KING ARTHUR INCORPORATED
OSHRC Docket No. 76-2132
Occupational Safety and Health Review Commission
April 27, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, USDOL
David J. Constantine, Vice President, King Arthur, Inc., for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the [*2] significance of an unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Chalk, Judge
Because of the Secretary's failure to forward Respondent's Notice of Contest in a related case to this Commission for adjudication (Docket Number 76-1895), his subsequent re-inspection of Respondent's workplace leading to the issuance of the Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty in this Docket was unauthorized and must be set aside (29 USC 659(c)). n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 I have decided against consolidating these two Dockets in order to effect final disposition of this Docket without unnecessary delay.
[*3]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In the related Docket, with respect to item 1(b) of Citation number 2 for a serious violation consisting of two parts, the subject of this Docket, Respondent forwarded a letter within fifteen working days to the area director wherein it stated: "Same as #44." This comment referred to a previous statement in the letter regarding item number 44 of Citation number 1 for nonserious violations, involving the same power press, which reads:
"On this item, we need more time to either replace machine or repair same. By May 15th it should be resolved."
That the foregoing letter constituted a contest of the alleged violation and proposed penalty, as well as the abatement date, in that Docket cannot seriously be questioned, although the Secretary argues to the contrary (Secretary v. Eastern Knitting Mills, Inc., 13 OSAHRC 176 (1974); Secretary v. Philadelphia Coke Div., Eastern Assoc. Coal Corp., Docket No. 6448, September 5, 1974). Instead of transmitting this contest and related documents to the Commission (29 USC 659(c)), the area director issued an amended Citation extending the abatement date of the item [*4] in question to April 30, 1976, rather than the May 15th date requested by Respondent. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Although not germane to this Docket, the area director took similar action with respect to item 44 of Citation number 1 for nonserious violations.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As the action of the area director in that Docket transcended the expressed mandate of the Act to forward Notices of Contest to this Commission for adjudication, the amendment was of no legal effect and thus void (Secretary v. FMC Corp. - Fibers Div., 11 OSAHRC 22 (1974)). n3 It, of course, had no effect on Respondent's Notice of Contest, a viable one that is now before this Commission for adjudication.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 As an interesting sidelight, I note that the area director's amendment even violated the Secretary's Field Operations Manual (Chap. X, subparagraph B.2.b. and c.) because he did not extend the abatement date to that requested by Respondent. In my view, however, these provisions of the manual direct action not in harmony with the Act. For a more detailed analysis of the issue, see Order in Docket Number 76-1895, copy appended hereto.
[*5]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
A failure to abate action, such as in this Docket, can be undertaken by the Secretary only where there has been a final Order in the prior case (29 USC 659(b)). As there has been no final Order in Docket Number 76-1895, the reinspection Respondent's workplace and the resultant issuance of this failure to abate notification were without legal sanction (Secretary v. FMC Corp. - Fibers Div., supra).
The Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty are vacated with prejudice.
So ORDERED.
JOSEPH L. CHALK, Judge, OSHRC
Dated: June 30, 1976
Washington, D.C.