DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES

BUREAU OF SAFETY AND REGULATION

OCCUPATIONAL SAFETY AND HEALTH

(By authority conferred on the departments of labor and public health by section 69

of Act No. 154 of the Public Acts of 1974, being S408.1069 of the Michigan Compiled

Laws)

PART 13. INSPECTIONS AND INVESTIGATIONS, CITATIONS, AND

PROPOSED PENALTIES

R 408.22301 Purpose.

Rule 1301. The purpose of this part is to prescribe rules and set forth general

policies for enforcement of the inspection and investigation, citation, and proposed

penalty provisions of the act. In situations where this part sets forth general enforcement

policies, rather than substantive or procedural rules, such policies may be modified

in specific circumstances where the department director or his designee determines

that an alternative course of action would better serve the objectives of the act.

History: 1979 AC.

R 408.22303 Scope.

Rule 1303. (1) The act requires that every employer covered under the act furnish

to his employees employment and a place of employment which are free from

recognized hazards that are causing, or are likely to cause, death or serious physical harm

to his employees. The act also requires that employers comply with occupational

safety and health standards promulgated under the act, and that employees comply

with standards, rules, regulations, and orders issued under the act which are applicable

to their own actions and conduct.

(2) The act authorizes the departments of consumer and industry services and public

health to conduct inspections and investigations and to conduct tests and gather samples

of materials and substances as are necessary to aid in the evaluation of the place of

employment, and to issue citations and proposed penalties for alleged violations, and to

question employers and employees in connection with research and other related

activities.

(3) The act contains provisions for adjudication of violations, periods prescribed for

the abatement of violations, and proposed penalties if appealed by an employer or by

an employee or authorized representative of employees.

History: 1979 AC.

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R 408.22305 Definitions; A to C.

Rule 1305. (1) "Act" means the Michigan occupational safety and health act, Act

No. 154 of the Public Acts of 1974, as amended, being S408.1001 et seq. of the

Michigan Compiled Laws.

(2) "Authorized employee representative" or "representative of employee" means a

person designated by a labor organization certified by the national labor relations

board or employment relations commission as defined in section 2(c) of Act No. 176

of the Public Acts of 1938, being S423.2 of the Michigan Compiled Laws, as the

bargaining representative for the affected employees. In the absence of certification, it

shall be a person designated by the organization having a collective bargaining

relationship with the employer and designated as having a collective bargaining

relationship with the employer by the affected employees. If a labor organization is not

certified or if no organization has a collective bargaining relationship with the

employer, "authorized employee representative" or "representative of employee"

means a person designated by the affected employees to represent them for the purpose

of proceedings under this act.

(3) "Board" means the board of health and safety compliance and appeals created in

section 46 of the act.

(4) "Citation" means a written communication issued by the department to an

employer pursuant to section 33 of the act.

History: 1979 AC.

R 408.22307 Definitions; D,E.

Rule 1307. (1) "Department" means the Michigan department of consumer and

industry services or the Michigan department of public health.

(2) "Director" means the director of the Michigan department of consumer and

industry services or the director of the Michigan department of public health.

(3) "Employee" means a person permitted to work by an employer.

(4) "Employer" means an individual or organization, including the state or a

political subdivision, which employs 1 or more persons.

(5) "Establishment" means a single physical location where business is conducted

or where services or operations are performed; for example, a factory, mill, store, hotel,

restaurant, movie theater, farm, ranch, bank, sales office, warehouse, central

administrative office, a single school within a school district, a city garage within the

department of public works, a branch office of the department of state, or a police

station within the police department of a city. Where distinctly separate activities

are performed at a single physical location, such as contract construction activities

operated from the same physical location as a lumberyard, each activity shall be

treated as a separate establishment.

History: 1979 AC.

R 408.22309 Definitions; I to W.

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Rule 1309. (1) "Imminent danger" means a condition or practice in a place of

employment which is such that a danger exists which could reasonably be expected

to cause death or serious physical harm, either immediately or before the imminence

of the danger can be eliminated through the enforcement procedures otherwise

provided.

