GULF OIL COMPANY

OSHRC Docket No. 14281

Occupational Safety and Health Review Commission

December 20, 1977

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

J. H. Sperry, Gulf Oil Co., U.S. Law Department, for the employer

Anthony Mazzocchi, Dir., Citizenship-Legislative Dept., Oil, Chemical and Atomic Wkrs. Inter'al Union, for the employees

OPINION:

DECISION

BY THE COMMISSION: A decision of Administrative Law Judge James D. Burroughs is before the Commission pursuant to a direction for review by former Commissioner Moran issued under 29 U.S.C. 661(i) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Judge Burroughs vacated one alleged violation of an occupational safety and health standard and affirmed four other alleged violations of standards. He assessed a total penalty of $910 for those violations that he affirmed, recharacterizing an alleged serious violation as nonserious and assessing a $100 penalty rather than the $700 penalty that had been proposed by complainant.

No party has taken issue with those parts of the decision in which the Judge vacated an alleged violation and reclassified a serious citation as nonserious, assessing a reduced penalty. Accordingly, [*2] the Commission will not review these actions. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

With respect to the alleged violations that were affirmed, respondent did not petition for review of the Judge's decision and the direction for review did not specify and issues. Inasmuch as on review respondent resubmitted its post-trial brief, asking in effect that the Commission reconsider its arguments made before the Judge, and the Judge correctly decided the issues before him, we adopt the Judge's decision. n1 See Phillip E. Runyan, d/b/a Chief Metal Products, 77 OSAHRC 184/D4, 5 BNA OSHC 1980, 1977-78 CCH OSHD para. (No. 14005, 1977).

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n1 Although Judge Burroughs did not address respondent's contention that two of its cranes were sometimes used as "walking cranes," thereby assertedly making a swing radius barricade impossible, the Commission has held that an employer's failure to attempt installation of various types of temporary barricades negates an impossibility of compliance defense. Concrete Construction Company, 76 OSAHRC 139/A2, 4 BNA OSHC 1828, 1976-77 CCH OSHD para. 21,269 (Nos. 5692 and 7329, 1976).

[*3]

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So ORDERED.