OSHRC Docket No. 76-1697

Occupational Safety and Health Review Commission

September 21, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Reg. Sol., USDOL

John P. Blackburn, for the employer



BY THE COMMISSION: This case is before the Commission for review pursuant to 29 U.S.C. 661(i). The respondent contends that Judge John J. Morris's affirmance of a citation for noncompliance with 29 C.F.R. 1926.451(a)(4) should be reversed because: (1) its fourth amendment right against unreasonable searches and seizures was violated, and (2) its rights to trial by jury, due process, and equal protection under the United States and South Dakota Constitutions were denied. The respondent's contention is rejected, and the Judge's decision is affirmed.

For the reasons cited by Judge Morris, there has been no violation of the respondent's right against unreasonable searches and seizures under the fourth amendment. The respondent has not demonstrated any error in the Judge's decision.

The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., does not provide for a jury trial. The Commission has no authority to pass upon its failure to do so. Public Utilities Commission [*2] of California v. United States, 355 U.S. 534, 539-40 (1958); Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), appeal docketed, No. 76-1467, 5th Cir., February 19, 1976. Nevertheless, it is noted that the Supreme Court has held that there is no seventh amendment right to trial by jury before this Commission. Atlas Roofing Company, Inc. v. OSHRC, 97 S.Ct. 1261 (1977).

The remainder of the respondent's contentions were not timely raised. The issue of a violation of its state constitutional rights was first raised in the respondent's petition for review. The Commission has held that it will generally decline to consider nonjurisdictional issues which have not been expressly or impliedly litigated prior to review. Gulf Stevedore Corporation, 77 OSAHRC 135/E11, 5 BNA OSHC 1625, 1977-78 CCH OSHD para. 21,975 (No. 76-926, 1977).

The issues raised in the respondent's petition for review concerning a denial of its due process and equal protection rights pertain to the complainant's delegation of power to Occupational Safety and Health Administration inspectors and area directors to determine whether a violation [*3] exists and an appropriate penalty. These issues were first introduced at the close of the hearing. The respondent did not submit a brief on these issues to the Judge. Consequently, the Judge did not address them in his decision. Moreover, the respondent has not filed a brief on review. As a result, it is not clear in what respect the respondent claims that the delegation infringes on its right. Under the circumstances, it would be inappropriate to address these issues. See Gulf Stevedore Corporation, supra, Contract Production Services, 75 OSAHRC 55/D14, 3 BNA OSHC 1152, 1974-75 CCH OSHD para. 19,599 (No. 1285, 1975).

The Judge's decision is affirmed.