Authorized Employee

OSHRC Docket No. 86-0449-A


The Secretary of Labor issued a citation to LTV Steel Company alleging that LTV violated four OSHA safety standards. LTV's contest of the citation was docketed by the Commission as No. 86-0449 and was assigned to Administrative Law Judge David G. Oringer for disposition. LTV moved for partial summary judgment as to one of the citation items, and the judge granted the motion. The judge issued a "Ruling and Order" vacating that item and transmitted that document to the Commission, identifying it as his decision in Docket No. 86-0449-A.

The United Steelworkers of America filed a petition for discretionary review with the Commission, arguing that the judge erred in granting the motion for partial summary judgment. Review was directed of the judge's ruling. We conclude that the judge's ruling on the motion for partial summary judgment is before the Commission prematurely. We therefore vacate the direction for review and remand the case to the judge without prejudice to the correctness of the rule being raised and decided at the proper time.

In issuing his order vacating the item that was the subject of the motion for partial summary judgment, the judge in effect severed that item from the other three that LTV contested. Commission Rule 10, 29 C.F.R. 2200.10, addresses severance and provides:

2200.10 Severance.

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.

The judge did not explicitly invoke Rule 10, nor did he make a finding of good cause, as the rule requires. Moreover, we do not yet perceive any good cause for severing the one item from the remainder of the case. The Commission has previously discussed the drawbacks to the piecemeal adjudication that results when some items in a case are severed. Hamilton Die Cast, Inc., 86 OSAHRC, 12 BNA OSHC 1797, 1800 & n. 5, 1803, 1986 CCH OSHD (P) 27,576, p. 35,822 & n. 5 pp. 35,825-86 (No. 83-308, 1986). We noted in Hamilton that there is a strong federal policy, embodied in Rule 54 (to of the Federal Rules of Civil Procedure, against the confusion, overlapping decisions, and wasted effort that often result from piecemeal adjudication. Although Hamilton dealt with the severance of items when a case is before the Commission for review, the same considerations exist before the judge. It will generally be more efficient for the judge to issue a single decision disposing of all issues so that the parties can seek Commission and court review of the entire case at one time and so that the entire record can be kept together. If one or more items are to be severed under Commission Rule 10, the finding of good cause must explain why the benefits of severance outweigh the drawbacks of piecemeal adjudication. In making that finding and severing part of a case, we expect the judge's action to be informed by the policies and procedures in Federal Rule 54(b).

The Commission's rules do provide another avenue by which less than an entire case can be immediately reviewed by the Commission. Commission Rule 73, 29 C.F.R. 2200.73, gives discretion to the Commission to order immediate review of a judge's interlocutory ruling even if severance had not been ordered. Interlocutory review is available only, however, if the record shows that immediate review would materially expedite final disposition of the proceeding and only on the vote of a majority of the Commissioners. A direction for review, which represents the action of only a single member, is ineffective to either sever part of a case or bring it before the Commission on interlocutory review. See Hamilton, 12 BNA OSHC at 1804, 1986 CCH OSHD at p. 35,826.

Accordingly, the direction for review is vacated and Docket No. 86-0449-A is remanded to the judge for reconsolidation with the remainder of the case, which has since been assigned Docket Number 86-1787.



DATED: FEB 9 1987




OSHRC DOCKET NO. 86-0449 & 86-1787


The Respondent at a relatively early period of time during the pendency of this proceeding moved for partial summary judgment insofar as item 1(a) of citation number 1 was concerned.

The undersigned granted partial summary Judgment to Respondent vacating item 1(a) or citation number 1 on November 16, 1986. The undersigned also severed that portion of the case and forwarded it to the Commission.

The Commission without ruling on the merits of the motion or the Judge's Order remanded the file to the Judge for reconsolidation with the rest of the case. Pursuant to the Commission Order the undersigned reconsolidated the case but left the decision on the motion for partial summary judgment intact.

Subsequent there the hearing was rescheduled to be heard on March 27, 1989 in Pittsburgh, Pennsylvania. Just prior to trial the parties advised the undersigned that the rest of the case was settled and that the only issue in which the parties reserved the right to appeal was the motion for partial summary judgment granted by the undersigned.

Accordingly, the stipulation of settlement is APPROVED in its entirety and is incorporated by reference thereto as if fully set forth herein at length.

Pursuant to the order on the motion for summary judgment and settlement agreement Item 1(a) 1(b) and 1(c) are VACATED together with any penalty proposed therefor.

