Fiscal Year 2003

Performance Report

February 2004

Occupational Safety and Health Review Commission

 Annual Performance Report

Fiscal Year (FY) 2003

Report Overview

The Review Commission is submitting this report in accordance with the Government Performance and Results Act (GPRA) of 1993, which requires federal agencies to submit a program performance report to the President and Congress. This report is divided into two sections – a Fiscal Year (FY) 2003 Report Summary and the Performance Report itself. A chart comparing the FY 2003 targeted and actual levels of performance for each target follows this Report Overview. The FY 2003 Performance Report is organized by strategic goals. An introductory section summarizes the FY 2003 performance for each goal. In FY 2003 the Review Commission revised its Strategic Plan (2003-2008) and annual performance plan and modified and added performance goals and targets. This performance report identifies the goals and targets developed under the preceding Strategic Plan (2000 – 2005). It also reports on the goals and actual performance for the preceding four years.

During FY 2003, the Review Commission met 75% of the FY 2003 goals set forth in its FY 2003 Annual Performance Plan (APP). The agency performed well in the areas of case adjudication for cases that proceeded at the trial level, case settlements within six months, case adjudications of cases pending more than two years at the Commission level, and most of the external communications and original goals. The agency missed, by a slight margin, its goal of reducing the percent of settlements at the trial level that exceed the one year cycle time, resolving cases within 325 days of being directed for review, one external communication goal and one organizational goal. While the agency did not meet all of its FY 2003 APP goals, there was overall improvement in performance compared to FY 2002. In fact the agency met 75% of its goals in FY 2003, compared to 73% of its FY 2002 goals.

There continues to be a variety of factors that affect the agency’s ability to meet its adjudication cycle time in the public service goal. These include: (1) continued presence of a quorum and/or this member at the Commission level; (2) the magnitude and nature of the cases received at the Review Commission; (3) the success of the parties’ settlement negotiations and the agency’s Settlement Part program in reducing the number of hearings needed; and (4) the number, location, length and complexity of trials held. Although these factors are largely outside the Review Commission’s control, the Strategic Plan and the APP acknowledge that the Review Commission is committed to working within such constraints to improve its service to the public.

The Review Commission’s Strategic Plan is posted at www.oshrc.gov.

FISCAL YEAR 2003 REPORT SUMMARY

* The performance goals are goals that were in effect in FY 2003. Goals that were completed in FY 2002 are not listed. Therefore the numbers of the goals are not sequential.

FISCAL YEAR 2003 PERFORMANCE REPORT

Background on the Review Commission

The Review Commission is an independent, adjudicatory agency created by the Occupational Safety and Health Act of 1970. Its sole statutory mandate is to serve as an administrative court providing just and expeditious resolution of disputes involving the Occupational Safety and Health Administration (OSHA), employers charged with violations of federal safety and health standards, and employees and/or their representatives. The Review Commission was created by Congress as an agency completely independent of the Department of Labor to ensure that OSHA's enforcement actions are carried out in accordance with the law and that all parties are treated consistent with due process when disputes with OSHA arise.

Employers contesting citations are entitled to a full evidentiary hearing, consistent with the rules used by U.S. federal district courts, before the Review Commission’s administrative law judges. The Occupational Safety and Health Act and the Review Commission's Rules of Procedure, which by law mirror the federal rules, provide two levels of adjudication when an employer timely contests an OSHA citation for alleged violations of the Act or failure to abate such alleged violations. The first is a trial level before an Administrative Law Judge (ALJ). This level affords an opportunity for a hearing before a Review Commission ALJ for employers who have filed a timely notice of contest. The judge's decision becomes final unless the Commission reviews the decision. The second level is a discretionary appellate review of the judge's decision by the Commission's members. The Review Commission has three members, appointed by the President and subject to Senate confirmation, who serve six-year terms. Both before its judges and the Commissioners, the Review Commission seeks to provide fair, impartial, and timely adjudication of cases concerning the safety and health of employees' working conditions in the United States.

