Schultz's, Inc. (Commission decision, February 15, 1978)

Plain-English summary

Administrative Law Judge Henry K. Osterman had vacated a citation and proposed penalty against Schultz's, Inc. for an alleged violation of the general duty clause, section 5(a)(1) of the OSH Act. Former Commissioner Moran directed the case for review "for error," bringing it to the full Commission. No party took issue with the judge's decision, and although the employer filed a brief, it only asked the Commission to affirm. With no one seeking a different result, the Commission declined to review the decision. It affirmed the judge's ruling and gave it the limited significance of an unreviewed judge's decision, so the citation and penalty remained vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1) (general duty clause).
• Outcome: Vacated. The Commission declined to review and affirmed Judge Osterman's decision vacating the general duty clause citation and proposed penalty, according it the significance of an unreviewed judge's decision.
• Key point: When a case is directed for review but no party actually seeks a change in the outcome, the Commission will not review it, and the judge's disposition (here, vacatur of the citation) stands as an unreviewed decision.

Full text (OSHRC public release)

[Transcriber's note: The official OSHRC HTML release contained Unicode replacement characters (U+FFFD) in place of section symbols (restored here as "§" in "§ 12(j)," "29 U.S.C. § 651," and "§ 5(a)(1)") and as empty separator glyphs (dropped). No wording was changed. The bracketed star-pagination markers ([1], [2]) appear in the official source and are reproduced as released.]

Docket No. 76-1791

SCHULTZ'S, INC.

OSHRC Docket No. 76-1791

Occupational Safety and Health Review Commission

February 15, 1978

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, USDOL

James R. Bowe, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Administrative Law Judge Henry K. Osterman is before this Commission pursuant to a direction for review "for error" by former Commissioner Moran issued pursuant to § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Judge Osterman vacated the citation and proposed penalty issued for an alleged violation of § 5(a)(1) of the Act.

No party has taken issue with the Judge's decision. Although respondent has submitted a brief on review, it seeks affirmance of the Judge's action. Accordingly, the Commission will not review the decision. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976). The Judge's decision is therefore affirmed and will be accorded the significance of an unreviewed Judge's decision. Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA [*2] OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).