“SECRETARY OF LABOR,CompIainant,v.LTV STEEL COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC and LOCAL 1843,Authorized EmployeeRepresentative.OSHRC Docket No. 86-0449-A_ORDER OF REMAND_The Secretary of Labor issued a citation to LTV Steel Company allegingthat LTV violated four OSHA safety standards. LTV’s contest of thecitation was docketed by the Commission as No. 86-0449 and was assignedto Administrative Law Judge David G. Oringer for disposition. LTV movedfor partial summary judgment as to one of the citation items, and thejudge granted the motion. The judge issued a \”Ruling and Order\” vacatingthat item and transmitted that document to the Commission, identifyingit as his decision in Docket No. 86-0449-A.The United Steelworkers of America filed a petition for discretionaryreview with the Commission, arguing that the judge erred in granting themotion for partial summary judgment. Review was directed of the judge’sruling. We conclude that the judge’s ruling on the motion for partialsummary judgment is before the Commission prematurely. We thereforevacate the direction for review and remand the case to the judge withoutprejudice to the correctness of the rule being raised and decided at theproper time.In issuing his order vacating the item that was the subject of themotion for partial summary judgment, the judge in effect severed thatitem from the other three that LTV contested. Commission Rule 10, 29C.F.R. ? 2200.10, addresses severance and provides:? 2200.10 Severance.Upon its own motion, or upon motion of any party or intervenor, theCommission or the judge may, for good cause, order any proceedingsevered with respect to some or all issues or parties.The judge did not explicitly invoke Rule 10, nor did he make a findingof good cause, as the rule requires. Moreover, we do not yet perceiveany good cause for severing the one item from the remainder of the case.The Commission has previously discussed the drawbacks to the piecemealadjudication that results when some items in a case are severed.Hamilton Die Cast, Inc., 86 OSAHRC, 12 BNA OSHC 1797, 1800 & n. 5, 1803,1986 CCH OSHD (P) 27,576, p. 35,822 & n. 5 pp. 35,825-86 (No. 83-308,1986). We noted in Hamilton that there is a strong federal policy,embodied in Rule 54 (to of the Federal Rules of Civil Procedure, againstthe confusion, overlapping decisions, and wasted effort that oftenresult from piecemeal adjudication. Although Hamilton dealt with theseverance of items when a case is before the Commission for review, thesame considerations exist before the judge. It will generally be moreefficient for the judge to issue a single decision disposing of allissues so that the parties can seek Commission and court review of theentire case at one time and so that the entire record can be kepttogether. If one or more items are to be severed under Commission Rule10, the finding of good cause must explain why the benefits of severanceoutweigh the drawbacks of piecemeal adjudication. In making that findingand severing part of a case, we expect the judge’s action to be informedby the policies and procedures in Federal Rule 54(b).The Commission’s rules do provide another avenue by which less than anentire case can be immediately reviewed by the Commission. CommissionRule 73, 29 C.F.R. ? 2200.73, gives discretion to the Commission toorder immediate review of a judge’s interlocutory ruling even ifseverance had not been ordered. Interlocutory review is available only,however, if the record shows that immediate review would materiallyexpedite final disposition of the proceeding and only on the vote of amajority of the Commissioners. A direction for review, which representsthe action of only a single member, is ineffective to either sever partof a case or bring it before the Commission on interlocutory review. SeeHamilton, 12 BNA OSHC at 1804, 1986 CCH OSHD at p. 35,826.Accordingly, the direction for review is vacated and Docket No.86-0449-A is remanded to the judge for reconsolidation with theremainder of the case, which has since been assigned Docket Number 86-1787.FOR THE COMMISSIONEXECUTIVE SECRETARYDATED: FEB 9 1987————————————————————————SECRETARY OF LABOR,CompIainantv.LTV STEEL COMPANYRespondentOSHRC DOCKET NO. 86-0449 & 86-1787_FINAL ORDER_The Respondent at a relatively early period of time during the pendencyof this proceeding moved for partial summary judgment insofar as item1(a) of citation number 1 was concerned.The undersigned granted partial summary Judgment to Respondent vacatingitem 1(a) or citation number 1 on November 16, 1986. The undersignedalso severed that portion of the case and forwarded it to the Commission.The Commission without ruling on the merits of the motion or the Judge’sOrder remanded the file to the Judge for reconsolidation with the restof the case. Pursuant to the Commission Order the undersignedreconsolidated the case but left the decision on the motion for partialsummary judgment intact.Subsequent there the hearing was rescheduled to be heard on March 27,1989 in Pittsburgh, Pennsylvania. Just prior to trial the partiesadvised the undersigned that the rest of the case was settled and thatthe only issue in which the parties reserved the right to appeal was themotion for partial summary judgment granted by the undersigned.Accordingly, the stipulation of settlement is APPROVED in its entiretyand is incorporated by reference thereto as if fully set forth herein atlength.Pursuant to the order on the motion for summary judgment and settlementagreement Item 1(a) 1(b) and 1(c) are VACATED together with any penaltyproposed therefor.Item 2, alleging a serious violation of the standard set forth at 29C.F.R. ? 