03/05/2003
The NFIB Legal Foundation today expressed the disappointment of small business as the Occupational Safety and Health Review Commission unexpectedly failed to address whether it has authority to grant employers relief for excusable lateness in contesting OSHA citations. While the Review Commission's decision in Chao v. Villa Marina Yacht Harbor Inc. included statements indicating that they were interested in reasserting this authority, in the end they decided not to address the issue in this case.
"America's small businesses need the Review Commission to reassert its independence from OSHA as Congress intended when it created the Commission," said Karen Harned, executive director of the NFIB Legal Foundation. "The Commission should ensure that employers have the same right as any other party in litigation - the right to be excused from a default judgment if there is a good reason."
In Chao v. Le Frois Builders, Inc. in 2001, the U.S. 2nd Circuit Court of Appeals reversed longstanding precedent that the Commission has the authority under Rule 60(b) of the Federal Rules of Procedure to permit a cited business its day in court even though its contest of an OSHA citation was excusably late.
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. OSHA argued, however, that the Commission's authority was ambiguous and that it was, therefore, required to defer to OSHA's view that Rule 60 did not apply to late notices of contest. NFIB's brief asserted that the Commission did have the authority to invoke Rule 60 and that it owed OSHA no deference on questions of statutory interpretation.
The Review Commission declined to address the issue in Villa Marina even though it had asked both parties and the NFIB Legal Foundation (acting as amicus curiae) to submit briefs on this very topic. In the decision, Chairman W. Scott Railton specifically pointed to the NFIB Legal Foundation's brief for exposing the problems that OSHA's "hard-line position" against late-filed notices of contest were causing to small employers.
"While we are gratified that Chairman Railton expressed understanding of the problems small-business owners face in dealing with OSHA on late-filed notices of contest, we are disappointed that the Review Commission did not take this opportunity to re-assert its authority to review late-contested citations," Harned said. "We fully expect that when it does address the issue, the Commission will continue to be mindful of these problems and ensure that employers have the right to be excused from a default judgment if there is good reason."
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.
CONTACT: Michelle Dimarob, (202) 554-9000
