Johnson Steel & Wire Co. Inc. (Commission decision, July 31, 1980)

Plain-English summary

OSHA cited Johnson Steel & Wire Co., Inc. for a serious violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), for failing to comply with the general machine guarding standard at 29 C.F.R. § 1910.212(a)(1). Administrative Law Judge Ben D. Worcester vacated that citation.

Neither side asked the Commission to review the judge's decision. Chairman Cleary directed review on his own motion, on the question whether the judge erred in vacating the citation. Once review was directed, Johnson Steel filed a brief supporting the judge. The Secretary of Labor filed a letter instead of a brief, saying he does "not subscribe or accede to the findings of fact and conclusiong of law of the Administrative Law Judge," but had concluded that this record "in its totality, does not present the appropriate vehicle to challenge these findings and conclusions."

That left no one actually pressing the appeal. The Commission follows a rule from its Cargill decision that it will not decide an issue directed for review when neither party is interested and there is no compelling public interest in deciding it. Finding neither here, the Commission declined to review the issue, affirmed the judge's decision, and accorded it the precedential value of an unreviewed judge's decision. Commissioner Cottine added that the issue was restricted to the specific factual conditions at this worksite, so a Commission decision would not have a significant effect on national safety and health law, and he joined the disposition.

The practical result for the employer is that the guarding citation stays vacated and no penalty is owed. The Commission never reached the merits of whether the machine was adequately guarded, so this decision settles nothing about that question for other employers.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(1), cited under 29 U.S.C. § 654(a)(2)
• Outcome: Vacated. The Commission declined to review the directed issue and affirmed Judge Worcester's decision vacating the citation, according it the precedential value of an unreviewed judge's decision.
• Key point: When a case is directed for review but neither party takes exception to the judge's decision, the Commission will not decide the issue unless a compelling public interest calls for it.

Full text (OSHRC public release)

Docket No. 77-643

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.

OSHRC Docket No. 77-643

Occupational Safety and Health Review Commission

July 31, 1980

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

Albert Ross, Reg Sol., USDOL

William J. Ledoux, 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.

661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

In his decision, Judge Worcester vacated a citation charging Respondent, Johnson Steel & Wire Co., Inc., with committing a serious violation of section 5(a)(2) of the Act, 29 U.S.C.

654(a)(2), by failing to comply with the general machine guarding standard at 29 C.F.R.

1910.212(a)(1).

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

Chairman Cleary, sua sponte, directed that the judge's decision be reviewed on the issue of whether the judge erred in vacating the citation.

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 conclusiong [*2]

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 is restricted to the specific factual conditions at this worksite and as a result 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.

[*3]

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