I was perusing the Whitehouse.gov list of nominations the other day, just to see where the department stood in terms of unfilled appointments, when I noticed that Thomasina Venese Rogers was named to Chair of the OSHRC. I don't follow the OSHRC closely, but Ms. Rogers has been been the Chair before and has been on the Commission since 1998, having been appointed by both President Clinton and President Bush. The site All Gov has a short bio of her.
It seems that she has been on our side of two big cases, both of which we lost. The first was Ho Ho Ho Express, Inc., a case that is somewhat infamous within OSHA for how callous Mr. Ho was towards his migrant employees. The OSHRC ruled against us and eliminated part of the egregious citations, and the 5th Circuit Court of Appeals upheld the Commissions decision. Since then, we have apparently begun rulemaking to address those rulings.
The second case was Secretary of Labor v. Summit Contractors, Inc., which was a case involving multiemployer worksites, specifically our ability to cite a general contractor when they didn't have any employees exposed. The OSHRC ruled against us and vacated the citations, but the 8th Circuit Court of Appeals overturned that decision earlier this year.
I'm mentioning Ms. Rogers because she dissented in both of those case and I think they both demonstrate the impact that ALJs and the OSHRC have on our jobs. Do you remember the good old days of ergonomics, before the Beverly decision? For those unfamiliar with Beverly, the judge in that case basically ruled that back injuries aren't serious injuries so OSHA couldn't cite an employer for ergonomic issues under 5(a)(1). Even though the OSHRC overturned the judges ruling, ergonomic enforcement has never been the same. The same could have happened for multiemployer worksites.
My point is that sometimes factors outside of OSHA can have more impact on our enforcement activities that the Secretary or Assistant Secretary. I think that appointments like Ms. Rogers are every bit as important as that of Assistant Secretary, but it's something that gets overlooked by most of us at OSHA, and most of those in the S&H field in general.
Let us hope that future appointments to the OSHRC will help employees, not hurt them.