“Docket No. 78-3006 1 of 202 DOCUMENTS TURNER COMPANY A. SCHONBEK & CO., INC.? NORANDA ALUMINUM, INC.? GENERAL MOTORS CORP., GM ASSEMBLY DIV.? ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.? CLEMENT FOOD COMPANY MILLCON CORPORATION FWA DRILLING COMPANY, INC.? CCI, INC.? GENERAL ELECTRIC COMPANY CONSOLIDATED ALUMINUM CORPORATION THE BRONZE CRAFT CORPORATION CARGILL, INC.? CHAPMAN CONSTRUCTION CO., INC.? GALLO MECHANICAL CONTRACTORS, INC.? SPECIAL METALS CORPORATION WILLAMETTE IRON AND STEEL COMPANY NASHUA CORPORATION WESTINGHOUSE ELECTRIC CORPORATION RESEARCH-COTTRELL, INC.? ROCKWELL INTERNATIONAL CORPORATION NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.? BUNKOFF CONSTRUCTION CO., INC.? GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION HARRIS BROTHERS ROOFING CO.? GENERAL DIVERS COMPANY ORMET CORPORATION R. ZOPPO CO., INC.? COEUR D’ALENE TRIBAL FARM L. A. DREYFUS COMPANY CMH COMPANY, INC.? BENTON FOUNDRY, INC.? MICHAEL CONSTRUCTION CO., INC.? WHIRLPOOL CORPORATION BROWN & ROOT, POWER PLANT DIVISION MARION POWER SHOVEL CO., INC.? ERSKINE-FRASER CO.? MORRISON-KNUDSEN AND ASSOCIATES THE BOAM COMPANY DIC-UNDERHILL, a Joint Venture C. R. BURNETT AND SONS, INC.; HARLLEE FARMS STRIPE-A-ZONE, INC.? FORTE BROTHERS, INC.? RAYBESTOS FRICTION MATERIALS COMPANY TEXLAND DRILLING CORPORATION THE ANACONDA COMPANY, WIRE AND CABLE DIVISION SAM HALL & SONS, INC.? VAMPCO METAL PRODUCTS, INC.? LEONE INDUSTRIES, INC.? ASARCO, INC.? DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY PLUM CREEK LUMBER COMPANY PLUM CREEK LUMBER COMPANY STEARNS-ROGER, INC.? FERRO CORPORATION, (ELECTRO DIVISION) AMERICAN PACKAGE COMPANY, INC.? BROWN & ROOT, INC., POWER PLANT DIVISION FLEETWOOD HOMES OF TEXAS, INC.? DONALD HARRIS, INC.? A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.? ELECTRICAL CONSTRUCTORS OF AMERICA, INC.? DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company) ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY NAVAJO FOREST PRODUCTS INDUSTRIES METROPAK CONTAINERS CORPORATION AUSTIN BUILDING COMPANY BABCOCK AND WILCOX COMPANY DARRAGH COMPANY BABCOCK & WILCOX COMPANY OTIS ELEVATOR COMPANY R. ZOPPO COMPANY, INC.? LUTZ, DAILY & BRAIN – CONSULTING ENGINEERS PENNSYLVANIA POWER & LIGHT CO.? HARSCO CORPORATION, d\/b\/a PLANT CITY STEEL COMPANY NORTHWEST AIRLINES, INC.? INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.? GENERAL MOTORS CORPORATION, INLAND DIVISION WELDSHIP CORPORATION S & S DIVING COMPANY SNIDER INDUSTRIES, INC.? NATIONAL STEEL AND SHIPBUILDING COMPANY MAXWELL WIREBOUND BOX CO., INC.? CONTINENTAL GRAIN COMPANY MISSOURI FARMER’S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d\/b\/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY CAPITAL CITY EXCAVATING CO., INC.? GAF CORPORATION PPG INDUSTRIES (CARIBE) a Corporation DRUTH PACKAGING CORPORATION SOUTHWESTERN ELECTRIC POWER COMPANY TUNNEL ELECTRIC CONSTRUCTION CO.? WEATHERBY ENGINEERING COMPANY JOHNSON STEEL & WIRE CO., INC.? AUSTIN ROAD CO.? MAYHEW STEEL PRODUCTS, INC.? LADISH CO., TRI-CLOVER DIVISION, a Corporation PULLMAN POWER PRODUCTS, INC.? NATIONAL ROOFING CORPORATION OSCO INDUSTRIES, INC.? HIGHWAY MOTOR COMPANY, d\/b\/a PARK PRICE MOTOR COMPANY S.J. GROVES AND SONS COMPANY CAR AND TRUCK DOCTOR, INC.? PRESTRESSED SYSTEMS, INC.? TEXACO, INC.? GEORGIA HIGHWAY EXPRESS, INC.? RED LOBSTER INNS OF AMERICA, INC.? SUNRISE PLASTERING CORP.? STONE & WEBSTER ENGINEERING CORPORATION H.B. ZACHRY COMPANY (INTERNATIONAL) NATIONAL INDUSTRIAL CONSTRUCTORS, INC.? BUSHWICK COMMISSION COMPANY, INC.? CIRCLE T DRILLING CO., INC.? J.L. FOTI CONSTRUCTION COMPANY, INC.? TEXACO, INC.? KENNETH P. THOMPSON CO., INC.? HENRY C. BECK COMPANY HEATH & STICH, INC.? FARMERS EXPORT COMPANY FOSTER AND KLEISER TURNER WELDING & ERECTION CO., INC.? TRI-CITY CONSTRUCTION CO.? THE DURIRON COMPANY, INC.? SAMSON PAPER BAG CO., INC.? MEL JARVIS CONSTRUCTION COMPANY, Inc.? MIDWEST STEEL ERECTION, INC.? GEISLER GANZ CORPORATION NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY NATIONAL MANUFACTURING COMPANY WALLACE ROOFING COMPANY REYNOLDS METALS COMPANY, INC.? UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.? SUFFOLK COUNTY CONTRACTORS, INC.? NORANDA ALUMINUM, INC.? ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC. GENERAL ELECTRIC COMPANY SERVICE SPECIALTY, INC.? ECCO HIGH FREQUENCY ELECTRIC CORP.? HENRY C. BECK COMPANY REPUBLIC ROOFING CORPORATION EASLEY ROOFING & SHEET METAL CO., INC.? MIDDLETOWN VOLKSWAGEN, INC.? RICHARD ROTHBARD, INC.? AUTOMATIC SPRINKLER CORPORATION OF AMERICA PENNSUCO CEMENT AND AGGREGATES, INC.? AMFORGE DIVISION, ROCKWELL INTERNATIONAL MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.? GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION EDGEWATER STEEL CORPORATION INTERLAKE, INC.? PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.? UNITED STATES STEEL CORPORATION, DUQUESNE PLANT KENT NOWLIN CONSTRUCTION CO., INC.? WANDER IRON WORKS, INC.? SITKIN SMELTING & REFINING, INC.? AMERICAN CYANAMID COMPANY BETHLEHEM STEEL CORPORATION J.L. FOTI CONSTRUCTION CO., INC.? WRIGHT AND LOPEZ, INC.? DELAWARE AND HUDSON RAILWAY CO.? O.E.C. CORPORATION BROWN-McKEE, INC.? DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.? REXCO INDUSTRIES, INC.? MASONRY CONTRACTORS, INC.? 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 \u00a0\u00a0\u00a0, 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 \u00a0\u00a0\u00a0, 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 \u00a0\u00a0\u00a0, 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. – – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – – * 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. – – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – – “