OSHA Appeals Board Issues on the Horizon

APRIL 12, 2017

OSHA’s appellate body — the Occupational Safety and Health Review Commission (OSHRC) — will be down to a single member, unless the Trump administration acts before April 27 when the current Chairman’s term expires.

OSHRC is an independent federal agency that decides contests of citations or penalties resulting from OSHA inspections of U.S. work places. The Commission functions as a two-tiered administrative court, with established procedures for conducting hearings, receiving evidence and rendering decisions by its Administrative Law Judges (ALJs) as well as discretionary review of ALJ decisions by a panel of Commissioners.

When fully functioning, OSHRC is comprised of a three-member panel that reviews ALJ decisions. Procedurally, the Commission needs at least two members for a quorum, and no final opinions can be rendered without a quorum. However, a single member can grant review of a case without a quorum.

If there is only one member remaining on the Commission, the practical result will be a case backlog, as the OSHRC can agree to hear the case, but it cannot then issue a decision.

Both employer and employee groups understand the importance of a fully-functioning Commission. The U.S. Chamber of Commerce and the AFL-CIO have voiced their support for President Trump to nominate a full complement of commissioners.

Employee representatives are concerned because there is no affirmative obligation for employers to abate a condition until OSHRC issues a decision, which has the practical effect of leaving the ALJ’s decision in limbo until the Commission weighs in.

Employers want to ensure there is an appropriate mechanism for review if an inappropriate citation is issued by OSHA.