Cagle Construction Co. (Commission decision, January 19, 1978)

Plain-English summary

The judge vacated a trench citation after finding that the Secretary did not prove noncompliance with either 29 C.F.R. § 1926.652(c), as cited, or § 1926.652(b), as alleged in the complaint. The Secretary sought review of a legal conclusion and several statements about government counsel's conduct at the hearing. The petition expressly stated, however, that the Secretary did not challenge the judge's disposition on the citation's merits. The Commission therefore declined to address the stated review issues and affirmed the judge's decision. It emphasized that affirming the vacatur did not endorse the judge's comments concerning counsel.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.652(b) and 29 C.F.R. § 1926.652(c)
• Outcome: The trench citation remained vacated.
• Key point: The Commission did not reach objections to a judge's collateral comments when the petition expressly declined to challenge the merits disposition.

Full text (OSHRC public release)

Docket No. 15687

CAGLE CONSTRUCTION CO.
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OSHRC Docket No. 15687

Occupational Safety and Health Review Commission

January 19, 1978

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

William A. Jones, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge J. Paul Brenton, dated July 13, 1976, is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. That decision held that complainant did not prove that respondent failed to comply with the requirements of 29 C.F.R. & 1926.652(c), as alleged in the citation, or 29 C.F.R. �
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1926.652(b), as alleged in the complaint, and therefore vacated the citation.

On review complainant takes exception to a conclusion of law and to several findings and statements by the Judge regarding the actions and attitude of complainant's counsel at the hearing.
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Complainant's petition for review, however, states that complainant "does not take exception to Judge Brenton's disposition on the merits of the instant citation." Under these circumstances, we will not address the issues raised by complainant's petition.
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Union Camp Corp., 77 OSAHRC 166/A2, 5 BNA OSHC 1799, 1977-78 [*2]
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CCH OSHD para. 22,103 (No. 12203, 1977); West Point Pepperell, Inc., 77 OSAHRC 48/B14, 5 BNA OSHC 1257, 1977-78 CCH OSHD para. 21,751 (No. 8255, 1977), appeal docketed, No. 77-2156, 5th Cir., June 6, 1977. n1

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n1 The Commission emphasizes that this affirmance does not constitute an endorsement of the Judge's statements concerning the conduct of complainant's counsel.

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Accordingly, it is ORDERED that the Judge's decision be affirmed.
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