Occupational Safety and Health Review Commission

Whistle-Blower Provisional Statutes Enforced by OSHA 

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9610 

Wendell H. Eord Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121 

Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Refam and Consumer Protection Act of 2010, 12 U.S.C.A. 5567 

Section 402 of the FDA Food Safety Modernization Act (FSMA), P.L. 111-353 Regulations 

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OSHA s Area Director. The receipt of the letter starts a process to review the case by the Occupational Safety and Health Review Commission. 

Typically the OSHA Area Director approves and signs the citation that lists the violations, the seriousness of such violations, and propoi d penalty amounts. If the employee wants to discuss the citation and the alleged violations, he can request an informal conference to belter underetand the details. Should the employer choose to contest the citation, he has 15 days from the date of issuance of the citation to provide a notice of contest letter to OSHA s Area Director. The receipt of the letter starts a process to review the case by the Occupational Safety and Health Review Commission. 

As a result, the Occupational Safety and Health Review Commission was created to review the enforcement actions taken by OSHA. The National Institute for Occupational Safety and Health (NIOSH) was set up to research work place safety and health and to recommend standards to OSHA for controlling exposure to harmful and toxic substances. 

The Act regulates workplace safety at the Federal level. Responsibilities under the Act are distributed between the Department of Labor and the Department of Health and Human Services. The National Advisory Committee on Occupational Safety and Health was created to coca dinate activities between the 2 departments. The 12 members of this committee represent employees, employers, the public, and health and safety professionals. A 3-member Occupational Safety and Health Review Commission, comprised of presidential appointees, is empowered to settle disputes arising from enforcement of the Act. 

If, following the issuance of a citation and any protective orders, the chemical manufacturer, importer, or employer continues to withhold the information, the matter is referrable to the Occupational Safety and Health Review Commission for enforcement of the citation. In accordance with Commission rules, the Administrative Law Judge may review the citation and supporting documentation in camera or issue appropriate protective orders. 

The Occupational Safety and Health Act of 1970 (OSHAct) remains the primary federal vehicle for ensuring workplace safety and health in the United States. This law requires that employers provide a place of employment free from recognized hazards to employee safety or health. The critical word is recognized because today s workplaces have many new materials and processes for which hazard knowledge is absent. This places a large responsibility on the employer to keep abreast of new knowledge and information about workplace hazards for their operations. The OSHAct established three agencies to deal with workplace safety and health. These were the Occupational Safety and Health Administration (OSHA), the National Institute for Occupational Safety and Health (NIOSH), and the Occupational Safety and Health Review Commission. 

Whether or not the employer accepts OSHA s actions, the employee (or representative) has the right to contest the time OSHA allows for correcting a hazard. This contest must be tiled in writing with the OSHA area director within 15 working days after the citation is issued. The contest will be decided by the Occupational Safety and Health Review Commission. The Review Commission is an independent agency and is not a part of the Department of Labor. 

Associated with each citation is a proposed penalty. If the employer chooses to contest the alleged violations or proposed penalties, they first discuss it with the agency at a conference. If that does not lead to a solution, the case can be presented to an independent Occupational Safety and Health Review Commission (OSHRC). 

The Occupational Safety and Health Review Commission (OSHRC)— An... 

The Occupational Safety and Health Review Commission (OSHRC) initially addressed the employer-employee relationship shortly after the OSH Act was enacted in the case titled Gilles v. Cotting, Inc. In this case, two employees of the primary contractor were killed in an accident created by and resulting from the actions of a subcontractor. OSHA issued one citation to the primary contractor and one citation to the subcontractor. OSHA subsequently vacated the citation to the primary contractor, finding the citation was improper and would impose liability outside the employment relationship. Over the years, the OSHRC, as well as the various federal Circuit Courts of Appeal, has addressed this issue primarily in the construction area, with focus on creation of the hazard and control of the hazard. In recent decisions and with the inception of the multiemployer woiksite rule, the scope of the duty to safeguard employees at the worksite has been substantially expanded."... 

The types of citations and penalties that may be proposed by the Occupational Safety and Health Administration (OSHA) are from the OSH Act and are listed below. An organization has 15 working days from receipt of the citations and proposed penalties to either elect to comply with them, to request and participate in an informal conference with the OSHA area director, or to contest them before the independent Occupational Safety and Health Review Commission. 

Special organizations hear complaints about enforcement of particidar federal regidations. Upon appeal, some complaints may proceed to district or circuit courts. The Occupational Safety and Health Review Commission hears employer appeals of OSHA citations. The Mine Safety and Health Review Commission has a similar function. 

The OSHAct also created the National Institute of Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Review Commission (OSHRC). NIOSH operates within the Department of Health and Human Services (HHS) under the Centers for Disease Control (CDC) to develop occupational safety and health standards for recommendation to the Secretary of Labor and the Secretary of HHS, and to fulfill the research and training functions of the Secretary of HHS. It is headquartered in Washington, DC, but carries out many of its functions at its facilities in Cincinnati, Ohio, and Morgantown, West Virginia. It also works through contracts with more than 15 Education and Research Centers and over 40 Training... 

The Occupational Safety and Health Review Commission is an independent and autonomous quasi-judicial board charged with hearing cases on appeal from OSHA. The president, with the advice and consent of the Senate, appoints its three members. It meets periodically to review cases on appeal. Once the commission hears a case, if either party is dissatisfied, it may appeal through the federal appeals court system. 

Bratton Corporation, Petitioner, v. Occupational Safety and Health Review Commission, and Ray Marshall, Secretary of Labor, Respondents. 590 F.2d 273 (8th Cir., 1979). 

The adequacy of employee training may also become an issue in contested cases where the affirmative defense of unpreventable employee misconduct is raised. Under case law, well-established in the Occupational Safety and Health Review Commission and the courts, an employer may successfully defend against an otherwise valid citation by demonstrating that all feasible steps were taken to avoid the occurrence of a hazard, and that actions of the employee involved in the violation were a departure from a uniformly and effectively enforced work rule, of which the employee had either actual or constructive knowledge. 

ROLE OF THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION (OSHRC)... 

The Occupational Safety and Health Review Commission (OSHRC) was established, when the OSHAct was passed, to conduct hearings when OSHA citations and penalties are contested by employers or by their employees. 

Citations and notices will arrive by certified mail and should be posted at or near the area where the violation occurred for at least 3 days or until abated, whichever is longer. Any notice of contest or objection must be received in writing by the OSHA area director within 15 days of receipt of any citations. The area director will forward the notice of contest to the Occupational Safety and Health Review Commission (OSHRC). It is also a good idea to request an informal meeting with the area director during the 15-day period. 

Occupational Safety and Health Review Commission—The branch of the federal government under the Department of Labor that oversees occupational safety and health litigation decisions. 

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