Regulatory Developments

Stalled Cases May Soon Get Hearings: Trump Nominates Third Review Commission Candidate

The Occupational Safety and Health Review Commission (OSHRC) is an independent body that adjudicates disputes between OSHA and employers over OSHA citations. When an employer contests an OSHA citation, the case is initially heard by an administrative law judge with the Commission. If that judge’s decision is appealed, the three-member Commission may select it for review. Since April 2015, the Commission has been one member short. Then, in April 2017, the Acting Chair’s term ended, leaving the Commission with just one active member.

That could soon change. President Donald Trump renominated Acting Chair Heather L. MacDougall, from Florida, to the Commission in April. In May, he nominated a third candidate, James J. Sullivan of Pennsylvania, to complete the Commission. Both nominations are awaiting Senate approval.

Accepted, not Decided

The three-person Commission requires a quorum of two members to issue decisions; at present, with only Commissioner Cynthia L. Attwood active, the Commission is unable to issue decisions. A single Commissioner can accept cases for review, but cannot decide cases. Thus, any cases currently accepted for review are on hold until one or both of President Trump’s nominees are confirmed. At the present time, 24 cases have been accepted for review but not decided.

Business Friendly Nominees?

The president’s two nominees both have backgrounds as management representatives, which has not been the case since Chairman W. Scott Railman’s tenure ended in 2007.

Attorney Heather L. MacDougall, who was originally nominated to the Commission in 2014 by President Barack Obama, came to the job with 20 years of experience representing employers throughout the United States in matters involving labor, employment, and occupational safety and health law under her belt. In addition, she had served as chief counsel to OSHRC Chairman W. Scott Railton. Earlier in her career, she was associate general counsel to the HR Policy Association, a public policy organization that advocates for the Human Resource officers of major employers, where she represented the association as amicus curiae in U.S. Courts of Appeals and Supreme Court cases. MacDougall received her BA from the University of Wisconsin and her JD from Marquette University Law School.

Attorney James J. Sullivan comes to the Commission with 37 years of experience representing employers throughout the United States in matters involving labor, employment, and occupational safety and health law. From 2014 to 2017, Sullivan served as the management cochair of the Occupational Safety and Health Law Committee of the American Bar Association’s Labor Law Section. He received his BA from The Pennsylvania State University and his JD from The Georgetown University Law Center.

Current Commissioner Cynthia L. Attwood was first appointed to the Review Commission by President Obama and confirmed by the Senate in 2010. Before her appointment to the Commission, Attwood spent 30 years in the federal government as a lawyer and judge. She served for 3 years as an Administrative Appeals Judge on the Department of Labor’s (DOL) Administrative Review Board adjudicating appeals brought under many labor laws and regulations. She also served in the Senior Executive Service at the DOL for over 10 years, as Associate Solicitor for Occupational Safety and Health, and before that as Associate Solicitor for Mine Safety and Health. Before her service at the DOL, Attwood began her legal career as an appellate attorney in the Department of Justice’s Civil Rights Division, where she litigated cases before the Supreme Court and the United States Courts of Appeals. Attwood holds a BA degree from Oakland University and a JD degree from the University of Minnesota.