigations in
response to employee’s complaints, issuing citations
for violations of this Act found during such an in-
spection, and assessing a penalty for violations
which are not corrected within a reasonable abate-
ment period;
‘‘(C) taking any action authorized by this Act
with respect to imminent dangers;
‘‘(D) taking any action authorized by this Act
with respect to health standards;
‘‘(E) taking any action authorized by this Act
with respect to a report of an employment accident
which is fatal to at least one employee or which re-
sults in hospitalization of at least 3 employees and
taking any action pursuant to an investigation of
such report; and
‘‘(F) taking any action authorized by this Act
with respect to complaints of discrimination against
employees for exercising their rights under this
Act.’’.
(b) EMPLOYEE NOTICE.—Section 8(f)(1) (29 U.S.C.
657(f)(1)) is amended—
(1) by striking out ‘‘he shall make’’ and insert-
ing in lieu thereof ‘‘the Secretary may make’’,
(2) by striking out ‘‘determines there’’ in the
third sentence and inserting in lieu thereof ‘‘deter-
mines that there’’, and
(3) by striking out ‘‘he shall notify’’ and insert-
ing in lieu thereof ‘‘or that the facts alleged in the
notification do not justify an exercise of the Sec-
retary’s inspection authority under subsection (a) for
any reason consistent with the standard used by the
Secretary to choose subjects for inspection under
that subsection, the Secretary shall notify’’.
SEC. 7. VOLUNTARY COMPLIANCE.
(a) PROGRAM.—The Occupational Safety and Health
Act of 1970 is amended by inserting after section 8 the
following:
‘‘VOLUNTARY COMPLIANCE
‘‘SEC. 8A. (a) The Secretary shall by regulation es-
tablish a program to encourage voluntary employer and
employee efforts to provide safe and healthful working
conditions.
‘‘(b) In establishing a program under subsection (a),
the Secretary shall, in accordance with subsection (c), pro-
vide an exemption from all safety and health inspections
and investigations with respect to a place of employment
maintained by an employer, except inspections and inves-
tigations conducted for the purpose of—
‘‘(1) determining the cause of a workplace
accident which resulted in the death of one or more
employees or the hospitalization of 3 or more
employees,
‘‘(2) responding to a request for an inspection
pursuant to subsection (f)(1), or
‘‘(3) carrying out a special emphasis program
under section 12.
‘‘(c) In order to qualify for the exemption provided
under subsection (b), an employer shall provide evidence
that—
‘‘(1) the place of employment or conditions of
employment have, during the preceding year, been
reviewed or inspected under—
‘‘(A) a consultation program provided by
recipients of grants under section 7(c)(1) or
23(g),
‘‘(B) a certification or consultation pro-
gram provided by an insurance carrier or other
private business entity pursuant to a State pro-
gram, law, or regulation, or
‘‘(C) a workplace consultation program
provided by an other person certified by the
Secretary for purposes of providing such con-
sultations and the program under subparagraph
(A) or (B) or this subparagraph includes means
of assuring that serious hazards identified in
the consultation are corrected within an appro-
priate time, or
‘‘(2) the place of employment has an exemplary
safety record and the employer maintains a safety
and health program for the workplace which in-
cludes—
‘‘(A) procedures for assessing hazards to
the employer’s employees which are inherent to
the employer’s operations or business;
‘‘(B) procedures for correcting or control-
ling such hazards in a timely manner based
upon the severity of the hazard; and
‘‘(C) employee participation in the pro-
gram which participation includes at the least—
‘‘(i) regular consultation between the
employer and non-supervisory employees
regarding safety and health issues;
‘‘(ii) assurances that participating
non-supervisory employees have training or
expertise on safety and health issues con-
sistent with their responsibilities; and
‘‘(iii) opportunity for non-supervisory
employees to make recommendations re-
garding hazards in the workplace and to
receive responses or to implement improve-
ments in response to such recommenda-
tions.
