“SECRETARY OF LABOR,Complainant,v.CATERPILLAR TRACTOR CO.,Respondent.OSHRC Docket No. 80-4061_ORDER_The Secretary of Labor, Caterpillar Tractor Company, and theInternational Union, United Automobile Aerospace and AgriculturalImplement Workers of America, UAW, and its Local 974–the parties inthis case–have entered into a settlement agreement disposing of thelitigation before us. The settlement agreement is hereby approved. SOORDERED. RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: December 2, 1986————————————————————————SECRETARY OF LABOR,Complainant,v.CATERPILLAR TRACTOR COMPANY,Respondent.INTERNATIONAL UNION, UNITEDAUTOMOBILE, AEROSPACE ANDAGRICULTURAL IMPLEMENT WORKERSOF AMERICA, UAW, and itsLOCAL 974,Authorized EmployeeRepresentative.OSHRC Docket No. 80-4061_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor alleges that Caterpillar Tractor Company violatedseveral provisions of 29 C.F.R. ? 1910.1025, a standard regulatingoccupational exposure to lead. Caterpillar argues that the standard wasinvalidly promulgated and that the citations issued under it musttherefore be vacated. Many of the arguments advanced by Caterpillarhere have already been considered and rejected by the United StatesCourt of Appeals for the District of Columbia Circuit in _UnitedSteelworkers of America, AFL-CIO-CLC v_. _Marshall_, 647 F.2d 1189 (D.C.Cir. 1980), _cert. denied_, 453 U.S. 913 (1981) (\”_Steelworkers_\”). Inthe _Steelworkers_ case numerous parties challenged various aspects ofthe lead standard. One of those parties was the Cast Metals Federation,a trade association of which Caterpillar is a member. The Secretaryargues that the principle of collateral estoppel precludes Caterpillarfrom relitigating issues that were decided by the D.C. Circuit in_Steelworkers_. We conclude that the record in this case does notadequately illuminate Caterpillar’s relationship with the Cast MetalsFederation to enable us to resolve this argument. We therefore remandthis case for the limited purpose of receiving further evidence andargument on the collateral estoppel issue.Under the doctrine of collateral estoppel, a judgment on the merits in aprior suit \”precludes relitigation of issues actually litigated anddetermined in the prior suit, regardless of whether it was based on thesame cause of action as the second suit.\” _Lawlor v._ _National ScreenService Corp_., 349 U.S. 322, 326 (1955). Put another way, \”once anissue is actually and necessarily determined by a court of competentjurisdiction, that determination is conclusive in subsequent suits basedon a different cause of action involving a party to the priorlitigation.\” _Montana v. United States_, 440 U.S. 147, 153 (1979).The purpose of collateral estoppel and the related doctrine of resjudicata were described by the Supreme Court as follows:Application of both doctrines is central to the purpose for which civilcourts have been established, the conclusive resolution of disputeswithin their jurisdictions. . . . To preclude parties from contestingmatters that they have had a full and fair opportunity to litigateprotects their adversaries from the expense and vexation attendingmultiple lawsuits, conserves judicial resources, and fosters reliance onjudicial action by minimizing the possibility of inconsistent decisions._Id_. (citations omitted).A determination by a court in a prior action binds not only parties tothat action but also persons in \”privity\” to those parties. _Id_. at154-55. This rule is intended to preclude subsequent litigation by aperson \”so identified in interest with a party to former litigation thathe represents precisely the same right in respect to the subject matterinvolved.\” _Jefferson School of Social Science v_. _SubversiveActivities Control Board_, 331 F.2d 76, 83 (D.C. Cir. 1963). Before anon-party can be precluded from litigating an issue decided in anearlier proceeding, privity \” ‘must be determined as a matter ofsubstance and not of mere form,’ based in part on an identification ofthe interests advanced in the first proceeding.\” _Crane v. Commissionerof Department of Agriculture_, _Food and_ _Rural Resources_, 602 F.Supp. 280, 285 (D.Me. 1985), _citing_ _Chicago, Rock Island & PacificRailway Co. v. Schendel_, 270 U.S. 611, 620 (1926).In some cases, collateral estoppel has been held to preclude a member ofa trade association from litigating issues that were decided in anearlier case to which the trade association was a party. _E.g_.,_Expert Electric, Inc. v. Levine_, 554 F.2d 1227, 1233 (2d Cir.), _cert.denied_, 434 U.S. 903 (1977); _Crane v. Commissioner_, 602 F. Supp. at286. However, collateral estoppel does not automatically bar a tradeassociation member from litigating issues that the associationpreviously litigated. Some members of a trade