(2) "Inspection" means the examination or survey of a place of employment to

detect the presence of an existing or potential occupational safety or health hazard or to

determine compliance with the act, rules, or standards promulgated, or orders issued,

pursuant to the act.

(3) "Investigation" means the detailed evaluation or study of working conditions,

including equipment, processes, substances, air contaminants, or physical agents, with

respect to the actual or potential occurrence of occupational accidents, illnesses, or

diseases.

(4) "Trade secret" means a confidential process, formula, pattern, device, or

compilation of information which is used in the employer's business and which gives

the employer an opportunity to obtain an advantage over competitors who do not

know or use it.

(5) "Working day" means any day other than a Saturday, Sunday, or state legal

holiday. (In computing 15 working days, the day of receipt of any notice shall not be

included, and the last day of the 15 working days shall be included.)

History: 1979 AC.

R 408.22311 Posting of notice; availability of the act, rules, and applicable

standards.

Rule 1311. (1) Each employer shall post a notice to be furnished by the department,

informing employees of the protections and obligations provided for in the act, and

informing them that, for assistance and information, including copies of the act and of

specific safety and health standards, employees may contact the department. The

notice shall be posted by the employer in each establishment in a conspicuous place

where notices to employees are customarily posted. Each employer shall take steps to

insure that the notice is readable and is not altered or defaced.

(2) A separate notice shall be posted in each establishment. Where employers are

engaged in activities which are physically dispersed (such as agriculture, construction,

transportation, communications, and electric, gas, and sanitary services) the notice

required by this rule shall be posted at the location to which employees report each day.

Where employees do not usually work at, or report to, a single establishment (such as

traveling salesmen, technicians, engineers, etc.), such notice shall be posted at the

location from which the employees operate to carry out their activities. In all cases, the

notice shall be posted pursuant to subrule (1) of this rule.

(3) Copies of the act, all procedural rules promulgated pursuant to the act, and all

applicable standards shall be available from the department.

If an employer has obtained copies of these materials, he shall make them available

upon request to an employee or his authorized representative for review in the

establishment where the employee is employed at the earliest time mutually convenient to

the employee or his authorized representative and the employer.

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(4) An employer failing to comply with the provisions of this rule shall be subject to

citation and penalty pursuant to section 35 of the act.

(5) Reproductions or facsimiles of the state poster shall constitute compliance

with the posting requirements of this rule where the reproductions or facsimiles are

at least 8-1/2 inches by 14 inches and the printing size is at least 10 point. The caption or

heading on the poster shall be in large type, not less than 36 point.

History: 1979 AC.

R 408.22321 Authority for inspection or investigation.

Rule 1321. (1) The department representatives, upon presenting appropriate

credentials, may enter, without delay and at reasonable times, any factory, plant,

establishment, construction site, or other area, workplace, or environment where work

is performed by an employee of an employer to inspect and investigate, during regular

working hours and at other reasonable times and within reasonable limits and in a

reasonable manner, any such place of employment, and all pertinent conditions,

structures, machines, apparatus, devices, equipment, and materials therein; to

question privately any employer, owner, operator, agent, or employee; and to review

records required by the act and rules promulgated pursuant to the act, and other records

which are directly related to the purpose of the inspection or investigation.

(2) Prior to inspecting areas containing information which is classified by an agency

of the federal government in the interest of national security, departmental

representatives shall obtain the appropriate security clearance.

History: 1979 AC.

R 408.22322 Objection to inspection or investigation.

Rule 1322. (1) Upon a refusal to permit a department representative, in the exercise

of his official duties, to enter, without delay and at reasonable times, any place of

employment or any place therein to inspect, to investigate, to review records, or to

question any employer, owner, operator, agent, or employee pursuant to R 408.22321,

or to permit a representative of employees to accompany the department

representative during the physical inspection or investigation of any workplace pursuant

to R 408.22326, the department representative shall terminate the inspection or

investigation or confine the inspection or investigation to other areas, conditions,

structures, machines, apparatus, devices, equipment, materials, records, or interviews

concerning which no objection is raised.

