OSHRC Docket No. 2873

Occupational Safety and Health Review Commission

January 20, 1975


Before MORAN, Chairman, VAN NAMEE and CLEARY, Commissioners.



MORAN, CHAIRMAN: A decision and order on motion for summary judgment of Review Commission Judge J. Paul Brenton dated September 13, 1973, is before this Commission for review pursuant to 29 U.S.C. 661(i).

The respondent contested so much of a citation served upon it pursuant to the Occupational Safety and Health Act of 1970 n1 which alleged a violation of 29 U.S.C. 654(a)(2) for failure to comply with a safety standard promulgated under the Act. The standard, which is codified in 29 C.F.R. 1910.93(e), requires the implementation of engineering or administrative controls whenever employees are exposed to excessive concentrations of raw cotton dust.

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n1 29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act.

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Respondent filed a motion for summary judgment on July 31, 1973, to which was attached an affidavit of its plant superintendent that the plant where the infraction allegedly occurred was engaged solely in [*2] the processing of cotton seed and was not involved in the processing of raw cotton in any manner. Secretary v. Buckeye Cellulose Corporation,

Complainant did not file any counter-affidavit. His counsel asserted at an August 24, 1973, hearing on respondent's motion that if a trial were held he would produce testimony in conflict with the affidavit. Following the precedent established in a long series of court decisions cited in his ruling, the Judge properly refused to consider this unsupported assertion in his decision granting the respondent's motion.

Once an affidavit is filed showing that there is no triable issue, the adversary party must respond by counter-affidavit or otherwise present competent evidence to demonstrate that there is a triable issue. Complainant did not do this.

Consequently, we affirm the disposition ordered by the Judge.

So ordered.



CLEARY, COMMISSIONER, dissenting: I dissent. Chairman Moran's opinion states,

Once an affidavit [*3] is filed showing that there is no triable issue, the adversary party must respond by counter-affidavit or otherwise present competent evidence to demonstrate that there is a triable issue. Complainant did not do this.

Consequently, we affirm the disposition ordered by the Judge (emphasis added).

Clearly, this accurate statement of law has been misapplied in the instant case. As the Supreme Court stated in Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970).

. . . Both the commentary on and background of the 1963 amendment [adding part (e) to Rule 56, F.R.C.P.] conclusively show that it was not intended to modify the burden of the moving party under Rule 56(c) to show initially the absence of a genuine issue concerning any material fact.

The mere failure to file controverting affidavits does not require granting a motion for summary judgment. Stabbs v. United States, 428 F.2d 885, 888 (9th Cir. 1970). My colleagues seem to recognize this, and yet they fail to scrutinize adequately respondent's evidence in order to ascertain whether it has sustained its burden of showing that there is no issue of material fact in this case.

Respondent's motion for [*4] summary judgment is predicated upon the citation, complaint and answer, as well as a decision in The Buckeye Cellulose Corp., n2 No. 1919 (August 14, 1973) (Administrative Law Judge) and the affidavit of respondent's plant superintendent. The superintendent has sworn "that the business of said plant is solely the processing of cottonseed and related activities. It does not involve the procurement, processing or otherwise handling of raw cotton (emphasis added)." In The Buckeye Cellulose Corp., supra, the Administrative Law Judge, in findings of fact numbers 1 and 3, finds that Buckeye is engaged in the business of processing cotton linters and in selling bulk and sheet cellulose and that cottonseed linters are not included in the term "cotton" by the industry.

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n2 Buckeye is the parent corporation of respondent.

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Although evidence was adduced in Buckeye with respect to the properties of cotton, cotton linters, and cottonseed, the Judge's findings were limited to the facts of that [*5] case; i.e. the properties of cotton linters. n3 Respondent's affidavit reveals that the findings in Buckeye are not dispositive of the issues in the instant case because they do not establish that the same manufacturing processes and raw materials are involved.

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n3 In Buckeye evidence was presented showing that, before cotton linters are sent to the respondent in that case, they go to the cottonseed processor where the cottonseed fibers are cleaned.

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Summary judgment is appropriate only where the pleadings and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Poller v. Columbia Broadcasting System, 368 U.S. 464, 467 (1962). Summary judgment is therefore inappropriate in this case. There is plainly an issue of fact as to the nature of the dust in respondent's plant, which was cited as raw cotton dust by the Secretary. This issue should be resolved at a hearing.

Alternatively, the Judge should have granted a [*6] continuance to permit the filing of opposing affidavits by the Secretary. He should not have made this important decision turn on what amounts to a technicality. Possible exposure to the debilitating effects of cotton dust contamination requires no less. The Commission's protection of the public interest suggests that this be done. See Brennan v. O.S.H.R.C. John J. Gordon, 492 F.2d 1027, 1032 (2d Cir. 1974).

[The Judge's decision referred to herein follows]

BRENTON, JUDGE: This cause comes on for consideration and determination on Respondent's Motion for Summary Judgment.


