“Docket No. 80-4061 SECRETARY OF LABOR, Complainant, v. CATERPILLAR TRACTOR CO., Respondent.OSHRC Docket No. 80-4061ORDER The Secretary of Labor, Caterpillar Tractor Company,and the International Union, United Automobile Aerospace and Agricultural ImplementWorkers of America, UAW, and its Local 974–the parties in this case–have entered into asettlement agreement disposing of the litigation before us.\u00a0 The settlement agreementis hereby approved.\u00a0 SO ORDERED.\u00a0RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 December 2, 1986SECRETARY OF LABOR, Complainant, v. CATERPILLAR TRACTOR COMPANY,Respondent. INTERNATIONAL UNION, UNITEDAUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, and its LOCAL 974, Authorized Employee Representative.OSHRC Docket No. 80-4061DECISION Before:\u00a0 BUCKLEY, Chairman; RADER and WALL,Commissioners.BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(i), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.?\u00a0659(c).The Secretary of Labor alleges that CaterpillarTractor Company violated several provisions of 29 C.F.R. ? 1910.1025, a standardregulating occupational exposure to lead.\u00a0 Caterpillar argues that the standard wasinvalidly promulgated and that the citations issued under it must therefore be vacated.\u00a0 Many of the arguments advanced by Caterpillar here have already been considered andrejected by the United States Court 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\”). \u00a0In the Steelworkers case numerous parties challenged various aspects of the leadstandard.\u00a0 One of those parties was the Cast Metals Federation, a trade associationof which Caterpillar is a member.\u00a0 The Secretary argues that the principle ofcollateral estoppel precludes Caterpillar from relitigating issues that were decided bythe D.C. Circuit in Steelworkers.\u00a0 We conclude that the record in this casedoes not adequately illuminate Caterpillar’s relationship with the Cast Metals Federationto enable us to resolve this argument.\u00a0 We therefore remand this case for the limitedpurpose of receiving further evidence and argument on the collateral estoppel issue.Under the doctrine of collateral estoppel, a judgmenton the merits in a prior suit \”precludes relitigation of issues actually litigatedand determined in the prior suit, regardless of whether it was based on the same cause ofaction as the second suit.\”\u00a0 Lawlor v. National Screen Service Corp.,349 U.S. 322, 326 (1955).\u00a0 Put another way, \”once an issue is actually andnecessarily determined by a court of competent jurisdiction, that determination isconclusive in subsequent suits based on a different cause of action involving a party tothe prior litigation.\”\u00a0 Montana v. United States, 440 U.S. 147, 153(1979).The purpose of collateral estoppel and the related doctrine of res judicata were describedby the Supreme Court as follows:Application of both doctrines is central to thepurpose for which civil courts have been established, the conclusive resolution ofdisputes within their jurisdictions. . . . To preclude parties from contesting mattersthat they have had a full and fair opportunity to litigate protects their adversaries fromthe expense and vexation attending multiple lawsuits, conserves judicial resources, andfosters reliance on judicial action by minimizing the possibility of inconsistentdecisions.Id.\u00a0 (citations omitted).A determination by a court in a prior action bindsnot only parties to that action but also persons in \”privity\” to thoseparties.\u00a0 Id. at 154-55.\u00a0 This rule is intended to preclude subsequentlitigation by a person \”so identified in interest with a party to former litigationthat he represents precisely the same right in respect to the subject matterinvolved.\”\u00a0 Jefferson School of Social Science v. SubversiveActivities Control Board, 331 F.2d 76, 83 (D.C. Cir. 1963).\u00a0 Before a non-partycan be precluded from litigating an issue decided in an earlier proceeding, privity \”‘must be determined as a matter of substance and not of mere form,’ based in part on anidentification of the interests advanced in the first proceeding.\”\u00a0 Crane v.Commissioner of Department of Agriculture, Food and Rural Resources, 602F. 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 topreclude a member of a trade association from litigating issues that were decided in anearlier case to which the trade association was a party.\u00a0 E.g., ExpertElectric, Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.), cert. denied, 434 U.S.903 (1977); Crane v. Commissioner, 602 F. Supp. at 286.\u00a0 However, collateralestoppel does not automatically bar a trade association member from litigating issues thatthe association previously litigated.