Potlatch Corporation

Plain-English summary

OSHA cited Potlatch Corporation under the general duty clause after an employee drove a tractor and pole trailer with inoperable trailer brakes. The judge found that driving without the trailer brakes was hazardous but that the evidence showed the industry considered it less hazardous than leaving the vehicle on the road overnight. He therefore vacated the citation. The Secretary initially obtained Commission review, then withdrew the petition with Potlatch's agreement. With no objection from the employee representative and no compelling public interest requiring further review, the Commission affirmed the judge's decision and left the citation vacated.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The general duty clause citation remained vacated after the Secretary withdrew the review petition.
• Key point: The Commission ended review when the parties sought withdrawal, the employee representative did not object, and no compelling public interest warranted continuing.

Full text (OSHRC public release)

Docket No. 77-3589

POTLATCH CORPORATION

OSHRC Docket No. 77-3589

Occupational Safety and Health Review Commission

May 16, 1979

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

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Regional Solicitor, USDOL

Oscar E. Davis, Jr., for the employer

Mr. Vern H. Ussery, Reg. Rep., Regional Council Number 5, International Woodworkers of America, AFL-CIO, for the employees

Lynn-Marie Crider, for the employees

Mr. Charles E. Campbell, President-Regional Director, International Woodworkers of America, AFL-CIO, Regional Council No. 5, for the employees

OPINION:

ORDER

BY THE COMMISSION:

A decision of Administrative Law Judge John S. Patton, dated November 9, 1978, is before the Commission for review under �
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12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. In his decision, the judge vacated a citation alleging that the Respondent, Potlatch Corporation ("Potlatch"), violated �
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5(a)(1) of the Act, 29 C.F.R. �
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654(a)(1), n1 by permitting an employee to operate a tractor and pole trailer with the trailer brakes in an inoperable condition.
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The judge ruled that, although it was hazardous to drive the vehicle without the trailer brakes, the evidence clearly established that the industry considered it to be less [*2]
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hazardous to drive the vehicle with inoperable trailer brakes than to allow the tractor-trailer to remain on the road overnight.

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n1 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;

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The Secretary's petition for discretionary review, taking exception to the findings and conclusions of the judge, was granted by Commissioner Cottine on December 11, 1978.
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On February 16, 1979, the Secretary notified the Commission that he wished to withdraw his petition for review.
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The Secretary noted that Potlatch had no objection to this withdrawal and joined the Secretary in requesting the Commission to affirm Judge Patton's decision.

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Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Star Circle Wall Systems, Inc., 76 OSAHRC 38/C9, 4 BNA OSHC 1011, 1975-76 CCH OSHD P20,502 (No. 3271, 1976), and further review is not warranted by any compelling public interest.
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Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976); Weyerheauser Co., 77 OSAHRC 44/D6, 5 BNA OSHC 1275, 1977-78 CCH OSHD P21,716 (No. 11869, 1977); Union Camp Corp., 77 OSAHRC 166/A2, 5 BNA OSHC 1799, 1977-78 CCH OSHD P22,103 (No. 12203, 1977).

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n2 On April 3, 1978, the International Woodworkers of America, AFL-CIO, Regional Counsel No. 5, notified Judge Patton by letter that it wished to participate by "electing party status" under 29 U.S.C. �
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659(c) and Commission Rule 20(a), 29 C.F.R. �
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2200.20(a).
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The authorized employee representative was served with a copy of the Secretary's letter seeking to withdraw his petition for review and no response or objection has been filed with the Commission.

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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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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 (2d Cir. May 17, 1976).

It is so ORDERED.
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