Report of the
U.S. Occupational Safety and Health Review Commission
Fiscal Years 1998 and 1999
FOREWORD
In this second biennial report of the Occupational Safety and Health Review Commission, we provide information on the Review Commission's activities and decisions during fiscal years (FYs)1998 and 1999 (October 1, 1997 through September 30, 1999).
The Review Commission's sole function, as defined in the Occupational Safety and Health Act of 1970 (the Act), is to adjudicate disputes that arise from job safety and health citations issued by the Occupational Safety and Health Administration under the Act (section 2(b)(3) ). Therefore, it serves as an administrative court system in the Executive Branch of the federal government.
The Review Commission's caseload continued to grow over these two fiscal years, from 2,106 in 1998 to 2,324 in 1999. The figures for the previous two fiscal years were 1,670 new cases in 1996 and 2,070 in 1997. Concentration on targeted improvements in case handling procedures intensified during this period to foster timely and quality case resolutions, even more important with the expanding case inventory. This period brought the commencement of a pilot program requiring settlement negotiations in cases that involve proposed penalties of $200,000 or more. The Review Commission also joined the "information age" with the establishment of its World Wide Web site, at http://www.oshrc.gov, during this period.
It is my pleasure to present this report identifying the accomplishments of the Review Commission in FYs 1998 and FY 1999.
Thomasina V. Rogers
Chairman
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). The agency's sole legal mandate is to serve as an administrative court system providing fair and timely resolution of disputes among the Occupational Safety and Health Administration (OSHA), employers charged with violations of federal safety and health standards, and employees or their union representatives. These legal disputes arise from workplace safety and health inspections conducted by the Occupational Safety and Health Administration (OSHA) in the U.S. Department of Labor, a separate federal agency. The Review Commission is completely independent of the Labor Department and OSHA. This quasi-judicial, Executive branch agency 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, affords employers and employees or their representatives "their day in court" through:
- 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.
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 possible violations of workplace safety and health rules. However, when United States Postal Service facilities receive and contest citations or proposed penalties for alleged safety and health violations, the Review Commission has jurisdiction in all 50 states, as OSHA exercises jurisdiction over postal facilities nationwide.
JUDICIAL REVIEW
A party in a Review Commission case, typically the U.S. Department of Labor or an employer cited in violation of the Act, may seek further review of a Review Commission final decision in the appropriate U.S. Court of Appeals, provided that party has exhausted all remedies available at the Review Commission.
COMMISSION MEMBERS
The U.S. President nominates, and the U.S. Senate confirms, Commission members to staggered, six-year terms.
During FYs 1998 through 1999 the agency had two different Chairmen, Stuart E. Weisberg and Thomasina V. Rogers. Chairman Weisberg's term expired in April of 1999. In addition, Commissioner Daniel Guttman served a recess appointment that expired during this period. A recess appointment is one made by the President when Congress is in recess and does not require Senate confirmation. That appointment, if it does not gain Senate approval when that body reconvenes, expires when the Senate subsequently adjourns. Two Commissioners joined the agency in FY 1999 after Presidential nomination and Senate confirmation, Thomasina V. Rogers and Gary L. Visscher. Commissioner Rogers became Chairman in June of 1999.
Thomasina V. Rogers, Chairman at the close of FY 1999
Thomasina V. Rogers assumed the chairmanship of the Review Commission on June 6, 1999, near the end of FY 1999, upon appointment by President Bill Clinton. Ms. Rogers became a Commission member of the agency in November 1998 after the U.S. Senate confirmed her nomination by President Clinton to a term expiring on April 27, 2003.
A former Chairman of the Administrative Conference of the United States, Ms. Rogers served that Federal agency until its dissolution in 1995. Ms. Rogers spent seven years in the federal government's Senior Executive Service (SES) prior to her Presidential appointment to the Administrative Conference in 1994. During her SES tenure, she was legal counsel to the Equal Employment Opportunity Commission, where she had primary responsibility for managing the development of the Americans With Disabilities Act employment regulations. Near the end of her SES tenure, Ms. Rogers received Presidential recognition for noteworthy public service in the management of government programs.
