29 U.S.C. § 660 — Judicial review

Page 175 TITLE 29—LABOR § 660 scribe with particularity the nature of the viola- tion, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate re- lationship to safety or health. (b) Posting Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred. (c) Time for issuance No citation may be issued under this section after the expiration of six months following the occurrence of any violation. (Pub. L. 91–596, § 9, Dec. 29, 1970, 84 Stat. 1601.) § 659. Enforcement procedures (a) Notification of employer of proposed assess- ment of penalty subsequent to issuance of ci- tation; time for notification of Secretary by employer of contest by employer of citation or proposed assessment; citation and pro- posed assessment as final order upon failure of employer to notify of contest and failure of employees to file notice If, after an inspection or investigation, the Secretary issues a citation under section 658(a) of this title, he shall, within a reasonable time after the termination of such inspection or in- vestigation, notify the employer by certified mail of the penalty, if any, proposed to be as- sessed under section 666 of this title and that the employer has fifteen working days within which to notify the Secretary that he wishes to con- test the citation or proposed assessment of pen- alty. If, within fifteen working days from the re- ceipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed as- sessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) within such time, the cita- tion and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency. (b) Notification of employer of failure to correct in allotted time period violation for which ci- tation was issued and proposed assessment of penalty for failure to correct; time for no- tification of Secretary by employer of contest by employer of notification of failure to cor- rect or proposed assessment; notification or proposed assessment as final order upon fail- ure of employer to notify of contest If the Secretary has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the pe- riod permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in the case of any re- view proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties), the Secretary shall notify the employer by certified mail of such failure and of the penalty proposed to be assessed under section 666 of this title by reason of such failure, and that the employer has fif- teen working days within which to notify the Secretary that he wishes to contest the Sec- retary’s notification or the proposed assessment of penalty. If, within fifteen working days from the receipt of notification issued by the Sec- retary, the employer fails to notify the Sec- retary that he intends to contest the notifica- tion or proposed assessment of penalty, the noti- fication and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency. (c) Advisement of Commission by Secretary of notification of contest by employer of cita- tion or notification or of filing of notice by any employee or representative of employ- ees; hearing by Commission; orders of Com- mission and Secretary; rules of procedure If an employer notifies the Secretary that he intends to contest a citation issued under sec- tion 658(a) of this title or notification issued under subsection (a) or (b) of this section, or if, within fifteen working days of the issuance of a citation under section 658(a) of this title, any employee or representative of employees files a notice with the Secretary alleging that the pe- riod of time fixed in the citation for the abate- ment of the violation is unreasonable, the Sec- retary shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing (in accord- ance with section 554 of title 5 but without re- gard to subsection (a)(3) of such section). The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance. Upon a showing by an em- ployer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Sec- retary, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement require- ments in such citation. The rules of procedure prescribed by the Commission shall provide af- fected employees or representatives of affected employees an opportunity to participate as par- ties to hearings under this subsection. (Pub. L. 91–596, § 10, Dec. 29, 1970, 84 Stat. 1601.) § 660. Judicial review (a) Filing of petition by persons adversely af- fected or aggrieved; orders subject to review; jurisdiction; venue; procedure; conclusive- ness of record and findings of Commission; appropriate relief; finality of judgment Any person adversely affected or aggrieved by an order of the Commission issued under sub- section (c) of section 659 of this title may obtain a review of such order in any United States court of appeals for the circuit in which the vio- lation is alleged to have occurred or where the Page 176 TITLE 29—LABOR § 660 employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit, by filing in such court within sixty days fol- lowing the issuance of such order a written peti- tion praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Commission and to the other parties, and there- upon the Commission shall file in the court the record in the proceeding as provided in section 2112 of title 28. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or re- straining order as it deems just and proper, and to make and enter upon the pleadings, testi- mony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. The commence- ment of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the Commission. No objec- tion that has not been urged before the Commis- sion shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the fail- ure to adduce such evidence in the hearing be- fore the Commission, the court may order such additional evidence to be taken before the Com- mission and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of addi- tional evidence so taken and filed, and it shall file such modified or new findings, which find- ings with respect to questions of fact, if sup- ported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modifica- tion or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28. (b) Filing of petition by Secretary; orders subject to review; jurisdiction; venue; procedure; conclusiveness of record and findings of Commission; enforcement of orders; con- tempt proceedings The Secretary may also obtain review or en- forcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office, and the provi- sions of subsection (a) shall govern such pro- ceedings to the extent applicable. If no petition for review, as provided in subsection (a), is filed within sixty days after service of the Commis- sion’s order, the Commission’s findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the Secretary after the expiration of such sixty- day period. In any such case, as well as in the case of a noncontested citation or notification by the Secretary which has become a final order of the Commission under subsection (a) or (b) of section 659 of this title, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such decree to the Sec- retary and the employer named in the petition. In any contempt proceeding brought to enforce a decree of a court of appeals entered pursuant to this subsection or subsection (a), the court of appeals may assess the penalties provided in sec- tion 666 of this title, in addition to invoking any other available remedies. (c) Discharge or discrimination against employee for exercise of rights under this chapter; pro- hibition; procedure for relief (1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or be- cause of the exercise by such employee on behalf of himself or others of any right afforded by this chapter. (2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this sub- section may, within thirty days after such viola- tion occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appro- priate. If upon such investigation, the Secretary determines that the provisions of this sub- section have been violated, he shall bring an ac- tion in any appropriate United States district court against such person. In any such action the United States district courts shall have ju- risdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or rein- statement of the employee to his former posi- tion with back pay. (3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection. (Pub. L. 91–596, § 11, Dec. 29, 1970, 84 Stat. 1602; Pub. L. 98–620, title IV, § 402(32), Nov. 8, 1984, 98 Stat. 3360.) Editorial Notes AMENDMENTS 1984—Subsec. (a). Pub. L. 98–620 struck out provision requiring expeditious hearing of petitions filed under this subsection. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, Page 177 TITLE 29—LABOR § 661 1 So in original. Probably should be ‘‘An’’. set out as a note under section 1657 of Title 28, Judici- ary and Judicial Procedure. § 661. Occupational Safety and Health Review Commission (a) Establishment; membership; appointment; Chairman The Occupational Safety and Health Review Commission is hereby established. The Commis- sion shall be composed of three members who shall be appointed by the President, by and with the advice and consent of the Senate, from among persons who by reason of training, edu- cation, or experience are qualified to carry out the functions of the Commission under this chapter. The President shall designate one of the members of the Commission to serve as Chairman. (b) Terms of office; removal by President The terms of members of the Commission shall be six years except that (1) the members of the Commission first taking office shall serve, as designated by the President at the time of ap- pointment, one for a term of two years, one for a term of four years, and one for a term of six years, and (2) a vacancy caused by the death, resignation, or removal of a member prior to the expiration of the term for which he was ap- pointed shall be filled only for the remainder of such unexpired term. A member of the Commis- sion may be removed by the President for ineffi- ciency, neglect of duty, or malfeasance in office. (c) Omitted (d) Principal office; hearings or other pro- ceedings at other places The principal office of the Commission shall be in the District of Columbia. Whenever the Commission deems that the convenience of the public or of the parties may be promoted, or delay or expense may be minimized, it may hold hearings or conduct other proceedings at any other place. (e) Functions and duties of Chairman; appoint- ment and compensation of administrative law judges and other employees The Chairman shall be responsible on behalf of the Commission for the administrative oper- ations of the Commission and shall appoint such administrative law judges and other employees as he deems necessary to assist in the perform- ance of the Commission’s functions and to fix their compensation in accordance with the pro- visions of chapter 51 and subchapter III of chap- ter 53 of title 5 relating to classification and General Schedule pay rates: Provided, That as- signment, removal and compensation of admin- istrative law judges shall be in accordance with sections 3105, 3344, 5372, and 7521 of title 5. (f) Quorum; official action For the purpose of carrying out its functions under this chapter, two members of the Commis- sion shall constitute a quorum and official ac- tion can be taken only on the affirmative vote of at least two members. (g) Hearings and records open to public; promul- gation of rules; applicability of Federal Rules of Civil Procedure Every official act of the Commission shall be entered of record, and its hearings and records shall be open to the public. The Commission is authorized to make such rules as are necessary for the orderly transaction of its proceedings. Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. (h) Depositions and production of documentary evidence; fees The Commission may order testimony to be taken by deposition in any proceeding pending before it at any state of such proceeding. Any person may be compelled to appear and depose, and to produce books, papers, or documents, in the same manner as witnesses may be compelled to appear and testify and produce like documen- tary evidence before the Commission. Witnesses whose depositions are taken under this sub- section, and the persons taking such deposi- tions, shall be entitled to the same fees as are paid for like services in the courts of the United States. (i) Investigatory powers For the purpose of any proceeding before the Commission, the provisions of section 161 of this title are hereby made applicable to the jurisdic- tion and powers of the Commission. (j) Administrative law judges; determinations; re- port as final order of Commission A1 administrative law judge appointed by the Commission shall hear, and make a determina- tion upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such administrative law judge by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the administrative law judge shall become the final order of the Commission within thirty days after such report by the administrative law judge, unless within such period any Commission member has di- rected that such report shall be reviewed by the Commission. (k) Appointment and compensation of adminis- trative law judges Except as otherwise provided in this chapter, the administrative law judges shall be subject to the laws governing employees in the classified civil service, except that appointments shall be made without regard to section 5108 of title 5. Each administrative law judge shall receive compensation at a rate not less than that pre- scribed for GS–16 under section 5332 of title 5. (Pub. L. 91–596, § 12, Dec. 29, 1970, 84 Stat. 1603; Pub. L. 95–251, § 2(a)(7), Mar. 27, 1978, 92 Stat. 183.) Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in subsec. (e), is set out under section 5332 of Title 5, Government Organiza- tion and Employees. The Federal Rules of Civil Procedure, referred to in subsec. (g), are set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure.