LTV Steel Company

Plain-English summary

An OSHRC judge granted LTV Steel partial summary judgment and vacated one floor-opening item before resolving the other three contested items. The Commission held that the ruling reached it prematurely because the judge had not found good cause to sever the item and a single Commission member's direction for review could not create interlocutory review. It vacated the direction for review and remanded the item for reconsolidation with the rest of the case. The later final order included in the release approved a settlement, vacated citation items 1(a), 1(b), and 1(c), and affirmed a serious crane-inspection item with a $640 penalty. The union declined to sign the agreement, but the judge found no sufficient reason to reject it.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(a)(5); 29 C.F.R. § 1910.180(j)(1)(i)
• Outcome: Premature partial ruling remanded for reconsolidation; later settlement vacated three items and affirmed one serious item with a $640 penalty.
• Key point: A partial ruling should not be severed for immediate review without a good-cause finding that addresses the costs of piecemeal adjudication.

Full text (OSHRC public release)

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-A

ORDER OF REMAND

The Secretary of Labor issued a citation to LTV Steel Company
alleging that LTV violated four OSHA safety standards. LTV's contest of the citation was
docketed by the Commission as No. 86-0449 and was assigned to Administrative Law Judge
David G. Oringer for disposition. LTV moved for partial summary judgment as to one of the
citation items, and the judge granted the motion. The judge issued a "Ruling and
Order" 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 for
discretionary review with the Commission, arguing that the judge erred in granting the
motion for partial summary judgment. Review was directed of the judge's ruling. We
conclude that the judge's ruling on the motion for partial summary judgment is before the
Commission prematurely. We therefore vacate the direction for review and remand the case
to the judge without prejudice to the correctness of the rule being raised and decided at
the proper time.

In issuing his order vacating the item that was the subject of
the motion for partial summary judgment, the judge in effect severed that item from the
other three that LTV contested. Commission Rule 10, 29 C.F.R. � 2200.10, addresses
severance 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 respect
to some or all issues or parties.

The judge did not explicitly invoke Rule 10, nor did he make a
finding of good cause, as the rule requires. Moreover, we do not yet perceive any good
cause for severing the one item from the remainder of the case. The Commission has
previously discussed the drawbacks to the piecemeal adjudication 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, against the confusion, overlapping
decisions, and wasted effort that often result from piecemeal adjudication. Although
Hamilton dealt with the severance of items when a case is before the Commission for
review, the same considerations exist before the judge. It will generally be more
efficient for the judge to issue a single decision disposing of all issues so that the
parties can seek Commission and court review of the entire case at one time and so that
the entire record can be kept together. If one or more items are to be severed under
Commission Rule 10, the finding of good cause must explain why the benefits of severance
outweigh the drawbacks of piecemeal adjudication. In making that finding and severing part
of a case, we expect the judge's action to be informed by the policies and procedures in
Federal Rule 54(b).

The Commission's rules do provide another avenue by which less
than an entire case can be immediately reviewed by the Commission. Commission Rule 73, 29
C.F.R. � 2200.73, gives discretion to the Commission to order immediate review of a
judge's interlocutory ruling even if severance had not been ordered. Interlocutory review
is available only, however, if the record shows that immediate review would materially
expedite final disposition of the proceeding and only on the vote of a majority of the
Commissioners. A direction for review, which represents the action of only a single
member, is ineffective to either sever part of a case or bring it before the Commission on
interlocutory 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 1987

SECRETARY OF LABOR,

CompIainant

v.

LTV STEEL COMPANY

Respondent

OSHRC DOCKET NO. 86-0449 & 86-1787

FINAL ORDER

The Respondent at a relatively early period of time during the
pendency of this proceeding moved for partial summary judgment insofar as item 1(a) of
citation number 1 was concerned.

