“Docket No. 86-0449 SECRETARY OF LABOR, CompIainant, v. LTV STEEL COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC and LOCAL 1843, Authorized Employee Representative.OSHRC Docket No. 86-0449-AORDER OF REMANDThe Secretary of Labor issued a citation to LTV Steel Companyalleging that LTV violated four OSHA safety standards. LTV’s contest of the citation wasdocketed by the Commission as No. 86-0449 and was assigned to Administrative Law JudgeDavid G. Oringer for disposition. LTV moved for partial summary judgment as to one of thecitation items, and the judge granted the motion. The judge issued a \”Ruling andOrder\” vacating that item and transmitted that document to the Commission,identifying it as his decision in Docket No. 86-0449-A.The United Steelworkers of America filed a petition fordiscretionary review with the Commission, arguing that the judge erred in granting themotion for partial summary judgment. Review was directed of the judge’s ruling. Weconclude that the judge’s ruling on the motion for partial summary judgment is before theCommission prematurely. We therefore vacate the direction for review and remand the caseto the judge without prejudice to the correctness of the rule being raised and decided atthe proper time.In issuing his order vacating the item that was the subject ofthe motion for partial summary judgment, the judge in effect severed that item from theother three that LTV contested. Commission Rule 10, 29 C.F.R. ? 2200.10, addressesseverance and provides:? 2200.10 Severance.Upon its own motion, or upon motion of any party or intervenor,the Commission or the judge may, for good cause, order any proceeding severed with respectto some or all issues or parties.The judge did not explicitly invoke Rule 10, nor did he make afinding of good cause, as the rule requires. Moreover, we do not yet perceive any goodcause for severing the one item from the remainder of the case. The Commission haspreviously discussed the drawbacks to the piecemeal adjudication that results when someitems 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 inRule 54 (to of the Federal Rules of Civil Procedure, against the confusion, overlappingdecisions, and wasted effort that often result from piecemeal adjudication. AlthoughHamilton dealt with the severance of items when a case is before the Commission forreview, the same considerations exist before the judge. It will generally be moreefficient for the judge to issue a single decision disposing of all issues so that theparties can seek Commission and court review of the entire case at one time and so thatthe entire record can be kept together. If one or more items are to be severed underCommission Rule 10, the finding of good cause must explain why the benefits of severanceoutweigh the drawbacks of piecemeal adjudication. In making that finding and severing partof a case, we expect the judge’s action to be informed by the policies and procedures inFederal Rule 54(b).The Commission’s rules do provide another avenue by which lessthan an entire case can be immediately reviewed by the Commission. Commission Rule 73, 29C.F.R. ? 2200.73, gives discretion to the Commission to order immediate review of ajudge’s interlocutory ruling even if severance had not been ordered. Interlocutory reviewis available only, however, if the record shows that immediate review would materiallyexpedite final disposition of the proceeding and only on the vote of a majority of theCommissioners. A direction for review, which represents the action of only a singlemember, is ineffective to either sever part of a case or bring it before the Commission oninterlocutory review. See Hamilton, 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 the remainder of the case,which has since been assigned Docket Number 86-1787.FOR THE COMMISSION EXECUTIVE SECRETARY DATED: FEB 9 1987SECRETARY OF LABOR, CompIainant v. LTV STEEL COMPANY RespondentOSHRC DOCKET NO. 86-0449 & 86-1787FINAL ORDERThe Respondent at a relatively early period of time during thependency of this proceeding moved for partial summary judgment insofar as item 1(a) ofcitation number 1 was concerned.The undersigned granted partial summary Judgment to Respondentvacating item 1(a) or citation number 1 on November 16, 1986. The undersigned also severedthat portion of the case and forwarded it to the Commission.The Commission without ruling on the merits of the motion orthe Judge’s Order remanded the file to the Judge for reconsolidation with the rest of thecase. Pursuant to the Commission Order the undersigned reconsolidated the case but leftthe decision on the motion for partial summary judgment intact.Subsequent there the hearing was rescheduled to be heard onMarch 27, 1989 in Pittsburgh, Pennsylvania. Just prior to trial the parties advised theundersigned that the rest of the case was settled and that the only issue in which theparties reserved the right to appeal was the motion for partial summary judgment grantedby the undersigned.Accordingly, the stipulation of settlement is APPROVED in itsentirety and is incorporated by reference thereto as if fully set forth herein at length. Pursuant to the order on the motion for summary judgment andsettlement agreement 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 forthat 29 C.F.R. ? 