BEFORE
THE BOARD OF DIRECTORS
OF THE OFFICE OF COMPLIANCE
____________________
In the Matter of
Case No. OSH-1017
____________________
DECISION AND ORDER
Preliminary Statement
This matter comes before the Board pursuant to
section 215(c)(4) of the Congressional Accountability Act (2 U.S.C.
1341(c)(4),) which states, inter alia, that with regard to applicable
OSHA standards, "[a]n employing office may request from the Board
an order granting a variance from a standard made applicable by
this section. For the purposes of this section, the Board shall
exercise the authorities granted to the Secretary of Labor in sections
6(b)(6) and 6(d) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 655(b)(6) and 655(d)) to act on any employing office's
request for a variance."
A "Motion for Variance from any Disclosure and
Posting Requirements" was filed by the Capitol Police Board on April
12, 2002 (all subsequent dates are 2002, unless otherwise stated).
On April 16, the Executive Director issued a scheduling order. He
also provided a copy of the motion to counsel to the Fraternal Order
of Police, U.S. Capitol Police Labor Committee (hereinafter referred
to as the FOP Labor Committee), in order to ensure that the employee
notice requirements of 29 U.S.C. 655(b)(6)(B)(v) regarding requests
for a variance were met in this matter. Thereafter, on April 17,
a "Partial Opposition to U.S. Capitol Police Motion . . ." was filed
by the FOP Labor Committee, and "General Counsel's Response to Motion
for Variance . . ." was filed by the Office of the General Counsel
of the Office of Compliance. On April 19, a "Capitol Police Board
Reply to General Counsel's Response . . ." was filed by the Capitol
Police Board.
On April 23, a pleading not contemplated by the
Executive Director's scheduling order was filed by the Office of
the General Counsel entitled "Motion for Leave to File Rebuttal
Memorandum," with an attached rebuttal. On that same day, an "Opposition
to Motion for Leave to File . . ." was filed by the Capitol Police
Board. The Board strongly discourages "last minute"and "supplemental"
filings not contemplated in a scheduling order unless a particularly
compelling cause for it is demonstrated. Such a compelling cause
has not been established in this matter. The Office of the General
Counsel's Motion for Leave to File is DENIED, and the Board
does not consider any arguments or submissions therein.
Having reviewed the record before us, and the
applicable provisions of Title 29 of the U.S. Code, the Board concludes
that the instant motion is not properly styled as a "Motion for
Variance." 29 U.S.C. 655(b)(6) and (d) relate solely to "standards"
as that term is defined in section 655: "an occupational safety
or health standard" setting a particular substantive requirement
covering a particular health or safety danger. See e.g., Cleveland
Elec. Illuminating Co. v Occupational Safety and Health Review Com'n.,
910 F2d. 1333 (6th Cir. 1990). The motion in this case
takes no issue with any such "standard," but rather seeks a variance
from the required procedure for posting a citation. Therefore, this
motion was not properly premised on section 215(c)(4) of the CAA.
The Board determines sua sponte, however, that
this matter can be entertained by the Board pursuant to section
9.06(b) of the Procedural Rules of the Office of Compliance, which
states: "[t]he Board or a Hearing Officer may waive a procedural
rule contained in this Part in an individual case for good cause
shown if the application is not required by law." Section 4.13 of
the Procedural Rules governs the "posting of citations," and may
be waived by this Board in conformity with section 9.06(b). Therefore,
because this matter is of some urgency, concerns security sensitive
information, and can be addressed, the Board proceeds with its discussion
of this matter pursuant to our section 9.06 authority.
Discussion
The gravamen of the Capitol Police Board's motion
is to obtain a "variance" from the requirement that certain citations
(neither the text nor substance of which have been provided to this
Board) of OSHA violations which were issued by the Office of the
General Counsel on April 10, not be posted, and that the substance
of the citations not be disclosed to anyone unless the Office of
the General Counsel and the Capitol Police have adopted and implemented
formal protocols to ensure that the information is not divulged
to any unauthorized person or entity. The cause for the Motion is
that the substance of the citations is "sensitive law enforcement
and security information ... ." (Capitol Police Board Motion.) To
the extent that the Motion seeks that the citations at issue not
be posted, the Motion is not opposed by either the Office of the
General Counsel or the FOP Labor Committee. Both of these parties
agree that the citations involve security sensitive matters which
should not be disclosed to the general public. Both the Office of
the General Counsel and the FOP Labor Committee do oppose the request
by the Police that the substance of the citations not be divulged
to Capitol Police Officers.
