John R. Jurgensen Company (Commission decision, March 21, 1979)

Plain-English summary

This is a short order declining to review a case the Commission had itself directed for review. It decides no merits question, and its interest is structural.

What happened below. Administrative Law Judge Benjamin G. Usher, in a decision dated July 25, 1978, vacated a citation alleging that Jurgensen violated the general duty clause by failing to equip a tractor being used as a water wagon with rollover protection or a seat belt. The judge concluded that the Secretary had not proved that the absence of rollover protection or seat belts was a recognized hazard, which is an element the Secretary carries under the general duty clause.

How the case reached the Commission. Not by either party's petition. Review was directed under section 12(j) of the Act on two issues: whether the judge erred in vacating the general duty allegation, and whether the pleadings should be amended under Fed. R. Civ. P. 15(b) to add an asserted defect in the water wagon's braking system to the same charge. The second issue existed because of a gap in the decision below. The Secretary had introduced evidence about the braking system, Jurgensen objected that it exceeded the scope of the citation, the judge overruled the objection, and then the judge's decision did not refer to that evidence at all.

Why the Commission declined anyway. The Secretary notified the Commission by letter that he would file no brief. He stated that after a thorough review of the record it was and continued to be his belief that the judge's conclusion on recognized hazard was supported by a preponderance of the evidence, and that an amendment would not be appropriate under the guidelines in McLean-Behm Steel Erectors, Inc. He suggested that the judge's decision be affirmed. By letter dated December 7, 1978 Jurgensen's counsel concurred in the Secretary's conclusions and asked that the appeal be dismissed. The Commission noted that neither party had petitioned for review, that both had expressly declined to file briefs or present any argument, and that no compelling public interest warranted further review. On that basis the case would not be reviewed and the judge's decision was affirmed.

What the affirmance is worth. The decision is accorded the precedential value of an unreviewed judge's decision. It binds the parties before it and settles nothing for anyone else. That is the standard consequence when the Commission affirms without reaching the merits.

The part worth noticing. A direction for review is not self-sustaining. The Commission can put a case before itself, but if the party who stands to gain from reversal then disclaims any interest in it and the opposing party agrees, what remains is a directed issue nobody is pressing, and the Commission treats that as a reason not to decide rather than as an obligation it has already assumed. The practical consequence here is that the gap in the decision below goes uncorrected. The judge admitted the braking system evidence over objection and then did not address it, which is the kind of loose end review exists to tie off, and it survives untouched because the Secretary abandoned the issue he had been handed.

A note on the citation in the text. The release identifies the general duty clause as "Section 5(a)(1) of the Act, 29 C.F.R. § 654(a)(1)". Section 654 is in Title 29 of the United States Code, not the Code of Federal Regulations, so the published reference is wrong about which code it points to. The full text below is transcribed as released, error included. This document's metadata uses the correct form, 29 U.S.C. § 654(a)(1).

A note on the text below. This release is a reporter-style rendering rather than the plain decision layout used elsewhere in the corpus. It carries structural headers the Commission did not write, including COUNSEL and OPINION, and bracketed star pagination such as [*1] marking page boundaries in the reporter. The pagination interrupts a line of footnote dashes partway through, which is why that divider appears broken. The replacement characters are places where a character was lost before OSHRC published the file. In this document they stand where section signs belonged, so a statutory citation reads as "29 U.S.C." followed by two replacement characters and then the section number. They are transcribed as released rather than guessed at.

