OSHRC Docket No. 76-2576

Occupational Safety and Health Review Commission

November 29, 1978


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Charles C. High, Jr., for the employer




On December 13, 1976, Administrative Law Judge Seymour Fier filed his decision in this case affirming a number of violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act."] Respondent petitioned this Commission to review that decision. On January 12, 1977, this case was directed for review pursuant to section 12(j) of the Act.

The parties twice jointly petitioned for additional time in which to file briefs. Although the Secretary did file his brief, counsel for respondent filed a letter with the Commission stating:

I have been advised by Champion Construction & Engineering Company, Inc., Respondent in the above-captioned matter, that on Tuesday, June 7, 1977, the Company will make an assignment for the benefit of creditors and thereafter cease operating.

Accordingly, the Respondent withdraws its request to file a Brief in the above-captioned matter.

Taken as a whole, [*2] respondent's letter is ambiguous. Because respondent has indicated that it has ceased or will cease its operations and that it will not be filing a brief in this matter, its letter could mean that it no longer is interested in the case and desires to withdraw its petition for review. If this were respondent's intent, there would then be no objection to the judge's decision, because the Secretary did not seek review of that decision. Therefore, there may be no interest by either party in pursuing the matter to adjudication. See Koppers Company, Inc., 77 OSAHRC 44/A4, 5 BNA OSHC 1306, 1977-78 CCH OSHD P21,723 (No. 3449, 1977).

We have also reviewed the record in this case. The respondent's petition raises no substantial issues of law, policy or discretion which must be resolved in the public interest. Moreover, if respondent is no longer conducting business, it would have no employees who would be protected by further adjudication of this case. In the absence of a compelling public interest, the Commission has declined to review a judge's decision when neither party objects to that decision. See, e.g. Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, [*3] 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976). We find no such compelling public interest here.

However, because the letter is ambiguous, we will afford the parties the opportunity to express their desire to have Commission review of this case proceed. Respondent may not have gone out of business. If that is the case, either party may desire to have a Commission ruling on this case. Therefore, the Commission will afford the parties ten days from their receipt of this order to request the Commission to complete its review of this case. If neither party requests further review within ten days of receipt of this order, the decision of the administrative law judge shall be affirmed as a final order of the Commission. n1

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n1 The judge's decision will be accorded the same precedential value as an unreviewed judge's decision. See Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

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Accordingly, it is ORDERED that the judge's decision is affirmed, unless either party requests review of the judge's decision within ten days of receipt of this order.