” SECRETARY OF LABOR,\t Complainant,\t v.\tOSHRC Docket No. 04-0970 JIMERSON UNDERGROUND, INC.,\t Respondent.\t APPEARANCES:Eve Marie Stocker, Attorney, Charles F. James, Counsel for AppellateLitigation; Daniel J. Mick, Counsel for Regional Trial Litigation;Joseph M. Woodward, Associate Solicitor; Howard M. Radzely, Solicitor;Department of Labor, Washington, DC For the Complainant C. Thomas Behrman, Esq.; Robin N. Blanchette, Esq; Simon W. Hendershot,III, Esq.; Kerr & Hendershot, P.C., Houston, TX For the Respondent DIRECTION FOR REVIEW AND REMAND ORDERBefore: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.BY THE COMMISSION: Pursuant to the Commission?s March 3, 2006 decisionremanding this case, Administrative Law Judge Robert A. Yetman issued adecision on remand that was docketed with the Executive Secretary onJanuary 10, 2007.^Footnote As the Commissionrequested, the judge clarified in his decision on remand that?during apre-hearing telephone conference with the parties on February 11,2005?he had indeed granted the Secretary?s motion to amend her citationsand complaint to include alternative allegations. Having alreadyaddressed the Secretary?s motion that was, in part, the basis for theCommission?s remand, Judge Yetman returned this case to the Commission?for action it deems appropriate.? For the following reasons, we, \/suasponte\/, direct this case for review and remand it to the ChiefAdministrative Law Judge for reassignment.Background These proceedings arose from a fatal manhole accidentinvolving several employees of Jimerson Under-Ground, Inc. (?Jimerson?)and its subcontractor. Subsequent inspections conducted by theOccupational Safety and Health Administration (OSHA) resulted in OSHAissuing two citations to Jimerson on May 7, 2004, for alleged violationsof various general industry standards. Jimerson timely contested thesecitations.On July 21, 2004, the Secretary filed her complaint, and on August 9,2004, Jimerson filed its answer that?in addition to otheraverments?denied the applicability of the cited general industrystandards to its activities. The matter was then assigned to JudgeYetman, who subsequently received various pleadings and motions from theparties. On February 10, 2005, five days before the start of thehearing, the Secretary filed her Third Motion to Amend the Complaint andCitations. The Secretary sought to allege, in the alternative,violations of several construction standards, as well as section 5(a)(1)of the Occupational Safety and Health Act (?the Act?), 29 U.S.C. ??651-678.On February 11, 2005, a pre-hearing telephone conference took placebetween the parties and the judge during which the Secretary?s motion toamend was discussed. However, the record did not memorialize JudgeYetman?s ruling?made, according to his January 10, 2007 decision onremand, during this telephone conference?that the Secretary?s ThirdMotion to Amend Complaint and Citations was granted. On August 8, 2005,Judge Yetman issued a decision and order affirming the citations asalleged under the general industry standards.On September 9, 2005, this case was directed for review and came beforethe Commission for the first time. In our decision dated March 6, 2006,we found that: (1) Jimerson?s activities constituted ?construction work?and therefore, were governed by the construction standards; and(2) ?nothing in the record [] show[ed] that the judge ever ruled on theSecretary?s motion to amend? her complaint and citations to allege, inthe alternative, that Jimerson violated provisions of the constructionstandards and section 5(a)(1) of the Act. \/Jimerson Under-Ground, Inc.,\/21 BNA OSHC 1459 (No. 04-0970, 2006). Thus, we remanded the case to thejudge to rule on the Secretary?s motion to amend and to conduct anyfurther proceedings as necessary.DiscussionUpon consideration of the judge?s January 10, 2007, decision on remand,we conclude that this matter is not ripe for review by the Commission.Whenever a judge files a decision with the Executive Secretary fordocketing, Commission Rule 90(a) requires, in relevant part, the following:The decision shall . . . include findings of fact, conclusions of law,and the reasons or bases for them, on all material issues of fact, lawor discretion presented on the record. The decision shall include anorder affirming, modifying or vacating each contested item and eachproposed penalty, or directing other appropriate relief. 29 C.F.R. ? 2200.90(a). While Judge Yetman?s remand decision clarifiedthat he had in fact ruled on the Secretary?s motion to amend, itnonetheless failed to resolve \/all\/ the issues the Commission placedbefore the judge on remand. Specifically, the judge?s decision and order neitheraddressed nor analyzed the Secretary?s alternative allegations under theconstruction standards, as well as section 5(a)(1) of the Act, in viewof our holding that the originally cited general industry standards didnot apply to the cited conditions because Jimerson was engaged in?construction work.? We, thus, have little choice but to determine thatthe judge?s decision on remand fails to satisfy the requirements for adecision as set forth in Commission Rule 90(a). \/See Pettey Oil FieldsServ., Inc.\/,\/\/21 BNA OSHC 1638, 1639 (No. 05-1039, 2006). Therefore,the judge?s decision should not have been filed for docketing with theExecutive Secretary.Accordingly, we direct review of this case and remand the matter to theChief Administrative Law Judge for assignment and resolution of theoutstanding issues consistent with this opinion. SO ORDERED. __\/s\/________________________ W.Scott Railton Chairman __\/s\/________________________ ThomasinaV. Rogers Commissioner __\/s\/________________________ HoraceA. Thompson IIIDated: February 8,2007 Commissioner ———————————————————————— Phone: (303)844-3409 Fax:(303) 844-3759 SECRETARY OF LABOR, \t Complainant,\t v.\t OSHRC DOCKET NO. 04-0970JIMERSON UNDERGROUND, INC.,and its successors,\t Respondent.\t DECISION AND ORDER The Commission has remanded this matter to the undersigned for a rulingon Complainant’s motion to amend the citation and complaint filed onFebruary 10, 2005; five days prior to the hearing scheduled to commenceon February15, 2005. On Friday, February 11, 2005, a telephoneconference was held between the parties and the undersigned (TR 12) atwhich time arguments were heard from both parties with respect to themotion to amend. The motion was granted at that time and Respondentfiled a written amended answer to the amended complaint on February14,2005. (TR 10, 19, Exhibit J-29). Respondent denied the allegationscontained in the amended complaint. Thus, the Commission now seeks aruling which was made prior to the hearing and known by both partiesprior to the commencement of the hearing. Footnote Moreover, bothparties presented their respective cases based upon the knowledge thatComplainant’s motion to amend the citation and complaint had beengranted. Indeed, the Commission, in its briefing order issued pursuantto the notice of direction for review, raised as an issue to bediscussed by the parties, whether Respondent was engaged inconstruction; the issue which was included in the motion to amend as analternative pleading to the general industry allegation. Since themotion was granted on February 11, 2005, the file is returned to theCommission for action it deems appropriate. FootnoteSO ORDERED. \/s\/ Date: January 10, 2007\t \tRobert A. YetmanJudge, OSHRC”