MASONRY CONSTRUCTION CO., INC.

OSHRC Docket No. 14895

Occupational Safety and Health Review Commission

February 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Kipling F. Layton, 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 significance of an unreviewed Judge's decision. [*2] 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 (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Item 3, alleging that respondent failed to comply with 29 C.F.R. 1926.28(a), should be vacated because the evidence is in sufficient to establish the violation.

To establish a violation of that standard, complainant must establish:

(1) exposure to a hazardous condition warranting the use of personal protective equipment, and

(2) failure to use this equipment when its use is required elsewhere in Part 1926 of the regulation.

Secretary v. Island Steel and Welding, Ltd., 17 OSAHRC 143 (1976) (dissenting opinion). The standard most relevant to the factual situation in this case is 29 C.F.R. 1926.102(a). However, that standard only requires that eye protection be provided when there is a likelihood of eye injury. It does not require the use of eye protection. In effect, the matter of when to use eye protection is left to the individual employee.

In the instant case, respondent's employee was provided with eye protection. Since neither [*3] 1926.102(a) nor any other standard in Part 1926 requires that eye protection be used the charge should be vacated. See Secretary v. Sweetman Construction Company, OSAHRC Docket No. 3750, March 2, 1976 (dissenting opinion).

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Oringer's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.