(2) The department representative shall endeavor to ascertain the reason for such

refusal, and he shall immediately report the refusal, and the reason therefor, to the

department director or authorized representative.

The department director or authorized representative shall take appropriate

action and, if necessary, apply to the proper judicial officer for a warrant commanding the

sheriff or a peace officer to aid the department in the conduct of an inspection or

investigation as provided in section 29 of the act.

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History: 1979 AC.

R 408.22323 Entry not a waiver.

Rule 1323. Permission to enter, inspect, investigate, review records, or question a

person shall not imply or be conditioned upon a waiver of any cause of action,

citation, or penalty under the act. Department representatives are not authorized to

grant any such waiver.

History: 1979 AC.

R 408.22324 Advance notice of inspection or investigation.

Rule 1324. (1) Advance notice of inspections or investigations shall not be given

except in the following situations.

(a) In cases of apparent imminent danger, to enable the employer to abate the

danger as quickly as possible.

(b) In circumstances where the inspection or investigation can most effectively be

conducted after regular business hours, or where special preparations are necessary for

an inspection or investigation.

(c) Where necessary to assure the presence of representatives of the employer and

employees or the appropriate personnel needed to aid in the inspection or investigation.

(d) In other circumstances where the department director or his designee determines

that the giving of advance notice would enhance the probability of an effective and

thorough inspection or investigation.

(2) In the situations described in subrule (1) of this rule, advance notice of

inspections or investigations may be given only if authorized by the department director

or his designee.

(3) When advance notice is given, it shall be the employer's responsibility

promptly to notify the authorized representative of employees of the inspection or

investigation, if the identity of such representative is known to the employer. Upon the

request of the employer, the department representative shall inform the authorized

representative of employees of the inspection or investigation, provided that the

employer furnishes the department representative with the identity of such representative

and with such other information as is necessary to enable him promptly to inform

such representative of the inspection or investigation. An employer who fails to

comply with his obligation under this rule promptly to inform the authorized

representative of employees of the inspection or investigation, or to furnish such

information as is necessary to enable the department representative promptly to inform

such representative of the inspection or investigation, is subject to citation and penalty

under section 35(3) of the act.

(4) Advance notice in any of the situations described in subrule (1) of this rule shall

not be given more than 24 hours before the inspection or investigation is scheduled to be

conducted, except in apparent imminent danger situations and in other unusual

circumstances.

(5) A person who gives advance notice of an inspection or investigation to be

conducted under the act, without authority from the department director or his

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designees, shall, upon conviction, be punished by a fine of not more than $1,000.00 or

by imprisonment for not more than 6 months, or by both, as provided in section 35(8) of

the act.

History: 1979 AC.

R 408.22325 Conduct of inspections or investigations.

Rule 1325. (1) Subject to the provisions of R 408.22321, inspections and

investigations shall take place at such times and in such places of employment as the

department director or his designee may direct. At the beginning of an inspection

or investigation, the department representatives shall present their credentials to the

owner, operator, or an agent in charge at the establishment; explain the nature and

purpose of the inspection or investigation; and indicate generally the scope of the

inspection or investigation and the records specified in R 408.22321 which they wish to

review. However, such designation of records shall not preclude access to additional

records specified in R 408.22321.

(2) Department representatives may take air, environmental, and material samples;

take or obtain photographs related to the purpose of the inspection or

investigation; employ other

reasonable

investigative techniques; and question

privately any employer, owner, operator, agent, or employee of an establishment (See R

408.22331 on trade secrets).

(3) In taking photographs and samples, the department representatives shall take

reasonable precautions to insure that such actions with flash, spark-producing, or other

equipment are not hazardous. Department representatives shall comply with all

employer safety and health rules and practices at the establishment being inspected, and

they shall wear and use appropriate protective clothing and equipment.

(4) The conduct of inspections or investigations shall be such as to preclude

unreasonable disruption of the operations of the employer's establishment.

(5) Following the completion of an inspection or investigation by the department

representative, an opportunity for a conference shall be afforded the employer or his

representative and the employee or employee representative to informally advise them

of any apparent safety or health violations disclosed by the inspection or investigation.

