Monday, July 13, 2009

OSHRC

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.

11 comments:

  1. Give it up! A major goal in life is to change those things that can be changed and to recognize those things in life that cannot be changed. OSHA is an entity that at its basics cannot be changed. No real change that is; just frilly little details on the edges. Lost causes just consume your life and drain your energies. So I say again, Give it Up!

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  2. Bullshit. I remember being on an airline flight 35 years ago where people, including my father, were smoking. Now, most states have banned smoking in all public buildings. I remember when I was in college and drunk driving was considered just a part of what every college kid did. Today it's not so accepted.

    OSHA is not the same agency I join 20+ years ago. There is no question in my mind that OSHA can be changed, the question is what should be changed and how do we do it?

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  3. I joined OSHA 30+ years ago and I still stand by my comment.

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  4. Smoking laws changed because smokers imposed their will on non-smokers and non-smokers finally started saying enough is enough. Smokers still smoke regardless--- just ask Obama living in the WH.

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  5. Only comment I have is the OSHRC and its ALJs are not supposed to "be there" for employees or employers. They are supposed to be a neutral agency charged with reviewing contested OSHA citations and interpreting the law. Everything they do can be appealed to a federal court -- if they don't correctly follow the law, a federal appeals court will do it for them and make them look bad in the process.

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  6. It would be great if the OSHRC were neutral, but it never has been. Nor have the ALJs for that matter. As long as the OSHRC Commissioners (have you noticed that they are Commissioners, not judges?) are 5 year presidential appointments, neutrality will be an unrealized dream.

    If a commissioner's experience is that corporations are evil, they are going to vote towards employees. If their experience is that employees will cheat the company at every opportunity, they'll side with business.

    Remember two things, first, the commissioners rarely (if ever) come from the ranks of judges, they are usually from law firms or associations with party affiliations, and when their terms are up they usually end up at a law firm. Second, we are all the sum of our experiences, so we all tend to interpret things from our own points of view.

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  7. So is multi-employer still dead or is OSHA citing it?

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  8. I haven't done much construction recently, but I don't remember seeing a memo that says we can't cite multi-employer, and it's mentioned in the FOM, and the Directive is still up.

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  9. Multi-employer is not dead, not after the 8th Circuit reversed the OSHRC. When the OSHRC's decision was the law of the land for a little while, some offices kept insisting on citing multi-employer citations. Much to the dismay of the SOL attorneys who had to prosecute them.

    I keep hearing rumors that Summit Contractors has appealed (or is going to appeal) to the U.S. Supreme Court. Anyone hear or know anything more about this?

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  10. OSHA issued a final rule to address the HO case, see 73 FR 75568, and the Commission essentially overruled Ho (at least with respect to training violations) in the E. Smalis case.

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  11. RT, I haven't heard or seen anything on Summit.

    To the other commenter, thanks for the update.

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