Ms. Rogers is a graduate of Northwestern University and the Columbia University School of Law.
Stuart E. Weisberg, Chairman throughout FY 1998
Stuart E. Weisberg, who joined the agency on February 8, 1994, was appointed by President Clinton to a term expiring April 27, 1999. At the close of FY 1999, the most recent period covered in this report, his subsequent nomination to a new six-year term as a Commission member had not received Senate confirmation. Mr. Weisberg served as the Chairman until his term expired in April 1999.
Prior to joining the agency, Mr. Weisberg was 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 had previously worked as an attorney and a supervisor in the agency's Office of General Counsel.
A 1971 magna cum laude graduate of Brandeis University, Mr. Weisberg earned his law degree from the University of Pennsylvania Law School.
Gary L. Visscher, Commissioner
Gary L. Visscher was nominated by President Clinton and confirmed by the Senate in May 1999 as an agency Commissioner, at approximately the half-way point in FY 1999. His term expires on April 27, 2001.
Before joining the Review Commission, Mr. Visscher was workforce policy counsel for the Committee on Education and the Workforce of the U.S. House of Representatives. In that post, he provided legal and strategic advice in all areas of employment and welfare policy and laws and was the principal Republican committee staff person on occupational safety and health issues. He was appointed to that position in January 1998, after spending nine years as a professional staff member of the Committee.
Mr. Visscher served as legislative director from 1985 to 1989 in the office of U.S. Representative Paul B. Henry. He was the Congressman's principal legislative advisor, primarily focusing on labor, education, tax and trade issues. From 1983 to 1985, he was the Congressman's legislative assistant. He was also an associate at the law firm of Nederlander, Dodge & McCauley in Detroit, Michigan and a law clerk for Chief U.S. Federal District Judge John Feikens in Michigan, his home state.
Mr. Visscher earned his Bachelor of Arts degree in Political Science at Calvin College in Grand Rapids, Michigan and his Juris Doctor at the University of Michigan Law School in Ann Arbor.
Daniel Guttman, Commissioner
Daniel Guttman served the agency for about six weeks in FY 1998, the earliest period covered by this report. He received a recess appointment by President Clinton to become a Commissioner on April 12, 1996. His February 6, 1996 nomination by the President to a term expiring on April 27, 2001 was not confirmed by the Senate and he left the agency in November 1997.
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 was also 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.
COMMISSION ORGANIZATION
The agency adjudicates cases based on law and fact at two levels of review for contested citations issued to employers by the Occupational Safety and Health Administration (OSHA) in the U.S. Department of Labor. Initially, Review Commission Administrative Law Judges (ALJs) hear challenges to the citations. The Review Commission provides parties discretionary appeal from ALJ decisions.
The Chairman, by statute, is the chief administrative officer of the agency.
The Chairman and the two Commission Members hold staggered, six-year terms upon appointments by the President of the United States and confirmation by the U.S. Senate. The OSH 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 ALJs.
The General Counsel supervises staff attorneys who prepare and present legal analyses to assist Commission members in adjudicating appeals from ALJ 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 Chief Administrative Law Judge supervises the agency's ALJs. The judges function independently in making case decisions. All new cases are assigned to an ALJ, who has full responsibility for preliminary matters and those arising in the course of a hearing, 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 Executive Director is the chief management official of the agency and provides executive management in all mission-related activities. The Executive Director has primary leadership responsibilities and oversight of the agency's Strategic and Performance Plans. The Executive Director also has leadership responsibilities for the Executive Secretary, Office of Financial and Administrative Services, Public Information Office, Information Technology Office and the Library:
- The Executive Secretary receives and processes new cases arriving at the Review Commission. Each case starts with a letter, called a notice of contest, taking issue with some aspect of a job safety or health citation--the proposed penalty, the specific safety or health allegations, or the time specified for correcting alleged violations. An employer (and in some instances, a union) sends the letter to the U.S. Department of Labor office that conducted the workplace inspection. The Department of Labor 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 rules on certain procedural matters and enters orders and decisions into the official record. The office certifies official records to the courts and manages the use of agency case files. The office also responds to procedural questions raised by parties in proceedings before the Review Commission.
