[HISTORY: Adopted by the Legislature of the Menominee Indian
Tribe 3-4-2010 by Ord. No. 09-21. Amendments noted where applicable.]
GENERAL REFERENCES
Charters — See Part IV.
A.
The Menominee Tribal Legislature, in order to assure, insofar as
may reasonably be possible, safe and healthful working conditions
for every man and woman working on the Menominee Indian Reservation,
declares its purpose by the provisions of this chapter to create,
maintain, continue, and enhance the industrial safety and health program
of the Tribe, which program shall be as effective, in the opinion
of the Menominee Tribal Legislature, as the standards prescribed by
the Occupational Safety and Health Act of 1970 (Public Law 91-596,
84 Stat. 1590).[1]
[1]
Editor's Note: See 29 U.S.C. § 651 et seq.
B.
Although the Menominee Tribal Legislature, pursuant to Article III of the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin, has the power and authority to make the provisions of this chapter applicable to all employers within the borders of the Menominee Indian Reservation, the Legislature at this time wishes only to apply the provisions of this chapter to Menominee Tribal Enterprises, Menominee Indian Gaming Authority and all entities chartered by the Menominee Tribal Legislature pursuant to Articles XII and XIII of the Constitution and Bylaws. The provisions of this chapter do not apply to the Menominee Indian Tribe nor the College of the Menominee Nation, nor to any other person or entity not defined as an employer pursuant to § 436-2 of this chapter.
For the purposes of this chapter:
A board which shall consist of the Insurance Director, Environmental
Services Director, Community Development Director, Housing Director,
designee from the Menominee Casino and designee from the College of
the Menominee Nation. In the event that one of the above-listed positions
is filled by a nontribal member, that director shall designate a tribal
member employee of that department to serve on the Board.
[Amended 12-15-2011]
An employee, agent, or officer of the Department.
The Menominee Indian Tribe of Wisconsin Environmental Services
Department.
The Director of the Menominee Indian Tribe of Wisconsin Environmental
Services Department, or a designated representative of that Director.
An employee of an employer.
Menominee Tribal Enterprises, the Menominee Indian Gaming
Authority and any business chartered by the Tribe pursuant to Article
XII or XIII of the Constitution and Bylaws of the Menominee Indian
Tribe of Wisconsin.
A standard which requires the adoption or use of one or more
practices, means, methods, operations, or processes reasonably necessary
or appropriate to provide safe or healthful employment and places
of employment, and any rules, regulations, or procedures necessary
to effectively implement this chapter.
The Menominee Tribal Court.
For the purpose of computing time, a calendar day, except
Saturdays, Sundays, and all tribal governmental legal holidays, as
now or hereafter amended, and for the purposes of the computation
of time within which an act is to be done under the provisions of
this chapter, shall be computed by excluding the first working day
and including the last working day.
Any plant, yard, premises, room, or other place where an
employee or employees are employed for the performance of labor or
service over which the employer has the right of access or control.
A.
The Menominee Tribal Legislature, by resolution, shall make, adopt,
modify, and repeal rules and regulations governing safety and health
standards for conditions of employment as authorized by this chapter.
B.
Within one year of enactment of this chapter, the Advisory Board
shall recommend to the Menominee Tribal Legislature the adoption of
safety and health standards governing the conditions of employment
of general and special application in all work places. The Director
shall post these recommendations in accordance with Ordinance No.
80-6[1] at least 30 days prior to any adoption of such recommendations pursuant to Subsection A above. Such posting shall invite public comment. The Director may present such rules at a public hearing where the Director determines or is required by law to hold such a hearing to provide for notice and comment. The Menominee Tribal Legislature may extend the time period for the Advisory Board to provide its initial recommendation for up to 60 days, upon request from the Advisory Board.
C.
The Advisory Board shall thereafter recommend the adoption of safety
and health standards, or the amendment of existing safety and health
standards, at any time it deems it to be necessary for the safety
and health of employees. Such further recommendations shall be made
and adopted in the same manner provided for the initial recommendations.
D.
In the recommendation of safety and health standards under the authority
of this chapter, the Advisory Board shall:
(1)
Provide for the adoption of occupational health and safety standards
which are at least as effective as those adopted or recognized by
the United States Secretary of Labor under the authority of the Occupational
Safety and Health Act of 1970 (Public Law 91-596, 84 Stat. 1590);[2] and
[2]
Editor's Note: See 29 U.S.C. § 651 et seq.
