R. Zoppo Co. Inc.

Plain-English summary

The judge vacated a citation alleging that R. Zoppo failed to protect excavation sides, slopes, and faces by accepted engineering methods. Neither party petitioned for review. Although review was directed on the excavation issue, the Secretary stated that the record was not an appropriate vehicle for challenging the judge's findings and conclusions. Because neither party sought a different result and no compelling public interest required review, the Commission affirmed the judge's decision without deciding the merits.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.651(j)
• Outcome: Excavation citation remains vacated
• Key point: The Commission may decline to decide a directed issue when neither party seeks review and no compelling public interest requires it

Full text (OSHRC public release)

Docket No. 76-5052

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.
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NORANDA ALUMINUM, INC.
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GENERAL MOTORS CORP., GM ASSEMBLY DIV.
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ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.
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CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.
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CCI, INC.
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GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.
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CHAPMAN CONSTRUCTION CO., INC.
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GALLO MECHANICAL CONTRACTORS, INC.
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SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.
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ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
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NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.
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BUNKOFF CONSTRUCTION CO., INC.
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GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.
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GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.
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COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.
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BENTON FOUNDRY, INC.
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MICHAEL CONSTRUCTION CO., INC.
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WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.
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ERSKINE-FRASER CO.
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MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.
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FORTE BROTHERS, INC.
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RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.
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VAMPCO METAL PRODUCTS, INC.
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LEONE INDUSTRIES, INC.
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ASARCO, INC.
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DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.
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FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.
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BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.
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DONALD HARRIS, INC.
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A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.
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ELECTRICAL CONSTRUCTORS OF AMERICA, INC.
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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.
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OSHRC Docket No. 76-5052

Occupational Safety and Health Review Commission

September 25, 1980

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[*1]
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor, U.S. Dept. of Labor

John D. O'Reilly, III, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Ben D. Worcester is before the Commission pursuant to section 12(j), 29 U.S.C. �
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661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
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651-678 ("the Act").
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In his decision Judge Worcester, among other things, vacated a citation charging the Respondent, R. Zoppo Co., Inc., with failing to comply with the standard at 29 C.F.R. �
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1926.651(j). *

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

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  1926.651 Specific excavation requirements.

(j) Sides, slopes and faces of all excavations shall meet accepted engineering requirements by scaling, benching, barricading, rock bolting, wire meshing, or other equally effective means.
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Special attention shall be given to slopes which may be adversely affected by weather or moisture content.

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Neither party petitioned for review [*2]
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of the judge's decision.
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Chairman Cleary, sua sponte, directed that the judge's decision be reviewed on the following issue:

Whether the Administrative Law Judge erred in vacating the citation alleging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq., for failure to comply with the standard at 29 C.F.R. �
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1926.651(j)?

In response to the direction for review, the Respondent filed a brief arguing in support of the judge's decision.
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The Secretary filed a letter in lieu of a brief, stating that he does "not subscribe or accede to the findings of fact and conclusions of law of the Administrative Law Judge," but has "concluded that the instant record, in its totality, does not present the appropriate vehicle to challenge these findings and conclusions."

The Commission has held that it will not decide issues directed for review in the absence of either party interest or a compelling public interest in Commission review.
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Middletown Volkswagen, Inc., 80 OSAHRC    , 1980 CCH OSHD P24,493 (No. 77-349, 1980); Cargill, Inc., 79 OSAHRC 90/A2, 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979).
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[*3]
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As neither party takes exception to the judge's decision in this case and there is no compelling public interest in our review of the issue specified in the direction for review, we will not review that issue.
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Accordingly, the judge's decision is affirmed and is accorded the precedential value of an unreviewed judge's decision.
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See Cargill, Inc., supra, and cases cited therein.

SO ORDERED.
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