OCCUPATIONAL SAFETY AND HEALTH REVIEW

COMMISSION

WEDNESDAY, FEBRUARY 11, 1976.

WITNESSES

FRANK R. BARNAKO, CHAIRMAN

GUY T. MOORE, EXECUTIVE DIRECTOR

CHARLES K. CHAPLIN, CHIEF ADMINISTRATIVE LAW JUDGE
W. SCOTT RAILTON, CHIEF COUNSEL TO THE CHAIRMAN

PAUL R. WALLACE, COUNSEL TO THE COMMISSION

LARRY A. HOSS, BUDGET AND FINANCIAL OFFICER

Mr. FLOOD. This presentation will be made by Frank Barnako, the Chairman, and we have a biographical sketch.

[The biographical sketch of Mr. Barnako follows:]

FRANK R. BARNAKO

Born: Easton, Pa., August 2, 1912.

Education: Easton, Pa., public schools; graduate of Lafayette College, class of 1933, A.B.; University of Michigan Law School, class of 1936, J.D.

Professional experience: Practice of law in Easton, Pa., 1937 to 1942; employed by Bethlehem Steel Corp. in 1942 in the Compensation and Safety Division, Industrial and Public Relations Department; appointed assistant manager of the division in January 1947; appointed manager of the division in January 1951 (name of division changed to Safety and Workmen's Compensation Division, Industrial Relations Department-in 1970); retired from Bethlehem Steel Corp., July 31, 1975.

Affiliations:

Safety. Board of directors, Lehigh Valley (Pennsylvania) Safety Council; board of directors, National Safety Council; National Safety Council, vice president-finance, member-board of directors, finance and executive com

mittees.

Professional.-American, Pennsylvania, Northampton County Bar Associations and Federal Bar Association.

Affiliations: Prior to July 31, 1975

Committee on Safety, American Iron and Steel Institute.
American Society of Safety Engineers.

Certified safety professional.

Mine Safety and Health Committee of American Mining Congress. National Advisory Committee on Occupational Safety and Health (July 1, 1971-June 30, 1975).

Board of Managers, Self-Insurers Associations in the States of New York and Pennsylvania.

Advisory Committee for Self-Insurance of the State of New York.

Chairman, Workmen's Compensation Committee, Pennsylvania State Chamber of Commerce.

Health and Safety Committee, National Association of Manufacturers. General

Advisory Board: Minsi Trails Boy Scout Council (Allentown, Bethlehem, and Easton, Pa.), past president and vice president for exploring.

Board of directors: Greater Bethlehem Savings and Loan Association, resigned, July 31, 1975.

Member Bethlehem Club, Bethlehem, Pa.

Member Saucon Valley Country Club, Bethlehem, Pa.

Married to the former Madeline Stoddard. Children: Frank, Jr., age 32, married and living in Great Falls, Va.; Andrea (Mrs. Thomas L. Cain), age 28, living in Macon, Ga.

Listed in: "Who's Who in the East."

Mr. FLOOD. You have some people with you.

Mr. BARNAKO. Larry Hoss, our Budget and Financial Officer. Next to him is Mr. Guy Moore, Executive Director. On my left is Charles Chaplin, our Chief Judge. And in back I have Paul Wallace, who is Counsel to the Commission, and Mr. Scott Railton, Chief Counsel to the Chairman.

Mr. FLOOD. If any of these people volunteer and you call them, we would like a short biographical sketch. I see you have a very brief

statement.

STATEMENT OF THE CHAIRMAN

Mr. BARNAKO. I would like it inserted in the record. [The prepared statement of Mr. Barnako follows:]

This is my first appearance before this committee and I appreciate the opportunity to present for your consideration the fiscal year 1977 appropriation request in the amount of $6,280,000 for the Occupational Safety and Health Review Commission. This request represents an increase of $642,000 and six positions over the funds thus far approved by the Congress for fiscal year 1976.

The detail of the changes in funding requirements are explained in the submission before you. I will confine my remarks to certain significant increases and decreases, and will, of course, answer any questions you may have on any aspects of the appropriation request.

