ASAMERA OIL (U.S.), INC.

OSHRC Docket Nos. 79-949; 79-1756

Occupational Safety and Health Review Commission

February 27, 1981

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry C. Mahlman, Associate Regional Solicitor, USDOL

Stan L. Spangler and John L. Lawrence, for the employer

John R. Tadlock, Oil, Chemical & Atomic Workers International Union, AFL-CIO, for the employees

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James A. Cronin, Jr. 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 Cronin entered findings, conclusions and orders disposing of several citations and citation items in two separate cases that had been consolidated for the purposes of hearing and decision.

The Respondent, Asamera Oil (U.S.), Inc., ("Asamera"), operates a petroleum refinery in Denver, Colorado. Durin the period of October 5, 1978 through January 8, 1979, concurrent inspections of the refinery were conducted by a compliance safety and health officer [*2] ("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 1) and other than serious (citation 2) violations of the Act were issued on January 29, 1979. As a result of the industrial hygienist's inspection, one citation was issued on March 19, 1979. Separate complaints were thereafter filed by the Secretary of Labor ("the Secretary") in both proceedings.

Both of the captioned cases were assigned to Judge Cronin who, acting upon a motion for consolidation filed by the Secretary, issued an order consolidating the two cases under Rule 9 of the Commission's Rules of Procedure, 29 C.F.R. 2200.9. n1 The judge held a unified [*3] hearing and issued a single decision covering both cases.

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n1 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 Cronin took the following actions with respect to the items at issue in Docket No. 79-1756. The judge affirmed the proposed penalty of $360 for item 1 of citation 1, which alleged a serious violation of the Act for failure to comply with various parts of the standard at 29 C.F.R. 1910.134. The judge affirmed one sub-item of item 2 of citation 1, which alleged a serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1910.151(c) and assessed a $50 penalty for that citation item.

None of the parties, including the Authorized Employee Representative, petitioned the Commission for review of any part [*4] of the judge's decision or order in Docket No. 79-1756. Nevertheless, the Secretary sought review and review was directed of the judge's order with respect to three items of citation 1 at issue in Docket No. 79-949; items 13(d), 14, and 15 which alleged a serious violation of section 1910.309(a). Accordingly, while review has been directed of the judge's decision in both of the captioned cases, the only issue specified in the direction for review relates solely to Docket No. 79-949. We therefore conclude that there is good cause for severing Docket No. 79-1756 from Docket No. 79-949, 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 does not specify any issue in Docket No. 79-1756 [*5] to be considered on review. Moreover, none of the parties has taken exception to any part of the judge's decision in Docket No. 79-1756. See Duriron Company, Inc., 80 OSAHRC 61/A2, 8 BNA OSHC 1575, 1980 CCH OSHD P 24,556 (Nos. 77-2846 & 77-2847, 1980). It is accorded the precedential value of an unreviewed judge's decision. Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P 20,428 (No. 9507, 1976).

SO ORDERED.