1910.180(j)(1)(i) is AFFIRMED and a penalty of $640 is assessed therefor.The undersigned received a letter from the United Steel Workersof America, the authorized employee representative, dated April 14, 1987, in which theUnion set forth the reasons why they would not sign the settlement agreement; however,sufficient reason is not established for disapproval of the settlement agreement,particularly in view of the prosecutorial discretion of the Secretary.Accordingly, this matter is fully disposed of, SO ORDERED this5th day of May 1987. DAVID G. ORINGERJudge, OSHRCDated: May 5, 1987Boston, Massachusetts SECRETARY OF LABOR, Complainant v. LTV STEEL COMPANY, RespondentOSHRC Docket No. 86-0449-ARULING AND ORDERThe respondent was cited for serious violation of theSecretary’s standards and has moved for partial summary judgment insofar as one of thestandards is concerned. The standard attacked is set forth at 29 C.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 be guarded by a floor opening cover of standard strength and construction. While thecover, is not in place, the pit or trap opening shall be constantly attended by someone orshall be protected on all exposed sides by removable standard railings.The Secretary described the violation as follows: SeriousCitation No. 1, item 1(a):29 C.F.R. ? 1910.23(a)(5): Infrequently used pit or trapdoorfloor openings were not guarded by floor opening covers of standard strength andconstruction:(a) By products plant, primary sump, the grating covering theprimary sump was not secured to prevent movement.The respondent served interrogatories upon complainant.Interrogatory No. 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 and arguments tosupport the claim that the primary sump pit was \”infrequently used.\” Answer:There is no evidence to prove the infrequent use of the pit but infrequent walking is doneon the covering by maintenance men. The pit is in use so long as the oven operates.The respondent argues that the Secretary must proveaffirmatively that the cited pit is \”infrequently used\” and that its answer tothe interrogatory demonstrates affirmatively that it has no proof that the pit is\”infrequently used.\” Complainant’s response to respondent’s motion for partialsummary judgment was that the standard involved was correctly used in that the \”pitor trapdoor floor openings\” are infrequently used within the meaning of the citedstandard. The Secretary further argues that the configuration of the grating cover in thiscase because of its configuration did not meet the requirements of the standard forstandard strength and construction when an adjacent section was removed.The Secretary argues that the pit opening in the instant causewas covered by a steel grating and it is that floor covering or steel grating that was\”infrequently used\” within the purview of the standard. To resolve this very interesting question, one must analyze thelanguage of the standard. The plain language of the standard demonstrates that the term\”infrequently used\” refers to every pit and trapdoor floor opening. The guardingby a floor opening cover of standard strength and construction is a subsequent phrase, asubsequent condition. Proof of infrequent use must be of the pit and trapdoor flooropening. The guarding by a floor opening cover of standard strength and construction wouldrefer only to a pit and trapdoor floor opening which is infrequently used.The standard was written by the Secretary and the requirements were delineated by him. Itis clear that the Secretary has given himself the burden of proof of \”infrequentuse\” of the pit and trapdoor floor opening involved. That is the plain andunambiguous reading of the language of the standard. The Secretary on August 15, 1986,filed its answers to respondent’s interrogatories which contained, inter alia, on page 2thereof Interrogatory No. 3 which the Secretary answered by stating there is no evidenceto prove the infrequent use of the pit but infrequent walking is done on the covering bymaintenance men. The pit is in use so long as the oven operates.It is clear that the government cannot prove that the pit orfloor hole is infrequently used. In fact, it states that it is in use so long as the ovenoperates. The Secretary has not attempted to change its answer and this tribunal findsthat the government fails to have proof of infrequent use of the pit or floor hole andaccordingly, the motion must be granted.See Lee Metals Corporation, CCHD OSHD ? 15,722 (1973);1 BNA OSHC 3016, at 3017 (1973).In accordance with the above considerations the motion forpartial summary judgment is granted. The allegation of violation by this respondent of thestandard set forth at 29 C.F.R. ? 1910.23(a)(5) is vacated. Inasmuch as the entire itemconsists of three subparts and a total penalty of $640, a penalty of $213.33 is similarlyvacated leaving penalties 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”