SECRETARY OF LABOR,
Complainant,

v.

CATERPILLAR TRACTOR CO.,
Respondent.

OSHRC Docket No. 80-4061

ORDER

The Secretary of Labor, Caterpillar Tractor Company, and the International Union, United Automobile Aerospace and Agricultural Implement Workers of America, UAW, and its Local 974--the parties in this case--have entered into a settlement agreement disposing of the litigation before us.  The settlement agreement is hereby approved.  SO ORDERED.

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  December 2, 1986

SECRETARY OF LABOR,
Complainant,

v.

CATERPILLAR TRACTOR COMPANY,
Respondent.

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, UAW, and its
LOCAL 974,

Authorized Employee
Representative.

OSHRC Docket No. 80-4061

DECISION

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.
BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act).  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

The Secretary of Labor alleges that Caterpillar Tractor Company violated several provisions of 29 C.F.R. § 1910.1025, a standard regulating occupational exposure to lead.  Caterpillar argues that the standard was invalidly promulgated and that the citations issued under it must therefore be vacated.   Many of the arguments advanced by Caterpillar here have already been considered and rejected by the United States Court of Appeals for the District of Columbia Circuit in United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) ("Steelworkers").   In the Steelworkers case numerous parties challenged various aspects of the lead standard.  One of those parties was the Cast Metals Federation, a trade association of which Caterpillar is a member.  The Secretary argues that the principle of collateral estoppel precludes Caterpillar from relitigating issues that were decided by the D.C. Circuit in Steelworkers.  We conclude that the record in this case does not adequately illuminate Caterpillar's relationship with the Cast Metals Federation to enable us to resolve this argument.  We therefore remand this case for the limited purpose of receiving further evidence and argument on the collateral estoppel issue.

Under the doctrine of collateral estoppel, a judgment on the merits in a prior suit "precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit."  Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955).  Put another way, "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation."  Montana v. United States, 440 U.S. 147, 153 (1979).

The purpose of collateral estoppel and the related doctrine of res judicata were described by the Supreme Court as follows:

Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. . . . To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.

Id.  (citations omitted).

A determination by a court in a prior action binds not only parties to that action but also persons in "privity" to those parties.  Id. at 154-55.  This rule is intended to preclude subsequent litigation by a person "so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved."  Jefferson School of Social Science v. Subversive Activities Control Board, 331 F.2d 76, 83 (D.C. Cir. 1963).  Before a non-party can 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 an identification of the interests advanced in the first proceeding."  Crane v. Commissioner of Department of Agriculture, Food and Rural Resources, 602 F. Supp. 280, 285 (D.Me. 1985), citing Chicago, Rock Island & Pacific Railway Co. v. Schendel, 270 U.S. 611, 620 (1926).

In some cases, collateral estoppel has been held to preclude a member of a trade association from litigating issues that were decided in an earlier case to which the trade association was a party.  E.g., Expert Electric, 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.  However, collateral estoppel does not automatically bar a trade association member from litigating issues that the association previously litigated.  Some members of a trade association may have interests different from others with respect to the issues in a particular lawsuit, so the association's participation in a case does not guarantee that the interests of all of its members were represented or protected.  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 in determining whether collateral estoppel bars litigation by a trade association member in a particular case.  Among these are the purposes and past practices of the association, and whether the association was vested with the authority to represent the member.   Contribution of funds toward the litigation by the member is an indication that the association was authorized to represent the member.  General Foods Corp. v. Massachusetts Department of Public Health, 648 F.2d at 788; Crane v. Commissioner, 602 F. Supp. at 286.  The extent of the member's participation in or control over the litigation is also important.  18 Wright, Miller & Cooper, Federal Practice and Procedure § 4446.

Another important factor is whether the member's interests were adequately represented.  General Foods Corp. v. Massachusetts Department of 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).  Critical to the adequacy of representation of the member's interests is whether the association had the member's interests foremost in mind in litigating the earlier action or, stated another way, whether the member's interests fell squarely within the general ambit of interests represented in the prior action.  Expert Electric v. Levine, 554 F.2d at 1233; Grossman v. Axelrod, 466 F. Supp. at 776.

It is uncertain whether the Cast Metals Federation was authorized to represent Caterpillar, or whether Caterpillar's interests were adequately represented in Steelworkers by the Cast Metals Federation.   Although it was a party to the litigation, the Cast Metals Federation is not among the parties listed as having filed a brief.  647 F.2d at 1203 n.5.  Moreover, the workplace involved in this case is a gray iron foundry.  Unlike many of the industries involved in Steelworkers, the gray iron foundry industry does not produce lead or lead products, nor does it use lead as a raw material; lead is present in gray iron castings only as an undesirable impurity.  Thus, the gray iron foundry industry received relatively little attention both in the rulemaking record and in the Steelworkers decision.  See 43 Fed. Reg. 54491 (discussion of gray iron foundry industry in preamble to standard); Steelworkers, 647 F.2d at 1302.  These circumstances do not permit us to infer that the gray iron foundry industry in general, and Caterpillar in particular, were adequately represented in the Steelworkers litigation.

Normally, where the record in a case lacks sufficient evidence on a disputed issue, we would resolve that issue against the party having the burden of proof.  We believe, however, it would be inequitable to apply that general principle in this case.  The issue of whether collateral estoppel precludes a trade association member from relitigating an issue previously litigated by the association is one of first impression for the Commission, [[1]] and it is not clear that the parties knew their respective burdens of proof.  Under the circumstances, we believe the preferable course is to permit further development of the record on the collateral estoppel issue.

Accordingly, the case is remanded to the Chief Judge for assignment to an administrative law judge.[[2]]  The judge shall afford the parties the opportunity to present further evidence and argument on the collateral estoppel question and shall enter findings of fact and conclusions of law on the issue.   The Commission shall retain jurisdiction of the case pending receipt of these additions to the record.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  April 16, 1986

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The courts have not developed a well-defined body of law on the subject either.  "The status and legal incidents of [trade] associations remain in often spectacular uncertainty.  The preclusion results that flow from litigation involving association matters are correspondingly confused."  18 Wright, Miller & Cooper, Federal Practice and Procedure § 4456, p. 486 (1981).  Given the uncertain state of the law when this case was tried, it is understandable that the evidence presented by the parties is not sufficient to enable us to resolve the issue in an informed manner.

[[2]] Administrative Law Judge Paul E. Dixon, who originally decided this case, is no longer with the Commission.