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HR Solutions

Seventh Circuit Reverses OSHA Review Commission:

A Lesson in Administrative Law

---------------------------------------------------------

...And a Comment about the OSHA Website

04/14/06

When an employer is cited for safety violations after an OSHA hearing, it can either file a notice of contest to resolve the fines, or decline to pay and cause OSHA to file a complaint with the OSHA Review Commission.  Unlike the National Labor Relations Board, that conducts enforcement hearings "in house" before an Administrative Law Judge, hearings on OSHA violations are not conducted at OSHA, but before OSHRC, a separate agency.  Hearings are conducted before an ALJ, and thereafter may be appealed by an employer to a three-judge panel at OSHRC's headquarters in Washington.  Very few employers ever go through this extensive process, much less wind up in court.

 

In Elain Chao v. Gunite Corp., Case 4-4017 (March 2006) OSHA had cited a Rockford foundry for violating "permissible exposure limits" of airborne "respirable" silica.  Gunite's manufacturing process generates 400 tons of sand per hour, and OSHA tagged the company for failure to comply with its duty to meet the exposure limits through feasible engineering and administrative controls.

 

During the inspection, OSHA's air sampling demonstrated that during an eight-hour shift employees in four different jobs were exposed to 1.6 times the respirable silica limit.  Gunite objected to the ensuing citations, arguing that it was investing a lot of money and effort into a new system to alleviate the exposure.  It had also provided respirators to its workers.

 

The OSHRC hearing officer upheld the citations, prompting Gunite to take its case to OSHRC in Washington.  The Commission tackled a threshold issue: did OSHA prove that its standard would prduce a significant reduction in respirable silica?  OSHRC ruled that OSHA failed to meet this burden.  The use of respirators was sufficient.

 

OSHA appealed to the federal court of appeals here in Chicago.  When the Commission throws out a case brought by OSHA for failure to meet its burden, the court ruled, it has to explain how the failure occurred.  OSHRC was supposed to base its ruling on the substantial evidence in the record, read in its entirety.  "There must be an accurate an logical bridge between the evidence and the result,"  Judge Posner wrote.  Because OSHRC failed to do so, its ruling was reversed.

 

We must observe that the OSHA website, as a source of information about its procedure, leaves something to be desired.  If you want to get access to an explanation of the basic process you go through as an employer when an inspection occurs (and afterward) you won't find it easily.  As is obvious from its home page, OSHA is too busy lulling employers into a sense of complacency about "alliances," and reasonable  enforcement through partnerships, to show you how enforcement works in reality.