The parties argue that making the citations available
to members of the Capitol Police force either does or does not potentially
compromise the asserted responsibility of the Capitol Police Board
to safeguard the security of Congress and Government employees on
Capitol Hill. No party referenced any existing standards or process
either within the Capitol Police department or Congress and its
instrumentalities for determining what is "sensitive law enforcement
and security information" in the context of the Legislative Branch,
but all parties agree that this information falls within such parameters
to the extent that it should not be made public by posting. Therefore,
the Board's review of this matter does not reach the issue of what
constitutes "sensitive law enforcement and security information."
Neither is the record clear with reference to
any actual dissemination of these citations by the Office of the
General Counsel or by the Capitol Police Board to any persons or
entities to date. Therefore, we make no findings or determinations
in that regard. Suffice it to say that we understand that both the
Office of the General Counsel and the Capitol Police Board only
intend to divulge the terms or substance of these citations to persons
or entities directly involved in or impacted by the Office of the
General Counsel's investigation and enforcement activities, or in
the activities of the Capitol Police Board in responding to the
citations and/or ameliorating the conditions set forth therein.
Section 9(b) of the OSH Act (29 U.S.C. 658(b))
is included by reference at section 215(c)(2) of the CAA. Section
9(b) requires that: "[e]ach 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." Therefore, the
method for accomplishing such "posting" shall be accomplished "as
prescribed in regulations . . . ." In this matter, those regulations
are located at section 4.13 of the Procedural Regulations, which
may also be waived pursuant to section 9.06(b) thereof. However,
because the act of "posting" that is to be accomplished is "required
by law," we cannot void the posting requirement altogether.
(1)
Because the parties agree that dissemination
of these citations to the public represents an improvident release
of "sensitive law enforcement and security information," we have
concluded, pursuant to section 9.06(b), that "good cause" has been
shown for a waiver of the posting requirements as set forth in section
4.13 of the Procedural Rules of the Office of Compliance in this
matter only.
However, as the Capitol Police Board agrees,
there must be an "attempt to strike a balance between the statutory
duties and responsibilities of the CPB and the OG-GC, which may
appear to present competing interests." (Capitol Police Reply.)
We have concluded that the appropriate balance in this matter is
best struck by recognizing a number of statutory mandates. First,
the Capitol Police Board is generally given the grave responsibility
to safeguard the Capitol Hill campus and its inhabitants from harm.
See, 40 U.S.C. 212a et seq. Second, the Office of the General Counsel
is given the equally grave responsibility to protect the Capitol
Hill campus and its inhabitants from health and safety dangers.
See, 2 U.S.C. 1301 et seq. Both of these responsibilities have been
rendered more urgent by the events of the past six months. Indeed,
in the ill-defined area of "environmental terrorism," the two agencies'
duties overlap. However, these responsibilities are also characterized
by well-founded countervailing policies that simultaneously urge
confidentiality and broad dissemination of the same information,
when such information is "law enforcement security sensitive" and
related to health and safety issues.
That "balance" of competing statutes, policies,
and interests is best attained in this case by the adoption of a
process which ensures, to the greatest extent possible, that the
substance of the citations at issue remains confidential while,
at the same time, it is disseminated to responsible representatives
of the Capitol Police Officers whose health and safety is allegedly
at risk. Such dissemination is not only necessary for the Board's
decision not to run afoul of our statutory responsibility, but also
addresses the fundamental policy of the OSH Act that employees must
have notice of the citation. The keystone of this matter is to fashion
such dissemination in a way which adequately addresses the recognized
mandate of confidentiality. (2)
Some form of "posting" must occur to ensure that
these citations are processed in accordance with statutory requirements.
Therefore, we conclude that in this case only, such "posting" is
to be accomplished as follows. On the eighth day after receipt of
this Decision and Order by the Office of the General Counsel, the
Office of the General Counsel is orally to inform the FOP Labor
Committee counsel of record in this matter and each of the elected
officers of the FOP (all to be termed hereinafter "Elected Officers"),
that she/he has the right to view each and every citation at issue
in this matter at the Office of the General Counsel. The Office
of the General Counsel may also on and after such eight days provide
the opportunity to other sworn Capitol Police Officers who have
a legitimate need to be apprised of the contents of any or all of
the citations at issue in this matter to view such citation(s) at
the Office of the General Counsel. However, these viewing opportunities
shall only be provided to those individuals who have executed a
written declaration that she/he will not divulge any citation information
to any person or entity. We have also concluded pursuant to our
authority under section 9.06(b), that the procedures as set forth
in section 1.07(e) of the Procedural Rules shall be utilized in
the review of alleged breaches of confidentiality in this matter.