I have observed the operation of the Review Commission from two vantage points as a professional and administrator for many years in the field of safety and health in industry, and as its Chairman since August 1975. From both viewpoints there is an obvious need to improve the decisionmaking structure and procedures of the Commission. There is no question that occupational safety and health cases, because they can literally involve life and death issues, must be resolved as quickly and fairly as possible. When Congress decided to establish an autonomous Review Commission, these two goals were equally emphasized. The backlog of Commission cases, those directed for review, at the end of fiscal year 1975, which was shortly before I assumed my duties as Chairman, was 466 cases. During fiscal year 1975, 396 cases were directed for review and only 298 cases were decided. Obviously, if this trend were to continue, the backlog of cases could rise to uncontrollable levels. Furthermore, the average elapsed time from receipt of notice contest to Commission decision was 705 days for the cases decided in fiscal year 1975. During the first 6 months of this fiscal year, it improved by almost 10 percent to 638 days. Ways to significantly improve the time are now under study for fiscal year 1977 and others have been implemented.

This appropriation request is premised on: (1) no increase in backlog in Commission cases in fiscal year 1976, and (2) greatly reducing the backlog by the end of fiscal year 1977. The following policies and procedures are now being implemented to achieve these objectives. A majority of the commissioners has agreed that, subject to individual discretion, review on his own initiative should not be considered unless one of the parties petitions for it. This will significantly reduce the number of cases entering the review process if adhered to.

One of the first actions I directed as Chairman was to require regular meetings of the three commissioners to decide cases. Under the former system, each Commissioner wrote a proposed decision on cases he had called. Then he would circulate it to the other two who would consider and decide to join in it, concur, revise or react in some other way. There were no established time limits and the case backlog continued to grow.

Since August we have met regularly, usually weekly and through January 1976 we have rendered decisions on 303 cases. This is greater than the total number of cases decided in all of fiscal year 1975. We have increased the productivity of the Commission from about 27 decisions a month during the first 7 months of calendar year 1975 to over 50.

Our weekly meetings have a strict agenda with cases chosen with particular emphasis on age. The great preponderance of cases awaiting placement on an agenda are now under 1 year old. Once a decision has been reached it is assigned for writing with a 2-week target for completion. If there are concurring or dissenting opinions, we try to get them written within a short period after the lead

opinion is finished. I have already stated that one of my primary objectives for fiscal year 1977 was to greatly reduce the backlog of cases. Because of the recent increase in the number of Commission decisions, we have far exceeded the decision writing capacities of the commissioners' staffs. I am concerned we may have to reduce the rate at which we are deciding cases in order to permit them to catch up and then to stay current. Because of this I am requesting six additional attorney positions to expand our case preparation and decision writing capacities.

Our current system is by no means prefect. I hope to make changes to improve Commission efficiency that are consistent with the exercise of our responsibilities and duties under the act. We owe that service to everyone actually involved in the cases and to the many more affected by our decisions in them.

No increase in the number of administrative law judge positions is requested in spite of an estimated 4-percent increase in workload. We hope to avoid any increase in backlog and elapsed time through increases in administrative law judge productivity. The number of cases pending with the administrative law judges at the end of fiscal year 1975 was 952. This request is premised on reducing the backlog to 782 at the end of fiscal year 1976 and to 724 at the end of fiscal year 1977. The average elapsed time from receipt of notice of contest to administrative law judge report was 282 days in fiscal year 1975. During the first 6 months of fiscal year 1976, it improved by 17 percent to 233 days and further improvement is our goal for fiscal year 1977.

The request shows a decrease in printing of $85,000 as a result of discontinuing the publication of the OSAHRC reports in printed volumes. About 10 of these bound volumes have been issued each year and made available to the public through the Government Printing Office at a cost of about $100 per year. The cost to the Commission has been running at about $300,000 per year including Government Printing Office printing costs, computer costs to maintain the index and staff time. This does not include the costs incurred by GPO for the printing of these volumes for the Federal Depository Libraries. We are advised by GPO that there are only about 50 regular subscribers to the OSAHRC reports and about 50 of each volume have been sold at the GPO bookstores. It was essential, therefore, that the Commission find more cost-effective methods for making the decisions available to the public.