During such conference, the employer or employee shall be afforded an opportunity to

bring to the attention of the department representative any information regarding

conditions in the workplace pertinent to the apparent safety or health violations.

(6) Inspections or investigations shall be conducted pursuant to the requirements

of this part.

History: 1979 AC.

R 408.22326 Representatives of employers and employees.

Rule 1326. (1) Department representatives shall be in charge of conducting

inspections or investigations, and may question persons affected by the inspection or

investigation. A representative of the employer and a representative authorized by

employees shall be given an opportunity to accompany the department representative

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during the physical inspection or investigation of a workplace for the purpose of aiding

the inspection or investigation. A department representative may permit additional

employer representatives and additional representatives authorized by employees to

accompany him when it is determined that the additional representatives may

further aid the inspection or investigation. A different employer and employee

representative may accompany the department representative during each different phase

of an inspection or investigation if this does not interfere with the conduct of the

inspection or investigation.

(2) Department representatives may resolve all disputes as to who is the

representative authorized by the employer and employees for the purpose of this rule. If

there is no authorized representative of employees, or if the department representative

is unable to determine with reasonable certainty who is such representative, the

department representative shall consult with a reasonable number of employees

concerning matters of safety and health in the workplace.

(3) If, in the judgment of the department representative, good cause is shown why

accompaniment by a third party who is not an employee of the employer (such as an

industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an

effective and thorough physical inspection or investigation of the workplace, the

third party may accompany the department representative during the inspection or

investigation.

(4) Department representatives may deny the right of accompaniment under this rule

to a person whose conduct interferes with

a

fair and orderly inspection or

investigation. The right of accompaniment in areas containing trade secrets shall

be subject to the provisions of R 408.22331(4). With regard to information classified

by an agency of the federal government in the interest of national security, only

persons authorized to have access to the information may accompany a department

representative in areas containing such information.

History: 1979 AC.

R 408.22331 Trade secrets.

Rule 1331. (1) Information reported to, or otherwise obtained by, a department

representative in connection with an inspection, investigation, or proceeding under the

act, which contains or which might reveal a trade secret, shall be considered

confidential. Such information may

be disclosed only to other department

representatives concerned with carrying out the act or when relevant in any proceeding

under the act. In any such proceeding, the department shall issue such orders as may be

appropriate to protect the confidentiality of trade secrets.

(2) Information which contains, or which might reveal, a trade secret is not subject

to public inspection and copying.

(3) At the commencement of an inspection or investigation, the employer may

identify areas in the establishment which contain, or which might reveal, a trade

secret. If the department representative has no clear reason to question the

identification, information obtained in such areas, including all negatives and prints of

photographs, and environmental samples, shall be labeled "confidential--trade secret"

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and shall not be disclosed except in accordance with the provisions of section 63 of

the act.

(4) Upon the request of an employer, any authorized representative of employees

accompanying the department representative in an area containing trade secrets shall be

an employee in that area or an employee authorized by the employer to enter that area.

Where there is no such representative, the department representative shall consult with a

reasonable number of employees who work in that area concerning matters of safety

and health.

History: 1979 AC.

R 408.22333 Consultation with employees.

Rule 1333. Department representatives may consult with employees concerning

matters of occupational safety and health to the extent they deem necessary for the

conduct of an effective and thorough inspection or investigation. During the course of an

inspection or investigation, an employee shall be afforded an opportunity to bring any

violation of the act which he has reason to believe exists in the workplace to the

attention of the department representative.

History: 1979 AC.

R 408.22338 Complaints by employees.

Rule 1338. (1) Any employee or representative of employees, who believes that a

violation of the act which threatens physical harm exists in a workplace where the

employee is employed, may request an inspection or investigation of the workplace by

giving notice of the alleged violation to the department. The notice shall be reduced to

writing, shall set forth with reasonable particularity the grounds for the notice, and shall

be signed by the employee or representative of employees. A copy shall be provided

the employer or his agent by the department or department representative no later

than at the time of inspection or investigation, except that, upon the request of the

person giving the notice, his name and the names of individual employees referred to

therein shall not appear in the copy or on any record published, released, or made

available by the department.

