STRUCTURAL METALS, INC.

OSHRC Docket No. 78-3352

Occupational Safety and Health Review Commission

June 15, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Ross Harrison, for the employer

OPINION:

ORDER

BY THE COMMISSION:

An order of Administrative Law Judge Henry F. Martin, Jr., dated January 17, 1979, is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. In his order, the judge vacated a citation alleging that the Respondent, Structural Metals, Inc., ("Structural Metals"), failed to comply with the occupational noise standard published at 29 C.F.R. 1910.95. The judge vacated the citation because he concluded that the Secretary's failure to timely file a complaint and respond to show cause orders, as well as his failure to respond to Structural Metals' motion to dismiss, represented "indifference to the Commission's Rules of Procedures and show cause orders." n1

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n1 Two show cause orders had been issued to the Secretary because of his failure to timely file a complaint. The Secretary failed to respond to either order, and the judge ruled that the citation would serve as the complaint. Structural Metals timely filed its answer, accompanied by a motion to dismiss based on the Secretary's failure to timely file a complaint. After this case was assigned to Judge Martin, he vacated the two previous show cause orders and directed the Secretary to show why he had failed to comply with Commission Rule 33(a)(1), 29 C.F.R. 2200.33(a)(1), requiring a complaint to be filed within 20 days of the receipt of the notice of contest. The Secretary filed a complaint but failed to give the requested explanation. Structural Metals then moved to dismiss the case, based on the Secretary's failure to comply with procedural rules. The Secretary did not respond to this motion.

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The Secretary's Motion for Reconsideration, received by Judge Martin on February 6, 1979, was forwarded to the Commission by the judge. n2 The Secretary's motion was deemed a petition for discretionary review and was granted by Commissioner Cottine on February 16, 1979. On May 8, 1979, the Secretary notified the Commission that he had not intended the Motion for Reconsideration to be considered a Petition for Discretionary Review, and that although he did not agree with the judge's order he did not seek to have it reviewed. In a letter dated May 14, 1979, Structural Metals indicated that it expected the Commission to follow its "normal practices" of declining to review judge's decisions not challenged before the Commission. Structural Metals also indicated that it would not file a brief unless notified that the Commission would continue its review of the case.

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n2 An administrative law judge does not retain jurisdiction of a case once his order has been filed with the Commission. Singleton Sheet Metal Works, 73 OSAHRC 6/F6, 1 BNA OSHC 1062, 1971-73 CCH OSHD P15,273 (No. 878, 1972).

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Neither the Secretary nor Structural Metals now seeks review of the judge's decision. Moreover, the Secretary no longer seeks a reversal of the judge's order. Accordingly, there is a lack of party interest. In addition, further review of this case is not warranted by any compelling public interest. Potlatch Corporation, supra; Champion Construction & Engineering Co., Inc., 78 OSAHRC 102/A2, 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No 76-2576, 1978); Weyerhaeuser Co., 77 OSAHRC 44/D6, 5 BNA OSHC 1275, 1977-78 CCH OSHD P21,716 (No. 11869, 1977); Abott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

Accordingly, the judge's decision is affirmed and is accorded the precedential value of an unreviewed judge's decision. Leone Construction Company, 76 OSAHRC [*4] 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

It is ORDERED.