05/14/2002
The NFIB Legal Foundation, which supports the rights of small-business owners in America's courtrooms, expressed its grave disappointment with the ruling handed down late last week by the U.S. 2nd Circuit Court of Appeals in the case of Chao v. Le Frois (Docket No. 00-4057). In its decision, the court sided with the Occupational Safety and Health Administration (OSHA), saying that the independent Occupational Safety and Health Review Commission lacked the power to consider the reasons a small business might miss a deadline in responding to a citation.
In July 2000, the NFIB Legal Foundation, joined by the Kitchen Cabinet Manufacturers Association, filed a brief defending the Commission's right to excuse late-filed contests of OSHA citations, and the right of conscientious employers to their day in court. In a highly unusual move, the 2nd Circuit asked the NFIB Legal Foundation to present oral arguments to expand on the small-business issues in NFIB's amicus brief.
"The Court's decision essentially guts the Review Commission," said Karen Harned, executive director of the NFIB Legal Foundation. "This Review Commission was established by Congress to protect the rights of small-business owners and others by acting as an autonomous, independent commission that can find for or against OSHA on the basis of individual complaints."
Chao v. Le Frois centers on a fine of $11,265 assessed by OSHA on a small employer, Russell B. Le Frois Builders, Inc., on May 14, 1998. A secretary for Le Frois picked up the citation with other mail from the post office, but it slipped unnoticed behind her car's seat on the way back to work. When the letter was later found, the company president immediately contacted OSHA to file an appeal. Even after the Occupational Safety and Health Review Commission - an independent adjudicative tribunal - found Le Frois' lateness excusable, OSHA refused to back down.
"Under this decision there is virtually no relief for any small business that for good reasons cannot respond to an OSHA citation within the agency's rigid 15-day timeframe," Harned said. "With the OSHA Review Commission rendered powerless by this court, there is no one to stand between small businesses and an agency with a long history of abusive use of its enforcement authority."
Harned vows that the NFIB Legal Foundation will continue to fight for small business in precedent-setting cases. "The court's decision is a loss not just for Le Frois, but for all small-business owners. The NFIB Legal Foundation will continue to fight for the rights of America's entrepreneurs," she said.
CONTACT: Michelle Dimarob, (202) 554-9000