Such procedure is not in derogation of any other remedy or procedure
provided by equity, law or regulation regarding the unauthorized
disclosure of confidential information.
The declaration to be executed by each officer
authorized to view the citations at issue shall state: "I am aware
that the FOP Labor Committee has informed the Board of Directors
of the Office of Compliance that the substance of every citation
issued on April 10, 2002 in OOC Case OSH-1017 is "law enforcement
sensitive," and that no such citation may be divulged to the public.
Pursuant to that representation, and pursuant to the Decision and
Order of the Board of Directors which is attached to this document,
and made a part hereof, I hereby declare that I will not disclose
the terms or substance of any of the citations issued in OOC Case
OSH-1017 to any person or entity, including but not limited to other
Capitol Police Officers. I understand that this declaration is a
permanent promise, and that I can only be released from it by a
written authorization from the Executive Director of the Office
of Compliance. I understand that the execution of this declaration
is a condition for my viewing of the aforementioned citations. I
understand that any allegation that I have violated this declaration
will be reviewed pursuant to the procedures set forth at section
1.07(e) of the Procedural Rules of the Office of Compliance and
may be subject to review in other proceedings as provided by equity,
law or regulation regarding the unauthorized disclosure of confidential
information." At no time will any Elected Officer or member of the
FOP Labor Committee collective bargaining unit be given copies of
any of the citations at issue here by the Office of the General
Counsel. (3)
The posting procedure set forth in the two paragraphs
immediately above shall not be implemented until the eighth day
after this Decision and Order is delivered to the offices of the
General Counsel of the Capitol Police Board and the General Counsel
of the Office of Compliance. Upon receipt of this Decision and Order
the General Counsel of the Office of Compliance shall immediately
contact the General Counsel of the Capitol Police Board. The General
Counsels are directed to communicate with each other in an effort
to resolve any concerns they may have regarding the above stated
posting methodology and to reach a mutually agreeable alternative
to such methodology which does not violate any OSH Act or CAA statutory
requirements. The parties are directed to report to the Executive
Director of the Office of Compliance on or before the fifth day
regarding the status of that effort. Should the parties reach such
an agreement during the time period allotted, a written and executed
copy of said agreement shall be transmitted immediately to this
Board for review and approval. Upon approval of said agreement by
this Board, the posting methodology set forth in this Decision and
Order shall be preempted and superseded thereby.
ORDER
Having reviewed the record and considered this
matter, the Board of Directors of the Office of Compliance hereby
ORDERS:
That the "Motion of the Office of the General
Counsel for Leave to File Rebuttal Memorandum, or, In the Alternative,
To Permit the U.S. Capitol Police Board to File a Surreply," is
DENIED in all respects.
That the Capitol Police Board's "Motion For Variance
from any Disclosure and Posting Requirements," is GRANTED
to the extent referenced and explained in the "Discussion" hereinabove.
That, absent an agreement approved by this Board,
the Office of the General Counsel is ORDERED on the eighth
day after receipt of this Decision and Order, to contact the Elected
Officers of the Fraternal Order of Police, U.S. Capitol Police Labor
Committee, and undertake the notification, preparation of the declarations,
and opportunity for such elected officers and other sworn Capitol
Police officers who have a legitimate need to be apprised of the
contents of any or all of such citation to view the citations at
issue, as is referenced and explained in the "Discussion" hereinabove.
That the General Counsel of the Office of Compliance
is ordered to contact the General Counsel of the Capitol Police
Board to initiate communications in an effort to resolve any concerns
they may have regarding the posting methodology described in this
Decision and to reach a mutually agreeable alternative to the otherwise
mandated posting requirement herein.
ENTERED THIS 29TH DAY OF APRIL,
2002;
__________________________________
Susan S. Robfogel, Chair
__________________________________
Barbara L. Camens, Member
___________________________________
Alan V. Friedman, Member
____________________________________
Roberta L. Holzwarth, Member
___________________________________
Barbara Childs Wallace, Member
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