NFIB

Small Business Continues Its Fight for OSHA Review Commission Independence
11/19/2002

The NFIB Legal Foundation today filed an amicus curiae brief with the Occupational Safety and Health Review Commission, urging it to find in favor of Villa Marina Yacht Harbor, a small business in Fajardo, Puerto Rico. At issue is a citation Villa Marina received from the Occupational Safety and Health Administration (OSHA), and whether the Review Board has the power to consider Villa Marina's contest of the citation when that contest is excusably late.

Businesses have 15 working days to appeal OSHA citations. Because of an employee error, Villa Marina filed its contest two days late. The Review Commission has the power to consider contests of citations that are excusably late, but that power has been eroded by a recent court decision, Chao v. Le Frois Builders, Inc. The NFIB Legal Foundation also filed an amicus brief in Le Frois. In filing this brief, the Legal Foundation continues its fight to maintain the ability of the Review Commission to protect small business.

It is expected that the Review Commission will use Chao v. Villa Marina Yacht Harbor, Inc. to determine its authority to review late-filed notice of contests. Le Frois - decided by the 2nd Circuit - created a conflict with the 3rd Circuit and long-standing commission precedent, which says that the Review Commission could revisit excusably late contests to citations. This case may well be the means by which the Review Commission attempts to resolve that conflict.

"This case is an opportunity for the Review Commission to reassert its independence from OSHA as Congress intended when it created this commission," said Karen Harned, executive director of the NFIB Legal Foundation. "It is inconceivable that Congress would have left employers with no recourse whatsoever from uncontested citations. If the Review Commission cannot re-open cases within its jurisdiction, there's not much point to having an independent commission."

In its brief, the Legal Foundation argues that the 2nd Circuit got it wrong in Le Frois. As evidenced by long-standing precedent, the Review Commission has the authority under Rule 60 of the Federal Rules of Procedure to grant relief to a cited business because of excusable lateness. More importantly, the legislation creating the Review Commission states that it should operate under Rule 60, which expressly governs the re-opening of final judgments and orders.

"The Le Frois case was an attempt by OSHA to gut the authority of the Review Commission, which Congress created as an independent body to keep OSHA in check. Unfortunately, the 2nd Circuit broke with previous precedent to rule in OSHA's favor. Small business lost that round, but the NFIB Legal Foundation has not given up on a strong, independent Occupational Safety and Health Review Commission. By considering Villa Marina's excusable lateness in this case, the Review Commission can take back some of the independence that it lost in the Le Frois case," Harned concluded.

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The NFIB Legal Foundation is a 501(c)(3) organization created to protect the rights of America's small-business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. The National Federation of Independent Business (NFIB) represents the consensus views of its 600,000 members in Washington and all 50 state capitals. More information is available at www.nfiblegal.com.