(2) If, upon receipt of such notice, the department determines that the complaint

meets the requirements set forth in subrule (1) of this rule, and that there are

reasonable grounds to believe that the alleged violation exists, the department shall

cause an inspection or investigation to be made as soon as practicable to determine

if the alleged violation exists. Inspections or investigations under this rule need not be

limited to matters referred to in the complaint.

(3) If the department determines that an inspection or investigation is not warranted

because the written complaint does not meet the provisions of subrule (1) of this rule,

the department shall notify the complaining party, in writing, of such determination.

The determination shall be without prejudice to the filing of a new complaint

meeting the requirements of subrule (1) of this rule.

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(4) Prior to or during an inspection or investigation of a workplace, an employee or

representative of employees employed in the workplace may notify the department

representative, in writing, of any violation of the act, or of any rule promulgated under

the act, which he has reason to believe exists in such workplace. Any such notice shall

comply with the requirements of subrule (1) of this rule.

(5) When an employee or a representative of employees believes that a condition

exists which may present an imminent danger to an employee, he may notify either

department in the most expedient manner without regard to a written notice. Upon

notification of an alleged imminent danger, the department shall cause an immediate

inspection to be made or take other action that it finds necessary to abate the danger

as provided by R 408.22342 of this part.

(6) If a citation is issued for a violation alleged in a request for inspection under

subrule (1) of this rule or a notification of violation under subrule (4) of this rule, a copy

of the citation issued shall be sent to the employee or representative of employees who

made such request or notification.

(7) A person shall not discharge, or in any manner discriminate against, an employee

because the employee filed a complaint or instituted, or caused to be instituted, a

proceeding under, or regulated by, the act; or because the employee testified, or is about

to testify, in any such proceeding; or because of the exercise by such employee, on

behalf of himself or others, of any right afforded by the act.

History: 1979 AC.

R 408.22339 Informal review of complaints by employees.

Rule 1339. (1) The department shall notify a complaining party, in writing, when

any of the following determinations are made regarding a complaint under R

408.22338.

(a) There are no reasonable grounds to believe that an inspection or investigation

should be conducted.

(b) Based on an inspection or investigation conducted pursuant to the complaint

there are no reasonable grounds to believe that the alleged violation exists.

(2) The department shall notify the employer, in writing, of any determination

made pursuant to subrule (1)(b) of this rule.

(3) The complaining party may obtain informal review of a determination made

pursuant to subrule (1) by submitting a written statement of position to the department.

The department may hold an informal conference in which the complaining party may

orally present his views. The employer may attend the informal conference at the

discretion of the department.

(4) After considering all written and oral views presented, the department shall

do either of the following.

(a) Affirm, modify, or reverse the determination made in subrule (1)(a) of this rule.

(b) Order a reinspection or reinvestigation, issue a citation if it is believed that the

inspection or investigation disclosed a violation, or affirm the determination made in

subrule (1)(b) of this rule.

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(5) The department shall furnish the complaining party with a written notification

of the final disposition of the complaint and the reasons therefor. The final disposition

of the complaint by the department shall not be subject to further departmental review.

History: 1979 AC.

R 408.22342 Imminent danger; cease operation order.

Rule 1342. (1) When a department representative concludes, on the basis of an

inspection or investigation, that conditions or practices exist in a place of employment

which could reasonably be expected to cause death or serious physical harm

immediately or before the imminence of such danger can be eliminated through the

enforcement procedures otherwise provided by the act, the department representative

shall inform the employer and affected employee of the danger and afford the

employer the opportunity to voluntarily eliminate the danger.

(2) If the employer does not immediately take steps to eliminate the imminent

danger, the department representative shall recommend to the department director that

a cease operation order be issued pursuant to section 31(1) of the act to require that

steps be taken as may be necessary to avoid, correct, or remove the imminent danger.

Appropriate citations and notices of proposed penalties may be issued with respect to

violations associated with an imminent danger, even though, after being informed of

such danger by the department representative, the employer immediately eliminates the

imminence of the danger and initiates steps to abate such danger.