1910.180(j)(1)(i) is AFFIRMED and a penalty of $640 is assessedtherefor.The undersigned received a letter from the United Steel Workers ofAmerica, the authorized employee representative, dated April 14, 1987,in which the Union set forth the reasons why they would not sign thesettlement agreement; however, sufficient reason is not established fordisapproval of the settlement agreement, particularly in view of theprosecutorial discretion of the Secretary.Accordingly, this matter is fully disposed of, SO ORDERED this 5th dayof May 1987.DAVID G. ORINGERJudge, OSHRCDated: May 5, 1987Boston, Massachusetts————————————————————————SECRETARY OF LABOR,Complainantv.LTV STEEL COMPANY,RespondentOSHRC Docket No. 86-0449-A_RULING AND ORDER_The respondent was cited for serious violation of the Secretary’sstandards and has moved for partial summary judgment insofar as one ofthe standards is concerned. The standard attacked is set forth at 29C.F.R. ? 1910.23(a)(5). The standard reads as follows:? 1910.23 GUARDING FLOOR AND WALL OPENINGS AND HOLES.(5) Every pit and trapdoor floor opening, infrequently used, shall beguarded by a floor opening cover of standard strength and construction.While the cover, is not in place, the pit or trap opening shall beconstantly attended by someone or shall be protected on all exposedsides by removable standard railings.The Secretary described the violation as follows: Serious Citation No.1, item 1(a):29 C.F.R. ? 1910.23(a)(5): Infrequently used pit or trapdoor flooropenings were not guarded by floor opening covers of standard strengthand construction:(a) By products plant, primary sump, the grating covering the primarysump was not secured to prevent movement.The respondent served interrogatories upon complainant. InterrogatoryNo. 3 requested the following with regard to item 1(a) of the citationalleging a violation of 29 C.F.R. ? 1910.23(a)(5): state all facts andarguments to support the claim that the primary sump pit was\”infrequently used.\” Answer: There is no evidence to prove theinfrequent use of the pit but infrequent walking is done on the coveringby maintenance men. The pit is in use so long as the oven operates.The respondent argues that the Secretary must prove affirmatively thatthe cited pit is \”infrequently used\” and that its answer to theinterrogatory demonstrates affirmatively that it has no proof that thepit is \”infrequently used.\” Complainant’s response to respondent’smotion for partial summary judgment was that the standard involved wascorrectly used in that the \”pit or trapdoor floor openings\” areinfrequently used within the meaning of the cited standard. TheSecretary further argues that the configuration of the grating cover inthis case because of its configuration did not meet the requirements ofthe standard for standard strength and construction when an adjacentsection was removed.The Secretary argues that the pit opening in the instant cause wascovered by a steel grating and it is that floor covering or steelgrating that was \”infrequently used\” within the purview of the standard.To resolve this very interesting question, one must analyze the languageof the standard. The plain language of the standard demonstrates thatthe term \”infrequently used\” refers to every pit and trapdoor flooropening. The guarding by a floor opening cover of standard strength andconstruction is a subsequent phrase, a subsequent condition. Proof ofinfrequent use must be of the pit and trapdoor floor opening. Theguarding by a floor opening cover of standard strength and constructionwould refer only to a pit and trapdoor floor opening which isinfrequently used.The standard was written by the Secretary and the requirements weredelineated by him. It is clear that the Secretary has given himself theburden of proof of \”infrequent use\” of the pit and trapdoor flooropening involved. That is the plain and unambiguous reading of thelanguage of the standard. The Secretary on August 15, 1986, filed itsanswers to respondent’s interrogatories which contained, inter alia, onpage 2 thereof Interrogatory No. 3 which the Secretary answered bystating there is no evidence to prove the infrequent use of the pit butinfrequent walking is done on the covering by maintenance men. The pitis in use so long as the oven operates.It is clear that the government cannot prove that the pit or floor holeis infrequently used. In fact, it states that it is in use so long asthe oven operates. The Secretary has not attempted to change its answerand this tribunal finds that the government fails to have proof ofinfrequent use of the pit or floor hole and accordingly, the motion mustbe granted.See _Lee Metals Corporation_, CCHD OSHD ? 15,722 (1973); 1 BNA OSHC3016, at 3017 (1973).In accordance with the above considerations the motion for partialsummary judgment is granted. The allegation of violation by thisrespondent of the standard set forth at 29 C.F.R. ? 1910.23(a)(5) isvacated. Inasmuch as the entire item consists of three subparts and atotal penalty of $640, a penalty of $213.33 is similarly vacated leavingpenalties of $213.33 for 1(b) and $213.40 for item 1(c).SO ORDERED.DAVID G. ORINGER, JUDGE, OSHRCDated: _December 16, 1986 _Boston, Massachusetts”