‘‘(d) The Secretary may require that an employer in
order to claim the exemption give certification to the Sec-
retary and notice to the employer’s employees of such eli-
gibility.’’.
(b) DEFINITION.—Section 3 (29 U.S.C. 652) is
amended by adding at the end the following:
‘‘(15) The term ‘exemplary safety record’
means such record as the Secretary shall annually
determine for each industry. Such record shall in-
clude employers which have had, in the most recent
reporting period, no employee death caused by occu-
pational injury and fewer lost workdays due to occu-
pational injury and illness than the average for the
industry of which the employer is a part.’’.
SEC. 8. EMPLOYER DEFENSES
Section 9 (29 U.S.C. 658) is amended by adding at
the end the following:
‘‘(d) No citation may be issued under subsection (a)
to an employer unless the employer knew or with the exer-
cise of reasonable diligence would have known of the pres-
ence of the alleged violation. No citation shall be issued
under subsection (a) to an employer for an alleged viola-
tion of section 5, any standard, rule, or order promulgated
pursuant to section 6, any other regulation promulgated
under this Act, or any other occupational safety and
health standard if such employer demonstrates that—
‘‘(1) employees of such employer have been pro-
vided with the proper training and equipment to pre-
vent such a violation;
‘‘(2) work rules designed to prevent such a vio-
lation have been established and adequately commu-
nicated to employees by such employer and the em-
ployer has taken reasonable measures to discipline
employees when violations of such work rules have
been discovered;
‘‘(3) the failure of employees to observe work
rules led to the violation; and
‘‘(4) reasonable steps have been taken by such
employer to discover any such violation.
‘‘(e) A citation issued under subsection (a) to an em-
ployer who violates the requirements of any standard, rule,
or order promulgated pursuant to section 6 or any other
regulation promulgated under this Act shall be vacated if
such employer demonstrates that employees of such em-
ployer were protected by alternative methods equally or
more protective of the employee’s safety and health than
those required by such standard, rule, order, or regulation
in the factual circumstances underlying the citation.
‘‘(f) Subsections (d) and (e) shall not be construed
to eliminate or modify other defenses which may exist to
any citation.’’.
SEC. 9. THE OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION.
(a) SECTION 10.—Section 10(c) (29 U.S.C 659(c))
is amended—
(1) in the first sentence, by striking out ‘‘fifteen
working days’’ and inserting in lieu thereof ‘‘30
working days’’, and
(2) by striking out the second sentence and in-
serting in lieu thereof the following: ‘‘The Commis-
sion shall issue an order, based on de novo findings
of fact and de novo conclusions of law, affirming,
modifying, or vacating the Secretary’s citation or
proposed penalty or directing other appropriate re-
lief. Such order shall become final 30 days after it
is issued.’’.
(b) SECTION 11.—Section 11(a) (29 U.S.C 660(a) is
amended by inserting after ‘‘conclusive’’ at the end of the
sixth sentence the following: ‘‘and the Commission’s con-
clusions with respect to questions of law shall be given
deference if reasonable’’.
SEC. 10. DISCRIMINATION.
Section 11(c) (29 U.S.C. 660(c)) is amended by strik-
ing out paragraphs (2) and (3) and inserting in lieu there-
of the following:
‘‘(2) Any employee who believes that the employee
has been discharged or otherwise discriminated against by
any person in violation of paragraph (1) or who believes
that the employee has been discharged or discriminated
against because of an action taken by the employee’s em-
ployer in violation of section 28, may, within 60 days after
such violation occurs, file a complaint with the Secretary
alleging such discrimination. Upon receipt of such a com-
plaint the Secretary shall notify the person named in the
complaint and begin an investigation to determine if the
Secretary should, on behalf of such employee, request the
Commission to take action on the basis of such complaint.
The Secretary shall make such determination within 90
days of the filing of such complaint.
