__________________________________ : SECRETARY OF LABOR, : : Complainant, : : v. : OSHRC Docket Nos. 95-0893, 95-0895, : 95-0897 & 95-0901 MACY'S EAST, INC. : ABRAHAM & STRAUS, INC. : STERN'S DEPARTMENT STORES, INC. : : Respondents. : __________________________________: *_ORDER_* These nine cases comprise a number of citations which, for the most part, relate to the means-of-egress standards for ensuring employee safety from fire or other emergencies. They were assigned to the undersigned in July 1995. Before embarking upon protracted discovery, counsel for respondents made it clear that the one dominant issue affecting all three department stores was the Secretary's application of the obstruction free requirements of § 1910.37(K)(2) for the stores' exit aisles. On May 20, 1997, an order was entered granting summary judgment in respondents' favor with respect to the Secretary's interpretation that the 37(K)(2) standard required a 60-inch or a 44-inch width clearance for exit aisles. The ruling was confirmed on reconsideration by order entered on June 5, 1997. On June 24, 1997, respondents renewed their motion for partial summary judgment on the grounds that the Secretary was unable to establish that the exit aisles were obstructed or blocked as charged in 32 separate instances. By order entered on September 23, 1997, summary judgment was granted with respect to 29 of the 32 cited instances. Summary judgment was denied as to the remaining three instances where one aisle was blocked (Docket No. 95-895), and two aisles had less than the minimum 28 inches of width clearance (Docket No. 95-893). On more than one occasion during the lengthy process that these cases have entailed, the parties indicated that resolution of the 37(K)(2) issue would most likely lead to an amicable settlement of all remaining issues. Unfortunately, that happy scenario has not come to pass. The obstacle in the way of settlement is the open question of whether the Secretary will seek review of the 37(K)(2) issue by the Commission. Counsel for the Secretary has reported that a determination on that question is under consideration but there is no definite date as to when a decision will be made. During a prehearing telephone conference held last October 31, both parties expressed the view that the impasse offered no choice but to proceed to hearing on November 4, 1997, as scheduled. As the parties were informed during the telephone conference, it is believed that to hold a hearing on the satellite issues in these nine cases before settling the question regarding the Secretary's position on the September 23 partial summary judgment, may unnecessarily engender tremendous costs in time and money and impose great demands upon the undersigned. Accordingly, it is *ORDERED* that the 29 citation items relating to the standard at § 1910.37(K)(2) cited in Docket Nos. 95-893, 95-895, 95-897 and 95-901 for which summary judgment in favor of respondents has been granted by order of September 23, 1997, are severed from those issues that remain for resolution. It is further *ORDERED* that, in the interest of efficient case management, the remaining contested matters will be assigned new docket numbers, the parties to be notified of the new docket numbers at a later time. The partial summary judgment of September 23, 1997, and all other papers comprising the record shall be submitted to the Commission's Executive Secretary on November 14, 1997. It will become the final order of the Commission at the expiration of thirty (30) days from the date of docketing by the Executive Secretary, unless within that time a Member of the Commission directs that it be reviewed. All parties will be notified by the Executive Secretary of the date of docketing. RICHARD DeBENEDETTO Judge, OSHRC Dated: November 3, 1997 Boston, Massachusetts ------------------------------------------------------------------------ OSHRC Home