R. ZOPPO COMPANY, INC.  

OSHRC Docket No. 76-5052

Occupational Safety and Health Review Commission

September 25, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor, U.S. Dept. of Labor

John D. O'Reilly, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Ben D. Worcester is before the Commission pursuant to section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In his decision Judge Worcester, among other things, vacated a citation charging the Respondent, R. Zoppo Co., Inc., with failing to comply with the standard at 29 C.F.R. §   1926.651(j). *

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* §   1926.651 Specific excavation requirements.

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(j) Sides, slopes and faces of all excavations shall meet accepted engineering requirements by scaling, benching, barricading, rock bolting, wire meshing, or other equally effective means.   Special attention shall be given to slopes which may be adversely affected by weather or moisture content.

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Neither party petitioned for review [*2]   of the judge's decision.   Chairman Cleary, sua sponte, directed that the judge's decision be reviewed on the following issue:

Whether the Administrative Law Judge erred in vacating the citation alleging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq., for failure to comply with the standard at 29 C.F.R. §   1926.651(j)?

In response to the direction for review, the Respondent filed a brief arguing in support of the judge's decision.   The Secretary filed a letter in lieu of a brief, stating that he does "not subscribe or accede to the findings of fact and conclusions of law of the Administrative Law Judge," but has "concluded that the instant record, in its totality, does not present the appropriate vehicle to challenge these findings and conclusions."

The Commission has held that it will not decide issues directed for review in the absence of either party interest or a compelling public interest in Commission review.   Middletown Volkswagen, Inc., 80 OSAHRC    , 1980 CCH OSHD P24,493 (No. 77-349, 1980); Cargill, Inc., 79 OSAHRC 90/A2, 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979).   [*3]   As neither party takes exception to the judge's decision in this case and there is no compelling public interest in our review of the issue specified in the direction for review, we will not review that issue.   Accordingly, the judge's decision is affirmed and is accorded the precedential value of an unreviewed judge's decision.   See Cargill, Inc., supra, and cases cited therein.

SO ORDERED.