Cargill, Inc.

Plain-English summary

The judge vacated two general-duty citations involving static-collecting devices on grain conveyor belts and openings between grain bins. Review was directed on the merits and on whether fire-protection standards could show industry recognition of the alleged hazards. The Secretary stated that the record was not an appropriate vehicle for resolving those questions and requested summary affirmance without binding precedent. The Commission found neither sufficient party interest nor compelling public interest, affirmed without review, and gave the judge's decision only unreviewed-judge precedential value.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Vacation of two general-duty citations affirmed without substantive Commission review
• Key point: The Commission declined to use this record to decide the role of fire-protection standards in proving industry recognition of grain hazards

Full text (OSHRC public release)

Docket No. 78-3006

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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LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.
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HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.
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INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.
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GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.
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NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.
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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.
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GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.
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WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.
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AUSTIN ROAD CO.
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MAYHEW STEEL PRODUCTS, INC.
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LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.
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NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.
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HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.
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PRESTRESSED SYSTEMS, INC.
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TEXACO, INC.
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GEORGIA HIGHWAY EXPRESS, INC.
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RED LOBSTER INNS OF AMERICA, INC.
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SUNRISE PLASTERING CORP.
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STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.
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BUSHWICK COMMISSION COMPANY, INC.
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CIRCLE T DRILLING CO., INC.
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J.L. FOTI CONSTRUCTION COMPANY, INC.
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TEXACO, INC.
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KENNETH P. THOMPSON CO., INC.
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HENRY C. BECK COMPANY

HEATH & STICH, INC.
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FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.
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TRI-CITY CONSTRUCTION CO.
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THE DURIRON COMPANY, INC.
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SAMSON PAPER BAG CO., INC.
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MEL JARVIS CONSTRUCTION COMPANY, Inc.
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MIDWEST STEEL ERECTION, INC.
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GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.
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UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.
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SUFFOLK COUNTY CONTRACTORS, INC.
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NORANDA ALUMINUM, INC.
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ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

GENERAL ELECTRIC COMPANY

SERVICE SPECIALTY, INC.
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ECCO HIGH FREQUENCY ELECTRIC CORP.
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HENRY C. BECK COMPANY

REPUBLIC ROOFING CORPORATION

EASLEY ROOFING & SHEET METAL CO., INC.
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MIDDLETOWN VOLKSWAGEN, INC.
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RICHARD ROTHBARD, INC.
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AUTOMATIC SPRINKLER CORPORATION OF AMERICA

PENNSUCO CEMENT AND AGGREGATES, INC.
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AMFORGE DIVISION, ROCKWELL INTERNATIONAL

MASSMAN-JOHNSON (Luling), a joint venture; MASSMAN CONSTRUCTION CO.; AL JOHNSON CONSTRUCTION CO.
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GENERAL MOTORS CORPORATION, CENTRAL FOUNDRY DIVISION

GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION

EDGEWATER STEEL CORPORATION

INTERLAKE, INC.
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PRATT & WHITNEY AIRCRAFT, A DIVISION OF UNITED TECHNOLOGIES, INC.
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UNITED STATES STEEL CORPORATION, DUQUESNE PLANT

KENT NOWLIN CONSTRUCTION CO., INC.
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WANDER IRON WORKS, INC.
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SITKIN SMELTING & REFINING, INC.
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AMERICAN CYANAMID COMPANY

BETHLEHEM STEEL CORPORATION

J.L. FOTI CONSTRUCTION CO., INC.
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WRIGHT AND LOPEZ, INC.
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DELAWARE AND HUDSON RAILWAY CO.
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O.E.C. CORPORATION

BROWN-McKEE, INC.
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DUQUESNE LIGHT COMPANY; VECELLIO & GROGAN, INC.
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REXCO INDUSTRIES, INC.
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MASONRY CONTRACTORS, INC.
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CARGILL, INC.
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OSHRC Docket No. 78-3006

Occupational Safety and Health Review Commission

March 31, 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

Herman Grant, Regional Solicitor, USDOL

Thomas Tinkham, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Alan M. Weinman 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 Weinman, among other things, vacated two citations charging Respondent with violating section 5(a)(1) of the Act, 29 U.S.C. �
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654(a)(1).

Neither party petitioned for review of the judge's decision.
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Commissioner Cottine, sua sponte, directed that the judge's decision be reviewed on issues related to the merits of the section 5(a)(1) allegations.
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In response to the direction for review, 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 is "not in agreement with certain of the legal and factual conclusions expressed by Judge Weinman," but has concluded that "the instant record, in its totality, does not present an appropriate vehicle for review [*2]
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of those conclusions." Accordingly, the Secretary asks that the Commission summarily affirm the judge's decision without according that decision binding precedential value.