\u00a0 Some members of a trade association may haveinterests different from others with respect to the issues in a particular lawsuit, so theassociation’s participation in a case does not guarantee that the interests of all of itsmembers were represented or protected.\u00a0 See Springs Mills, Inc. v.Consumer Product Safety Commission, 434 F.Supp. 416, 434 (D.S.C. 1977).Several factors are examined by the courts indetermining whether collateral estoppel bars litigation by a trade association member in aparticular case.\u00a0 Among these are the purposes and past practices of the association,and whether the association was vested with the authority to represent the member. \u00a0Contribution of funds toward the litigation by the member is an indication that theassociation was authorized to represent the member.\u00a0 General Foods Corp. v.Massachusetts Department of Public Health, 648 F.2d at 788; Crane v. Commissioner,602 F. Supp. at 286.\u00a0 The extent of the member’s participation in or control over thelitigation is also important.\u00a0 18 Wright, Miller & Cooper, Federal Practiceand Procedure ? 4446.Another important factor is whether the member’sinterests were adequately represented.\u00a0 General Foods Corp. v. Massachusetts Departmentof 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).\u00a0 Critical to the adequacy of representation of the member’s interests iswhether the association had the member’s interests foremost in mind in litigating theearlier action or, stated another way, whether the member’s interests fell squarely withinthe general ambit of interests represented in the prior action.\u00a0 Expert Electricv. Levine, 554 F.2d at 1233; Grossman v. Axelrod, 466 F. Supp. at 776.It is uncertain whether the Cast Metals Federationwas authorized to represent Caterpillar, or whether Caterpillar’s interests wereadequately represented in Steelworkers by the Cast Metals Federation. \u00a0Although it was a party to the litigation, the Cast Metals Federation is not among theparties listed as having filed a brief.\u00a0 647 F.2d at 1203 n.5.\u00a0 Moreover, theworkplace involved in this case is a gray iron foundry.\u00a0 Unlike many of theindustries involved in Steelworkers, the gray iron foundry industry does notproduce lead or lead products, nor does it use lead as a raw material; lead is present ingray iron castings only as an undesirable impurity.\u00a0 Thus, the gray iron foundryindustry received relatively little attention both in the rulemaking record and in the Steelworkersdecision.\u00a0 See 43 Fed. Reg. 54491 (discussion of gray iron foundry industry inpreamble to standard); Steelworkers, 647 F.2d at 1302.\u00a0 These circumstances donot permit us to infer that the gray iron foundry industry in general, and Caterpillar inparticular, were adequately represented in the Steelworkers litigation.Normally, where the record in a case lacks sufficientevidence on a disputed issue, we would resolve that issue against the party having theburden of proof.\u00a0 We believe, however, it would be inequitable to apply that generalprinciple in this case.\u00a0 The issue of whether collateral estoppel precludes a tradeassociation member from relitigating an issue previously litigated by the association isone of first impression for the Commission, [[1]] and it is not clear that the partiesknew their respective burdens of proof.\u00a0 Under the circumstances, we believe thepreferable course is to permit further development of the record on the collateralestoppel issue.Accordingly, the case is remanded to the Chief Judgefor assignment to an administrative law judge.[[2]]\u00a0 The judge shall afford theparties the opportunity to present further evidence and argument on the collateralestoppel question and shall enter findings of fact and conclusions of law on the issue.\u00a0 The Commission shall retain jurisdiction of the case pending receipt of theseadditions to the record.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 April 16, 1986The Administrative Law Judge decision in this matteris unavailable in this format.\u00a0 To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] The courts have not developed a well-definedbody of law on the subject either.\u00a0 \”The status and legal incidents of [trade]associations remain in often spectacular uncertainty.\u00a0 The preclusion results thatflow from litigation involving association matters are correspondinglyconfused.\”\u00a0 18 Wright, Miller & Cooper, Federal Practice and Procedure? 4456, p. 486 (1981).\u00a0 Given the uncertain state of the law when this case wastried, it is understandable that the evidence presented by the parties is not sufficientto enable us to resolve the issue in an informed manner.[[2]] Administrative Law Judge Paul E. Dixon, whooriginally decided this case, is no longer with the Commission.”