Docket number form. The caption and body give the docket unpadded, as 77-256. The index and this document's slug pad it to 77-0256. Both refer to the same case, and the zero is a padding convention rather than a discrepancy in the source. A shipped decision citing this case gives it as No. 77-256.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1), the general duty clause, charged as section 5(a)(1) of the Act. The alleged hazard was a tractor used as a water wagon without rollover protection or a seat belt. No specific standard was at issue.
• Outcome: Affirmed. The case will not be reviewed, and Judge Usher's decision vacating the citation stands with the precedential value of an unreviewed judge's decision.
• Key point: A direction for review under section 12(j) does not commit the Commission to deciding. Where neither party petitioned for review, both expressly decline to brief or argue, and no compelling public interest is at stake, the Commission declines review and the judge's decision is affirmed without Commission precedential weight.
• Also decided: Nothing further. The second directed issue, whether to amend the pleadings under Fed. R. Civ. P. 15(b) to add the asserted braking system defect to the general duty charge, was never reached, the Secretary having abandoned it as inappropriate under McLean-Behm.
• Related: The three cases cited for declining review and for the precedential consequence are all in this corpus: Water Works Installation Corp. (No. 4136, 1976) as 4136-commission, Abbott-Sommer, Inc. (No. 9507, 1976) as 9507-commission, and Leone Construction Co. (No. 4090, 1976) as 4090-commission. McLean-Behm Steel Erectors, Inc. (No. 15582, 1978), which the Secretary relied on to abandon the amendment issue, is 15582-commission.
• Reporter citation. A shipped decision cites this case as John R. Jurgensen Co., 79 OSAHRC 17/E4, 7 BNA OSHC 1251, 1979 CCH OSHD P23,403 (No. 77-256, 1979), which corroborates the docket and year from outside both the index and this document. Two later Jurgensen decisions are cited elsewhere in the corpus, at No. 83-1224 (1986) and No. 87-1249 (1988); this order is neither of them.

Full text (OSHRC public release)

Docket No. 77-256

JOHN R. JURGENSEN COMPANY

OSHRC Docket No. 77-256

Occupational Safety and Health Review Commission

March 21, 1979

�
[*1]
�

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
�

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Assoc. Regional Solicitor, U.S. Dep't of Labor

R. Edward Tepe, for the employer

OPINION:

ORDER

BY THE COMMISSION:

A decision of Administrative Law Judge Benjamin G. Usher, dated July 25, 1978, is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
�
651 et seq. In his decision, the judge vacated a citation alleging that the Respondent violated Section 5(a)(1) of the Act, 29 C.F.R. �
�
654(a)(1), * by failing to equip a tractor being used as a water wagon with rollover protection or a seat belt.
�
The judge concluded that the Secretary had failed to prove that the absence of rollover protection or seat belts constituted a recognized hazard.
�
Judge Usher's decision does not refer to evidence adduced by the Secretary pertaining to an alleged defect in the braking system of the wagon.
�
At the hearing, the Respondent had objected to the introduction of that evidence on the ground that the evidence exceeded the scope of the citation.
�
The judge overruled the objection.

�
[*2]
�
- - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

• Sec.5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

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

Review was directed on the issues of whether the judge erred in vacating the alleged violation of section 5(a)(1) and whether the pleadings should be amended under Fed. R. Civ. P. 15(b) to include the asserted defective braking system as part of the �
�
5(a)(1) charge.

In response to the direction for review the Secretary notified the Commission by letter that a brief would not be filed in this case.
�
In the letter the Secretary states that:

After a thorough review of the record, it was and continues to be our belief that the judge's conclusion that the Secretary failed to meet his burden of proving that the lack of rollover protection constituted a recognized hazard under any of the above tests is supported by a preponderance of the evidence.

Furthermore, the Secretary states that an amendment in this [*3]
�
case would not be appropriate under the guidelines set forth in McLean-Behm Steel Erectors, Inc., 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978), appeal docketed, No. 79-1073 (5th Cir. January 9, 1979).
�
The Secretary suggests that the judge's decision be affirmed.
�
By letter dated December 7, 1978, counsel for the Respondent concurs in the Secretary's conclusions and requests that the appeal be dismissed.

Neither party has petitioned for review, and both the Secretary and the Respondent have expressly declined to file briefs or present any argument to the Commission.
�
Moreover, further review is not warranted by any compelling public interest.
�
Accordingly, the case will not be reviewed and the judge's decision is affirmed.
�
Water Works Installation Corporation, 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).
�
The decision is accorded the precedential value of an unreviewed judge's decision. Leone Construction Company, 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 [*4]
�
(2nd Cir. May 17, 1976).

It is so ORDERED.