The principal (national) office of the Review Commission is located in Washington, D.C. There are also regional offices in Atlanta and Denver, where some of the Review Commission's Administrative Law Judges and staff are assigned.

Mission Statement

The mission of the Occupational Safety and Health Review Commission is to provide an impartial forum for the just and prompt adjudication of workplace safety and health disputes involving the Department of Labor, employers, and employees, and/or their representatives under the Occupational Safety and Health Act of 1970.

Vision Statement

The Review Commission continues to strive to be:

a quasi-judicial body that is -- and is recognized for being -- objective, fair, prompt, and professional;

agency that creates a body of law through its decisions that define and explain the rights and responsibilities of employers and employees under the Occupational Safety and Health Act of 1970;

a model federal agency with highly effective processes, a highly motivated, qualified and diverse workforce, and modern information management, communications, and administrative systems; and

an agency that values team work, develops its employees, and strives to improve its performance, service, and value to the American people.

Fiscal Year 2000-2005 Strategic Plan Goals

In 1997, the Review Commission established goals to effectively accomplish its mission. The agency defined two broad external goals to improve the agency’s service to and its communication with its stakeholders and the public and three operational goals -- Information Technology, Human Resource, and Quality Management. When the Review Commission issued its Revised Strategic Plan for 2000-2005, the agency modified and realigned its performance goals. The Review Commission continued its two broad external goals to improve the agency’s service to and communications with its stakeholders and the public. However, the agency combined the three operational goals into one operational goal to align more closely with the overall mission of the agency. In FY 2003, the Review Commission updated its Strategic Plan for 2003 - 2008. This report focuses on the FY 2000 – 2005 strategic goals and annual performance plans.

Public Service Goal: To assure fair, just, and expeditious adjudication of disputes brought before the Commission and its judges, and achieve a high level of quality in all legal decisions

External Communications Goal: To enhance the efficiency and effectiveness of communications between the Commission and the public it serves

Organizational Goal: To further develop and invest in a highly effective, motivated, and diverse workforce equipped with modern information, technology, and communications systems to facilitate the accomplishment of its goals, meet program needs and increase organizational effectiveness and efficiency

For each strategic goal and its related objectives, the Review Commission formulated performance measures and annual targets, numerical whenever possible. A few measures are necessarily qualitative in nature. Case processing and adjudication measurements are used for several objectives contained in our Public Service Goal. Most of the data related to the Public Service Goal resides in the Review Commission’s case management/tracking system. In FY 2003, each of the more than 2,300 new cases filed with the agency was entered into the case management system, and progress on all cases was tracked. In order to assure the quality of the data, management periodically reviews the information in the case management/tracking system. The agency conducts test runs of the data to ensure that information is entered and updated on a timely basis. Semi-annual and annual reviews are conducted by the appropriate managers to ensure the accuracy of the data, to monitor performance goals and progress, and produce reports. The reports are used to assess workload and make workload adjustments, when necessary. At the end of the year, this data is used by the offices to measure performance related to the goal and improve program management.

Program Evaluation

The Review Commission contracted for two independent financial audits of its FY 2002 and FY 2003 balance sheets and related statements of net cost, statements of changes in net position, statements of budgetary resources and statements of financing. The Review Commission received an “unqualified” opinion on all these statements and for both audits. The auditors also provided a report on agency’s internal control and compliance with laws and regulations. There were no material weaknesses or reportable conditions in internal control. Also, there were no instances in which the agency’s financial management systems did not substantially comply with laws and regulations. These financial audits were conducted by two different firms. The Review Commission contracted for an annual independent evaluation to be completed in FY 2003 for its computer and information security, consistent with the Federal Information Security Management Act of 2002. This independent evaluation identified the failure to finalize a contingency of operations plan as the only material weakness in the agency’s policy and provided recommendations for the overall improvement of the agency’s security program and plan. Some of the recommendations involved modifying or supplementing existing security policies, and ensuring technical controls for hardware are improved to strengthen the agency’s security posture. The agency is using the recommendations from the review to ensure security programs, infrastructure and practices comply with the Act.