(3) Upon the failure of the employer to promptly comply with a cease operation

order issued pursuant to subrule (2) of this rule, the department shall petition the

circuit court having jurisdiction to restrain any condition or practice in a place of

employment which the department determines causes the imminent danger to exist.

History: 1979 AC.

R 408.22344 Citations.

Rule 1344. (1) The inspection or investigation report of the department

representative shall be reviewed by a department designee. If, on the basis of the

report, the department designee believes that the employer violated a requirement of

section 11 of the act, a requirement of any standard or rule promulgated pursuant to

the act, or a requirement of any order issued pursuant to the act, he shall issue to the

employer a citation by registered mail. An appropriate citation shall be issued even

though, after being informed of an alleged violation by the department representative,

the employer immediately abates, or initiates steps to abate, the alleged violation. A

citation shall be issued with reasonable promptness after termination of the

inspection or investigation. A citation shall not be issued under this rule after the

expiration of 90 days from the completion of the physical inspection or investigation of

the establishment.

(2) A citation shall be in writing and describe with particularity the nature of the

alleged violation, including a reference to the provision of the act, standards, rule,

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regulation, or order alleged to have been violated. A citation shall also fix a

reasonable time for the abatement of the alleged violation.

(3) A citation shall contain, on its face, a statement that it is an allegation of a

violation. The issuance of a citation does not constitute a finding that a violation of the

act has occurred unless there is a failure to appeal, either initially to the department or

subsequently to the board as provided in R 408.22351 and R 408.22354 of this part, or,

if appealed to the board, unless the citation is affirmed by the board.

History: 1979 AC.

R 408.22346 Proposed penalties.

Rule 1346. (1) After, or concurrent with, the issuance of a citation, and within a

reasonable time after the termination of the inspection or investigation, the department

shall notify the employer by registered mail of the proposed penalty as provided by

section 35 of the act, or that no penalty is being proposed. The notice of the proposed

penalty shall include statements informing the employer that the proposed penalty shall

become a final order of the board and not subject to review by any court or agency

unless, within 15 working days from the date of receipt of such notice, the employer

notifies the department in writing that he intends to appeal the citation or the

notification of proposed penalty (see R 408.22351). Payment of the penalty shall be

made to the department, payable to the "State of Michigan," within 5 working days of

the date the penalty became a final order of the board.

(2) The department shall determine the amount of a proposed penalty, giving due

consideration to the appropriateness of the penalty with respect to the size of the

business, the seriousness of the violation, and the history of previous citations, pursuant

to section 36 of the act.

(3) Appropriate penalties may be proposed with respect to an alleged violation,

even though, after being informed of the alleged violation by the department

representative, the employer immediately abates, or initiates steps to abate, the

alleged violation. Penalties shall not be proposed for violations which have no direct or

immediate relationship to safety or health.

History: 1979 AC.

R 408.22348 Posting of citations.

Rule 1348. (1) Upon receipt of a citation issued under the act, the employer shall

immediately post the citation, or a copy thereof, unedited, at or near the place of each

alleged violation referred to in the citation, with the following exceptions.

(a) Where, because of the nature of the employer's operations, it is not practicable to

post the citation at or near the place of alleged violation, the citation shall be posted,

unedited, in

a

prominent place where it is readily observable by all affected

employees. For example, where employees are engaged in activities which are

physically dispersed, the citation may be posted at the location to which employees

report each day.

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(b) Where employees do not primarily work at, or report to, a single location, the

citation may be posted at the location from which the employees operate to carry out

their activities.

(2) The employer shall take steps to ensure that the citation is readable and not

altered or defaced. The citation may be reproduced for posting purposes if more than 1

location is cited on a single citation.

(3) A citation, or a copy thereof, shall remain posted until the violation is

abated, or for 3 working days, whichever is later. The filing by the employer of an appeal,

either initially with the department or subsequently with the board as provided in R

408.22351 and R 408.22354 of this part, shall not affect the employer's posting

responsibility under this rule, unless the citation is vacated.

