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,

You correctly state the problem a small businessman must face when attempting to seek a just disposition of charges brought against him by the Labor Department. I fully share your concern and I assure you that I shall continue my efforts to eliminate all bottlenecks and red tape from the appeal processes under this law.

ADDITIONAL JUDGES

Mr. MICHEL. In one instance you indicate there will be no increase in staff, and in another, you indicate three new judges will be added to help handle the increased caseload? How do you correlate the two statements?

Mr. MORAN. Perhaps I didn't make myself as clear as I should have. In my own mind-and in our operations-I separate the judges from all other categories of employees. I have a tendency to refer to all nonjudges as "staff." To make it clear, therefore, let me put it this way: There will be no increase in the administrative staff. There will be an increase of three in the number of judges. The total employment increase therefore will be three.

PERCENT OF OSHA DECISIONS UPHELD

Mr. MICHEL. Of the cases on which a decision is rendered, what percentage have been decided in favor of the employer, and what percentage in favor of OSHA?

Mr. MORAN. The Department of Labor has fully prevailed in 15 percent of all cases disposed of by decision to this date. In the remaining 85 percent, the employer has fully or partially prevailed or the case was settled by mutual agreement of all parties.

TIME DELAYS

Mr. MICHEL. What is the average wait at present for a businessman who brings a case before you? Any prospects for reducing the waiting period?

Mr. MORAN. The answer to this question depends upon whether a member of the Commission exercises his discretionary-review authority under section 12(j). If this does not happen—and it has not happended in about 70 percent of the cases during the past year-the average waiting time from the filing of an objection to the OSHA action to the final disposition of the case is about 72 months. I think this is a reasonable time period but I am continually striving to reduce it even further. The additional three judges requested in this appropriation will help bring about an improvement in this waiting time. Now we come to the bad news. If a member of the Commission exercises his discretionary-review right within 30 days of the judge's decision, it will add another year and a half to the waiting time. Consequently, such a case will have a waiting time of about 2 years between the time the cited employer files his objection and the final disposition of the case. The prospects of reducing this horrible situation depends upon how long it takes the person selected to fill the existing

vacancy in the membership to make up his mind on each case-and how hard he, or she, works to get cases resolved. I have proposed in the past that the members set a time limit on their dispositions. For example, if the members have not disposed of the case within 3 or 4 months after one of them has directed discretionary review of a judge's decision, that judge's decision would be automatically affirmed. Unfortunately, I have been unable to get Commissioner Cleary or former Commissioner Van Namee to agree on placing any time limit on ourselves. However, I assure you that I shall again propose such a limit when a new member takes office and that I shall continue to work toward expeditious disposition of all cases.

Suggestions Nos. 1, 2, 3, and 8 of the legislative recommendations I made in response to Mr. Natcher's request would each effect more expeditious dispositions so Congress-as well as the members of the Commission-can do something to eliminate the unreasonable delays which are occurring in case dispositions. If the Commission members haven't dramatically improved this situation by the end of the year, it seems to me that legislative action is essential.

PRINTING COSTS

Mr. MICHEL. What accounts for the substantial reduction in printing and reproduction costs?

Mr. MORAN. We have introduced a number of cost-saving techniques into this process recently and we have more planned. It is necessary, as I am sure you realize, to reproduce a multitude of documents— briefs, decisions, complaints, answers, motions and other things so all the parties to a case and, in many instances, all judges, members, lawyers, reporting services and interested persons may keep up with developments. In the past we used Xerox machines for this. Several months ago we switched to a multilith process which does the same job at pennies per page less cost. This is a tremendous saving when multiplied by the number of pages reproduced. We have also cut down on the number of documents reproduced and have arranged for some costsaving changes in the printing of "OSAHRC Reports," the bound volumes of all decisions of the Commission which are printed and sold by the U.S. Government Printing Office.