OSHRC Docket No. 77-256

Occupational Safety and Health Review Commission

March 21, 1979


Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor, U.S. Dep't of Labor

R. Edward Tepe, for the employer




A decision of Administrative Law Judge Benjamin G. Usher, dated July 25, 1978, is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. In his decision, the judge vacated a citation alleging that the Respondent violated Section 5(a)(1) of the Act, 29 C.F.R. 654(a)(1), * by failing to equip a tractor being used as a water wagon with rollover protection or a seat belt. The judge concluded that the Secretary had failed to prove that the absence of rollover protection or seat belts constituted a recognized hazard. Judge Usher's decision does not refer to evidence adduced by the Secretary pertaining to an alleged defect in the braking system of the wagon. At the hearing, the Respondent had objected to the introduction of that evidence on the ground that the evidence exceeded the scope of the citation. The judge overruled the objection.

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* Sec.5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

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Review was directed on the issues of whether the judge erred in vacating the alleged violation of section 5(a)(1) and whether the pleadings should be amended under Fed. R. Civ. P. 15(b) to include the asserted defective braking system as part of the 5(a)(1) charge.

In response to the direction for review the Secretary notified the Commission by letter that a brief would not be filed in this case. In the letter the Secretary states that:

After a thorough review of the record, it was and continues to be our belief that the judge's conclusion that the Secretary failed to meet his burden of proving that the lack of rollover protection constituted a recognized hazard under any of the above tests is supported by a preponderance of the evidence.

Furthermore, the Secretary states that an amendment in this [*3] case would not be appropriate under the guidelines set forth in McLean-Behm Steel Erectors, Inc., 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978), appeal docketed, No. 79-1073 (5th Cir. January 9, 1979). The Secretary suggests that the judge's decision be affirmed. By letter dated December 7, 1978, counsel for the Respondent concurs in the Secretary's conclusions and requests that the appeal be dismissed.

Neither party has petitioned for review, and both the Secretary and the Respondent have expressly declined to file briefs or present any argument to the Commission. Moreover, further review is not warranted by any compelling public interest. Accordingly, the case will not be reviewed and the judge's decision is affirmed. Water Works Installation Corporation, 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 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). The decision is accorded the precedential value of an unreviewed judge's decision. Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 [*4] (2nd Cir. May 17, 1976).

It is so ORDERED.