(4) An employer failing to comply with subrules (1) and (2) of this rule shall be

subject to citation and penalty pursuant to sections 33 and 35 of the act.

History: 1979 AC.

R 408.22349 Notification of compliance with citations.

Rule 1349. (1) An employer to whom a citation is issued shall notify the department,

in writing, immediately upon compliance with each item of the citation. Upon

compliance with an item of the citation, notification to the department shall not exceed

3 working days from the final abatement date on the citation of such item.

(2) Notification, as required in subrule (1) of this rule, may be accomplished by

either of the following.

(a) Submitting to the department, signed and dated, the "notification of abatement"

copy of the citation, or a copy thereof.

(b) Submitting a document, in writing, to the department certifying compliance.

History: 1979 AC.

R 408.22351 Employer appeal petitions of citations.

Rule 1351. (1) An employer to whom a citation or notice of proposed penalty is

issued may, under section 41 of the act, petition the department in writing for a

modification or dismissal of the citation and any proposed penalty, or for a grant of

additional time for compliance.

The petition shall be postmarked within 15 working days of the receipt by the

employer of a citation or proposed penalty. The petition shall specify which item on the

citation is being petitioned, and whether it is directed to the violation, proposed penalty,

or abatement date.

(2) An employer shall post a copy of the petition near the location of the violation

where the subject citation is posted, or give a copy of the petition to the affected

employees or their employee representative.

(3) An employer shall include in the petition to the department a certification

that a copy of the petition was posted or given to the affected employees or their

employee representative pursuant to subrule (2) of this rule. The certification shall

include the date and method of transmittal of the petition.

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History: 1979 AC.

R 408.22352 Employee appeal petitions of citations.

Rule 1352. Within 15 working days after the employer receives a citation, an

employee or employee representative may petition the department, in writing,

alleging that the period of time fixed in an item of the citation for abatement of such item

is unreasonable. The petition shall specify which item on the citation is being

petitioned. The department, upon receipt of the petition, shall promptly submit a copy of

the petition to the employer, deleting the name of the employee or employee

representative if so requested.

History: 1979 AC.

R 408.22353 Department decision on an appeal petition.

Rule 1353. (1) Upon receipt of a petition, the department may.

(a) Modify or dismiss the citation or proposed penalty.

(b) Modify the time period fixed for compliance.

(c) Affirm the citation, including the abatement date and proposed penalty.

(2) The department shall notify the employer by registered mail of the decision

regarding a petition within 15 working days of receipt of the petition by the

department. The employer shall promptly post the department's decision, together

with the appropriate citation, at the location of the posting of the subject citation. The

decision shall remain posted until the violation is abated or for 3 working days,

whichever is later.

History: 1979 AC.

R 408.22354 Employer and employee notices of appeal to the board.

Rule 1354. (1) Within 15 working days after receipt by the employer of the

department's decision regarding an appeal petition of a citation.

(a) The employer may appeal the decision to the board.

(b) The employee or employee representative may appeal the decision, with

respect to the date fixed for abatement, to the board.

(2) The notice of appeal of the department's decision shall be submitted to the

department. The department shall immediately transmit the notice of appeal to the board

in accordance with the procedure prescribed by the board.

History: 1979 AC.

R 408.22355 Petition for modification of abatement period.

Rule 1355. (1) An employer may file a petition for modification of an abatement

date when the employer has made a good faith effort to comply with the abatement

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requirements of a citation which has become a final order of the board, but the

abatement has not been completed because of factors beyond the employer's reasonable

control.

(2) A petition for modification of an abatement date shall be in writing and shall

include the following information.

(a) Steps taken by the employer, and the dates of those steps, in an effort to

achieve compliance during the prescribed abatement period.

(b) The specific additional abatement time needed in order to achieve compliance.

(c) The reasons the additional time is necessary, including the unavailability of

professional or technical personnel or of materials and equipment, or because necessary

construction or alteration of facilities cannot be completed by the original abatement

date.

(d) Available interim steps being taken to safeguard the employees against the

cited hazard during the abatement period.