Item 2, alleging a serious violation of the standard set forth at 29 C.F.R. 1910.180(j)(1)(i) is AFFIRMED and a penalty of $640 is assessed therefor.

The undersigned received a letter from the United Steel Workers of America, the authorized employee representative, dated April 14, 1987, in which the Union set forth the reasons why they would not sign the settlement agreement; however, sufficient reason is not established for disapproval of the settlement agreement, particularly in view of the prosecutorial discretion of the Secretary.

Accordingly, this matter is fully disposed of, SO ORDERED this 5th day of May 1987.

Judge, OSHRC

Dated: May 5, 1987
Boston, Massachusetts




OSHRC Docket No. 86-0449-A


The respondent was cited for serious violation of the Secretary's standards and has moved for partial summary judgment insofar as one of the standards is concerned. The standard attacked is set forth at 29 C.F.R. 1910.23(a)(5). The standard reads as follows:


(5) Every pit and trapdoor floor opening, infrequently used, shall be guarded by a floor opening cover of standard strength and construction. While the cover, is not in place, the pit or trap opening shall be constantly attended by someone or shall be protected on all exposed sides by removable standard railings.

The Secretary described the violation as follows: Serious Citation No. 1, item 1(a):

29 C.F.R. 1910.23(a)(5): Infrequently used pit or trapdoor floor openings were not guarded by floor opening covers of standard strength and construction:

(a) By products plant, primary sump, the grating covering the primary sump was not secured to prevent movement.

The respondent served interrogatories upon complainant. Interrogatory No. 3 requested the following with regard to item 1(a) of the citation alleging a violation of 29 C.F.R. 1910.23(a)(5): state all facts and arguments to support the claim that the primary sump pit was "infrequently used." Answer: There is no evidence to prove the infrequent use of the pit but infrequent walking is done on the covering by maintenance men. The pit is in use so long as the oven operates.

The respondent argues that the Secretary must prove affirmatively that the cited pit is "infrequently used" and that its answer to the interrogatory demonstrates affirmatively that it has no proof that the pit is "infrequently used." Complainant's response to respondent's motion for partial summary judgment was that the standard involved was correctly used in that the "pit or trapdoor floor openings" are infrequently used within the meaning of the cited standard. The Secretary further argues that the configuration of the grating cover in this case because of its configuration did not meet the requirements of the standard for standard strength and construction when an adjacent section was removed.

The Secretary argues that the pit opening in the instant cause was covered by a steel grating and it is that floor covering or steel grating that was "infrequently used" within the purview of the standard.

To resolve this very interesting question, one must analyze the language of the standard. The plain language of the standard demonstrates that the term "infrequently used" refers to every pit and trapdoor floor opening. The guarding by a floor opening cover of standard strength and construction is a subsequent phrase, a subsequent condition. Proof of infrequent use must be of the pit and trapdoor floor opening. The guarding by a floor opening cover of standard strength and construction would refer only to a pit and trapdoor floor opening which is infrequently used.

The standard was written by the Secretary and the requirements were delineated by him. It is clear that the Secretary has given himself the burden of proof of "infrequent use" of the pit and trapdoor floor opening involved. That is the plain and unambiguous reading of the language of the standard. The Secretary on August 15, 1986, filed its answers to respondent's interrogatories which contained, inter alia, on page 2 thereof Interrogatory No. 3 which the Secretary answered by stating there is no evidence to prove the infrequent use of the pit but infrequent walking is done on the covering by maintenance men. The pit is in use so long as the oven operates.

It is clear that the government cannot prove that the pit or floor hole is infrequently used. In fact, it states that it is in use so long as the oven operates. The Secretary has not attempted to change its answer and this tribunal finds that the government fails to have proof of infrequent use of the pit or floor hole and accordingly, the motion must be granted.

See Lee Metals Corporation, CCHD OSHD 15,722 (1973); 1 BNA OSHC 3016, at 3017 (1973).

In accordance with the above considerations the motion for partial summary judgment is granted. The allegation of violation by this respondent of the standard set forth at 29 C.F.R. 1910.23(a)(5) is vacated. Inasmuch as the entire item consists of three subparts and a total penalty of $640, a penalty of $213.33 is similarly vacated leaving penalties of $213.33 for 1(b) and $213.40 for item 1(c).



Dated: December 16, 1986
Boston, Massachusetts