OSHRC

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."... 

See Sununit Contractors, OSHRC Docket 03-1622 (2009) Munro Waterproofing, Inc., 5 OSHC 1522 (1977) Hopkins Erection Co., 5 OSHC 1034 (1977). 

Safety professionals should be aware that once the citation is issued, OSHA has the burden of proof to prove each and every alleged violation. The preponderance of the evidence standard is utilized in OSHRC hearings, and Rules of Evidence are utilized throughout. In short, OSHA must prove each and every element of each and every alleged violation. In preparing the defenses, safety professionals should be looking for deficiencies or lack of proof for each and every alleged violation. 

Safety professionals should provide legal counsel with written compliance programs, written safety policies, documentation of fair and consistent disciplinary action for violations, training and education documentation, as well as safety inspections, safety audits, and related documentation. Please be aware that some of the circuit courts require the defense of unpreventable employee misconduct to be plead as an affirmative defense prior to filing with the OSHRC. 

CIB W099 Conference 2011, August 24-26, Washington, DC, International Council for Research and Innovation in Building and Construction, www.oshrc.ictas.vt.edu/ CIB W099... 

OSHRC adjudicates disagreements resulting from citations issued to employers for noncompliance with OSHA standards. Employers may appeal decisions by OSHRC judges to the U.S. courts. 

This agency has a very similar role to OSHRC. Employers can appeal citations for violation of MSHA standards. Employers can appeal MSHRC decisions to U.S. courts. 

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... 

An employer who has general supervisory authority over the worksite. Including the power to correct safety and health violations itself or require others to correct them, can be said to have control. Control can be established by contract, or in the absence of explicit contractual provisions, by the exercise of control in practice. The courts accepted this interpretation in one form or another. (See Marshall V. Knutson Construction Co. [8th Cir., 1977], or Brennan v. OSHRC, [2nd Cir., 1975] for more information on this.) Eventually, OSHA s policy evolved to also provide for the citing of correcting and creating employers as well. 

A subcontractor whose employees are threatened by a hazard created and controlled by another subcontractor has only two options request the offending subcontractor to abate the hazard or request the general contractor to correct or direct correction of the condition. As a practical matter, the general contractor may be the only party on-site with authority to compel compliance with OSHA safety standards (decision, Briscoe). (Also see Anning-Johnson Co. v. OSHRC [7th Cir., 1975].)... 

The multiemployer doctrine is particularly applicable to multiemployer construction worksites. The nature of construction requires that subcontractors work in close proximity with one another and with the general contractor at the same worksite. In these situations, a hazard created by one employer could be seen as reasonably affecting the safety of other employers Bratton Corp. v. OSHRC [8th Cir., 1979]). Specific areas of expertise or job area responsibility may limit a subcontractor s ability to abate hazards posed to its own employees that may be created by another subcontractor, general contractor, or host employer IBP, Inc. v. Herman [DC Cir., 1998]). 

Peter J. Brennan, Secretary of Labor, Petitioner, v. OSHRC and Underhill Construction Corp., Respondents. 513 E2d 1032 (2nd Cir., 1975). 

One Lafayette Center 1120 20th Street NW, 9th Floor Washington, DC 20036-3419 (202) 606-5400 Fax (202) 606-5050 Website www.oshrc.gov E-mail lwgpo oshrc.gov... 

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. 

The notice of contest will be assigned to an administrative law judge by the OSHRC. Once the judge rules on the contest notice, further review by the OSHRC may be requested. If necessary, the OSHRC ruling can be appealed to the U.S. Court of Appeals. 

In summary, national consensus standards lack the force and effect of codified rules, which can only be promulgated after notice-and-comment rulemaking under the Administrative Procedures Act., 5 V.S.C. 551 et seq. And, as noted by the U.S. Court of Appeals mB B Insulation, Inc. v. OSHRC, et al., 583 F.2d 1364, 1367-1368 (5th Cir. 1978), the law requires only those protective measures which the knowledge and experience of the employer s industry would clearly deem appropriate under the circumstances. 

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