§ 95-135. North Carolina Occupational Safety and Health Review Commission.
§ 95‑135. NorthCarolina Occupational Safety and Health Review Commission.
(a) The North CarolinaOccupational Safety and Health Review Commission is hereby established. TheCommission shall be composed of three members from among persons who, by reasonof training, education or experience, are qualified to carry out the functionsof the Commission under this Article. The Governor shall appoint the members ofthe Commission and name one of the members as chairman of the Commission. Theterms of the members of the Commission shall be six years except that themembers of the Commission first taking office shall serve, as designated by theGovernor at the time of appointment, one for a term of two years, one for aterm of four years, and the member of the Commission designated as chairmanshall serve for a term of six years. Any vacancy caused by the death,resignation, or removal of a member prior to the expiration of the term forwhich he was appointed shall be filled by the Governor for the remainder of theunexpired term. The Governor shall fill all vacancies occurring by reason ofthe expiration of the term of any members of the Commission.
(b) The Commissionshall hear and issue decisions on appeals entered from citations and abatementperiods and from all types of penalties. Appeals from orders of the Directordealing with conditions or practices that constitute imminent danger shall notbe stayed by the Commission until after full and adequate hearing. TheCommission in the discharge of its duties under this Article is authorized andempowered to administer oaths and affirmations and institute motions, cause thetaking of depositions, interrogatories, certify to official acts, and issuesubpoenas to compel the attendance of witnesses and the production of books,papers, correspondence, memoranda, and other records deemed necessary asevidence in connection with any appeal or proceeding for review before theCommission.
(c) The Commissionshall meet at least once each calendar quarter but it may hold call meetings orhearings upon at least three days' notice to each member by the chairman and atsuch time and place as the chairman may fix. The chairman shall be responsibleon behalf of the Commission for the administrative operations of the Commissionand shall appoint such hearing examiners and other employees as he deemsnecessary to assist in the performance of the Commission's functions and fixthe compensation of such employees with the approval of the Governor. Theassignment and removal of hearing examiners shall be made by the Commission,and any hearing examiner may be removed for misfeasance, malfeasance,misconduct, immoral conduct, incompetency, the commission of any crime, or forany other good and adequate reason as found by the Commission. The Commissionshall give notice to such hearing examiner, along with written allegations asto the charges against him, and the same shall be heard by the Commission, andits decision shall be final. The compensation of the members of the Commissionshall be on a per diem basis and shall be fixed by the Governor. The chairmanof the Commission may be paid a higher rate of compensation than the other twomembers of the Commission. For the purpose of carrying out its duties andfunctions under this Article, two members of the Commission shall constitute aquorum and official action can be taken only on the affirmative vote of atleast two members of the Commission. On matters properly before the Commissionthe chairman may issue temporary orders, subpoenas, and other temporary typesof orders subject to the subsequent review of the Commission. The issuance ofsubpoenas, orders to take depositions, orders requiring interrogatories andother procedural matters of evidence issued by the chairman shall not besubject to review.
(d) Every official actof the Commission shall be entered of record and its hearings and records shallbe open to the public. The Commission is authorized and empowered to make suchprocedural rules as are necessary for the orderly transaction of itsproceedings. Unless the Commission adopts a different rule, the proceedings, asnearly as possible, shall be in accordance with the Rules of Civil Procedure,G.S. 1A‑1. The Commission may order testimony to be taken by depositionin any proceeding pending before it at any stage of such proceeding. Anyperson, firm or corporation, and its agents or officials, may be compelled toappear and testify and produce like documentary evidence before the Commission.Witnesses whose depositions are taken under this section, and the personstaking such depositions, shall be entitled to the same fees as are paid forlike services in the courts of the State.
(e) The rules ofprocedure prescribed or adopted by the Commission shall provide affectedemployees or representatives of affected employees an opportunity toparticipate as parties to hearings under this section.
(f) Any member of theCommission may be removed by the Governor for inefficiency, neglect of duty, orany misfeasance or malfeasance in office. Before such removal the Governorshall give notice of hearing and state the allegations against the member ofthe Commission, and the same shall be heard by the Governor, and his decisionshall be final. The principal office of the Commission shall be in Raleigh, NorthCarolina, but whenever it deems that the convenience of the public or of theparties may be promoted, or delay or expense may be minimized, the Commissionmay hold hearings or conduct other proceedings at any place in the State.
(g) In case of a contumacy,failure or refusal of any person to testify before the Commission, give anytype of evidence, or to produce any books, records, papers, correspondence,memoranda or other records, such person upon such failure to obey the orders ofthe Commission may be punished for contempt or any other matter involvingcontempt as set forth and described by the general laws of the State. TheCommission shall issue no order for contempt without first finding the factsinvolved in the proceeding. Witnesses appearing before the Commission shall beentitled to the same fees as those paid for the services of said witnesses inthe courts of the State, and all such fees shall be taxed against theinterested parties according to the judgment and discretion of the Commission.
(h) The Director shallconsult with the chairman of the Commission with respect to the preparation andpresentation to the Commission for adoption of all necessary forms orcitations, notices of all kinds, forms of stop orders, all forms and ordersimposing penalties and all forms of notices or applications for review by theCommission, and any and all other procedural papers and documents necessary forthe administration of the Article as applied to employers and employees and forall procedures and proceedings brought before the Commission for review.
(i) A hearing examinerappointed by the chairman of the Commission shall hear, and make adetermination upon, any proceeding instituted before the Commission and mayhear any motion in connection therewith, assigned to the hearing examiner, andshall make a report of the determination which constitutes the hearingexaminer's final disposition of the proceedings. A copy of the report of thehearing examiner shall be furnished to the Director and all interested partiesinvolved in any appeal or any proceeding before the hearing examiner for thehearing examiner's determination. The report of the hearing examiner shallbecome the final order of the Commission 30 days from the date of the report asdetermined by the hearing examiner, unless within the 30‑day period anymember of the Commission had directed that the report shall be reviewed by theentire Commission as a whole. Upon application for review of any report ordetermination of a hearing examiner, before the 30‑day period expires,the Commission shall schedule the matter for hearing, on the record, except theCommission may allow the introduction of newly discovered evidence, or in itsdiscretion the taking of further evidence upon any question or issue. Allinterested parties to the original hearing shall be notified of the date, timeand place of the hearing and shall be allowed to appear in person or byattorney at the hearing. Upon review of the report and determination by thehearing examiner the Commission may adopt, modify or vacate the report of thehearing examiner and notify the interested parties. The report of the hearingexaminer, and the report, decision, or determination of the Commission uponreview shall be in writing and shall include findings of fact, conclusions oflaw, and the reasons or bases for them, on all the material issues of fact,law, or discretion presented on the record. The report, decision ordetermination of the Commission upon review shall be final unless furtherappeal is made to the courts under the provisions of Chapter 150B of theGeneral Statutes, as amended, entitled: "Judicial Review of Decisions ofCertain Administrative Agencies."
(j) Repealed bySession Laws 1993, c. 300, s. 1. (1973, c. 295, s. 10; c. 1331, s. 3; 1985, c. 746, s.1; 1985 (Reg. Sess., 1986), c. 955, ss. 6, 7; 1987, c. 827, s. 1; 1987 (Reg.Sess., 1988), c. 1111, s. 10; 1993, c. 300, s. 1; c. 474, s. 1; 2005‑133,ss. 1, 5; 2006‑203, s. 21.)