- The Office of Financial and Administrative Services (OFAS) provides support to the Review Commission in these areas: financial, budget, procurement, personnel, equal opportunity, and administrative. OFAS formulates the Review Commission's annual budget requests and controls the obligation and disbursement of funds. This office assists in implementing personnel policies, affirmative employment and equal opportunity policies, in the hiring of employees, monitoring staffing functions and personnel and payroll services, and provides day-to-day employee pay and benefits services. OFAS is responsible for procuring goods and services, repairs, training, reference materials, supplies, and space needs for all offices. OFAS also manages the credit card program, provides reproduction services, mail services, and travel assistance to ALJs and other employees.
- The Public Information Office (PIO) responds to inquiries from members of the general public and media, drafts and edits press releases and other publications, and serves as the agency Freedom of Information Act office. PIO distributes booklets, rules, decisions, case file documents, reports, statistics, budgets and other general information about the agency and how it functions. The PIO also maintains customer pick-up boxes for those who routinely receive copies of every agency decision issued at either the Commissioner or ALJ levels, and of cases directed for review by the Commission. Historical decisions are maintained on microfiche or CD-ROM. PIO facilitates responses to Congressional correspondence and answers questions about creating, maintaining, and disposing of administrative and program records. This office also serves as liaison to the host of the Review Commission's Website, the Government Printing Office (GPO), and to the GPO office that publishes the agency's decisions on CD-ROM.
- The Information Technology Office develops, supports, and maintains all agency- wide automated information systems, including the case management and financial management systems. The office also supports agency desktop computer users and provides technical guidance and training to Review Commission employees.
- The Review Commission's Library Office manages and maintains the agency's national and regional office libraries. The office provides reference services, arranges inter-library loans for Review Commission employees, assists employees with computer related legal research, oversees vendor performance, and maintains the microfiche collection of the Federal Register.
COMMISSION ADJUDICATION
The U.S. President nominates and the U.S. Senate confirms Commission members. For all but one month in FY 1998, the Review Commission lacked a quorum of two members, the minimum number needed to issue decisions. During this period, the Commission was nevertheless able to approve procedural resolutions of several cases. These types of case dispositions come about when parties agree between themselves to settle disputed matters or withdraw from a case.
The Commission achieved a quorum in November 1998, one month into FY 1999, when Commissioner Rogers joined the agency, and lost that quorum in April 1999 with the expiration of the term of Commissioner Weisberg. It regained a quorum in July 1999, three months before the fiscal year ended, when Commissioner Visscher joined Commissioner, now Chairman, Rogers. The Commission never achieved a full complement of three members during the period covered by this report. Despite these limitations, the members reviewed a number of cases involving significant issues during fiscal year 1999. Among the issues tackled by the Commission were cases dealing with the need for safe work practices, whether mail delivery problems were a sufficient excuse for failing to follow Commission deadlines, and who has responsibility for safety violations at multi-employer worksites. The Commission also resolved disputes over measuring an air contaminant and assessing liability when a company goes out of business. Summaries of selected important decisions follow.
Safe Work Practices
For the first time, the Commission considered the new process safety management standard in a case in which chemical splashes on employees opening pipelines, and, on one occasion, a near explosion, preceded the OSHA inspection of a chemical plant in Pasadena, Texas. OSHA charged in Albemarle Corporation[1] that the company did not develop and implement safe work practices, even unwritten ones, for opening pipelines and performing certain processes involving chemicals. The Review Commission agreed, in a ruling affirming one of its Administrative Law Judges. The company also failed to have written operating procedures for safely conducting an explosion-preventing activity and failed to provide refresher training to certain operators. The company was assessed $15,000 in penalties for violations of the PSM standard.