association may haveinterests different from others with respect to the issues in aparticular lawsuit, so the association’s participation in a case doesnot guarantee that the interests of all of its members were representedor protected. _See_ _Springs Mills_, _Inc. v. Consumer Product SafetyCommission_, 434 F.Supp. 416, 434 (D.S.C. 1977).Several factors are examined by the courts in determining whethercollateral estoppel bars litigation by a trade association member in aparticular case. Among these are the purposes and past practices of theassociation, and whether the association was vested with the authorityto represent the member. Contribution of funds toward the litigationby the member is an indication that the association was authorized torepresent the member. _General Foods Corp. v. Massachusetts Departmentof Public Health_, 648 F.2d at 788; _Crane v. Commissioner_, 602 F.Supp. at 286. The extent of the member’s participation in or controlover the litigation is also important. 18 Wright, Miller & Cooper,_Federal_ _Practice_ _and_ _Procedure_ ? 4446.Another important factor is whether the member’s interests wereadequately represented. _General Foods Corp. v. Massachusetts__Department of Public Health_, 648 F.2d 784, 787-88 (1st Cir. 1981);_Expert Electric v. Levine_, 554 F.2d at 1233; _Crane v.__Commissioner_, 602 F. Supp. 285-86; _Grossman v. Axelrod_, 466 F. Supp.770, 776 (S.D.N.Y. 1979), _aff’d_, 646 F.2d 768 (2d Cir. 1981). Critical to the adequacy of representation of the member’s interests iswhether the association had the member’s interests foremost in mind inlitigating the earlier action or, stated another way, whether themember’s interests fell squarely within the general ambit of interestsrepresented in the prior action. _Expert Electric v. Levine_, 554 F.2dat 1233; _Grossman v. Axelrod_, 466 F. Supp. at 776.It is uncertain whether the Cast Metals Federation was authorized torepresent Caterpillar, or whether Caterpillar’s interests wereadequately represented in _Steelworkers_ by the Cast Metals Federation. Although it was a party to the litigation, the Cast Metals Federationis not among the parties listed as having filed a brief. 647 F.2d at1203 n.5. Moreover, the workplace involved in this case is a gray ironfoundry. Unlike many of the industries involved in _Steelworkers_, thegray iron foundry industry does not produce lead or lead products, nordoes it use lead as a raw material; lead is present in gray ironcastings only as an undesirable impurity. Thus, the gray iron foundryindustry received relatively little attention both in the rulemakingrecord and in the _Steelworkers_ decision. _See_ 43 Fed. Reg. 54491(discussion of gray iron foundry industry in preamble to standard);_Steelworkers_, 647 F.2d at 1302. These circumstances do not permit usto infer that the gray iron foundry industry in general, and Caterpillarin particular, were adequately represented in the _Steelworkers_ litigation.Normally, where the record in a case lacks sufficient evidence on adisputed issue, we would resolve that issue against the party having theburden of proof. We believe, however, it would be inequitable to applythat general principle in this case. The issue of whether collateralestoppel precludes a trade association member from relitigating an issuepreviously litigated by the association is one of first impression forthe Commission, [[1]] and it is not clear that the parties knew theirrespective burdens of proof. Under the circumstances, we believe thepreferable course is to permit further development of the record on thecollateral estoppel issue.Accordingly, the case is remanded to the Chief Judge for assignment toan administrative law judge.[[2]] The judge shall afford the partiesthe opportunity to present further evidence and argument on thecollateral estoppel question and shall enter findings of fact andconclusions of law on the issue. The Commission shall retainjurisdiction of the case pending receipt of these additions to the record.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 16, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] The courts have not developed a well-defined body of law on thesubject either. \”The status and legal incidents of [trade] associationsremain in often spectacular uncertainty. The preclusion results thatflow from litigation involving association matters are correspondinglyconfused.\” 18 Wright, Miller & Cooper, _Federal Practice and Procedure_? 4456, p. 486 (1981). Given the uncertain state of the law when thiscase was tried, it is understandable that the evidence presented by theparties is not sufficient to enable us to resolve the issue in aninformed manner.[[2]] Administrative Law Judge Paul E. Dixon, who originally decidedthis case, is no longer with the Commission.”