Decisions of hearing examiners

Under 1905.27(a), a party has 10 days after receiving notice that the transcript has been filed to file proposed findings of fact, conclusions of law, and a proposed rule or order, unless the presiding hearing examiner grants more time. See 1905.27(a).

• These proposals must be served on all other parties and accompanied by a supporting brief.
• The hearing examiner may allow an extension if more time is needed.

Under 1905.27(a), the proposed findings, conclusions, and rule or order must be accompanied by a supporting brief and must refer to all portions of the record and to all authorities relied upon in support of each proposal. See 1905.27(a).

• The materials must be served on all other parties.
• The brief should explain the reasons for each proposal and cite the specific record evidence and legal authorities relied on.

Under 1905.27(a), yes — proposed findings, conclusions, rules or orders, and the supporting brief must be served on all other parties. See 1905.27(a).

• Service ensures opponents have a chance to respond and that the hearing examiner can consider all positions before issuing a decision.

Under 1905.27(b) and its subparts, the hearing examiner's decision must include a statement of findings and conclusions with reasons and bases on each material issue presented, and the appropriate rule, order, relief, or denial thereof. See 1905.27(b), 1905.27(b)(1), and 1905.27(b)(2).

• The decision must explain the reasoning on each material factual, legal, or discretionary issue.
• It must identify the specific relief granted or denied.

Under 1905.27(b), the hearing examiner's decision becomes final on the 20th day after service of the decision unless exceptions are filed as provided in 1905.28. See 1905.27(b).

• If exceptions (appeals) are timely filed under the procedures of 1905.28, the decision does not become final on the 20th day.
• Consult 1905.28 for the exact procedures and deadlines for filing exceptions.

Under 1905.27(b), the hearing examiner must base the decision on a consideration of the whole record and make it on the basis of a preponderance of reliable and probative evidence. See 1905.27(b).

• "Preponderance" means the examiner must find that the evidence supporting a finding is more convincing than the evidence against it (i.e., more likely than not).
• The decision must also identify any facts officially noticed and relied upon.

Under 1905.27(b), the decision must state all facts that the hearing examiner officially noticed and relied upon in reaching the decision. See 1905.27(b).

• Officially noticed facts are matters not introduced in evidence but accepted by the examiner as true.
• The decision should identify those facts and explain how they affected the examiner's conclusions.

Under 1905.27(a), the presiding hearing examiner may allow additional time beyond the 10-day deadline, so late submissions may be considered if the examiner grants an extension. See 1905.27(a).

• If no extension is granted and the party files after the deadline, the examiner is not required to consider the late filing.
• To avoid waiver risk, request any needed extension from the presiding hearing examiner as soon as possible.

Yes — under 1905.27(b)(1) the hearing examiner must provide a statement of findings and conclusions, with reasons and bases therefor, upon each material issue of fact, law, or discretion presented in the record. See 1905.27(b)(1).

• This requirement ensures a clear explanation so parties and reviewing authorities can understand the basis for the decision.

Yes — 1905.27(b) requires the hearing examiner to base the decision on a consideration of the whole record. See 1905.27(b).

• That means the examiner must weigh all admitted evidence, testimony, exhibits, and officially noticed facts when reaching conclusions.

Under 1905.27(b)(2), the decision must state the appropriate rule, order, relief, or denial thereof — meaning the examiner must identify the specific remedy, order, or relief granted or denied. See 1905.27(b)(2).

• The decision should describe any required actions, compliance deadlines, or monetary relief clearly so parties know what is required.

Yes — when compliance with an OSHA standard is infeasible, an employer may apply for a variance under the procedures in 29 CFR Part 1905, and OSHA will evaluate whether alternative practices provide an equal level of safety. See the Overhead crane lateral clearance interpretation and Variance for crane load over people interpretation for examples.

• A permanent variance requires proof that the alternative provides an employment environment at least as safe and healthful as the standard.
• Part 1905 contains the procedures to apply for temporary or permanent variances.

Under 1905.27(a), proposed findings and briefs must refer to all portions of the record and to all authorities relied on in support of each proposal. See 1905.27(a).

• Cite the exact testimony, exhibit, or record page supporting each factual assertion.
• Identify statutes, regulations, cases, or interpretations relied upon so the examiner and other parties can verify the authority.

1905.27(b) requires the presiding hearing examiner to make and serve a decision within a reasonable time after the period allowed for filing proposed findings, but it does not set a fixed number of days for that decision. See 1905.27(b).

• "Reasonable time" depends on the complexity of the case, the workload of the office, and any other relevant factors.
• If delay is excessive, a party may raise the issue with the presiding examiner or pursue available procedural remedies under Part 1905.

Under 1905.27(a), proposals and briefs must be served on all other parties; failure to serve may be grounds for the examiner to refuse consideration of the submission. See 1905.27(a).

• Proper service preserves the other parties' opportunity to respond and avoids unfair surprise.
• If a service issue arises, promptly notify the presiding examiner and opposing parties to seek relief or an extension.

If a party believes the decision lacks adequate findings or reasoning, they may file exceptions as provided in 1905.28. See 1905.27(b) for the 20-day finality rule that interacts with 1905.28.

• File exceptions within the time and in the manner prescribed in 1905.28 to preserve the right to review.
• Exceptions should identify the specific shortcomings in findings or reasoning and cite record evidence and legal authority.

Hearing examiner decisions under 1905.27 must state findings and bases on material issues and describe any relief; when an employer applies for a variance, OSHA evaluates whether alternative practices provide protections equivalent to the standard using procedures in 29 CFR Part 1905. See the Overhead crane lateral clearance interpretation and the Variance for crane load over people interpretation for practical discussion of variance criteria.

• A well-reasoned hearing examiner decision helps clarify whether proposed alternatives meet the variance standard.
• Variance applicants must show the alternative provides protection at least equivalent to the OSHA standard.

Under 1905.27(b), findings of fact in hearing examiner decisions must be made on the basis of a preponderance of reliable and probative evidence. See 1905.27(b).

• In plain language, the examiner must find that an assertion is more likely true than not, based on credible, relevant evidence from the record.
• The decision should explain why the evidence was considered reliable and probative.