The citation regarding safe work practices stemmed from work in an Albemarle unit that made a number of chemical products from varying liquid chemicals. Chemicals splashed onto operators when they opened pipelines to insert a device into them when they changed from one chemical product to another. Employee testimony indicated that they almost uniformly relied on their own judgment rather than standardized practice when they did this. The written operating procedures violation concerned a near-explosion during a reactor shutdown in another Albemarle unit. The Commission's decision notes that the job safety rule applicable here expressly prescribes the need for and implementation of written operating procedures during both emergency and normal shutdowns of reactors to prevent explosions. The Oil, Chemical and Atomic Workers International Union, Local 4-1600, represented the employees in this case. Albemarle Corporation, 18 BNA OSHC 1730, 1999 CCH OSHD ¶31,816 (OSHRC Docket Nos. 93-0848 & 93-1715, April 26, 1999).
Mis-directed Mail No Excuse
In NYNEX, the company was assessed a $1,275.00 penalty for a citation that it failed to properly label pipes wrapped with asbestos insulation at its Braintree, Massachusetts branch office. This Commission ruling affirmed one of its ALJs. The company requested relief from this sanction based on the argument that the citation was misdirected through its mail system and was not received by the correct person at the company in time to file any documents contesting the citation and proposed penalty (a notice of contest letter). OSHA sent the citation by certified mail to the NYNEX Braintree office, but it was not signed as received at that office. Post office records showed that the citation was forwarded to a New York NYNEX office and signed for on August 14, 1995. NYNEX then filed its notice of contest letter , objecting to the citation, on October 6, 1995. Companies have 15 working days in which to contest citations and when they don't, the charges and monetary penalties in the citations become a final order. This means the company must comply with the requirements in the citation to fix the safety or health hazard and must pay the monetary penalty listed in the citation. Under Review Commission precedent, if a company can prove that it failed to comply with the rule for responding in 15 working days because of a mistake, inadvertence, surprise or excusable neglect, it can gain relief from complying with the final order. NYNEX could not prove these circumstances in this case. NYNEX, 18 BNA OSHC 1944, 1999 CCH OSHD ¶31,942 (OSHRC Docket No. 95-1671, September 30, 1999)
Responsibilities at Multi-Employer Worksites
Three workers died in a scaffold collapse at a 34-story condominium construction site in Miami, Florida, prompting an OSHA inspection that led to several citations in Access Equipment Systems, Inc. Access leases, sells and erects scaffolds. Although Access employees were not exposed to the hazardous conditions causing the collapse, the Commission held it responsible under the cited standard for creating the hazard to which employees of other companies at the construction site were exposed. In affirming this charge, the Commission reversed the ALJ's ruling. Originally, OSHA characterized the charge as willful, meaning committed with intentional, knowing, or voluntary disregard for the requirements of the job safety and health act. The Review Commission reduced this to a serious violation, primarily because of a lack of evidence to support a willful characterization, and assessed a $7,000 penalty. The Commission did find Access an employer in this case, seeing as its employees erected, dismantled, and configured the scaffold and came to the site on an "as needed" basis, so Access had a duty to protect the site because it was a "place of employment" of its employees. Two charges against Access dismissed by the ALJ were also rejected by the Commission. These involved the alleged failure to lock out or tag out, on or before the collapse, an elevated work platform involved in the accident, and the allegation that Access should have instructed employees of another company in the recognition and avoidance of unsafe conditions. "Lock out" or "tag out" is the placement of a device on equipment to guard against or warn about the unexpected energization or start up of machines or equipment, or release of stored energy, when servicing machinery. Access Equipment Systems, Inc., 18 BNA OSHC 1718, 1999 CCH OSHD¶31,821 (OSHRC Docket No. 95-1449).