In cooperation with the Government Printing Office we are planning to utilize a microfiche system to publish all administrative law judge and Commission decisions at a cost of less than $2,500 per year to this agency. The microfiche system would be responsive to the needs of the Federal Depository Library system and wou'd be made available to the general public for purchase through the Government Printing Office in a significantly more timely and less costly manner. It is estimated that an annual subscription would cost less than $20 per year plus the cost of a one-time purchase of a microfiche reader. We recognize the importance of keeping the public informed of our actions. Please let me assure you that we will take the necessary steps to carry out this responsibility as economically as we can.

Mr. Chairman. I view the mission of the Occupational Safety and Health Review Commission to be that of making an important contribution to the reduction in the number and severity of job-related injuries, illnesses, and fatalities. I commit myself, as Chairman and therefore responsible for the administration of the Commission, to carry out this mission as effectively as possible.

That is my statement. My associates and I are here to answer your questions. Mr. FLOOD. How long have you been on board?

Mr. BARNAKO. Since August 1, 1975, and Chairman since August 5, 1975.

TERM OF OFFICE

Mr. FLOOD. How long is your term of office?

Mr. BARNAKO. Six years.

Mr. FLOOD. Who are the other Commissioners?

Mr. BARNAKO. Robert Moran and Timothy Cleary. Mr. Moran's term expires in April 1977 and Mr. Cleary's in April 1979.

Originally when the Commission was established in April of 1971, there were 2-, 4-, and 6-year terms. After that they were all 6-year

"ms.

MOST SERIOUS PROBLEM AREAS

Mr. FLOOD. You mentioned your main priorities in your statement. What are the most critical problems right now, this morning?

Mr. BARNAKO. The backlog of cases, and this is the same problem as when I was appointed. While the Commissioners have decided 337 cases since August 1, 1975, the problem is how to cut even more into that backlog. A greater problem now is staff time to write the decisions. When I say we have decided cases, I mean that we three have met and have agreed as to how the decision is going to come out. We are now backlogged at the staff level in writing decisions. Productivity is another problem. We have increased that over the past several months, and I hope to increase it more.

CENTRAL REVIEW STAFF

Mr. FLOOD. What about your central review staff?
Mr. BARNAKO. There are 10 people on this staff.
Mr. FLOOD. What do they do?

Mr. BARNAKO. When an administrative law judge report is filed, it goes to the review staff which prepares a memorandum showing the basic issues and the basis for the ALJ report. After the review memorandum is written, it is circulated to each of the Commissioner's staffs. The Commissioner's staffs then review that memorandum and the case file including the record. The staff then prepares a full memorandum for their Commissioner who studies it with the file. At Commission meetings then, we discuss the case and vote on a decision.

OSHA DECISIONS UPHELD

Mr. FLOOD. Does the Review Commission usually go along with the original OSHA decision?

Mr. BARNAKO. A sample of cases in 1975 indicates 81 percent of the citations were upheld by the Commission or the law judge. In 6 percent of those cases, the penalty had been modified.

WORKLOAD ESTIMATES

Mr. FLOOD. Your workload estimates for the Commission on page 12 of your justifications seem to be a little bit optimistic to us. In the first 6 months of the current fiscal year now, you say that 22 percent of the administrative law judges' decisions were directed for review by one of the Commissioners.

Tell us again how you plan to get that down to 10 percent during fiscal 1977.

Mr. BARNAKO. Well, it must be with the cooperation of all three Commissioners. In other words, if we continue to call only cases in which a petition for review is filed, with the exception of where a Commissioner believes there is a very important question of policy or law, we can probably do it. I agree it is optimistic, but I am optimistic by nature, I guess.

Mr. FLOOD. Well, be realistic. Do you really think you can cut that case backlog by half?