Review Commission Issues Fewer Decisions in 2004

When W. Scott Railton took over as chair of the Occupational Safety and Health Review Commission (OSHRC) in 2002, he said he was "appalled at the backlog of cases" and vowed to improve the commission's productivity.

But under his leadership the Review Commission has issued only 29 decisions in fiscal year 2004, two fewer than in 2003. This means that the total case output of the commission during the two years of Railton's leadership is only slightly more than the number of decisions OSHRC issued during just one year: 2001.

The commission currently has a full complement of three members and must have at least two members to render a decision; fiscal year 2001, when 52 decisions were issued, was the last year the agency had a quorum for the entire year before Railton joined OSHRC late in August of 2002.

Several attempts to obtain an interview with Railton were unsuccessful. "His calendar is too full," a spokesperson explained. Commissioners Thomasina Rogers and Jim Stephens also declined to comment on the agency's recent productivity.

Despite the disappointing productivity figures, the number of cases awaiting review has declined somewhat, from 74 at the end of fiscal year 2002 to 63 as of Sept. 30, the end of fiscal year 2004.

"There's too much internal turmoil at the commission, among its members and between members and staff," asserted Earl Ohman, OSHRC's former general counsel. Ohman had been with the agency since 1973 and served as general counsel since 1984. He left Sept. 3, two years after Railton joined the commission.

Ohman's departure, and Railton's decision to pass over long-time Deputy Assistant General Counsel Pat Moran, in favor of Michael Taylor, has raised concerns among staff members about the independence and OSHA law experience of the office of general counsel. Taylor, a political appointee, served as Railton's chief legal counsel for just seven months before being named by Railton to the top staff job. Prior to that he served as general counsel on the National Labor Relations Board. Moran has worked at OSHRC for more than 20 years.

Many who are familiar with the commission blamed Railton for the agency's poor productivity. "He's nasty, demeaning and confrontational with staff, and that is destroying morale and productivity," said one long-time observer. Nearly all sources interviewed for this story, both inside and outside the commission, spoke on the condition of anonymity.

"Since Railton arrived, productivity has dropped," agreed another long-time observer who is familiar with the agency's operations. "Nobody can work with the man."

Other observers, including lawyers both inside and outside the commission state, again off the record, that the agency's productivity has been poor. But not all blame Railton. Some insiders point the finger at commission staff attorneys, who are not used to being pushed hard to produce. Some also blame commissioners for not reaching agreement on cases.

Whatever the cause, those familiar with OSHRC expect that, at least in the short-term, productivity will likely deteriorate still more.

"There will be turnover at the commission, and that will hurt productivity further," said an observer. Losing staff attorneys could seriously affect the commission's ability to issue cases, the source explained. Staff lawyers are charged with preparing objective briefs of cases prior to decisions by commission members.

It's difficult to find experienced OSHA lawyers who want to work for the government, the source explained. As a result, staff attorneys must be hired and trained by the commission, a time-consuming and costly process.

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