In Fleming Construction, Inc., an employee suffered serious injuries when he fell approximately 25 feet while installing roof decking. The Review Commission and an ALJ found that the company providing construction management services at the worksite did not violate the cited standards. Fleming performed its services at a building under construction in Durango, Colorado under a contract with the building owner, the Bank of Durango. The injured worker was employed by the steel erection contractor. Fleming was cited for allegedly violating a standard requiring employers to instruct employees in recognizing and avoiding unsafe conditions and a standard requiring fall protection. Included in language in Fleming's contract was that it "recommend courses of action to the Owner" when a trade contractor failed to fulfill its contractual duties. The contract also stated that Fleming "shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work of each of the Contractors." The Review Commission, agreeing with the ALJ, found that Fleming did not control or direct construction activities or the implementation of safety measures to an extent sufficient to support a conclusion that it substantially supervised the performance of construction work at the site. Fleming Construction, Inc., 18 BNA OSHC 1708, 1999 CCH OSHD ¶31,809 (OSHRC Docket No. 97-0017 April 20, 1999).
An excavation collapse at Atlanta's Hartsfield International Airport, in which a worker was seriously injured, led to a willful citation and a $55,000 proposed penalty in Aviation Constructors, Inc. (ACI). Aviation Constructors, specialists in building airport facilities, had contracted with Delta Airlines to build a baggage conveyor tunnel, which required opening an excavation in a concrete surface. ACI then subcontracted with another firm to install a shoring system in the excavation. An employee of that other company, Pressure Concrete, Inc. (PCI), was hurt while working in the excavation. The Commission affirmed the ALJ in deciding that ACI willfully violated the standard designed to protect against excavation cave-ins because it did not obtain from its subcontractor a written analysis and approval of the shoring design by a registered engineer. The Commission, however, reduced the penalty to $20,000. Among the reasons for the reduction was the fact that the record showed that an engineer could not have predicted and taken into consideration the inadequate shoring of the excavation in this case. Aviation Constructors, Inc., 18 BNA OSHC 1917, 1999 CCH OSHD ¶31,933 (OSHRC Docket No. 96-0593, September 28, 1999).
Exposure to Air Contaminants
An employee making iron auto products breathed in too much silica, the Commission and one of its ALJs agreed in Ohio Cast Products, Inc.[2] The main issue considered by the Commission was how OSHA measured the overexposure to silica during its inspection of the manufacturing company's Canton, Ohio workplace. Affirming the ALJ, the Commission found that OSHA correctly compared the employee's exposure to silica to all respirable dust in the air, not just to pure silica, as the company had argued. Ohio Cast Products, Inc. 18 BNA OSHC 1912, 1999 CCH OSHD ¶31,926 (OSHRC Docket No. 96-0774, September 22, 1999).
When An Employer Ceases Operations
In a case emanating from the deaths of three workers, the Commission overruled one of its ALJs, who had dismissed the charges and proposed penalty because the employer went out of business. In Joel Yandell, d/b/a Triple L Tower, the Commission remanded the case to the judge to consider whether the alleged violations occurred and what amount of the proposed $238,000 in penalties would be assessed to the employer. All three of Yandell's employees were killed while engaged in erecting a cellular communications tower. The judge granted Yandell's pre-hearing motion to dismiss this case under the reasoning expressed in two other Commission decisions involving employers who were issued citations, who had ceased doing business prior to a hearing at the Review Commission, and whose cases had been dismissed. One circuit court overruled the Commission in one of those cases, and therefore, the Commission in this case re-examined its reasoning in dismissing citations and proposed penalties against businesses that have ceased operating. Here, the Commission determined that it must look at the employer's status at the time it allegedly violated the cited standards to determine liability, not at its status at the time of a hearing before the agency. The Commission therefore remanded the case to the ALJ to consider the merits of the allegations and proposed penalties. Joel Yandell, d/b/a Triple L. Towers, 18 BNA OSHC 1623, 1999 CCH OSHD ¶31,782 (OSHRC Docket No. 94-3080, March 12, 1999).