Respondent's Motion for Summary Judgment was filed herein on July 31, 1973.

Complainant failed to respond to said Motion, at any time prior to the hearing thereon, in accordance with Commission Rule 8, since service thereof was had upon him. This non-action is also violate of Commission Rule 37 and Rule 56(e) of the Federal Rules of Civil Procedure. Further, Complaint did not seek relief under Commission Rule 5, nor has he invoked Rule 56(f) of the Federal Rules of Civil Procedure.

The Motion was duly scheduled for hearing on the merits on August 24, 1973, at 10:00 a.m. Appearance was not [*7] mandatory, however, failure to appear was conditioned that the motion would be deemed submitted upon the pleadings, briefs, affidavits and any other documentary evidence that may be received on or before August 24, 1973.

Counsel for the parties appeared for the hearing on the motion. Respondent elected to stand on its motion with supporting affidavits and other extraneous materials. Counsel for the Complainant offered nothing in opposition to the Motion except his oral argument that his Compliance Office would testify that at the time of inspection he observed raw cotton at the work site in question. He also orally argued that the standard alleged to have been violated in the instant case is not identical to the standards cited in the case of Secretary of Labor v. The Buckeye Cellulose Corporation,

On August 27, 1973, it was first learned that the Complainant did file a Response, dated August 10, 1973, to the Motion with the Review Commission in Washington, D.C. on August 13, 1973, which was in turn forwarded to the assigned Administrative Law Judge in this case and received on August 27, 1973.

This response by the Complainant is nothing more than [*8] a mere assertion by way of a conclusion that genuine issues of fact exist in this cause. The Complainant has not countered with an affidavit, deposition, answers to interrogatories, admissions, oral testimony, stipulations, concessions of counsel, certified transcript of a court or administrative record or proceeding, or exhibits or other papers that may be made admissible in evidence. Neither has he utilized the doctrines of judicial notice and presumption.

According to the pleadings and Respondent's Notice of Contest Item 5 of the Citation which has to do with nuisance dust is not contested. Items 1, 2, 3 and 4 of the Citation exclusively relate to the presence of raw cotton dust in four separate locations within the confines of Respondent's operation at the time of inspection, and it is these items that are contested and to which the Motion for Summary Judgment is directed. There were no penalties proposed for any of the items charged in the Citation.


The office of Summary Judgment is employable within the framework of the adjudication process in this administrative proceeding. (Section 12(g) of the Act, and Commission Rule 2(b)).

In addition to pleadings, depositions, [*9] admissions on file, answers of a party to interrogatories, and affidavits, which Rule 56(c) of the Federal Rules of Civil Procedure specially enumerates, a tribunal may consider all testimony, and any other or additional material that would be admissible in evidence or otherwise usable at trial in the adjudication of a Motion for Summary Judgment. Associated Press v. United States, 326 U.S. 1; United States v. United States Gypsum Company, 340 U.S. 76; Olympic Insurance Company v. Harrison, Inc., 418 F.2d 669; Instituto Per Lc Sviluppo Economico Dell' Italia Meridonale v. Sperti Products, Inc. 47 FRD 310; Sword v. Fox, 317 F Supp 1056. The statement of the Solicitor for the Government based on information furnished by others does not constitute admissible evidence and should not be considered on Motion for Summary Judgment. Chambers v. United States, 357 F. 2d 224.

Statements in the brief and counsel's response are not considered evidence at hearing on Motion for Summary Judgment. Schoenbaum v. Fishbrook, 268 F Supp. 385, 405 F. 2d 200, Cert. denied 89 S. Ct., 1749.

One of the prime purposes of Summary Judgment procedure is to pierce the pleadings [*10] and thus the true rule is that Summary Judgment should be rendered, even though an issue may be raised formally by the pleadings, where supporting affidavits and the opposing affidavits, if any, show there is no genuine issue of material fact. Keller v. Dravo Corporation, 441 F. 2d 1239; Richardson v. Rivers, 335 F. 2d 996; Chan Ing Cheung v. Hamilton, 229 F. 2d 459; Norton v. McShane, 332 F. 2d 855.

Stubborn reliance upon allegations and denials in the pleadings will not alone suffice, when faced with affidavits or other materials showing the absence of triable issues of material fact. Ruddy v. United States Fidelity and Guaranty Company, 40 FRD 44; Stevens v. Brown & Root, Inc., 338 F. Supp. 680; Scott v. Dallahite, 54 FRD 430; Williams v. B & O Railroad Company, 330 Fed 2d 323.

