If you have ever challenged an Occupational Safety and Health Administration (OSHA) citation or looked into the appeal process, chances are you have heard about the Occupational Safety and Health Review Commission (OSHRC). Basically the judicial branch of safety and health, the OSHRC is an independent federal agency with three commissioners appointed by the president. These individuals provide the administrative trial and appellate review for deciding contests of citations or penalties resulting from an OSHA inspection. Understanding the OSHRC’s role, the effect of its decisions, and how to get more information on its process and activities can be invaluable in your compliance efforts.

The process
The OSHRC process begins with an employer, employee (employees can only contest the abatement period) or union representative filing a formal notice of contest, which is sent to the OSHA area director where the citation occurred and then on to the OSHRC. The notice of contest is simply a statement that identifies the intent to contest the alleged violations, the specific abatement periods, and/or the penalties proposed by OSHA. The details should be described in a letter, along with a copy of the citation, which must be filed within 15 days of receipt of the citation being contested. An attorney is not required, but there are legal formalities that must be followed; therefore, legal representation is recommended.

OSHA offers an informal appeal, but it does not modify the deadline for the formal notice of contest. If the deadline is not met, the commission usually does not resolve the dispute. Citations must be corrected in accordance with the initial abatement schedule and all penalties paid. Employers must complete the informal process and submit their formal notice as needed within the 15 days. In addition, if there are multiple citations and only one is contested, all other citations are fully enforceable. The abatement deadline must be met, and the fine must be paid.

Upon receipt of the notice of contest, the executive secretary’s office of the OSHRC assigns a docket number and notifies the employer. An administrative law judge (ALJ) is assigned to the case, and a copy of the notification is sent to the employer with a preprinted postcard. The employer informs the employees and sends the card back, advising the executive secretary it has been done. The docket number must be on all documents from this point forward.

OSHA must also file a written complaint with OSHRC within 20 days of receipt of the notice of contest. Copies must be sent to the employer and any other involved parties, and the employer must answer the complaint within 20 days. The answer is a statement offering short, plain language denying allegations of the complaint that they wish to contest. It must be sent to OSHRC or judge, if one has already been assigned, and the secretary of labor.

Going forward, the process follows a typical judicial pattern. Both parties use “discovery” to obtain information on the case, and hearings are held to review evidence. Discovery methods allowed include written questions, oral statements under oath or depositions, requests for admissions, and requests for documents or objects associated with the inspection and citation. Parties must get the judge’s permission for depositions by filing a motion requesting them.

The hearings are held near the workplace, and all parties review a 30-day notice of location date and time. At the hearing, both parties present evidence on the issues raised in the complaint and answer questions. Witnesses are questioned and cross-examined by both parties. Only evidence that is reliable and relevant will be entered into the record. After hearing all evidence, the ALJ will render a decision. Parties may appeal the decision within 30 days. If no appeal is filed or the commissioner does not order review of a judge’s decision, it becomes a final order 30 days after the decision has been filed.

If the OSHRC wants a review for any reason, it will develop its own written decision. This will become the final order of the commission. A further appeal by any affected party can be made to a U.S. Court of Appeals.

The OSHRC also offers a less formal “simplified proceedings.” It is designed for small and less complex cases. The advantages are that this process costs less and minimizes the amount of time needed to resolve the case. Typically, this type of review is limited to cases where it is a simple issue of law or fact, the proposed penalty is less than $30,000, a hearing is expected to take less than two days, or it involves a small employer.

Affecting everyone
Regardless of which procedure is selected, any given issue an employer brings forward can have a far-reaching impact. It may not only affect the resolution of their citation and future with OSHA. It could also affect the industry or employers as a whole. The following are a few cases that were or continue to be a factor in OSHA enforcement and how employers address their safety and health responsibilities.

In 1997, OSHRC vacated a citation to Union Tank for failing to pay for metatarsal foot protection and welding gloves. OSHA had cited Union Tank based on a memo it issued in 1994 describing an employer’s obligation to pay for personal protective equipment (PPE). In the memo, OSHA stated that “for all PPE standards, the employer must both provide, and pay for, the required PPE, except in limited situations.” Specifically, OSHA looked at the personal nature of the equipment and its use by the employee off the job. The example noted in this case was that steel-toe safety shoes were personal and need not be paid for, but metatarsal foot protection was not and must be paid for by the employer.

The review commission denied the interpretation in the 1994 memo, finding that OSHA failed to “adequately explain the policy outlined in the 1994 memorandum in light of several earlier letters of interpretation from OSHA that it read as inconsistent with that policy.” As a result, OSHA proposed and promulgated a PPE standard clarifying responsibilities for payment.

Another significant decision involved the use of OSHA’s egregious penalties policy. Under this policy, OSHA cites an employer for each instance/employee in violation of a standard. For example, under the egregious policy, a separate citation would be given on a job site for every employee without a hard hat. In a case that started in 1998, Eric Ho was issued 11 citations for 11 workers whom he assigned to remove fireproofing at a building in Houston without telling them that it contained asbestos, without training them to remove it safely, and without providing them with protective clothing and respirators. OSHRC concluded that separate, per-employee penalties are appropriate only when the cited standard clearly prescribes conduct that is unique and specific to individual employees.

For example, it is proper to cite an employer with multiple penalties for each instance of failing to make a proper record-keeping entry on its OSHA injury and illness logs. On the other hand, such penalties are not permitted where a standard addresses a single work practice to protect against the exposure of multiple employees to a single recognized hazard. Citing on a per-employee basis for an employer’s failure to guard a roof perimeter is not appropriate.

The most significant decision of late is ongoing results from a case involving Summit Contractors Inc. The company was cited for failing to provide ground-fault circuit interrupter protection on equipment that was rented for use at a multiemployer construction work site. OSHA’s justification for the citation was that Summit was liable for controlling and creating the exposure of the hazard to the subcontractor’s employees. The citation was first contested before an administrative law judge to no avail. It was further contested to the full OSHRC, which also upheld the citation.

Summit appealed the decision to circuit court. The 6th, 7th, 8th and 10th Circuits have all upheld the general contractors’ liability under the multiemployer work site liability doctrine.

On Dec. 14, 2011, the District of Columbia Circuit Court joined the others by rejecting yet another appeal on the grounds that the decision was within OSHA’s jurisdiction. As a result, OSHA’s multiemployer workplace citation policy has been reaffirmed. General contractors are still being held accountable for safety violations that their employees may not have even committed. The multiemployer work site liability doctrine holds an employer and/or general contractor liable for violations that create or control a work site safety hazard. The rule applies to any employee exposed to the hazard, even if they are employed by a different employer.

Each of these cases demonstrates the capabilities of the OSHRC and should also stress the importance of being aware of the review commission’s actions. Decisions made in one case may relate to citations received by another employer. Searching the OSHRC website (www.oshrc.gov) for these decisions can provide insight into how OSHRC interprets OSHA’s application of its standards to a given situation. The website also provides procedural information needed for contesting a citation or abatement period. Guides on OSHRC procedures include sample complaints, answers, petitions for discretionary review, etc. Many of these documents can be filed electronically. E-file instructions also are available on the website. So, whether one is an employer or employee, a visit to OSHRC’s website can prove valuable.

O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 and [email protected].