Employee Guide to Review Commission Procedures

Section 3
Filing a Letter Electing Party Status

Any affected employee or union that files a notice of contest, as described in Section 2, is automatically a party to Review Commission proceedings.  Another way that you can participate in a case is by electing party status; this entitles you to the rights listed below.  You may elect party status if the employer has filed a notice of contest, but you have not.  If  an employer disagrees with any part of the OSHA citation--the alleged violation, the proposed abatement period, or proposed penalty--it may file a notice of contest with OSHA within 15 working days of receiving the citation.

Participation Rights of a Party

• Settlement. Because most cases before the Review Commission are settled without a hearing before the judge, if you become a party, you would be given an opportunity for input into a settlement.
   
• Copies of Documents. As a party, you will receive copies of the papers filed by other parties, the judge, or the Review Commission.
   
• Discovery. You may request information before the hearing from your employer or the lawyers for the Solicitor of Labor's Office as part of the discovery process.  They may also request information from you.
   
• Pre-hearing conference. If the judge holds a pre-hearing conference, you are entitled to take part.
   
• Hearing. You may participate at the hearing by presenting and questioning witnesses and by introducing other evidence.  You also may cross-examine witnesses called by the other parties.
   
• Brief. You may file a brief with the judge after the hearing, stating your arguments in writing.
   
• Review and appeal. If you do not agree with the judge's decision, you may ask the Review Commission to consider the case. This request is made by filing a petition for discretionary review for any of the reasons noted under the definition of this term on page 13.  If the Review Commission agrees to consider the case but issues a decision that you do not agree with, you may petition a U.S. Court of Appeals for judicial review.

Settlement Opportunities

Before filing a notice of contest, your employer may schedule an informal conference or engage in settlement discussions with the OSHA Area  Director. Such conferences or discussions do not delay the 15-working-day deadline for filing a notice of contest.  Your employer may schedule such a conference and may post a notice informing you of a conference.  Remember that most Review Commission cases are settled before the hearing, and a case may be settled at any time.

When a settlement agreement is reached, you will receive a copy if you are a party or authorized employee representative. Your employer will post a copy for non-party affected employees. You have 10 working days to file with the judge your written objection to the reasonableness of any abatement time specified in the agreement. See Rule 100(c).

Posting of Notices

After receiving your employer's notice of contest, the OSHA Area Director sends the notice of contest to the Review Commission.  The Review Commission then notifies your employer that the case has been assigned a docket number and sends a form that your employer must complete and return.  On the form your employer must certify that it has posted (at each place where the citation is required to be posted) its notice of contest and the Notice to Employees Regarding Safety and Health Citation, known as the notice to affected employees, which informs you of your right to participate in the proceedings if you file a letter requesting party status.  Your employer must also certify that it has mailed or personally delivered a copy of its notice of contest to any union representing affected employees.

How to Elect Party Status

To become a party when your employer has filed a notice of contest, you must write a letter to the judge assigned to the case or to the Review Commission stating that you are electing party status and want to participate in the case. See Appendix 3 (3A and 3B) for sample letters. You may elect party status until 10 calendar days before the hearing begins .  A letter electing party status filed less than 10 calendar days before the hearing is not effective unless you show there was a good reason for not filing on time.

Send your original letter by first class mail to the judge assigned to your case.  If you do not know his or her name and address, send your letter to:

Executive Secretary
U.S. Occupational Safety and Health Review Commission
1120 20th Street, N.W., Ninth Floor
Washington, D.C. 20036-3419

You must also send a copy of the letter by first class mail or personally deliver it to your employer, the lawyers in the Department of Labor's Solicitor's Office who are assigned to your case, and any other employee or union that has elected party status in the case. A certificate of service stating how and when the parties were served must accompany each document you file with the Review Commission or judge. See Appendix 4.

Conventional Proceedings or E-Z Trial

As a party to a Review Commission case, you should be aware that cases (when an employer files a notice of contest) are conducted under either Conventional Proceedings or E-Z Trial.  Conventional Proceedings are typical Review Commission proceedings which are similar to, but less formal than, court proceedings. See List 2 at page 10. E-Z Trial proceedings are less formal than Conventional Proceedings and are designed for smaller and relatively simple cases.  See List 3 at page 11. For more information about E-Z Trial, see the Guide to E-Z Trial Procedures.

Last Updated: March 27, 2003

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