UNITED STATES STEEL CORPORATION

OSHRC Docket No. 78-5940

Occupational Safety and Health Review Commission

March 31, 1981

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

William J. McKin, United States Steel Corp., for the employer

Donn Conn, Safety Chairman and Gail Sillaman, President, Local 2227- USWA, for the employees

Harold Smouse, Staff Rep., District 15 - USWA, for the employees

George Prenatt, Staff Rep., Safety & Health Department - USWA, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This case arises out of a one-item citation alleging that Respondent, United States Steel Corporation ("U.S. Steel"), failed to comply with the crane guarding standard at 29 C.F.R. §   2910.179(e)(6)(i). n1 That standard is a design specification which requires that overhead cranes be equipped with guards for exposed moving parts which might constitute a hazard under normal operating conditions. n2

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n1 This case arises under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").

n2 §   1910.179 Overhead and gantry cranes.

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(e) Stops, bumpers, rail sweeps, and guards.

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(6) Guards for moving parts. (i) Exposed moving parts such as gears, set screws, projecting keys, chains, chain sprockets, and reciprocating components which might constitute a hazard under normal operating conditions shall be guarded.

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U.S. Steel timely filed a notice of contest and, after the complaint and answer had been filed, moved for summary judgment on the basis of Commission precedent which holds that the cited standard is merely advisory as to cranes constructed and installed prior to August 31, 1971. n3 In support of the motion, U.S. Steel submitted the affidavit of its general superintendent attesting that the cited cranes had been constructed and installed prior to August 31, 1971.   The Secretary opposed the motion by attacking the Commission precedent on which U.S. Steel relied but did not challenge the supporting affidavit.   Having received no response from the Authorized Employee Representatives, the United Steelworkers of America ("USWA"), AFL-CIO and USWA Local Union 2227 (the "Union"), as of the last day for filing of responses, Administrative Law Judge James P. O'Connell concluded that the motion was unopposed by the Union.   He thereupon ruled, based on the submissions before him, that there existed no genuine issue as to any material fact and that U.S. Steel was entitled to summary judgment as a matter of law.

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n3 The Commission has held that those standards at 29 C.F.R. §   1910.179 which are design specifications are merely advisory as to cranes constructed and installed prior to August 31, 1971.   General Dynamics Corp., Elec. Boat Div., 80 OSAHRC    , 8 BNA OSHC 1360, 1980 CCH OSHD P24,416 (No. 78-3290, 1980), and cases cited therein.   The standard at section 1910.179(e)(6)(i) is a design specification. Pittsburgh-Des Moines Steel Co., 77 OSAHRC 75/E6, 5 BNA OSHC 1420, 1977-78 CCH OSHD P21,804 (No. 13708, 1977), aff'd, 584 F.2d 638 (3d Cir. 1978).

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Six days after issuing his decision, Judge O'Connell received a letter from a union member who claimed to have personal knowledge that the cited cranes were originally equipped with guards for moving parts and that U.S. Steel had permitted the guards to fall into disuse. Judge O'Connell forwarded the letter to the Review Commission where it was received as a Petition for Discretionary Review and, as such, was granted by Commissioner Cottine pursuant to section 12(j)   [*4]   of the Act, 29 U.S.C. §   661(i).

We note at the outset that the letter, although dated on the last day for filing a response to the motion for summary judgment, was not postmarked until two days after the deadline.   Consequently, there is a question as to its timeliness.   We also note that the letter is not in the form of an affidavit or authenticated by its author. n4 Nevertheless, in the interests of judicial efficiency we will treat the letter as a timely and procedurally acceptable response in opposition to summary judgment. n5

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n4 The Federal Rules of Civil Procedure are applicable to Commission proceedings to the extent the Commission has not adopted a different rule.   29 U.S.C. §   661(f); 29 C.F.R. §   2200.2(b).   Federal Rule 56(e) provides in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial.

n5 See Browar Wood Prods. Co., 79 OSAHRC 11/A2, 7 BNA OSHC 1165, 1979 CCH OSHD P23,326 (No. 78-2230, 1979), in which the Commission admitted unsworn representations of fact by a pro se Respondent who generally employed only one worker and who may not have been aware of the legal technicalities of the judicial process and the need to submit affidavits in support of a motion for relief from a judgment or order.

