Middletown Volkswagen, Inc. (Commission decision, May 21, 1980)

Plain-English summary

Administrative Law Judge Foster Furcolo vacated a citation alleging that employees were exposed to carbon monoxide above the permissible limit, charged under 29 C.F.R. § 1910.1000(a)(2) and its companion requirement at 29 C.F.R. § 1910.1000(e) to implement feasible administrative or engineering controls. Neither party petitioned for review. Chairman Cleary directed review on his own motion, reaching the judge's findings on the monitoring and analytical questions in the case.

Nobody then pressed the issues. The respondent filed a brief supporting the judge's decision. The Secretary filed a letter in lieu of a brief stating that he does not subscribe or accede to the findings, but that the record does not present the appropriate vehicle for challenging them.

Under Cargill, Inc. the Commission will not decide issues raised only by a direction for review when no party has an interest in their resolution and no compelling public interest requires it. That describes this case exactly. The judge's decision is therefore affirmed, and it carries the precedential value of an unreviewed judge's decision rather than Commission precedent.

Commissioner Cottine added why no public interest pulled the other way: the monitoring and analytical questions here turn on the particular worksite and the record before the judge, so resolving them would not significantly affect the national development of the law under the Act.

The practical consequence matters more than the disposition. Because the decision is affirmed as unreviewed, the vacatur binds these parties in this case but establishes nothing the Commission will treat as precedent later. A sua sponte direction for review does not require the Commission to decide an issue when neither party seeks review and no compelling public interest warrants it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1000(a)(2), 29 C.F.R. § 1910.1000(e)
• Outcome: Affirmed. The judge's decision vacating the citation stands, accorded the precedential value of an unreviewed judge's decision.
• Key point: The Secretary disagreed with the judge but declined to press the issues, and the Commission found no compelling public interest in reviewing them.

Full text (OSHRC public release)

Docket No. 77-349

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.

NORANDA ALUMINUM, INC.

GENERAL MOTORS CORP., GM ASSEMBLY DIV.

ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.

CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.

CCI, INC.

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.

CHAPMAN CONSTRUCTION CO., INC.

GALLO MECHANICAL CONTRACTORS, INC.

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

BUNKOFF CONSTRUCTION CO., INC.

GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.

GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.

COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.

BENTON FOUNDRY, INC.

MICHAEL CONSTRUCTION CO., INC.

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.

ERSKINE-FRASER CO.

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

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

STRIPE-A-ZONE, INC.

FORTE BROTHERS, INC.

RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.

VAMPCO METAL PRODUCTS, INC.

LEONE INDUSTRIES, INC.

ASARCO, INC.

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.

FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.

BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.

DONALD HARRIS, INC.

A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.

ELECTRICAL CONSTRUCTORS OF AMERICA, INC.

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.

LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.

GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.

NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.

CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.

GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.

WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.

AUSTIN ROAD CO.

MAYHEW STEEL PRODUCTS, INC.

LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.

NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.

HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.

PRESTRESSED SYSTEMS, INC.

TEXACO, INC.

GEORGIA HIGHWAY EXPRESS, INC.

RED LOBSTER INNS OF AMERICA, INC.

SUNRISE PLASTERING CORP.

STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.

BUSHWICK COMMISSION COMPANY, INC.

CIRCLE T DRILLING CO., INC.

J.L. FOTI CONSTRUCTION COMPANY, INC.

TEXACO, INC.

KENNETH P. THOMPSON CO., INC.

HENRY C. BECK COMPANY

HEATH & STICH, INC.

FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.

TRI-CITY CONSTRUCTION CO.

THE DURIRON COMPANY, INC.

SAMSON PAPER BAG CO., INC.

MEL JARVIS CONSTRUCTION COMPANY, Inc.

MIDWEST STEEL ERECTION, INC.

GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.

UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.

SUFFOLK COUNTY CONTRACTORS, INC.

NORANDA ALUMINUM, INC.

ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

GENERAL ELECTRIC COMPANY

SERVICE SPECIALTY, INC.

ECCO HIGH FREQUENCY ELECTRIC CORP.

HENRY C. BECK COMPANY

REPUBLIC ROOFING CORPORATION

EASLEY ROOFING & SHEET METAL CO., INC.

MIDDLETOWN VOLKSWAGEN, INC.

OSHRC Docket No. 77-349

Occupational Safety and Health Review Commission

May 21, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Joseph R. Palumbo, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Foster Furcolo is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

In his decision, Judge Furcolo vacated a citation charging Respondent, Middletown Volkswagen, Inc., with exposing its employees to excessive carbon monoxide and thereby failing to comply with 29 C.F.R.

1910.1000(a)(2) and 1910.1000(e).

Neither party petitioned for review of the judge's decision.

Chairman Cleary, sua sponte, directed that the judge's decision be reviewed on the following issue:

Whether the Administrative Law Judge erred in vacating a citation that alleges a failure to comply with the standards at 29 C.F.R.

1910.1000(a)(12) (sic) and 1910.1000(e) on the ground that area sample measurements taken by the compliance officer failed to establish that respondent's employees were exposed to excessive concentrations of carbon

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monoxide.

In response to the direction for review, Respondent filed a brief arguing in support of the judge's decision.

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.

Cargill, Inc., 79 OSAHRC    , 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979).

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. * Accordingly, the judge's decision is affirmed and is accorded the precedential value of an unreviewed judge's decision.

Cargill, Inc., supra, and cases cited therein.

SO ORDERED.

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• Commissioner Cottine notes that the issue on review involves unique factual questions relating to the specific monitoring techniques and analytical data in this case.

Because this factual controversy is restricted to the specific conditions at this worksite, a Commission decision would not have a significant effect on national safety and health law.

Accordingly, Commissioner Cottine concludes that there is no compelling public interest warranting review of this case in the absence of party interest, see Cargill, Inc., supra (concurring opinion), and he joins in the Commission disposition.

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