(2)
Provide a method of encouraging employers and employees in their
efforts to reduce the number of safety and health hazards at their
work places and to stimulate employers and employees to institute
new and to perfect existing programs for providing safe and healthful
working conditions; and
(3)
Provide for appropriate reporting procedures by employers with respect
to such information relating to conditions of employment which will
assist in achieving the objectives of this chapter; and
(4)
Provide for the frequency, method, and manner of the making of inspections
of work places without advance notice; and
(5)
Provide for the publication and dissemination to employers and employees,
posting where appropriate by employers, of informational, educational,
or training materials calculated to aid and assist in achieving the
objectives of this chapter; and
(6)
Provide for the establishment of new, and the perfection and expansion
of existing, programs for occupational safety and health education
for employers and employees, and in addition, institute methods and
procedures for the establishment of a program for voluntary compliance
solely through the use of advice and consultation with employers and
employees with recommendations, including recommendations of methods
to abate violations relating to the requirements of this chapter and
all applicable safety and health standards and rules and regulations
promulgated pursuant to the authority of this chapter; and
(7)
Provide the effective date of such standard which shall not be less
than 30 days, excepting emergency rules. Temporary orders granting
a variance may be utilized by the Director in lieu of the delayed
effectiveness in the adoption of any rule.
Each employer shall furnish to each of his employees a place
of employment free from recognized hazards that are causing or likely
to cause serious injury or death to his employees.
A.
The Director, or any authorized representative, in carrying out his
duties under this chapter, upon the presentation of appropriate credentials
to the owner, manager, operator, or agent in charge, is authorized
to do the following:
(1)
Enter without delay and at all reasonable times any work place of
an employer; and
(2)
Inspect, survey, and investigate during regular working hours and
at other reasonable times, and within reasonable manner, any such
work place and all pertinent conditions, structures, machines, apparatus,
devices, equipment, and materials therein, and to question privately
any such employer, owner, operator, agent, or employee; and
(3)
In making inspections and making investigations under this chapter,
the Director may require the attendance and testimony of witnesses
and the production of evidence under oath. Witnesses shall be paid
the same fees and mileage that are paid witnesses in the Tribal Courts.
In the case of failure or refusal of any person to obey such an order,
the Tribal Court shall have jurisdiction to issue to such person an
order requiring such person to appear to produce evidence when so
ordered, and to give testimony relating to the matter under investigation
or in question. Any failure to obey such order of the Court may be
punished by said Tribal Court as contempt thereof.
B.
A representative of the employer shall be given an opportunity to
accompany the Director, or an authorized representative, during the
physical inspection of any work place for the purpose of aiding such
inspection.
A.
Any employer may apply to the Director for a temporary order granting a variance from any safety and health standard promulgated by rule or regulation under the authority of this chapter. Such temporary order shall be granted only if the employer files an application which meets the requirements of Subsection B of this section. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard, or one year, whichever is shorter, except that such an order may be renewed not more than twice, so long as the requirements of this subsection are met and if an application for renewal is filed at least 90 days prior to the expiration date of the order. No renewal of a temporary order may remain in effect for longer than 180 days.
B.
An application for a temporary order under this section shall contain:
(1)
A specification of the safety and health standard or portion thereof
from which the employer seeks variance;
(2)
A representation by the employer, supported by proof from qualified
persons having first-hand knowledge of the facts as represented, that
he is unable to comply with the safety and health standard or portion
thereof and a detailed statement of the reasons therefor;
(3)
A statement of the steps the employer has taken and will take, with
specific dates, to protect employees against the hazard covered by
the standard;
(4)
A statement as to when the employer expects to be able to comply
with the standard or portion thereof and what steps he has taken and
will take, with dates specified, to come into compliance with the
standard; and
(5)
A certification that the employer, by the date of mailing or delivery
of the application to the Director, has informed his employees of
the application by providing a copy thereof to his employees or their
authorized representative by posting a copy of such application in
a place or places reasonably accessible to all employees or by other
appropriate means of notification and by mailing a copy to the authorized
representative of such employees; the application shall set forth
the manner in which the employees have been so informed. The application
shall also advise employees and their employee representatives of
their right to apply to the Director to conduct a hearing upon the
application for a variance.