‘‘(3) If within such 90 days, the Secretary does not
file a complaint on behalf of the complainant with the
Commission, such employee may file such complaint with
the Commission. If such a complaint is filed with the Com-
mission, the Commission shall provide opportunity for a
hearing (in accordance with section 554 of title 5, United
States Code, but without regard to subsection (a)(3) of
such section), and issue an order, based upon findings of
fact and conclusions of law. In such an order, the Commis-
sion may require a person charged with committing a vio-
lation of paragraph (1) to take appropriate affirmative ac-
tion, including rehiring or reinstatement of the employee
to the employee’s former position with back pay and inter-
est. Upon completion of a proceeding on such order, the
Commission may award the prevailing party a reasonable
attorney’s fee. Final orders of the Commission may be ap-
pealed as provided in subsection (a).
‘‘(4)(A) Anytime after a complaint has been filed with
the Secretary alleging a violation of paragraph (1), the
complaining employee, the person charged with commit-
ting the violation (referred to in this paragraph as the ‘re-
spondent’), or the Secretary have the right to request that
the complaint be referred to the Federal Mediation and
Conciliation Service (referred to in this paragraph as the
‘Service’) for mediation of the dispute. In lieu of receiving
mediation services from the Service, the parties may upon
mutual agreement refer the complaint to a mediator other
than one provided by the Service.
work product, transcripts, notes, or other materials) shall
be kept confidential by the participants to the mediation.
‘‘(iii) The material referred to in clause (ii) shall not
be subject to disclosure through discovery or compulsory
process and shall not be used as evidence in any investiga-
tory, arbitral, judicial, administrative, or other proceeding.
‘‘(E) A party to an agreement made pursuant to me-
diation under this paragraph may bring an action to en-
force the agreement in any Federal or State court of com-
petent jurisdiction.
‘‘(F) Except as provided in subparagraph (C)(iii),
nothing in this paragraph shall be interpreted to effect or
modify whatever rights and obligations the parties may
have under arbitration agreements or other form of alter-
native dispute resolution mechanisms.’’.
SEC. 11. ENFORCEMENT.
(a) SPECIAL CONDITIONS AND PRACTICES.—Section
13 (29 U.S.C. 662) is amended by striking out subsection
(c), by redesignating subsections (a) and (b) as sub-
sections (b) and (c), respectively, and by inserting before
subsection (b) (as so redesignated) the following:
‘‘(a)(1) If the Secretary determines, on the basis of
an inspection or investigation under this section, that a
condition or practice in a place of employment is such that
an imminent danger to safety or health exists that could
reasonably be expected to cause death or serious physical
harm or permanent impairment of the health or functional
capacity of employees if not corrected immediately or be-
fore the imminence of such danger can be eliminated
through the enforcement procedures otherwise provided by
this Act, the Secretary may so inform the employer and
provide notice to the affected employees and shall request
that the condition or practice be corrected immediately or
that employees be immediately removed from exposure to
such danger. The notice shall be removed by the Secretary
from the place of employment not later than 72 hours
after the notice was first posted unless a court in an action
brought under subsection (c) requires that the notice be
maintained. The Secretary shall not prevent the continued
activity of employees whose presence is necessary to avoid,
correct, or remove such imminent danger or to maintain
the capacity of a continuous process operation to resume
normal operations without a cessation of operations or
where cessation of operations is necessary, to permit such
to be accomplished in a safe and orderly way.
‘‘(2) No person shall discharge or in any manner dis-
criminate against any employee because such employee
has refused to perform a duty that has been identified as
the source of an imminent danger by a notice posted pur-
suant to paragraph (1).’’.
(b) MANDATORY SPECIAL EMPHASIS.—Section 8 (29
U.S.C. 657), as amended by section 6, is amended by add-
ing at the end the following:
‘‘(j)(1) The Secretary shall establish and carry out
a special emphasis program for identifying and correcting
existing or newly recognized hazards in selected industries
and operations and high hazard industries and operations.
