UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

July 20, 1990

ORDER

Pending before the Commission is Complainant’s Motion to Sever and for Entry of Final Order in a Multiple Claims Action Pursuant to Rule 54(b), which Respondent has opposed. Complainant seeks a final order which could be used as the basis for characterizing possible future violations by Respondent as repeated violations and to assure Respondent’s future compliance with the cited standard at other worksites. In support of her motion, Complainant quotes a statement by the Commission in a 1986 decision that “... if the Secretary wishes to enforce an item affirmed by the judge but not specifically mentioned in a direction for review, [she] may file a motion under Rule 54(b) requesting that the item in question be severed from the case and adjudged a final order.” Hamilton Die Cast, Inc., 86 OSAHRC 18/C6, 12 BNA OSHC 1797, 1803, 1986–87 CCH OSHD ¶ 27,576, p. 35,826 (No. 83–308, 1986). Upon further consideration, however, we conclude that Rule 54(b) of the Federal Rules of Civil Procedure is not a proper vehicle for finalizing the disposition of a citation item for the purposes sought by Complainant in her motion herein. We therefore overrule Hamilton Die Cast, Inc., id., to the extent that it holds that Rule 54(b) applies in Commission proceedings to a motion to sever and for entry of a final order when the purpose of the motion is other than to enable an immediate appeal of that final order.

Rule 54(b) has traditionally been utilized to enable entry of final judgment for the purpose of perfecting appealability where the determination has been made that immediate appeal of one or more but not all of several claims in a case is warranted. Sears, Roebuck and Co. v. Mackey, 351 U.S. 427, 432–33 (1956), Ryan v. Occidental Petroleum Corp., 577 F.2d. 298, 302 (5th Cir.1978). As such, the Rule 54(b) requirement that there be “no just cause for delay” relates to the need for an immediate appeal relative to the broad judicial policy against piecemeal appeals. Campbell v. Westmoreland Farm, Inc., 430 F.2d 939, 942 (2d Cir.1968) (“[T]here must be some danger of hardship or injustice through delay which would be alleviated by immediate appeal.”). Further, a question exists as to whether a complaint seeking relief based upon an OSHA citation having multiple items sets forth multiple claims within the meaning of Rule 54(b). Accordingly, the Commission rules that the relief sought by Complainant herein is not properly awardable pursuant to Rule 54(b).

Nevertheless, the Commission recognizes that in appropriate circumstances prompt abatement of an affirmed citation item that has not been directed for review may be necessary in order to protect the safety and health of affected employees. The Commission also acknowledges Complainant’s assertion that “[s]peedy adjudication is important ... so that citations for repeated violations, which must be based on a previous final order, may be issued.” However, Section 12(g) of the Act, 29 U.S.C. § 661(g), provides that Commission proceedings shall be governed by the Federal Rules of Civil Procedure “[u]nless the Commission has adopted a different rule.” In the context presented by Complainant’s motion herein, the proper vehicle for obtaining the relief sought is the Commission’s rule on severance, which provides that “the Commission ... may, for good cause, order any proceeding severed with respect to some or all issues....”, 29 C.F.R. § 2200.10. Upon severance of the citation item in question, the Commission could then rule that the judge’s decision thereon has become a final order, thus providing the mechanism for requiring prompt abatement and use of the citation item in further enforcement proceedings.

Applying the criteria of Section 2200.10 to the circumstances presented herein, the Commission notes that Complainant does not dispute the representation of Respondent in its trial brief that it remedied the violation of 29 C.F.R. § 1926.404(b)(1)(ii), for failure to provide ground fault circuit interrupters. Furthermore, Complainant does not present any circumstances from which the Commission can conclude that Respondent will not use ground fault circuit interrupters at future worksites or that the imposition or threat of imposition of additional penalties will be necessary to induce Respondent to comply with the Occupational Safety and Health Act. Therefore, based upon the circumstances presented in her Rule 54(b) motion, the Commission finds that Complainant has not demonstrated the requisite good cause for severance and the entry of a final order under Section 2200.10.

For the reasons set forth above, Complainant’s motion is denied. However, given the change in view enunciated by the Commission regarding the use of Rule 54(b), Complainant is hereby granted leave to renew her motion under Section 2200.10 if there are additional grounds of support upon which she wishes to rely. For example, we would find sufficient a representation that Complainant has inspected other worksites of Respondent and found that ground fault circuit interrupters were not in place where required. Indeed, there may be other circumstances which can indicate that severance and entry of a final order is warranted to facilitate Complainant’s enforcement of the Act. We do not here intend to limit Complainant in the manner in which she may attempt to make such a showing. We hold only that a mere assertion that entry of a final order is necessary constitutes an inadequate basis for entry of a severance order under Section 2200.10.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

July 20, 1990