Any employer may apply to the Director for an order for a variance from any rule or regulation establishing a safety and health standard promulgated under this chapter. Affected employees shall be given notice of each such application, and in the manner prescribed by § 436-6, shall be informed of their right to request a hearing on any such application. The Director shall issue such order granting a variance, after opportunity for an inspection, if he determines or decides after a hearing has been held, if request for hearing has been made, the applicant for the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by such applicant employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the safety and health standard or standards from which the variance is sought. The order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize, to the extent they differ from the standard in question. At any time after six months has elapsed from the date of the issuance of the order granting a variance upon application of an employer, employee, or the Director on his own motion, after notice has been given in the manner prescribed for the issuance of such order, may modify or revoke the order granting the variance from any standard promulgated under the authority of this chapter.
Each employee shall comply with the provisions of this chapter
and all rules, regulations, health and safety standards and orders
issued pursuant to the authority of this chapter which are applicable
to his own actions and conduct in the course of his employment.
A.
Any employee or representative of employees who in good faith believes
that a violation of a safety or health standard, promulgated by rule
under the authority of this chapter, exists that threatens physical
harm to employees, or that an imminent danger to such employees exists,
may request an inspection of the work place by giving written notice
to the Director or his authorized representative of such violation
or danger.
B.
A copy of the notice shall be provided to the employer or his agent
no later than at the time of inspection, except that, upon the request
of the person giving such notice, his name and the names of individual
employees referred to therein shall not appear in such copy or on
any record published, released, or made available pursuant to any
provision of this chapter.
C.
If upon receipt of such notification the Director determines that
there are reasonable grounds to believe that such violation or danger
exists, he shall make a special inspection as soon as practicable
to determine if such violation or danger exists. If the Director determines
there are no reasonable grounds to believe that a violation or danger
exists, he shall notify the employer and the employee, in writing,
of such determination. Prior to or during any inspection of a work
place, any employee employed in such work place may notify the Director
or any representative of the Director responsible for conducting the
inspection, in writing, of any violation of this chapter which he
has reason to believe exists in such work place.
D.
No person shall discharge or in any manner discriminate against any
employee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this
chapter, or has 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 this chapter.
A.
If upon inspection or investigation the Director or an authorized
representative believes that an employer has violated a requirement
of this chapter, or any safety or health standard promulgated by rule
adopted pursuant to this chapter, or the conditions of any order granting
a variance pursuant to this chapter, he shall with reasonable promptness
issue a citation to the employer. Each citation shall be in writing
and shall describe with particularity the nature of the violation,
including a reference to the provisions of the ordinance, standard,
rule, regulation, or order alleged to have been violated. In addition,
the citation shall fix reasonable time for the abatement of the violation.
The Director may prescribe procedures for the issuance of a notice
in lieu of a citation with respect to de minimis violations which
have no direct or immediate relationship to safety or health.
B.
Each citation, or a copy or copies thereof, issued under the authority
of this section shall be prominently posted at or near each place
a violation referred to in the citation occurred or as may otherwise
be prescribed in regulations issued by the Director. No citation may
be issued under this section after the expiration of six months following
a compliance inspection, investigation, or survey revealing any such
violation.
A.
If upon inspection or investigation, the Director, or an authorized
representative, believes that an employer has violated a requirement
of this chapter, or any safety or health standard promulgated by rule
adopted pursuant to this chapter, or any conditions of an order granting
a variance, which violation is such that a danger exists from which
there is a substantial probability that death or serious physical
harm could result to any employee, the Director or an authorized representative
shall issue a citation and may issue an order immediately restraining
any such condition, practice, method, process, or means in the work
place. Any order issued under this section may require such steps
to be taken as may be necessary to avoid, correct, or remove such
danger and prohibit the employment or presence of any individual in
locations or under conditions where such danger exists, except individuals
whose presence is necessary to avoid, correct, or remove such danger
or to maintain the capacity of a continuous process operation in order
that the resumption of normal operations may be had without a complete
cessation of operations, or where a cessation of operations is necessary,
to permit such to be accomplished in a safe and orderly manner. In
addition, if any machine or equipment, or any part thereof, is in
violation of a requirement of this chapter or any safety or health
standard promulgated by rules of the Department, and the operation
of such machine or equipment gives rise to a substantial probability
that death or serious physical harm could result to any employee,
and an order of immediate restraint of the use of such machine or
equipment has been issued under this subsection, the use of such machine
or equipment is prohibited, and a notice to that effect shall be attached
thereto by the Director or an authorized representative.
B.
Whenever the Director, or an authorized representative, concludes that a condition of employment described in Subsection A of this section exists in any work place, he shall promptly inform the affected employees and employers of the danger.
C.