ADMINISTRATION
Agency Workload
The first step for all new cases is assignment to an ALJ. The agency received 2,106 new cases in FY 1998, compared to 2,324 in FY 1999. Not only did the judicial workload continue to increase quantitatively, the qualitative increase in the nature of the workload also continued, as more cases of a complex nature reached the Review Commission during this reporting period. Complex cases often demand greater portions of the ALJs' time. One measure of this complexity, proposed penalties exceeding $50,000, shows 235 such cases reached the agency in FY 1998; that figure rose to 290 by FY 1999, a 23 per cent increase. The Commission had expected that about 10 percent of the cases heard by its judges in FY 1999 would be complex.
The collaborative efforts of an agency team evaluating Review Commission business processes to improve case handling performance concluded that case complexity results from the existence of one or a combination of these factors:
- the intricacies of the law;
- the number of parties;
- the volume of documents, including transcripts;
- the large number of witnesses, which can include experts from such fields as engineering, architecture, construction, soil, physics, epidemiology, pathology, neurology and infectious diseases;
- the length of the trial;
- the large amounts of money involved; to date, the highest proposed penalty in a Review Commission case is $8.2 million, received during this reporting period;
- the number of alleged violations, items, and affirmative defenses; an affirmative defense occurs when an employer offers reasons why a violation may have occurred.
- the technical, novel, difficult or new job safety and health standards involved;
- the type of cases, such as those involving air pollution, asbestos, lead poisoning, tuberculosis, and ergonomics; and/or
- the extensive pre-trial discovery needed in the largest or most complex cases, including volumes of depositions and interrogatories, conferences, and numerous motions.
In FY 1998, when the Commission lacked a quorum for nearly 11 of 12 months, decisions made at the Commission level dropped to 13, from the 50 dispositions issued by the Commission in FY 1997. When the Commission lacks a quorum, that is, at least two members, cases cannot be decided; when there are two members, it is sometimes more difficult to reach agreements sufficient to dispose of a case. During FY 1999, when the Commission achieved a quorum for nearly nine months, 43 cases were disposed of at the Commissioners level; 42 percent of these dispositions occurred during the last three months of the fiscal year. 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 meant more complicated cases involving difficult technical issues and longer trials. In turn, higher proposed penalties boosted the likelihood that employers would vigorously resist them and the potentially costly corrective actions called for to abate safety or health hazards.
Re-engineering
Employers who receive job safety or health citations that include proposed penalties of $200,000 or more must participate in formal settlement talks under the new "settlement part" pilot program launched during FY 1998. The pilot supplements the agency's settlement judge procedure and will be evaluated after one year to determine if requiring litigants to appear before a settlement judge speeds resolution. When employers contest workplace safety citations, they are not required to correct (abate) allegedly unsafe conditions until the Review Commission issues a final decision; thus settlement often brings swifter correction of potential workplace hazards. The new settlement procedure provides for a negotiation period of 120 days and for a one-time, 30 day extension of that time at the ALJ's discretion. Settlement negotiations will be presided over by an ALJ who will not hear the case should the effort fail to resolve the issues. The Review Commission's Chief Administrative Law Judge may act as a settlement judge or appoint another ALJ to do so.
Along with efforts at improving case processing with the use of the new settlement part, the Review Commission embarked on additional steps to enhance case handling at its review level. Cognizant of the inherent problem of vacancies among the three Presidentially-appointed Commissioners that make case disposition sometimes impossible, Review Commission managers concluded that process improvements could remain on-going to aid in case dispositions whenever it had a quorum of two Commissioners or the full complement of three. These re-engineering changes place 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.
