WEATHERBY ENGINEERING COMPANY

OSHRC Docket Nos. 77-4333; 78-0611

Occupational Safety and Health Review Commission

August 8, 1980

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Edward M. Morris, President, Occupational Safety Consultants, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe 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, Weathereby Engineering Company, has a workplace in Corpus Christi, Texas, where it is engaged in the fabrication of modules for installation on offshore drilling rigs.   Between September 15 and November 4, 1977, a compliance safety and health officer employed by the Occupational Safety and Health Administration conducted an inspection of the [*2]   Respondent's workplace. As a result of the inspection, three citations alleging serious (citation 1), repeated (citation 2), and nonserious (citation 3) violations of the Act were issued to the Respondent.   Citations 1 and 2 were issued on November 23, 1977, and contested by the Respondent on December 10, 1977.     Citation 3 alleged a single nonserious violation of the Act in that the Respondent in two instances failed to comply with 29 C.F.R. §   1910.134(d)(2)(ii).   Specifically, the Respondent was charged with using two oil-lubricated compressors to supply breathing air to respirators without (A) equipping the compressors with carbon monoxide alarms or (B) frequently testing the air from the compressors for carbon monoxide. Citation 3 was separately issued on January 24, 1978, and separately contested by the Respondent on February 3, 1978.     Independent complaints were thereafter filed by the Secretary of Labor ("the Secretary") in both proceedings.

In April 1978 orders were issued assigning both of the captioned cases to Judge Blythe.   On April 20, 1978, the judge entered an order [*3]   consolidating the two cases and scheduling them for a unified hearing.   Judge Blythe based his consolidation order on his "inspection of the files in the captioned cases" which indicated to him "that they involve common issues of law and fact, in that they involve the same respondent and a rose from the same inspection . . . ." n1

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n1 The judge's order was authorized under Rule 9 of the Commission's Rules of Procedure, 29 C.F.R. §   2200.9, which 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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After the cases had been heard before the judge and briefs had been filed by both parties, Judge Blythe issued a single decision covering both cases.   In Docket No. 78-0611, the judge affirmed the only citation at issue (citation 3, supra) and adopted the Secretary's proposal [*4]   that no penalty be assessed.   Neither party petitioned the Commission for review of any part of the judge's decision or order in Docket No. 78-0611.   Nevertheless, the Secretary sought review and review was directed by Chairman Cleary of the judge's order with respect to one citation item at issue in Docket No. 77-4333 -- item 2 of citation 1, which alleged a serious violation of the Act due to failure to comply with the requirement of 29 C.F.R. §   1910.28(a)(3) that guardrails be installed on the open sides and ends of platforms more than ten feet above the ground or floor.

Accordingly, while the direction for review listed both docket numbers, 77-4333 and 78-0611, the only issue on review is one relating solely to Docket No. 77-4333.   We therefore conclude that there is good cause for severing Docket No. 78-0611 from Docket No. 77-4333, which remains before us on review, and we hereby enter an order severing the cases under Commission Rule 10, 29 C.F.R. §   2200.10. n2

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n2 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 indicates no issue, either general or specific, to be considered in Docket No. 78-0611.   Moreover, neither party has taken exception to any part of the judge's decision relating t Docket No. 78-0611.     See Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).   See also, Duriron Co., 80 OSAHRC    , 8 BNA OSHC 1575, 1980 CCH OSHD P24,556 (Nos. 77-2846 & 77-2847, 1980).

So ordered/.