‘‘(2) Each special emphasis program under para-
graph (1) shall consist of a planned and coordinated ef-
fort, including outreach, education and training programs,
and inspections. Before beginning any such program, the
Secretary shall meet and discuss with representatives of
employers and employees in the industries affected by
such program the intended goals and benefits of such pro-
gram, the number of inspections under such program, and
the nature of other activities planned. To the extent prac-
ticable, the Secretary shall coordinate efforts with such
representatives. Each such program shall have a date of
termination and shall include methods of evaluating the
effectiveness of the program in reducing illness and injury
in the targeted industries or operations.’’.
(c) INVESTIGATIONS OF DEATHS AND SERIOUS INCI-
DENTS.—Section 8 (29 U.S.C. 657), as amended by sub-
section (b), is amended by adding at the end the following:
‘‘(k)(1) The Secretary shall investigate any work-re-
lated death or serious incident.
‘‘(2) If a death or serious incident occurs in a place
of employment covered by this Act, the employer shall no-
tify the Secretary of the death or serious incident.
‘‘(3) As used in this subsection, the term ‘serious in-
cident’ means an incident that results in the hospitaliza-
tion of 3 or more employees. The Secretary shall by regu-
lation define ‘hospitalization’.’’.
(d) ENFORCEMENT AGAINST STATE
AND LOCAL
GOVERNMENTS.—During the 3 year period beginning on
the date of the enactment of this Act the Secretary shall
not undertake any enforcement action under section 10
of the Occupational Safety and Health Act against a State
or political subdivision of a State. During such 3-year pe-
riod the Secretary shall work with each of the States which
does not have a State plan in effect under section 18 to
assist the States in the adoption of such a plan, including
a plan which applies only to the government of the State
or its political subdivisions. This subsection shall not af-
fect the Secretary’s review of State programs under sec-
tion 18.
SEC. 12. PENALTIES.
(a) IN GENERAL.—Section 17 (29 U.S.C. 666) is
amended by striking out subsections (a), (b), (c), (j), and
(k), by redesignating subsections (d), (e), (f), (g), (h), (i),
and (l) as subsections (b), (c), (d), (e), (f), (g), and (h),
and by inserting after ‘‘17.’’ the following:
‘‘(a)(1) Any employer who violates the requirements
of section 5, any standard, rule, or order promulgated pur-
suant to section 6, or any other regulation promulgated
under this Act may be assessed a civil penalty of not more
than $7,000. The Commission shall have authority to as-
sess all civil penalties provided in this section, giving due
consideration to the appropriateness of the penalty with
respect to—
‘‘(A) the size of the employer,
‘‘(B) the number of employees exposed to the
violation,
‘‘(C) the likely severity of any injuries directly
resulting from such violation,
‘‘(D) the probability that the violation could re-
sult in injury or illness,
‘‘(E) the employer’s good faith in correcting the
violation after it has been identified,
‘‘(F) the extent to which employee misconduct
was responsible for the violation,
‘‘(G) the effect of the penalty on the employer’s
ability to stay in business.
‘‘(2)(A) In assessing under paragraph (1) a civil pen-
alty against a State or political subdivision, the Commis-
sion may reduce the civil penalty by the amount spent by
the State or political subdivision to abate the violation
with which the State or political subdivision is charged.
‘‘(B) A penalty assessed under paragraph (1) shall
be reduced by 25 percent in any case in which the em-
ployer—
‘‘(i) maintains a written safety and health pro-
gram for the worksite at which the violation for
which the penalty was assessed took place, or
‘‘(ii) shows that the worksite at which the viola-
tion for which the penalty was assessed took place
has an exemplary safety record.
If the employer maintains a program described in clause
(i) and has the record described in clause (ii), the penalty
shall be reduced by 50 percent.
‘‘(C) No penalty shall be assessed against an em-
ployer for a violation other than a violation previously
cited by the Secretary or a violation which creates an im-
minent danger or has caused death or a willful violation
which has caused serious injury to an employee if the
worksite at which the violation occurred has been reviewed
or inspected under a program described in section