Mr. NATCHER. We see that you now have a Chief Administrative Law Judge, who happens to be with you here today, Mr. Moran. What are his principal responsibilities?

Mr. MORAN. His principal responsibilities are the administrative operations of the agency. He also has to see to it that the judges get their assignments, that their workload is evenly distributed and processed expeditiously, and that the judges do what they are supposed to do within time limits which are reasonable.

Mr. NATCHER. How long on the average does it take one of your law judges to hear a case and issue a decision?

Mr. MORAN. Seven and one-half months.

MORE COMPLEX OSHA INSPECTIONS

Mr. NATCHER. On page 15 of the justification, you say that OSHA is conducting "more sophisticated inspections" in both the safety and health areas. What do you mean by "more sophisticated inspections," Mr. Moran?

Mr. MORAN. They are going into more detail and the fact situations are becoming more complex. For example, we are getting more noise cases where the allegations involve excess levels of noise in a plant, and these cases require many expert witnesses to testify as to the source of the noise and whether or not the noise, if shown to exceed permissible limits, can be feasibly brought within the levels permitted by the safety standards. We are also getting more cases involving toxic chemicals, which require expert witnesses. This is causing longer trials and more analysis of expert witness testimony and generally making the cases more complex than they have been in the past, where the only question was does a machine have a guard; is the fire extinguisher at the right height, something of that nature.

EMPLOYER CONTEST OF CITATIONS

Mr. NATCHER. In your experience what are the main reasons that an employer contests an OSHA citation?

Mr. MORAN. Because he doesn't think the charges are justified or he thinks the proposed penalty is too high.

REVERSAL OF OSHA DECISIONS

Mr. NATCHER. How often does the commission reverse the OSHA decision?

Mr. MORAN. Well, there are some full reversals and some partial reversals.

Let me put it this way. OSHA has been sustained totally in less than one-third of the cases.

AMOUNT OF PENALTIES ASSESSED

Mr. NATCHER. Is there an upper limit on the amount of penalty that can be assessed under the act?

Mr. MORAN. Yes. It falls into several categories. There is one for willful violation, one for serious and non-serious violations, and another for failure to abate a previously-cited violation.

Mr. NATCHER. So far, what has been the average amount of penalties assessed?

Mr. MORAN. I don't have that figure, Mr. Chairman.

Mr. NATCHER. We will let you place that in the record.

Mr. MORAN. All right, I will do that.

[The information follows:]

In all cases filed to date the average penalty proposed by OSHA was $557. In all cases decided to date the average penalty assessed by the commission was $307. It should be noted that each case generally includes a number of individual citations.

CHANGES IN BASIC LAW

Mr. NATCHER. Based on your experience, would you recommend any changes in the Occupational Safety and Health Act?

Mr. MORAN. Yes, I would, Mr. Chairman, but it would be very extensive and it would probably be academic, because I don't think there is any possibility of any changes.

Mr. NATCHER. Well, we would like for you to develop that for the record, if you will, please.

Mr. MORAN. I will do that, Mr. Chairman.

[The information follows:]

There are a number of legislative changes which, in my opinion, ought to be made in the Occupational Safety and Health Act of 1970. I shall summarize them as briefly as I can:

(1) The most needed change is to move the Occupational Safety and Health Review Commission (OSAHRC) from the executive branch to the judicial branch. This is essential if we are to preserve and protect the impartiality and independence of judicial decisions on disputed enforcement actions.

OSAHRC is the only agency in the executive branch which has no policymaking functions. Its one and only function is to decide cases. It performs no function that a court doesn't perform. Its continuance in the executive branch threatens to reduce its independence. OSAHRC must rule on disputes between the Secretary of Labor and employers-yet the Secretary of Labor has been allowed by the White House to decide who shall serve as a member of the commission. Labor Department officials have also attempted to interfere in the operations of the commission in other ways. It is only through 4 years of sheer obstinacy on my part, with help from judges and others, that our independence has been preserved nearly intact. I fear that OSAHRC will, in the future, come to be dominated by the Secretary of Labor if it is not moved to the judicial branch where it belongs.

There are many other reasons why this change would be beneficial. Some of them appear in the following Law Review articles: A Court in the Executive Branch: The Strange Case of the Occupational Safety and Health Review Commission, 20 Wayne Law Review 999-(July 1974)-; Parties to Proceedings in the Court of Appeals under the Occupational Safety and Health Act of 1970, 15 Boston College Industrial and Commercial Law Review 1089–(July 1974) —; and Discretionary Review by the Occupational Safety and Health Review Commission: Is it Necessary?, 46 Colorado Law Review 139-winter, 1974. OSAHRC is currently in the same anomalous position as the tax court was for many years prior to its transfer to the judicial branch in 1969. The same reasoning which caused Congress to move the tax court from the executive to the judicial branch applies in every respect for the Review Commission.