The issues directed for review in this case are similar to those raised in an earlier case involving the same Respondent.
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Cargill, Inc., 79 OSAHRC    , 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (No. 78-2862, 1979).
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In that case, the Commission concluded that it would not decide the issues directed for review in the absence of either party interest or a compelling public interest. Accordingly, consistent with Cargill, Inc., supra, and the cases cited therein, we affirm Judge Weinman's decision without review, according it the precedential value of an unreviewed judge's decision.
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SO ORDERED.
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CONCURBY: COTTINE

CONCUR:

COTTINE, Commissioner, concurring:

This case presents no issue of compelling public interest and it is properly affirmed without precedential status under Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976).
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However, the standard of review applied by the majority to determine "compelling public interest" is flawed by its exclusive reliance on
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[*3]
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the interest of the party adversely affected by the decision under review.
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See Cargill Inc., 79 OSAHRC    , 7 BNA OSHC 2045, 1979 CCH OSHD P23,981 (Nos. 78-2862 & 78-2864, 1979) (Cottine, Commissioner, concurring).

The majority properly commences its inquiry by distinguishing between party interest and compelling public interest. However, it restricts its review to adverse party interest, i.e., the interest of the party adversely affected by the judge's decision and order.
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This restriction ignores the case where a nonaggrieved party may have an interest in a final authoritative interpretation of a statute or regulation in order to resolve conflicting interpretations by administrative law judges.
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See generally Continental Can Company, U.S.A. v. Marshall, 455 F.Supp. 1015 (S.D. I11. 1978), aff'd 603 F.2d 590 (7th Cir. 1979), dismissal on remand, 78 OSAHRC 93/A2, 6 BNA OSHC 2114, 1978 CCH OSHD P23,146 (Nos. 7855, 10561, 12069, 76-25, 77-2313, 77-4156, 78-360, 78-890 & 78-2460, 1978).
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In addition to this party interest there may be an independent public interest in the resolution of conflicting interpretations.
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Accordingly, the Commission must not ignore [*4]
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this public interest by invoking the nonaggrieved party rule originally developed to determine party interest.
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See Transworld Airlines, Inc., 79 OSAHRC 4/D10, 7 BNA OSHC 1047, 1979 CCH OSHD P23,277 (No. 76-3506, 1979) (Cottine, Commissioner, dissenting).

Moreover, issues of compelling public interest may be presented by the entire spectrum of adjudicatory rulings from pure findings of fact to comprehensive conclusions of law.
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See generally L. Jaffe, Judicial Control of Administrative Action ch. 14 (1965).
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Thus, jurisdictional controversies, statutory issues, and regulatory interpretations may present issues of compelling public interest. Cargill, Inc., supra, 7 BNA OSHC at 2046, 1979 CCH OSHD P23,981 at p. 29,106. The simplistic outcome determinative test grafted onto the compelling public interest analysis by the majority in Cargill, Inc., supra, is unresponsive to the wide variety of legal and factual issues that are central to the Commission's mandate to establish a national body of occupational safety and health law.
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See S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979),
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[*5]
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appeal docketed, No. 79-2358 (5th Cir. June 7, 1979).
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In addition, the outcome determinative test is subject to abuse from premature and incomplete judgments concerning the final disposition of a case by the Commission.
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Thus, the determination of compelling public interest necessarily involves more than a consideration of party interest or the ultimate outcome of the case.

In order to be statutorily valid, a Commission order summarily affirming a judge's decision without review must have the concurrence of each presently-sitting Commissioner who directed the case for review.
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This concurrence is essential to avoid a conflict with each Commissioner's delegated authority to direct a case for Commission review under 29 U.S.C. �
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661(i).
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Keco Industries, Inc., 79 OSAHRC    , 7 BNA OSHC 2048 at p. 2052 & n. 14, 1979 CCH OSHD P24,117 at p. 29,310 & n. 14 (No. 78-661, 1979) (Cottine, Commissioner, dissenting).

However, after careful analysis of the direction for review in this case * as well as the Commission's entire docket, I conclude that this case presents no conflict necessitating Commission review.
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Cargill, Inc., supra. Neither the factual issues involving grain [*6]
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storage operations nor the legal issue concerning the relevance of NFPA standards to a general duty clause violation present an issue of compelling public interest requiring Commission resolution in the context of this case.
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I therefore concur in the summary affirmance.

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

• The direction for review in this case specified the following issues:

(1) Whether the Administrative Law Judge erred in concluding that NFPA standards are "unavailable as evidence of industry recognition of hazards."

(2) Whether the record establishes that the Respondent violated �
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5(a)(1) of the Act, 29 U.S.C. �
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654(a)(1), by (1) failing to provide static collecting devices on four grain conveyor belts; and (2) maintaining openings between grain bins at the gallery floor level.

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