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On review the Union contends that summary judgment was improper because the letter raised "specific factual questions about the manner in which the cited cranes were initially installed." The Union also suggests that the facts asserted in the letter raise a question of law as to whether the cited conditions are governed by the precedent relied upon by the judge, or whether they are governed by Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 34/E14, 5 BNA OSHC 1154, 1977-78 CCH OSHD P21,630 (No. 12982, 1977).   In that case we held that although pre-1971 cranes are exempt from the design specifications at section 1910.179, they are not exempt from the maintenance and repair requirements at section 1910.179. n6

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n6 The employer in that case had been cited for failure to maintain hydraulic foot brakes, in violation of 29 C.F.R. §   1910.179(1)(3)(ii).   The employer argued before the judge that the cited crane was exempt from the requirements of that standard because it was installed in 1927 or 1928.   We rejected that argument: "Section 1910.179(b)(2) [the exemption provision for pre-1971 cranes], however, speaks in terms of 'design specifications,' and it is clear that the standard here at issue cannot in any sense be considered a 'design specification.' Thus, 1910.179(b)(2) has no effect on the disposition of this alleged violation." Wheeling-Pittsburgh Steel Corp., 5 BNA at 1155 n. 3, 1977-78 CCH OSHD p. 25,980 n. 3.

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We conclude that the Union's letter did not raise a genuine issue of material fact and that summary judgment in Respondent's favor was proper.   It is axiomatic that a dispute over immaterial facts cannot bar summary judgment. See WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL §   2725.   Whether the cited cranes were originally equipped with guards that subsequently fell into disuse is not a material question of fact under the cited standard.   Therefore, any dispute between the parties regarding this question cannot bar summary judgment.

We further conclude that Commission precedent established in Wheeling-Pittsburgh Steel with regard to maintenance and repair of existing equipment has no bearing on a citation alleging failure to comply with a design specification. Precedent directed at maintenance of existing equipment does not control where the complaint alleges failure to provide that equipment in the first instance.

For these reasons the judge's decision is affirmed. n7 SO ORDERED.

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n7 The Direction for Review in this case also questions whether the Notice to Employees which accompanied the complaint and which was posted by the employer accurately apprised employees of their right to participate in proceedings under section 10(c) of the Act, 29 U.S.C. §   659(c).

That Notice states, in pertinent part:

IF YOU ARE AN AFFECTED EMPLOYEE, THE LAW MAKES YOU A PARTY TO PROCEEDINGS BEFORE THE OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION REGARDING THIS CITATION OR NOTIFICATION OF FAILURE TO CORRECT VIOLATION.   IF YOU ARE REPRESENTED BY AN AUTHORIZED EMPLOYEE REPRESENTATIVE AS DEFINED IN THE COMMISSION'S RULES (29 Code of Federal Regulations 2200.1), THIS REPRESENTATIVE SHALL ACT IN YOUR BEHALF; AND NO FURTHER DIRECT ACTION IS NECESSARY ON YOUR PART.

IF YOU ARE NOT SO REPRESENTED, YOU MAY NEVERTHELESS PARTICIPATE AS A PARTY AT THE COMMISSION PROCEEDINGS, AND YOU MAY BE REPRESENTED BY COUNSEL IF YOU WISH.   YOU MUST, HOWEVER, IDENTIFY YOURSELF AS A PARTY PRIOR TO OR AT THE BEGINNING OF THE HEARING BY NOTICE TO THE COMMISSION OR TO THE JUDGE ASSIGNED.   FAILURE TO DO SO WILL RESULT IN THE LOSS OF YOUR STATUS AS A PARTY IN THIS PROCEEDING.

(Emphasis in original)

This language suggests that affected employees are automatically parties to the proceeding and that as such, they may expect to receive copies of the pleadings, motions, and the like.   However, affected employees are not automatically parties.   They must actively elect party status by communicating with the Commission or with the presiding administrative law judge.   Commission Rule of Procedure 20(a), 29 C.F.R. §   2202.20(a).   Only upon election of party status do affected employees have a right to meaningful participation in a proceeding.   See ITT Thompson Indus., Inc., 78 OSAHRC 70/D10, 6 BNA OSHC 1944, 1978 CCH OSHD P22,944 (No. 77-4174, 1978); Reynolds Metals Co., 78 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979).

Commission Rule 7(g), 29 C.F.R. §   1922.7(g), provides a model Notice to Employees which the employer must post with his Notice of Contest and serve upon the Authorized Employee Representative.   This model more accurately apprises affected employees of the fact that they must take action in order to participate as parties: "Affected employees are entitled to participate in this hearing as parties under terms and conditions established by the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION in its Rules of Procedure.   Notice of intent to participate should be sent to: [the Review Commission]."