Office Closed
Regional offices existed in Atlanta and Denver at the close of FY 1999, as the Boston office closed on April 15, 1999, as part of a consolidation of regional operations. The principal and national office of the agency remained in Washington, D.C. The Review Commission ended FY 1998 with 65 employees, including 15 judges; at the end of FY 1999, those figures were 64 and 13, respectively.
Independent Audit
The FY 1998-1999 period brought an independent audit of the agency's financial statements to ensure compliance with applicable laws and regulations, including the Government Auditing Standards. The auditor's tests disclosed no instances in which the Review Commission's financial management systems did not substantially comply with applicable laws and regulations.
Government Performance and Results Act (GPRA)
The Review Commission continued to pursue the ambitious goals and objectives it set for itself under the GPRA. In FY 2000, it submitted its first annual report on agency performance to the Office of Management and Budget for FY 1999, as required by the GPRA. The report, available at http://www.oshrc.gov, details agency progress in achieving its objectives in the areas of public service, external communications, information technology, human resources and quality improvement. The Review Commission met and exceeded a number of its stated goals in providing superior service to its customers, stakeholders and employees. In those areas in which the agency fell short of its stated goals, it began taking targeted corrective actions to improve its performance, most notably in the area of case processing.
Training as a Priority
The Review Commission, at the end of FY 1999, began planning its first ever, all-employee training workshop, slated for the next fiscal year. This workshop will allow employees to participate in setting the direction for the agency, develop strategic plans for future action, and receive training in the areas to team building and quality management. Employee training in automation also remained a priority during these years to ensure that employees make the most effective use of automation in the delivery of service and realization of agency goals. Review Commission managers, supervisors and employees identified innovative training approaches, including the use of videotapes, the Internet, and teleconferencing, to strengthen and expand performance.
New Developments
Among the Review Commission's achievements in FY 1999 was its receipt of a Hammer Award for its E-Z Trial program. This award recognizes agency efforts at building government that works better and costs less. The E-Z Trial program, a method for hearing less complicated cases before Review Commission judges, employs fewer legal formalities than the conventional method of handling cases. E-Z Trial cases include 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 repeated violations, no fatalities, a hearing that is expected to take less than two days or a small employer appearing with or without an attorney.
This streamlined method of handling cases continued to yielded major improvements in case processing. In FY 1998, the typical E-Z Trial case that went to hearing was resolved in 162 days; in FY 1999, that number was 166 days. It is noteworthy that the 1999 case resolution figure, though slightly higher than the 1998 figure, was achieved at a time when the agency experienced the highest number of E-Z Trial hearings since the beginning of the program.
Establishment of a World Wide Web Site
In FY 1998 the Review Commission joined many other Federal agencies on the World Wide Web, at http://www.oshrc.gov. The site, which was receiving more than 10,000 hits per month by the close of FY 1999, provides the public with access to all final, substantive decisions of the agency, and includes agency procedural rules, guide booklets, agency budget, strategic plan and performance report, and Freedom of Information Act materials. The Review Commission's site also includes links to the sites of those states that conduct their own, Federally-approved job safety and health adjudication programs.
Job Safety and Health Decisions Available on Compact Computer Disk
The public received a new tool in FY 1999 for researching, reading, and printing Review Commission decisions, in the form of a CD-ROM. The publication, OSHRC Administrative Law Judge and Commission Decisions on CD ROM, is sold to the public through its publisher, the Government Printing Office. The first issuance in FY 1999 was a three-disk set covering agency final decisions issued from January 1993 through October 1998; it will be updated tri-annually. The new CD ROM replaces the publication of agency decisions on microfiche. It contains complete texts of all substantive agency decisions and a copy of the Adobe, Inc. Acrobat 3.0 Reader with Search. Copies of the disk will also be provided by GPO to municipal and university libraries that serve as depository libraries for U.S. government documents. Installation and user instructions are included with the CD-ROM.
