CARGILL, INC.

OSHRC Docket Nos. 78-2862; 78-2864

Occupational Safety and Health Review Commission

October 22, 1979

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant Regional Solictior, USDOL

Thomas Tinkham, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Judge Alan M. Weinman is before the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. Judge Weinman vacated citations charging Respondent with allegedly violating section 5(a)(1), the general duty clause, of the Act. The judge concluded that the Secretary had failed to prove Respondent violated section 5(a)(1) as alleged.

Neither party petitioned for review of the judge's decision. Commissioner Cottine, pursuant to 29 C.F.R. 2200.91a(a), directed review of the decision on several issues, primarily asking whether the judge erred in concluding that the Secretary had improperly proceeded under the general duty clause and whether the record established the alleged violations.

In response to the direction for review, the Secretary states that he does not agree with the judge's reasoning concerning the appropriate use of the general duty clause, but that he does not seek review of the judge's [*2] decision. The Secretary notes that the judge's disposition is based largely on factual findings and, while he does not concede those findings are correct, he does not wish to have them reviewed. Accordingly, the Secretary asks that we affirm the judge's decision without according it precedential value, citing Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

Under the circumstances, we will not review the case. The Secretary does not seek review of the judge's factual findings, and there is no compelling public interest in our reviewing those findings. Thus, any consideration we would give to the other aspects of the case would not affect the disposition. While the appropriate scope of the general duty clause may well be a matter of compelling public interest, we have no occasion to reach that issue in light of the judge's unchallenged disposition on the facts. Accordingly, we affirm the judge's decision without review. n1 Abbott-Sommer, Inc., supra; Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). The judge's decision is accorded the precedential value [*3] of an unreviewed judge's decision. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir., May 17, 1976).

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n1 Respondent has filed a brief in support of the judge's decision. The filing of a brief by the non-aggrived party, however, does not affect our decision not to review the case. See Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979).

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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

This case presents no issue of compelling public interest and it is properly affirmed without precedential status under Water Works Insulation, 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). However, the standard of review utilized by the majority to determine "compelling public interest" is confusing and simplistic. n1

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n1 The majority properly commences its inquiry by distinguishing between party interest and compelling public interest. However, it restricts its review to adverse party interest, i.e., the interest of the party adversely affected or aggrieved by the judge's decision and order. This restriction ignores the case where a non-aggrieved party may nonetheless have an interest in a final authoritative interpretation of a statutory provision or standard in order to resolve existing or potential conflicts in interpretation by administrative law judges. See generally Continental Can Company, U.S.A. v. Marshall, 455 F. Supp. 1015 (S.D. Ill. 1978), aff'd F.2d (7th Cir. 1978), dismissal on remand, 78 OSAHRC 93/A2, 6 BNA OSHC 2114, 1978 CCH OSHD P23,146 (Nos. 7855, 10561, 12069, 76-25, 77-2313, 77-4156, 78-360, 78-890, and 78-2460, 1978). In addition to party interest, there may be public interest in the resolution of conflicting interpretations. However, the Commission should not ignore party interest entirely by invoking the non-aggrieved party rule of Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979). After careful review of the Commission's docket, I conclude that this case presents no conflict necessitating Commission review.

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Several issues concerning the interpretation of the general duty clause and its application to a specific factual controversy are presented by this case. n2 In support of the decision and order under review, the Respondent has filed a detailed and comprehensive brief. The Secretary has simply filed a letter declining to brief the case but not conceding the factual controversy. In his letter, the Secretary suggests that the decision below should be affirmed without precedential value because an "appropriate factual context" has not been presented "to resolve important legal issues regarding the scope and proper use of the general duty clause." The conclusion urged by the Secretary finds support in the fact that a case involving similar issues remains before the Commission on review. Cargill, Inc., Docket No. 78-3006.

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n2 The direction for review specified the following issues:

(1) Whether the Administrative Law Judge erred in vacating items 1, 2, and 3 of Citation No. 1, alleging violations of the general duty clause of the Act, 29 U.S.C. 654(a)(1), on the basis that "[t]he Secretary has distorted legitimate use of the General Duty Clause for the purpose of establishing standards on an ad hoc basis."

(2) Whether the Administrative Law Judge erred in concluding that the NFPA standards did not establish recognition of the hazard.

(3) Whether the record established violations of 5(a)(1), 29 U.S.C. 654(a)(1), for failure to: (1) remove overheated babbit bearings; (2) enclose interior stairways in grain elevators; (3) equip a cyclone dust collector with an explosion vent; and (4) equip spouts with separators to exclude foreign matter.

(4) Whether the Administrative Law Judge erred in failing to amend item 1 which alleged a violation of 5(a)(1), 29 U.S.C. 654(a)(1), to a violation of 29 C.F.R. 1910.212(a)(3)(ii), under Fed. R. Civ. P. 15(b).

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Issues of compelling public interest may be presented by the entire spectrum of adjudicatory rulings from findings of fact to conclusions of law. See generally L. Jaffe, Judicial Control of Administrative Action ch. 14 (1965). Compelling public interest may be present in a purely legal issue involving jurisdiction, n3 statutory interpretation, n4 or the development and integration of a national body of occupational safety and health law. n5 In this type of case, the judge's findings with respect to factual controversy may be unchallenged on review, yet his conclusion of law may be central to the disposition of the case. The most obvious example is a case involving stipulated facts where the interpretation of law is determinative of the outcome, i.e., whether the Respondent violated the terms of a standard or section 5(a)(1) of the Act. n6 Similarly, the application of law to the adjudicated facts or the determination of a factual controversy may present issues of compelling public interest. For example, feasibility determinations frequently present issues involving the interpretation [*6] of a standard and its application to complex factual findings. n7 The simplistic outcome determinative test grafted onto the compelling public interest analysis by the majority is unresponsive to the wide variety of legal and factual issues that are central to the Commission's mandate to establish a national body of occupational safety and health law. S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979). Furthermore, the outcome determinative test is subject to abuse from premature and incomplete judgments concerning the final disposition of a case by the Commission.

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n5 S & H Riggers & Erectors, Inc., 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).

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