It appears from the record that a second Notice to Employees, which did comply with Commission Rule 7(g), was also posted at the workplace and served on the Authorized Employee Representative.   Therefore we conclude that the overall notice was sufficient and that any affected employees in this case were not misled by the Secretary's Notice. We call attention to the matter, however, in the hope that future Notices to Employees issued by the Secretary will comply with Rule 7(g).

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DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The majority correctly considers the Union's letter responding to the motion for summary judgment, but errs in finding that the Union has raised no material issues of fact sufficient to bar summary judgment. A complaint should not be summarily dismissed if there is reasonable ground to believe that a good cause of action may be stated in the reframing of the complaint.   As stated in Rossiter v. Vogel:

[W]here facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of a final judgment.   Downey v. Palmer, 2 Cir., 114 F.2d 116; cf.   Seaboard Terminals Corp. v. Standard Oil Co. of N.J., 2 Cir., 104 F.2d 659 . . . .

134 F.2d 908, 912 (2d Cir. 1943) (Clark, Frank & L. Hand, JJ.) n1 Moreover, the rule permitting amendments applies even in the absence of a formal motion for leave to amend.   Sherman v. Hallbauer, supra note 1; Dunn v. J.P. Stevens & Co., 192 F.2d 854 (2d Cir. 1951); Downey v. Palmer, supra. n2

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n1 Accord, Sherman v. Hallbauer, 455 F.2d 1236 (5th Cir. 1972); Retail Clerks Int'l Ass'n v. Lion Dry Goods, Inc., 341 F.2d 715 (6th Cir.) cert. denied, 382 U.S. 839 (1965); Castner v. First Nat'l Bank of Anchorage, 278 F.2d 376 (9th Cir. 1960); cf. Verhein v. South Bend Lathe, Inc., 598 F.2d 1061 (7th Cir. 1979).

n2 Professor Moore has stated, "Since a summary judgment is an adjudication on the merits and because of Rule 15, it is the duty of the trial court freely to allow amendments to the pleadings, unless the application to amend smacks of dilatory tactics or in some other respect fails to further justice." 6 Moore's Federal Practice P56.10 at 56-170 to 56-171 (2d ed. 1976) (citations omitted).   The Commission has consistently ruled that amendments should be freely allowed in order to promote adjudication on the merits.   P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209 1979 CCH OSHD 23,421 (No. 14315, 1979), aff'd, No. 79-1398 (10th Cir. Dec. 2, 1980); see Carlstrom Bros. Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978).

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The judge properly found that the standard cited by the Secretary, 29 C.F.R. §   1910.179(e)(6)(i), was unenforceable as applied to the cranes because that standard is a design specification which is merely advisory as to cranes constructed and installed before August 31, 1971.   See lead opinion at note 3.   However, the Union's letter, signed by an employee at the worksite and an official of its Local 2227, stated that most of the unguarded crane parts for which the contested citation was issued (rotating shafts and drive gears) originally had been guarded. The letter also stated that the employee has repeatedly observed a management practice to allow cranes to return to service without reinstalling these guards after they have been removed from service for maintenance or repairs. The employee indicated that he would testify that the missing guards referred to in the citation were original components of the cited cranes. The Union argues on review that there is a substantial question of whether the lack of guards is a violation of crane maintenance and repair standards, which are not limited in their [*10]   application to cranes constructed or installed on or after August 31, 1971.   See Wheeling-Pittsburgh Steel Corp., 77 OSAHRC 34/E14, 5 BNA OSHC 1154, 1977-78 CCH OSHD P21,630 (No. 12982, 1977).

The conditions described by the union are apparently covered by 29 C.F.R. §   1910.179(1)(2)(ii), which states, "After adjustments and repairs have been made the crane shall not be operated until all guards have been reinstalled, safety devices reactivated and maintenance equipment removed." This standard may apply where guards that were installed by the manufacturer on overhead or gantry cranes as oribinal equipment are later removed for maintenance or repairs and not reinstalled before the cranes are put back in operation.   Thus, the Union's letter contains facts indicating that a good cause of action may be stated if the complaint is amended.   The Secretary agrees with the Union's position in this case.   Under these circumstances, the judge's decision granting summary judgment should be reversed and the case remanded to afford the Secretary an opportunity to amend his complaint.