The undersigned granted partial summary Judgment to Respondent
vacating item 1(a) or citation number 1 on November 16, 1986. The undersigned also 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's Order remanded the file to the Judge for reconsolidation with the rest of the
case. Pursuant to the Commission Order the undersigned reconsolidated the case but left
the decision on the motion for partial summary judgment intact.

Subsequent there the hearing was rescheduled to be heard on
March 27, 1989 in Pittsburgh, Pennsylvania. Just prior to trial the parties advised the
undersigned that the rest of the case was settled and that the only issue in which the
parties reserved the right to appeal was the motion for partial summary judgment granted
by the undersigned.

Accordingly, the stipulation of settlement is APPROVED in its
entirety and is incorporated by reference thereto as if fully set forth herein at length.

Pursuant to the order on the motion for summary judgment and
settlement agreement Item 1(a) 1(b) and 1(c) are VACATED together with any penalty
proposed therefor.

Item 2, alleging a serious violation of the standard set forth
at 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 Workers
of America, the authorized employee representative, dated April 14, 1987, in which the
Union 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 this
5th day of May 1987.

DAVID G. ORINGER

Judge, OSHRC

Dated: May 5, 1987

Boston, Massachusetts

SECRETARY OF LABOR,

Complainant

v.

LTV STEEL COMPANY,

Respondent

OSHRC Docket No. 86-0449-A

RULING AND ORDER

The respondent was cited for serious violation of the
Secretary's standards and has moved for partial summary judgment insofar as one of the
standards 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 the
cover, is not in place, the pit or trap opening shall be constantly attended by someone or
shall be protected on all exposed sides 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
floor openings were not guarded by floor opening covers of standard strength and
construction:

(a) By products plant, primary sump, the grating covering the
primary 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 citation
alleging a violation of 29 C.F.R. � 1910.23(a)(5): state all facts and arguments to
support 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 done
on the covering by maintenance men. The pit is in use so long as the oven operates.

The respondent argues that the Secretary must prove
affirmatively that the cited pit is "infrequently used" and that its answer to
the interrogatory demonstrates affirmatively that it has no proof that the pit is
"infrequently used." Complainant's response to respondent's motion for partial
summary judgment was that the standard involved was correctly used in that the "pit
or trapdoor floor openings" are infrequently used within the meaning of the cited
standard. The Secretary further argues that the configuration of the grating cover in this
case because of its configuration did not meet the requirements of the standard for
standard strength and construction when an adjacent section was removed.

The Secretary argues that the pit opening in the instant cause
was 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 the
language of the standard. The plain language of the standard demonstrates that the term
"infrequently used" refers to every pit and trapdoor floor opening. The guarding
by a floor opening cover of standard strength and construction is a subsequent phrase, a
subsequent condition. Proof of infrequent use must be of the pit and trapdoor floor
opening. The guarding by a floor opening cover of standard strength and construction would
refer 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. It
is clear that the Secretary has given himself the burden of proof of "infrequent
use" of the pit and trapdoor floor opening involved. That is the plain and
unambiguous 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 2
thereof Interrogatory No. 3 which the Secretary answered by stating there is no evidence
to prove the infrequent use of the pit but infrequent walking is done on the covering by
maintenance men. The pit is in use so long as the oven operates.

It is clear that the government cannot prove that the pit or
floor hole is infrequently used. In fact, it states that it is in use so long as the oven
operates. The Secretary has not attempted to change its answer and this tribunal finds
that the government fails to have proof of infrequent use of the pit or floor hole and
accordingly, 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 for
partial summary judgment is granted. The allegation of violation by this respondent of the
standard set forth at 29 C.F.R. � 1910.23(a)(5) is vacated. Inasmuch as the entire item
consists of three subparts and a total penalty of $640, a penalty of $213.33 is similarly
vacated leaving penalties of $213.33 for 1(b) and $213.40 for item 1(c).

SO ORDERED.

DAVID G. ORINGER, JUDGE, OSHRC

Dated: December 16, 1986

Boston, Massachusetts