OSHRC Docket No. 11435

Occupational Safety and Health Review Commission

May 10, 1977


Before BARNAKO, Chairman; CLEARY, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Robert A. Goodman, Labor Counsel/Director EEO, GAF Corporation, for the employer

Ira Smotherman, for the employer




On March 8, 1976, Administrative Law Judge Alan M. Wienman affirmed items 4a, 4b, and 4c of a citation issued to respondent GAF Corporation for alleged failures to comply with 29 CFR 1910.93a(j)(2), (3), and (6), contrary to section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. On April 7, 1976, respondent's petition for discretionary review was granted and submissions were invited on whether the Judge erroneously construed the standard, and whether he erred in failing to rule upon the Secretary of Labor's motion to dismiss item 4c.

With respect to the first issue, the Judge followed the divided Commission decision in GAF Corp. BNA 3 OSHC 1686, CCH 1975-76 OSHD para. 20,163 (No. 3203 etc., 1275), which the parties agree should control the disposition of items 4a and 4b. A majority of the Commission members would therefore affirm items 4a and 4b in accordance [*2] with the cited precedent. Commissioner Moran would vacate for the reasons stated in his dissenting opinion in GAF Corp.

With respect to item 4c, the Judge apparently overlooked the Secretary's motion to dismiss. On review, both parties urge that the Judge therefore erred in affirming the item. We treat the parties' agreement to be a stipulation of dismissal, and we accordingly vacate item 4c.

Accordingly, items 4a and 4b of the citation are affirmed, and item 4c is vacated.