THE DURIRON COMPANY, INC.  

OSHRC Docket Nos. 77-2846; 77-2847

Occupational Safety and Health Review Commission

June 16, 1980

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William Kloepfer, Associate Regional Solicitor, USDOL

Richard A. DuRose, for the employer

Francis P. Grimes, Safety & Health Department, United Steelworkers of America, for the employees

Owen Girten, Staff Representative, United Steelworkers of America Local Union 3320, for the employees

OPINION:

DECISION

BY THE COMMISSION.

A decision of Administrative Law Judge J. Paul Brenton is before the Commission for review 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").  

The Respondent, The Duriron Company, Inc., operates a foundry at its facility in Dayton, Ohio.   During a two-week period in July 1977, concurrent inspections of this foundry [*2]   operation were conducted by a compliance safety and health officer ("compliance officer") and by an industrial hygienist, both employed by the Occupational Safety and Health Administration ("OSHA").   As a result of the compliance officer's inspection, two citations alleging serious (citation no. 1) and nonserious (citation no. 2) violations of the Act were issued on August 11, 1977.       Separate complaints were thereafter filed by the Secretary of Labor ("the Secretary") in both proceedings.

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n1 The Respondent later withdrew its notice of contest to item no. 1 of citation no 2.   Also following the Respondent's notice of contest, OSHA withdrew item no. 3(a) of citation no. 1 and issued citation no. 3.   With one exception, these two citations alleged identical violations of the Act, that exception being that item no. 3(c) of citation no. 1 alleged that the violation was serious while citation no. 3 alleged that the same violation was willful. In his decision, Judge Brenton did not address the issue of whether a citation that had been contested could be amended in this manner.   Nevertheless, his conclusion, infra, that the alleged violation was not willful rendered the issue moot.

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On October 13, 1977, orders were issued assigning both of the captioned cases to Commission Administrative Law Judge James D. Burroughs.   One week later Judge Burroughs, apparently acting on his own motion, issued an order consolidating the two cases under Rule 9 of the Commission's Rules of Procedure, 29 C.F.R. §   2200.9. n2 The cases were subsequently reassigned to Judge Brenton, who held a unified hearing and issued a single decision covering both cases.

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n2 Rule 9 provides the following:

Cases may be consolidated on the motion of any party, on the judge's own motion, or on the Commission's own motion, where there exist common parties, common questions of law or fact, or both, or in such other circumstances as justice and the administration of the

Act require.

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In his decision, Judge Brenton took the following actions with respect to the citations and citation items at issue in Docket No. 77-2846.   He affirmed item no. 1 of citation [*4]   no. 1, which alleged a serious violation of section 5(a)(1) of the Act relating to the pouring of molten metal into a pit in which water accumulated.   Item no. 3 of citation no. 1 alleged a serious violation of the Act in that the Respondent failed in three separate instances to comply with 29 C.F.R. §   1910.212(a)(1).   Judge Brenton vacated item no. 3(a), affirmed as a nonserious violation the allegation of item No. 3(b), and also affirmed as a nonserious violation the violation initially alleged in item no. 3(c) and purportedly amended in citation no. 3.   See note 1 supra. Item no. 4 and item no. 5 of citation no. 1 alleged serious violations of the Act for failure to comply with 29 C.F.R. §   1910.215(a)(4) and 29 C.F.R. §   1910.215(b)(9), respectively.   The judge affirmed these two items, both of which involved the same grinding machine, as a single serious violation of the Act. n3

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n3 In his discussion of item nos. 4 and 5, the judge clearly concluded and so stated that "the combined violations add up to a serious violation." He expressly found that the Respondent had actual or constructive knowledge of the conditions and that the conditions created a "substantial probability that serious bodily harm could result." Moreover, in assessing a penalty for the violations, he stated that he was acting under the Act's provision making assessment of a penalty mandatory for a serious violation. See section 17(b) of the Act, 29 U.S.C. §   666(b).   Nevertheless, in his order, he vacated the allegations that item nos. 4 and 5 were serious violations and affirmed the items as nonserious violations.   Under these circumstances, we conclude that the judge's intended disposition was that expressed in his discussion of the items and that the order merely resulted from clerical error.   Judge Brenton's order is accordingly corrected to conform to the disposition stated in his decision.   Fed. R. Civ. P. 60(a).

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None of the parties -- the Authorized Employee Representative is also a party -- petitioned the Commission for review of any part of the judge's decision or order in Docket No. 77-2846.   Nevertheless, the Secretary sought review and review was directed of the judge's order with respect to one citation item at issue is Docket No. 77-2847 -- item no. 1 of citation no. 1, which alleged a serious violation of section 5(a)(1) of the Act relating to employee exposure to heat stress.   Accordingly, while review has been directed of the judge's decision in both of the captioned cases, the only issues specified in the direction for review are issues which relate solely to Docket No. 77-2847.   We therefore conclude that there is good cause for severing Docket No. 77-2846 from Docket No. 77-2847, which remains before us on review, and we hereby enter an order severing the case under Commission Rule 10, 29 C.F.R. §   2200.10. n4

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n4 Commission Rule 10 provides the following:

Upon its own motion, or upon motion of any party or intervenor, the Commission or the judge may, for good cause, order any proceeding severed with respect to some or all issues or parties.

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The direction for review as it relates to Docket No. 77-2846 does not specify any issue in that case to be considered on review.   Moreover, none of the parties has taken exception to any part of the judge's decision in Docket No. 77-2846.     Abbott-Sommer, Inc., 76 OSAHRC 21/A2, & BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).

IT IS SO ORDERED.