Public Service Goal

To assure fair, just, and expeditious adjudication of disputes brought before the Commission and its judges, and achieve a high level of quality in all legal decisions          

1.1       Increase the percent of non-complex cases disposed of with hearing that are disposed of within 325 days at the ALJ level.

             ●          FY 2003 Target: : Complete 78 percent of non-complex cases disposed of with hearing within 325 days from the date of assignment to a judge. TARGET MET. Eighty-two percent of cases were completed within the targeted time frame.

1.2       Increase the percent of complex cases disposed of with hearing that are disposed of within 18 months at the ALJ level.

             ●          FY 2003 Indicator/Target: Complete 80 percent of complex cases¹ disposed of with hearing within 540 days from the date of assignment to a judge. TARGET MET. Eighty-one percent of cases were completed within the targeted time frame.

1.3       Increase the percent of cases that are disposed of without a hearing that are disposed of within six months at the ALJ level.

            ●          FY 2003 Target: Seventy-six percent of ALJ cases disposed of without hearing are disposed of within 180 days. TARGET MET. Eighty percent of cases were completed within the targeted time frame.

1.4       Increase the percent of cases that are disposed of without a hearing that are disposed of in one year at the ALJ level.

            ●          FY 2003 Target: : Ninety-nine percent of the cases closed without a hearing are resolved within 365 days. TARGET NOT MET. The agency came close to meeting this goal - 98 percent of cases were disposed of without hearing within 365 days. The agency failed to meet this target by 12 cases. In terms of number of cases that were actually disposed of without hearing in FY 2003, this is a small margin. The performance goal was set at an approximate level and the deviation from that level is slight. There was no effect on overall program or activity performance. Excluding the complex cases, cases that originated from remote locations, cases that were joined and cases that were stayed from processing pending ongoing federal criminal proceedings, the Review Commission resolved 99 percent of cases in less than a year.

1.5 Increase percent of Commission-level dispositions issued within 325 days.

             ●     FFY 2003 Indicator/Target: Fifty-seven percent of new Commission-level cases are decided within 325 days of being directed for review. TARGET NOT MET. Thirty-five percent of decisions (11 cases) were disposed of within 325 days of being directed for review. The goal was missed by seven cases out of the needed 18. The goal was not met in FY03 because the agency realized mid-year that the target was mathematically impossible based on the definition of the goal and therefore, the agency diverted resources to meet target 1.6. Overall program performance was not affected; instead, more cases older than two years were issued. The agency has updated its strategic plan and FY 2004 performance plan to dispose of older cases first. The immediate aim is to reduce the existing backlog, with the eventual goal that no case will sit for more than nine months on review.

1.6       Reduce by a percent the number of cases pending Commission-level disposition for more than two years.

             ●     FFY 2003 Target: Thirty-two percent reduction in the number of cases pending Commission-level dispositions for more than two years. TARGET MET. There was a 38% reduction in the number of such cases. The Commission disposed of 17 cases that were older than two years.

External Communications Goal

To enhance the efficiency and effectiveness of communications between the Commission and the public it serves

2.1       Improve the effectiveness of our website to ensure its communications remain open, research-friendly, and current. (New FY 2002 Performance Goal)

            ●     FFY 2003 Target: Three enhancements. TARGET MET. The agency’s decision page was rewritten to better assist the public in defining search criteria and ordering CD ROMs, the declaimer was strengthened, and points of contacts were added. The scrolling marquee was also modified to be activated when significant information requires dissemination of information to the public.

2.2       Improve the frequency of publication of CD-ROMs for use by litigants, libraries, and other interested parties.

            ●     FY 2003 Target: Publish four CDs to include the most recent Review Commission decisions for use by litigants, libraries and other interested parties. TARGET MET. Four CDs were published

2.4       Improve and strengthen mechanisms for communications between the Review Commission and entities that have an interest in its activities

            ●     FY 2002 Indicator/Target: Fifty percent of effort - Conduct focus group to review key business processes. TARGET NOT MET. Pilot participants in the agency’s electronic filing pilot assisted in the agency’s evaluation of its pilot. A focus group was no longer needed to complete the evaluation due to the limited number of participants; however, participants in the pilot assisted with the agency’s evaluation effort.

