PRESTRESSED SYSTEMS, INC.

OSHRC Docket Nos. 76-4276; 76-4778

Occupational Safety and Health Review Commission

June 11, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Clair W. Langmaid, for the employer

Elliott Goldstein, Safety Director Prestressed Systems, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

These cases arose out of citations issued by the Secretary of Labor ("the Secretary") to Prestressed Systems, Inc. ("Prestressed"), under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). In Docket No. 76-4276, the citation alleged that Prestressed had violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards. Prestressed filed a notice of contest only as to the alleged noncompliance with the standard at 29 C.F.R. 1926.25(a). In Docket No. 76-4278, the citation alleged noncompliance with a number of standards at a worksite different from the one involved in Docket No. 76-4276. Prestressed filed a timely notice of contest. The two cases were assigned to Administrative Law Judge James D. Burroughs, who entered an order consolidating these cases with Docket No. 76-4277 pursuant to Rule 9 of the Commission's Rules of Procedure, 29 C.F.R. [*2] 2200.9. n1

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n1 Rule 9 provides:

Consolidation. Cases may be consolidated on the motion of any party, on the Judge's own motion, or on the Commission's own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the Act require.

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After a hearing had been held on the three cases, the Secretary filed a notice of withdrawal in Docket No. 76-4277, and Judge Burroughs entered an order severing that case. Judge Burroughs issued his decision in the two remaining cases, setting forth his findings of fact and conclusions of law. In Docket No. 76-4276, the judge affirmed the citation alleging noncompliance with 29 C.F.R. 1926.25(a). Neither party petitioned for review of this disposition. In Docket No. 76-4278, the judge, among other things, vacated a citation alleging noncompliance with 29 C.F.R. 1926.28(a). The Secretary took exception to the judge's disposition of that item and petitioned for review of that portion [*3] of the judge's decision. Commissioner Cleary granted the Secretary's petition and directed review on the issues raised by the Secretary's petition pursuant to section 12(j) of the Act, 29 U.S.C. 661(i).

Although the direction for review set forth both docket numbers, neither of the parties has excepted to that portion of Judge Burrough's decision disposing of Docket No. 76-4276, and the direction for review specifies no issue to be considered in that case. Furthermore, we conclude that the judge's decision in Docket No. 76-4276 does not raise issues of compelling public interest. Therefore, there is good cause for severing the two cases under Rule 10 of the Commission's Rules of Procedure, 29 C.F.R. 2200.10, n2 and they are hereby severed. In the absence of either party interest or a compelling public interest in Commission review, the judge's decision in Docket No. 76-4276 is affirmed. See Duriron Company, Inc., 80 OSAHRC 61/A2, 8 BNA OSHC 1975, 1980 CCH OSHD P24,556 (Nos. 77-2846 & 77-2847, 1980). It is accorded the precedential value of an unreviewed judge's decision. Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, [*4] 1976).

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n2 Rule 10 provides:

Severance. Upon its own motion, or upon motion of any party or intervenor, the Commission or the Judge may, for good cause, order any proceeding severed with respect to some or all issues or parties.

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Docket No. 76-4278 remains before us on review.

SO ORDERED.