At any time that a citation or a citation and order restraining any condition of employment or practice described in Subsection A of this section is issued by the Director, or his authorized representative, he may in addition request the Tribal Prosecutor to make an application to the Tribal Court for a temporary restraining order or such other relief as appears to be appropriate under the circumstances.
B.
Any person who gives advance notice of any inspection to be conducted
under the authority of this chapter, without the consent of the Director
or his authorized representative, may be assessed a civil penalty
of not more than $1,000.
C.
Any person who knowingly makes any false statement, representation,
or certification in any application, record, report, plan, or other
document filed or required to be maintained pursuant to this chapter
may be assessed a civil penalty of not more than $1,000.
D.
Any person who willfully and knowingly violates the requirements
of this chapter, any safety or health standard promulgated under this
chapter, any existing rule or regulation governing the safety or health
conditions of employment and adopted by the Director, or any order
issued granting a variance under this chapter, and that violation
caused death to any employee, may be assessed a civil penalty of not
more than $5,000.
E.
Any employer who has been issued an order immediately restraining a condition, practice, method, process, or means in the work place, pursuant to § 436-11, and who nevertheless continues to use a machine or equipment or part thereof to which a notice prohibiting such use has been attached may be assessed a civil penalty of not more than $1,000 for each day during which such use continues.
F.
Any person who violates any provision of this chapter not specifically
referenced elsewhere in this section may be assessed a civil penalty
of not more than $500 for such violation.
G.
Whenever the Director has reasonable cause to believe that any person
has committed an act which subjects him or her to a penalty under
this section, the Director shall cause a record of such alleged violation
to be prepared, a copy of which shall be referred to the Tribal Prosecutor,
and the Tribal Prosecutor shall, in writing, advise the Director of
the disposition he shall make of the alleged violation.
H.
If the person committing the act subject to penalty under this section
is an employee of an employer, the employer shall be jointly and severally
liable with that person for all penalties imposed under this chapter.
In addition to and after having invoked the powers of restraint vested in the Director as provided in § 436-11, the Tribal Court shall have jurisdiction, upon petition of the Director through the Tribal Prosecutor, to enjoin any condition or practice in any work place from which there is a substantial probability that death or serious physical harm could result to any employee immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct, or remove such danger and prohibit the employment or presence of any individual in locations or under conditions where such danger exists, except individuals whose presence is necessary to avoid, correct, or remove such danger or to maintain the capacity of a continuous process operation to resume normal operation without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner.
All information reported to or otherwise obtained by the Director,
or an authorized representative, in connection with any inspection
or proceeding under the authority of this chapter which contains or
which might reveal a trade secret shall be considered confidential,
except that such information may be disclosed to other officers or
employees concerned with carrying out this chapter, or when relevant
in any proceeding under this chapter. In any such proceeding, the
Director or the Court shall issue such orders as may be appropriate
to protect the confidentiality of trade secrets.
A.
Each employer shall make, keep, preserve, and make available to the
Director such records regarding his activities relating to this chapter
as may be prescribed by regulation as necessary or appropriate for
the enforcement of this chapter or for developing information regarding
the causes and prevention of occupational accidents and illnesses.
In order to carry out the provisions of this section, such regulations
may include provisions requiring employers to conduct periodic inspections.
Each employer shall keep his or her employees informed of their protection
and obligations under this chapter, including the provisions of applicable
safety and health standards, in accordance with prescribed regulations.
B.
Employers shall maintain accurate records and make periodic reports
of work-related deaths and of injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or motion,
or transfer to another job, in accordance with prescribed regulations.
C.
Employers shall maintain accurate records of employee exposures to
potentially toxic materials or harmful physical agents which are required
to be monitored or measured and shall provide employees or their representatives
with an opportunity to observe such monitoring or measuring, and to
have access to the records thereof, in accordance with prescribed
regulations.
If any provision of this chapter or its application to any person
or circumstance is held invalid, the remainder of the chapter, or
the application of the provision to other persons or circumstances,
is not affected.
In order to ensure the effectiveness of this chapter, if any
employer is contacted by the United States Department of Labor regarding
compliance with the federal Occupational Safety and Health Act,[1] that employer shall request that the Department of Labor
address itself to the Chairperson of the Menominee Tribal Legislature,
and employers shall promptly notify the Office of the Chairperson
of the Menominee Tribal Legislature of any such contact.
[1]
Editor's Note: See 29 U.S.C. § 651 et seq.
The Menominee Tribal Legislature shall appropriate a sufficient
amount of funds to implement the purposes of this chapter. This chapter
shall become effective upon final approval.