(e) A certification that the petition for modification of an abatement date has been

filed and posted in accordance with subrule (4).

(3) A petition for modification of an abatement date shall be filed with the board no

later than the close of the next working day following the date on which abatement was

originally required. A petition filed later shall be accompanied by the employer's

statement of exceptional circumstances explaining the delay.

(4) On the same day that the petition is filed with the board, a copy of the petition

shall be filed with the department that issued the citation and a copy shall be posted by

the employer in a conspicuous place at or near the place where the citation was required

to be posted and remain so posted for a period of 10 working days.

(5) The department, affected employees, or their representatives may file written

objection to the petition with the board setting forth the reasons for opposing the

petition. An objecting party shall also file a copy of the written objection with the other

parties. Failure to file an objection within 10 working days of the date of filing the

petition shall constitute a waiver of any further right to object to the petition.

(6) The board may approve without a hearing a petition for modification of an

abatement date to which an objection has not been filed.

(7) Where a petition is objected to by the department or affected employees, the

petition shall be processed as follows.

(a) The board shall process the petition in the same manner as any other contested

case, except that a hearing on the petition shall be handled in an expeditious fashion.

(b) An employer petitioning for a modification of an abatement date shall have

the burden of proving by a preponderance of the evidence that he has made a good faith

effort to comply with the abatement requirements of the citation and that abatement has

not been completed because of factors beyond his control.

History: 1979 AC.

R 408.22356 Citation for failure to correct a previously cited violation.

Rule 1356. (1) If an inspection or investigation discloses that an employer failed

to correct an alleged violation, for which a citation was issued, within the period

permitted for its correction, the department may notify the employer, by registered mail,

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of the failure and of any additional penalty proposed under section 35(2) of the act by

reason of such failure.

(2) The period for the correction of a violation for which a citation was issued

shall not begin to run until the date of the final order of the board if a review proceeding

before the board is initiated by the employer in good faith and not solely for delay or

avoidance of penalties. The period of correction shall not be delayed by a review

proceeding initiated by the employer only with respect to the proposed penalty.

(3) An employer receiving a citation for failure to correct a violation and a proposed

additional penalty may notify the department, in writing, that he intends to petition for

a dismissal of the citation or the proposed additional penalty, or both, pursuant to R

408.22351 of these rules. An appeal petition regarding a citation for failure to correct

a violation shall be limited to the subject matter of the failure to correct citation.

(4) Within 15 working days after receipt of the department decision relative to an

appeal petition of a citation for failure to correct a violation or a proposed additional

penalty, or both, an employer may appeal the decision to the board pursuant to R

408.22354.

History: 1979 AC.

R 408.22358 Cease operation order for failure to correct a previously cited

violation.

Rule 1358. (1) If an inspection or investigation discloses that an employer failed

to correct a violation within the period permitted for its correction by a citation which

became a final order of the board, the department may issue a cease operation order

directing the employer to cease operating or render inoperable, pursuant to such order,

as much of the operation as is necessary to eliminate the hazard which is the subject of

the cease operation order.

(2) If an employer fails to obey a cease operation order issued pursuant to subrule

(1) of this rule, the department shall refer the matter to the prosecuting attorney of the

county in which the violation exists, who shall promptly institute proceedings in the

circuit court to enforce the department's order.

History: 1979 AC.

R 408.22361 Informal conference.

Rule 1361. At the request of an affected employer, employee, or employee

representative, the department may hold an informal conference for the purpose of

discussing any issues raised by an inspection or investigation, citation, notice of

proposed penalty, or appeal petition. If the conference is requested by the employer,

an affected employee or employee representative shall be afforded an opportunity to

participate, at the discretion of the department. If the conference is requested by an

employee or employee representative, the employer shall be afforded an opportunity to

participate, at the discretion of the department. A party may be represented by counsel at

the conference. No conference or request for conference shall operate as a stay of the 15

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working day period for filing an appeal petition to the department or notice of appeal

to the board as prescribed in R 408.22351, R 408.22352, and R 408.22354.

History: 1979 AC.

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