Planned Publication
Agency teams worked on a new publication in FY 1999, "The Employee Guide to Review Commission Procedures," after receiving comments from the public that such a booklet would be useful. This new booklet is being designed as an easy-to-read publication to assist employees and their representatives in participating in agency adjudicative proceedings and should be available in the next fiscal year. It will explain in plain language how workers and their union representatives can have their views officially heard when the Review Commission decides cases involving alleged unsafe or unhealthy conditions in American workplaces.
1 Albemarle petitioned the United States Court of Appeals for the Fifth Circuit in Albemarle Corporation v. Alexis M. Herman, Secretary of Labor (5th Cir. No. 99-4409, 1999) The court had not reached a decision in this matter by the close of the fiscal year.
2 Ohio Cast Products petitioned the United States Court of Appeals for the Sixth Circuit for review of this decision in Ohio Cast Products, Inc., v. Alexis M. Herman, Secretary of Labor, United States Department of Labor (6th Cir. No. 99-4409, 1999). The court had not reached a decision in this matter by the year's close.
Appendix A
STATISTICAL HIGHLIGHTS, FISCAL YEARS 1996 AND 1997
|
|
1998
|
1999
|
|
New Cases Received
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2,106
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2,324
|
|
Cases Disposed of By ALJs after hearings
|
158
|
156
|
|
Cases Disposed of By ALJs without hearings
|
2,127
|
2,025
|
|
Cases Disposed of By Commissioners
|
13
|
43
|
|
OSHRC Cases Appealed to Circuit Courts
|
18
|
28
|
Appendix B
REVIEW COMMISSION MEMBERS AND CHAIRMEN
|
Name
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Chairman/Commissioner
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Began
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Ended
|
|
Robert D. Moran
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Commissioner
Chairman
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4/28/71
4/28/71
|
4/27/77
8/3/75
|
|
James F. VanNamee
|
Commissioner
|
4/28/71
|
4/27/75
|
|
Alan F. Burch
|
Commissioner
|
4/28/71
|
4/27/73
|
|
Timothy F. Cleary
|
Commissioner
Commissioner
Chairman
|
7/6/73
4/28/79
8/31/77
|
4/27/79
4/27/85
3/2/81
|
|
Frank R. Barnako
|
Commissioner
Chairman
Acting Chairman
|
8/1/75
8/5/75
3/3/81
|
4/27/81
8/30/77
4/27/81
|
|
Bertram Robert Cottine
|
Commissioner
|
5/1/78
|
4/27/83
|
|
Robert A. Rowland
|
Commissioner
Chairman
|
8/4/81
8/4/81
|
7/22/84
7/22/84
|
|
E. Ross Buckley
|
Commissioner
Chairman
|
1/4/84
8/9/84
|
4/27/89
4/27/89
|
|
Robert E. Rader
|
(recess) Commissioner
|
8/9/85
|
9/10/86
|
|
John R. Wall
|
Commissioner
|
8/9/85
|
4/27/87
|
|
Linda L. Arey
|
(recess) Commissioner
Acting Chairman
|
11/22/88
5/25/89
|
11/22/89
11/22/89
|
|
Edwin G. Foulke, Jr.
|
Commissioner
Chairman
|
3/1/90
3/1/90
|
4/27/95
2/22/94
|
|
Donald G. Wiseman
|
Commissioner
|
5/17/90
|
4/27/93
|
|
Velma Montoya
|
Commissioner
Commissioner
|
5/17/90
7/2/91
|
4/27/91
4/27/97
|
|
Stuart E. Weisberg
|
Commissioner
Chairman
(recess) Commissioner
|
2/23/94
2/23/94
12/23/99
|
4/27/99
4/27/99
Present
|
|
Daniel Guttman
|
Commissioner
|
4/12/96
|
11/13/97
|
|
Thomasina V. Rogers
|
Commissioner
Chairman
|
11/2/98
6/6/99
|
4/27/2003
Present
|
|
Gary L. Visscher
|
Commissioner
|
7/4/99
|
4/27/2001
|
Appendix C
[Organizational Chart]
Last Updated: March 27, 2003