2.5       Produce reports on the Review Commission’s activities

             ●     FY 2002 Indicator/Target: One Biennial Report. TARGET NOT MET. A draft of the Biennial Report was completed prior to the end of the fiscal year and published in October 2001. The report covered fiscal years 2000- 2001. Previous Biennial Reports had been published for fiscal years 1998-1999 and 1996-1997.

 2.6       Promote the use of electronic transmission of documents to the Review Commission

             ●     FY 2003 Target: Implement 50% of GPEA Plan. TARGET NOT MET. Forty-five percent of the effort was completed. The Executive Secretary drafted proposed rule changes, met with the agency’s judges about changes in electronic filing in the Federal courts, researched Federal court rules, and consulted with personnel in the Federal courts. The agency incorporated this goal in plans to acquire new information technology software and equipment.

This goal was not met because of changes to the Review Commission’s strategy to more closely parallel the electronic filing procedures used by the United States Courts. The performance goal of 50% was set at an approximate level and the deviation from that level is slight. There was no effect on overall program or activity performance.

2.7       Improve the timeliness of response to questions received from the public (New FY 2002 Performance Goal)

             ●     FY 2003 Target: Average 18 workdays for responses to Freedom of Information Act (FOIA) requests. TARGET MET. Goal Exceeded. The agency responded to FOIA requests in an average of 17 workdays.  

Organizational Goal

To further develop and invest in a highly effective, motivated, and diverse workforce equipped with modern information, technology, and communications systems to facilitate the accomplishment of its goals, meet program needs and increase organizational effectiveness and efficiency  

3.1       Recruit and maintain a diverse and highly motivated staff

            ●     FFY 2003 Target: Twenty-five percent of effort (complete succession and transition plans and knowledge management strategy). TARGET MET. Implemented succession and transition plans and recruitment resource listings were updated.

3.2.1       Expand training delivery methods to accommodate workforce needs (New FY 2003 Performance Goal)

           ●     FFY 2003 Indicator/Target: Twenty percent classroom, 50% audio/video tape, 30% on-line. TARGET NOT MET. Substantial effort was made to expand training delivery methods. This effort was not met because the agency’s strategy to enhance on-line training was modified to involve only the administrative staff. Moreover, fewer audio/video tapes were used for training purposes. Employees obtained training through classroom (89%), audio/video (6%) and on-line (5%) methods. There was no effect on overall program or activity performance.

3.3       Improve internal communications (New FY 2003 Performance Goal)

             ●     FY 2003 Target: Publish 25% of policies, memoranda, and decisions on the Intranet). TARGET MET. Goal Exceeded. Published 40% of policies, memoranda and decisions on the Intranet.

3.4       Improve the performance management program to enhance individual and organizational effectiveness (New FY 2002 Performance Goal)

             ●     FY 2003 Target: Twenty-five percent of effort (Review and rewrite 25% of position descriptions). TARGET MET. Twenty-seven percent of position descriptions were reviewed and written.

3.7       Invest in an effective information technology infrastructure that meets user needs and secures against unauthorized access or disruption. (New FY 2002 Performance Goal)

             ●     FY 2003 Target: Fifty percent of effort (evaluate security program). TARGET MET. An external independent audit was completed.

3.9       Increase electronic communications to improve quality, availability, and speed of information and efficiency of operation. (New FY 2001 Performance Goal)

             ●      FY 2003 Target: Ten percent of effort (improve quality and efficiency of operations). TARGET MET. Improved quality and efficiency of operations by improving the electronic repository of information for agency personnel to access information in a timely and secure fashion.

¹Complex cases are those involving many parties, intricate legal issues, multiple violations, a large number of witnesses, or extensive discovery.