Nabisco, Inc. (Commission decision, October 7, 1975)

Plain-English summary

Administrative errors prevented a full report of the case and the parties' positions from reaching the Commissioners within the statutory 30-day review period. After examining the Secretary's petition, Nabisco's opposition, and the judge's decision, the Commission found important questions about applying Walsh-Healey standards under the OSH Act. It vacated the administrative law judge's September 12, 1975 final order under Federal Rule of Civil Procedure 60(b). The Commission granted discretionary review and directed the parties to submit briefs on a set schedule. This order did not decide the underlying citations.

Decision snapshot

• Cited provisions: 29 U.S.C. § 653(b) and 29 U.S.C. § 661(i)
• Outcome: The ALJ final order was vacated, discretionary review was granted, and briefing was ordered.
• Key point: Administrative error that prevented timely Commission consideration justified reopening the final order so important legal questions could be reviewed.

Full text (OSHRC public release)

Docket No. 12460

NABISCO, INC.
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OSHRC Docket No. 12460

Occupational Safety and Health Review Commission

October 7, 1975

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FRANK R. BARNAKO, Chairman; TIMOTHY F. CLEARY, Commissioner

COUNSEL:

Beverley R. Worrell, Regional Solicitor, U.S. Department of Labor

Peter M. Phillipes, for the employer

William S. Brown, for the employer

OPINION:

ORDER DIRECTING REVIEW

Due to inadvertent administrative errors a full report of this case, including the positions of the parties concerning the Judge's decision, was not made to the several Commissioners until after expiration of the 30 day period specified by 29 U.S.C. 661(i).
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We have examined the petition for review and Respondent's statement in opposition.
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We have also examined the administrative law judge's decision.
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We are convinced that the Secretary's petition raises important questions concerning the applicability of the Walsh-Healey standards under the Act and the possible application of our decision in Lee Way Motor Freight, Inc., 7 OSAHRC 1128 (1974) wherein we said: "Congress itself adopted the Walsh-Healey standards as occupational safety and health standards for general application" citing 29 U.S.C. 653(b), 7 OSAHRC at 1132, affirmed 511 F.2d 864 (10th Cir., February 19, 1975).

Accordingly, the September 12, 1975, final order of the administrative law judge [*2]
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is vacated pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and the Secretary's petition for discretionary review is granted.
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Allway Tools, Inc., Docket No. 12573 (petition for review granted September 25, 1975); S.J. Otinger, Jr., Construction Co., (review granted March 14, 1973), reversed, 502 F.2d 30 (5th Cir. 1974).

The parties will file briefs as follows: the Petitioner shall file briefs within thirty (30) days following receipt of this order; the Respondent shall have twenty (20) days from service of the Secretary's brief to file his responsive brief.
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