CARGILL, INC.  

OSHRC Docket No. 78-3006

Occupational Safety and Health Review Commission

March 31, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Thomas Tinkham, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Alan M. Weinman 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 Weinman, among other things, vacated two citations charging Respondent with violating section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1).

Neither party petitioned for review of the judge's decision.   Commissioner Cottine, sua sponte, directed that the judge's decision be reviewed on issues related to the merits of the section 5(a)(1) allegations.   In response to the direction for review, 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 is "not in agreement with certain of the legal and factual conclusions expressed by Judge Weinman," but has concluded that "the instant record, in its totality, does not present an appropriate vehicle for review [*2]   of those conclusions." Accordingly, the Secretary asks that the Commission summarily affirm the judge's decision without according that decision binding precedential value.

The issues directed for review in this case are similar to those raised in an earlier case involving the same Respondent.   Cargill, Inc., 79 OSAHRC    , 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979).   In that case, the Commission concluded that it would not decide the issues directed for review in the absence of either party interest or a compelling public interest. Accordingly, consistent with Cargill, Inc., supra, and the cases cited therein, we affirm Judge Weinman's decision without review, according it the precedential value of an unreviewed judge's decision.   SO ORDERED.  

CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

This case presents no issue of compelling public interest and it 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).   However, the standard of review applied by the majority to determine "compelling public interest" is flawed by its exclusive reliance on   [*3]   the interest of the party adversely affected by the decision under review.   See Cargill Inc., 79 OSAHRC    , 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (Nos. 78-2862 & 78-2864, 1979) (Cottine, Commissioner, concurring).

The majority properly commences its inquiry by distinguishing between party interest and compelling public interest. However, it restricts its review to adverse party interest, i.e., the interest of the party adversely affected by the judge's decision and order.   This restriction ignores the case where a nonaggrieved party may have an interest in a final authoritative interpretation of a statute or regulation in order to resolve conflicting interpretations by administrative law judges.   See generally Continental Can Company, U.S.A. v. Marshall, 455 F.Supp. 1015 (S.D. I11. 1978), aff'd 603 F.2d 590 (7th Cir. 1979), dismissal on remand, 78 OSAHRC 93/A2, 6 BNA OSHC 2114, 1978 CCH OSHD P23,146 (Nos. 7855, 10561, 12069, 76-25, 77-2313, 77-4156, 78-360, 78-890 & 78-2460, 1978).   In addition to this party interest there may be an independent public interest in the resolution of conflicting interpretations.   Accordingly, the Commission must not ignore [*4]   this public interest by invoking the nonaggrieved party rule originally developed to determine party interest.   See Transworld Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979) (Cottine, Commissioner, dissenting).

Moreover, issues of compelling public interest may be presented by the entire spectrum of adjudicatory rulings from pure findings of fact to comprehensive conclusions of law.   See generally L. Jaffe, Judicial Control of Administrative Action ch. 14 (1965).   Thus, jurisdictional controversies, statutory issues, and regulatory interpretations may present issues of compelling public interest. Cargill, Inc., supra, 7 BNA OSHC at 2046, 1979 CCH OSHD P23,981 at p. 29,106. The simplistic outcome determinative test grafted onto the compelling public interest analysis by the majority in Cargill, Inc., supra, is unresponsive to the wide variety of legal and factual issues that are central to the Commission's mandate to establish a national body of occupational safety and health law.   See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979),   [*5]   appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).   In addition, the outcome determinative test is subject to abuse from premature and incomplete judgments concerning the final disposition of a case by the Commission.   Thus, the determination of compelling public interest necessarily involves more than a consideration of party interest or the ultimate outcome of the case.

In order to be statutorily valid, a Commission order summarily affirming a judge's decision without review must have the concurrence of each presently-sitting Commissioner who directed the case for review.   This concurrence is essential to avoid a conflict with each Commissioner's delegated authority to direct a case for Commission review under 29 U.S.C. §   661(i).   Keco Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 2048 at p. 2052 & n. 14, 1979 CCH OSHD P24,117 at p. 29,310 & n. 14 (No. 78-661, 1979) (Cottine, Commissioner, dissenting).

However, after careful analysis of the direction for review in this case * as well as the Commission's entire docket, I conclude that this case presents no conflict necessitating Commission review.   Cargill, Inc., supra. Neither the factual issues involving grain [*6]   storage operations nor the legal issue concerning the relevance of NFPA standards to a general duty clause violation present an issue of compelling public interest requiring Commission resolution in the context of this case.   I therefore concur in the summary affirmance.

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* The direction for review in this case specified the following issues:

(1) Whether the Administrative Law Judge erred in concluding that NFPA standards are "unavailable as evidence of industry recognition of hazards."

(2) Whether the record establishes that the Respondent violated §   5(a)(1) of the Act, 29 U.S.C. §   654(a)(1), by (1) failing to provide static collecting devices on four grain conveyor belts; and (2) maintaining openings between grain bins at the gallery floor level.

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