The principle seems to be that if, under the facts developed, the tribunal at a trial could be required to direct a verdict for the moving party, then Summary Judgment should be entered. A party may not hold back his evidence until trial; he must present sufficient materials to show that there is a triable issue. Wagoner v. Mountain Savings and Loan Association, [*11] 311 F. 2d 403; Richardson v. Rivers, supra; O'Brien v. McDonald's Corporation, 48 FRD 370; Standard Dredging Corporation v. Inter-American Center Authority, 351 F. 2d 470; Amerson v. Shulman, 337 F. Supp. 177; Woodbury v. McKinnon, 447 F. 2d 839.


It is most significant to observe that in paragraphs III and XI of the complaint, it is alleged that Respondent is engaged in cotton seed processing. Such is tantamount to abdication of the citation by the Complainant. Only in paragraph VI of the complaint is there an attempt to charge exposure to raw cotton dust. The allegations are inconsistent and confuse the real issue.

Respondent's motion is supported [*12] by the affidavit of one Wilson A. Florey. Mr. Florey is the superintendent of the Respondent's Fort Worth, Texas, operation. Further, that Respondent herein is engaged solely in the processing of cottonseed which does not involve the processing of raw cotton in any manner. The affidavit is made upon the personal knowledge of the affiant.

This tribunal may judicially notice the decisions and orders of its several judges as well as the decision and orders of the Review Commission that are filed and recorded with the Commission. It is, therefore, noticed that Judge Patton's Decision and Order in Secretary of Labor v. The Buckeye Cellulose Corporation, Docket No. 1919, OSHRC, was filed with the Commission and by virtue of the provisions of Section 12(j) of the Act has become and is a final order of the Review Commission.

The doctrine of collateral estoppel has application to the situation presented here. Any matter that has been affirmatively adjudged is binding upon the parties or their privies in a subsequent suit [*13] that involves a different cause of action. Cromwell v. County of Sac, 95 U.S. 351; Minnesota Mining and Manufacturing Co. v. Superior Insulating Tape Co., 284 F. 2d, 478; Hickory Springs Manufacturing Compnay v. Freedman Bros. Furniture Co., 330 Fed. Supp. 978; Sherman v. Jacobson, 247 F. Supp. 261.


The matter adjudged in Buckeye was that the standards alleged under Section 1910.93, and as reference to Section 1910.134, did not apply to an employer engaged in the processing of cottonseed linters, inasmuch as the process did not produce air contaminants of raw cotton dust as contemplated by the standards. Thus, there was no exposure to the hazard the standards were designed to guard against.

No genuine issue of a material fact as to the validity of the prior judgment in Buckeye has been raised, privity exists, its scope and coverage is on all fours with the instant case and the judgment in Buckeye was on the merits so that it is controlling in the case at bar.

In the instant case, by virtue of the Citation and the Complaint the burden is upon the Secretary to show that air contaminants of raw cotton dust exceeded the acceptable limitations as prescribed [*14] by the standards to make out a case for the application of a violation of Section 1910.93(e). This was the identical burden he had in Buckeye, although the standards alleged there were more specific as to failure of conduct as opposed to the more general failure of conduct alleged here.

Under the motion here the burden is on the movement, the Respondent, to show that there is no genuine triable issue of a material fact. The only issue of a material fact presented by the pleadings in this case is whether or not the air borne particles in Respondent's place of business contained contaminants of raw cotton dust. If they did, the standard alleged applies. If they did not, it does not apply, as was the judgment in the Buckeye case.


The affidavit in support of the motion has heretofore been determined to meet the tests of Rule 56(e). It has been scrutinized along with the decision and judgment in the Buckeye case, and the posture of the opponent of the motion has been indulged. The totality thereof produces the convincing conclusion that Respondent on its motion for summary judgment has produced evidence, of the necessary certitudes, which negative the Complainant's claim.

Here [*15] the moving party is aided by judicial notice, the judgment in the Buckeye case, and when it has clearly established certain facts the particular circumstances of this case cast a duty to go forward with controverting facts upon the opposing party, so that its failure to discharge this duty entitles the movant to summary judgment.

When a movant makes out a convincing showing that genuine issues of fact are lacking, the adversary is required to adequately demonstrate by receivable facts that a real, not formal, controversy exists, and, of course, he does not do that by mere averment in his Complaint, by the holding back of evidence or by hoping that such evidence will develop at the trial.

Whether the effect of the prior judgment in Buckeye is tagged as Collateral Estoppel or Res Judicata, the same result herein is achieved. The application of either doctrine precludes the relitigation of the identical issue. It does appear, as the Respondent has demonstrated by its brief, that the modern trend is to permit the application of Res Judicata parties not in privy and in another cause of action where the identical issue has been tried and judicially determined. [*16]

In any event, it is held here today that the pleadings, the affidavit, and the law of the case judicially noticed show that there is no genuine issue as to any material fact and the moving party, the Respondent herein, is entitled to judgment as a matter of law.


Wherefore, it is the judgment and order of this tribunal that:

1. The Citation as to Items 1, 2, 3 and 4 be and they are hereby vacated.

2. The Citation as to Item 5 be and it is hereby affirmed.