By James L. Nash
Occupational Hazards: As chairman of the Review Commission, you are responsible for the agency's day-to-day operations, in addition to ruling on cases with the other commissioners. What goals do you have for the commission?
Railton: My goal is to reduce the time it takes us to review cases. When I arrived here, I was appalled at the backlog. I don't mean to criticize my predecessors; I have no explanation for why this backlog developed. There are at least 40 cases that are more than two or three years old on the commission's docket. One case has been sitting here for seven years.
I want the commission to complete its review of cases in six months, and I want our administrative judges to decide the most complex cases in 12 months. So my goal is that from start to finish, the longest cases will be decided in 18 months.
OH: Why is speeding up the review process so important to you?
Railton: I have this goal not because I want to put a whip to everybody. It seems to me there were two basic reasons why the commission was established in the first place. The first goal was fairness, so that employers feel they get a fair shake, rather than have their cases decided by the Department of Labor. But justice delayed is justice denied.
The second purpose of the commission is to improve occupational safety and health.
OH: How will reducing the backlog contribute to occupational safety?
Railton: The public, labor and management have a right to know what our views of the standards are. One of the things I did as soon as I got here was to try to group the cases into subject matter areas, such as lockout/tagout, confined space and lead. We have fundamental issues in each of those areas, but particularly in the case of lockout/tagout, there isn't much out there in commission law.
OH: What are some of the unresolved issues in the interpretation of this standard?
Railton: There was a case where the commission interpreted the standard as applying to the 'unexpected energization or re-energization' of machinery. That gives a take on where the standard applies, but there are a lot of other issues out there, such as what kind of training should be required. And what sort of specific procedures do you need for machines does each machine need a specific procedure? These issues are in cases now pending before the commission.
OH: Rep. Charlie Norwood, R-Ga., has introduced legislation that would expand the size of the commission to five members, relax the 15-day deadline employers have to contest OSHA citations and increase the commission's authority. Do you support these changes?
Railton: Of course I can't comment specifically on Congressman Norwood's legislation. But in general I believe there's nothing wrong with having some sort of safety valve when an employer misses the 15-day window due to a legitimate mistake. And I think it's intolerable to be without a quorum for a period of time. Expanding the commission may very well cut down on the problem.
From Private Practice to Public Service
In August 2002, W. Scott Railton left his position as a senior labor partner at the law firm of Reed, Smith, Shaw & McClay to join the Occupational Safety and Health Review Commission as a recess appointee. The next month, President Bush named Railton to chair the commission, which adjudicates disputes between employers, employees and OSHA over citations for alleged violations of OSHA standards.
Railton had been at Reed, Smith, Shaw & McClay since 1977, where he worked as safety and health counsel to a number of national corporations and trade associations. He represented clients in job safety enforcement proceedings before federal and state courts, and some of his cases have gone all the way to the U.S. Supreme Court.
Why did he leave a long and successful career in private practice to work for the government?
"This is something I always wanted to do," comments Railton. "And at my age, I felt I could be more useful at the Review Commission than dragging bags through an airport at midnight. I thought this job would be less stressful than private practice, but I'm not sure that turns out to be the case at all."