OSHRC on the Comeback Trail

By Bruening, John C. | Occupational Hazards, January 1991 | Go to article overview

OSHRC on the Comeback Trail


Bruening, John C., Occupational Hazards


At 38, Edwin Foulke is the youngest chairman in the history of the Occupational Safety and Health Review Commission (OSHRC). After a troubled period of vacancies on the commission, a shot of youthful adrenaline may be just what this judicial body needs as it prepares to deal with what is promising to be a period of increasing OSHA litigation.

Foulke's appointment in March 1990 was the first step in the Bush Administration's efforts to bring the review commission back up to full staff. Prior to that time, throughout the latter half of the 1980s, the commission rarely held more than one member at a time.

Foulke succeeded Linda Arey, whose recess appointment expired in November 1989. Rounding out the commission are Velma Montoya, an economist, and Donald Wiseman, a safety and training professional.

In an interview with Occupational Hazards, Foulke jokingly calls himself -the one-armed paper hanger,' referring to the review commission's recent period of inactivity resulting from the vacant posts at the commission.

There was that period of time from April to November, when Linda Arey was the only commissioner here. That was a problem," Foulke explained. It wasn't as though things weren't being done here. Decisions at the lower level were being decided by the judges and coming up for review to the commission."

But, according to the commission's rules of procedure, a quorum of at least two commissioners is required in deciding cases. That meant cases appealed to the commissioners could not be acted upon.

It hurt the reputation of the commission,' Foulke admits, because there were periods of time when the commission was just not functioning. I think we've come a long way toward getting to the cases and getting things moving again.'

When he was appointed last March, Foulke recalls, some cases waiting for review dated back as far as 1982. Even then, his hands were tied, he notes, until the appointment of Montoya and Wiseman in May 1990.

By the end of last November, Foulke reported, the oldest case before OSHRC had been filed in 1987. He hopes to further winnow the current three-year backlog.

We'll be moving along further than that,- he says. There was a period of almost a year when we didn't decide any cases. They had reduced the backlog to about 85 cases when I came on board, and now there are about 106. That's because we are taking a higher percentage of cases that are petitioned for review. - Once an administrative law judge makes a decision on a case, Foulke explains, either party can appeal that decision to the full commission for review. If the commission chooses not to review the case, then the decision becomes a final order after 30 days, and the case can then be appealed to the Court of Appeals for the District of Columbia.

Easy Access

One 'change in philosophy' at OSHRC cited by Foulke is a move to grant review of more cases by the commissioners. He said the commissioners want to give parties a full opportunity to have their grievances heard. "In the past, we might have brought in 20 or 30 percent of the cases that were petitioned," says Foulke. "Now, we're probably bringing in closer to 90 percent.'

Foulke said he wants parties not only to have access to the commission, but also to be able to participate in a cost-effective manner. "The commission is the last place where you can have your case heard without an attorney, if you choose,' he notes.

Forty percent of our cases are represented by the employers themselves. Once you get to the court of appeals, you're going to have to have an attorney, and that's going to get a lot more expensive."

Foulke maintains that commission rules are structured so that the 40 percent of employers who represent themselves have just as fair a chance as those who are represented by an attorney.

"We try to take into account that these people are not attorneys, and they perhaps can't afford to get one,' he says, 'Our administrative law judges make sure that employers understand their rights, and that they know what they have to do to get their answer filed. …

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