(2) The law should be changed in order to eliminate the members of the commission, leaving only the judges and their support staff in place. This would save $11⁄2 mililon a year, expedite the disposition of cases and not decrease the quality of justice one iota. The two-level system presently in effect-judges as one level and commission members as the other-is duplicative, unnecessary, delays decisions, and adds nothing to the final outcome of the cases. Such a twolevel system may well be justified in the Federal Trade Commission, Civil Aeronautics Board, Federal Communications Commission and similar regulatory bodies because the members of such boards and commissions set policy, grant

licenses, establish rates and have responsibility for enforcement of various laws. But OSAHRC can only adjudicate issues in dispute. The Secretary of Labor sets all policy under the Occupational Safety and Health Act and he alone has all enforcement and regulatory authority thereunder. Parties to OSHA litigation do not need two bites of the apple-one before the judge, a second before the commission members-prior to the time a case reaches the Circuit Court. The judges do excellent work and the members cannot improve on their dispositions-they must operate from the exact same record. Other reasons for such a change appear in the Colorado Law Review article cited above.

(3) If neither of the above two changes are made, the law should be amended to eliminate discretionary review of judges' decisions by commission members and substitute direct appeal therefor. Nearly one-third of all judges' decisions which have been ordered to be reviewed by the commission members to date were cases which were settled by the parties or where neither party desired any further litigation of the matter. To review-and change-such dispositions is an unnecessary exercise and can often be harmful. Yet nothing can prevent it if any commission members want to do it so long as the right to order review remains solely within the discretion of the members. The members should not have the right to act on a judge's decision unless one of the parties files an appeal from that decision.

(4) The judicial rights section of the law should be amended to clearly state the congressional intent that an employer who seeks relief from an action initiated against him by the Department of Labor's Occupational Safety and Health Administration (OSHA) will not be socked with an even higher penalty by the Review Commission. The commission was established to provide relief from improper enforcement actions by OSHA when such is justified. This has not always occurred since OSAHRC has, on a number of occasions, increased an OSHA penalty proposal. This suggested change was recommended in the December 1974 report of the House Subcommittee on Environmental Problems Affecting Small Business-H.R. 93-1608-and the reasons why such a change is desirable appear in 33 Federal Bar Journal 138-spring, 1974-an article entitled An Oversight of Penalty Increases and Adjudicatory Functions Under the Occupational Safety and Health Act of 1970.

(5) The law should be amended to guaranty employers who have disputed OSHA actions the right to withdraw from the case at any time prior to their hearing without subjecting themselves to any conditions except to do exactly what he would have had to do if he had not asserted his right to a hearing. A paperpushing practice has mushroomed at the commission which makes it difficult for anyone to withdraw from a case unless he has the services of a Philadelphia lawyer. No one should be penalized simply because he availed himself of his constitutional right to a hearing nor be subjected to a maze of government redtape which to some minds is cruel and abusive treatment and worse than any money penalty.

(6) The law should contain language which would insure that OSHA inspectors give the employer and employee representatives the right to accompany them on their inspections and that OSHA would issue their citations within 72 hours of the inspection in the absence of exceptional circumstances. Despite the fact that Congress put these requirements into the law, the commission has taken upon itself the power to eliminate them by ruling that the word "shall" (in secs. 8 and 9) is only directory.

(7) The law should be amended to eliminate the differences which exist be tween citations and so-called "notifications of failure to correct" which are issued under subsection 10(b) to an employer who allegedly has not complied with the abatement requirements of a citation previously issued to him.

When the Secretary of Labor proceeds against an employer under section 10(b), the act authorizes the assessment of penalties as high as $1,000 per day. yet there is no requirement that the process which initiates such action be issued with reasonable promptness as is required for citations issued under section 9, nor is there any requirement that the notification be posted in order to advise employees of the pendency of the action nor is there any statue of limitations or any requirement that the nature of the alleged violation be described with particularity. All of the foregoing apply to citations (sec. 9 of the act) and for citations there is an absolute maximum penalty specified in the law. There is even more reason why the same requirements should also apply to notifications issued under subsection 10(b) where there is no absolute maximum penalty.

(8) An amendment should be adopted which would provide that employers and employees who wish to dispute OSHA enforcement actions could do so by notifying the Commission directly instead of going through the local OSHA office as is now the case. This would help eliminate cases where the employer's letter of contest is misconstrued by the OSHA office or gets misplaced and it would give the employer and employees who dispute an OSHA action the confidence that their pleas for relief were being addressed to an independent adjudicatory agency-not to the very agency whose action they are disputing.

(9) The law should more clearly specify the congressional intent on jurisdiction (sec. 4(b) (1)). Many cases have been brought to OSAHRC and the courts of appeal where the issue concerns regulation by OSHA of businesses which are subject to the safety requirements of the Railroad Safety Act, the Motor Carrier Safety Act, the Wholesome Meat Act, and others. Many more will surely arise in the future. This is an important question which should be resolved by the Congress-not by OSAHRC or the courts.

(10) The State plan section of the act (sec. 18) should be either eliminated or amended so that uniformity in interpretation of the law would be possible. Currently, an approved State plan includes its own adjudicatory system. As a result a State can-and does-interpret the law differently than it is interpreted by the Federal Government. The exact same safety standards, and the law itself, have been interpreted by States with approved State plans so that what is a safe practice in one State is an unsafe practice in another and so that businesses which are covered by the law in one State are not covered by the law in another. These conflicts cannot be resolved by the Federal courts because the approval of a State plan makes the law and the OSHA safety standards a State law-and the highest court of a State is the final authority on that State's law (unless a Federal consitutional issue is involved). Consequently, we are gradually returning to the pre-OSHA situation of different safety practices in different States. This is not only an uneven situation so far as employees are concerned but it makes it very difficult for employers who do business in more than one State or who manufacture products for use in more than one State. 11. The law should be amended to authorize cited employers who have contested OSHA actions and been completely vindicated to recover from OSHA their costs for expert witnesses and attorneys' fees. Similar provisions exist in a number of laws enforced by the Environmental Protection Agency and others. Such a provision would tend to eliminate improvidently issued citations. Protection of this kind is needed because unlike criminal law practice, where a person cannot be charged unless the prosecutor gets an indictment from the grand jury, an employer can be cited for violating the Occupational Safety and Health Act by an OSHA area official who ordinarily does not consult a lawyer or anyone else prior to initiating the enforcement action. I am unfamiliar with any other law where an action can be initiated with so little advance consideration. If OSHA had to pay the employer's litigation costs when it failed to establish any violation, I believe the enforcement of the law would be better handled and it would partially make whole an employer forced to defend against an unwarranted action.

Mr. NATCHER. Mr. Roybal.

Mr. ROYBAL. I have only one question, Mr. Chairman.

NO ADDITIONAL SUPPORT STAFF

You are requesting three new positions at a cost of $103,821. Now, will it be necessary, then, to increase the staff of the Executive Secretary's Office?

Mr. MORAN. No; because we get more efficient every day, and we can handle an additional caseload with the existing personnel and existing equipment.

Mr. ROYBAL, But it will be necessary to get additional personnel to assist the three judges?

Mr. MORAN. No, it won't be. In my judgment we are a little bit overstaffed on clerical help. For instance, we have one office in New York where we have four clerical people and only two judges, so we can

add three more judges there without any additional changes in clerical.

Mr. ROYBAL. You know, I have been here 12 years, and this is the first time I heard anyone coming before our committee admitting that they are overstaffed. I can say that it has been a great day, and that I finally have heard everything now. I have been of the opinion for years that you were overstaffed. And whenever I brought it up, they looked at me as though it wasn't true. But I am glad to hear you say that.

Now, it would mean that you would be expanding the administrative law judge section but not the staff in general.

Mr. MORAN. That is right.

Mr. ROYBAL. That is all, Mr. Chairman. Thank you.

NOTIFYING EMPLOYERS OF RIGHTS

Mr. MICHEL. I would first like to applaud any efforts you have made to recognize the needs of small businessmen and the problems they often face in weeding their way through the bureaucratic machinery. The small businessman faces the same overzealous and arbitrary treatment from inspectors in many cases as does big business, but the undertaking of an appeal by him is usually a much more difficult process, since he doesn't have the resources or personnel available to accomplish this. You will continue to try to ease the appeal process for the small businessman, will you not?

Mr. MORAN. Yes. This has been a continuing effort with some successes and some set-backs. For the past 3 years, with the full support of all persons who have served as Commission members during this period, I have been trying to get Occupational Safety and Health Administration to distribute to each cited employer-at the time he is cited—a pamphlet explaining his rights under the act to contest the action against him. The concept and the wording of such a pamphlet was approved in 1972 by George Guenther, the then Assistant Secretary in charge of OSHA. However, it was not implemented by the time he left office in early 1973. I renewed the effort following the installation of his successor and, earlier this year, I received written assurances from both OSHA Assistant Secretary Stender and Under Secretary of Labor Richard Schubert that the plan would be implemented. However, it has not happened yet. Now Schubert has left office and there are indications that Stender will soon follow. Another delay for this plan therefore may occur. At one point I attempted to force action by OSHA by proposing as a procedural rule of the Commission that a citation must be accompanied by a notification to the cited employer of his appeal rights. However, I could not get a positive response to this proposal from either of the other members.

I would also like to eliminate pleadings from the open-and-shut cases where the only questions for disposition are the existence or nonexistence of the alleged violation and the amount of the penalty. Pleadings can be complicated-and tricky-for a nonlawyer. If I can get one other Commission member to agree with this concept, this simplification of procedures will be implemented,