CHRYSLER CORPORATION, FOSTORIA FOUNDRY

OSHRC Docket No. 76-3877

Occupational Safety and Health Review Commission

November 15, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor USDOL

Portia Y. T. Hamlar, Chrysler Center, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge George W. Otto is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. Judge Otto affirmed a citation alleging violation of the occupational safety standard at 29 C.F.R. 1910.178(p)(1), but he reduced the violation from willful to nonserious and assessed a penalty of $75 rather than the proposed penalty of $4500. Neither party petitioned for review or otherwise expressed objections to the judge's decision. Chairman Cleary upon his own motion directed review of the case on the following issues:

Whether the Administrative Law Judge improperly interpreted and applied Commission precedent in reducing an alleged willful violation of the standard at 29 CFR 1910.178(p)(1) to a non-serious violation; and

Whether the penalty assessed for the violation of the standard at 29 CFR 1910.178(p)(1) is appropriate.

In [*2] response to the direction for review, the Secretary sent a letter stating that he decided, after a thorough review of the record, not to file a brief on review. The Secretary explains his decision by noting that, in his opinion, this case does not present an appropriate vehicle to challenge the judge's findings and conclusions. Chrysler in a letter to the Commission likewise declined to file a brief on review and stated that it was satisfied with the judge's decision.

Thus, neither party seeks review of the judge's decision. Moreover, the judge's decision presents no substantial or important issues of law, and no issues of public importance that would justify review in the absence of party interest. The primary issue in the case, as stated in the direction for review, concerns the issue of whether the judge's decision to reduce the violation from willful to nonserious comports with Commission precedent. All other subsidiary issues are essentially factual.

Accordingly, we decline to consider the case. Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979); Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, [*3] 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). Because we express no opinion concerning whether the judge properly disposed of the issues presented to him, Judge Otto's decision is not binding as precedent. Trans World Airlines, Inc., supra; Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 19/5-76 CCH OSHD P20,387 (No. 4090, 1976).

Accordingly, the judge's decision is affirmed.

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

This case presents no issue of compelling public interest warranting Commission review in the absence of party interest, and is therefore distinguishable from Trans World Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979). In TWA, Commission review was directed on an important jurisdictional question that had been fully briefed and orally argued in a related case. As a consequence, summary affirmance of the judge's decision in TWA created a potential conflict in Commission law. 7 BNA OSHC at 1049, 1979 CCH OSHD P23,277 at p. 28,151 (Cottine, Commissioner, dissenting). Moreover, the Secretary [*4] stated in TWA that his failure to brief should not be construed as an abandonment of his position on the jurisdictional issue. Thus, the Secretary's statement reinforced rather than negated public as well as party interest in the issue under review. Accordingly, the appropriate course of action for the Commission would have been to defer decision of the TWA case until the substantive issues had been decided in the related case. In contrast, no issue of compelling public interest is revealed by either the record or the representations made by the parties in this case. Accordingly, the judge's decision is properly affirmed without precedential status under Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).