Docket No. 83-0308

SECRETARY OF LABOR,
Complainant,

HAMILTON DIE CAST, INC.,
Respondent.

INTERNATIONAL MOLDERS UNION,

Authorized Employee
Representative.

OSHRC Docket No. 83-0308

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

The procedural history of this case involves an earlier case with this same employer, Hamilton Die Cast, Inc., 84 OSAHRC ______, 11 BNA OSHC 2169, 1984 CCH OSHD І 26,983 (No. 79-1686, 1984) ("Hamilton I"), rev'd and remanded on another issue, No. 84-3664 (6th Cir. Jan. 24, 1986).

On March 26, 1979, Hamilton Die Cast, Inc., was issued several citations with multiple items following an OSHA inspection at its Hamilton, Ohio facility. After Hamilton contested these citations, the case was docketed and is the case we refer to as Hamilton I. Before a hearing was convened, the parties settled all but two items. One of the unresolved items alleged that Hamilton had violated 29 C.F.R. ї 1910.133(a)(1) by not requiring employees to wear eye and face gear to protect against molten aluminum.[[1]] The second unresolved item alleged a violation of 29 C.F.R. ї 1910.212(a)(1) for Hamilton's alleged failure to install machine guarding to protect employees from flying hot metal.[[2]]

On June 2, 1980, following a hearing on the merits, Administrative Law Judge James D. Burroughs affirmed both items. Hamilton petitioned the Commission for review of the judge's decision on both items.

On July 1, 1980, former Commissioner Cottine directed review of the judge's decision. The direction for review in Hamilton I stated: "Review is directed only as to the judge's affirmance of a repeated violation of the machine guarding standard at 29 C.F.R. ї 1910.212(a)(1)."

In March, 1983, while Hamilton I was pending on review before the Commission, the Secretary re-inspected Hamilton's plant. Two citations were issued. Hamilton contested both and the case was docketed as OSHRC Docket No. 83-0308 ("Hamilton II"), the instant case. One of the items in the present case alleges a violation of the face protection standard at section 1910.133(a)(1). The violation alleged by this item was identical to the violation of section 1910.133(a)(1) found by the judge but not mentioned in the direction for review in Hamilton I.

At the hearing in Hamilton II, Hamilton argued that it could not be cited for a violation that was essentially identical to an item in Hamilton I which was still before the Commission on review. According to Hamilton, it was under no obligation to abate a condition cited in a case that was still under review. The Secretary contended that he was not barred from citing the employer for a violation of the face protection standard in Hamilton II because the face protection item cited previously in Hamilton I had not been directed for review and, thus, had become a final order.

Judge Burroughs agreed with Hamilton. He relied on Federal Rule of Civil Procedure 54(b), which states that a court may direct entry of final judgment on fewer than all claims in a case "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Judge Burroughs concluded that since the direction for review in Hamilton I did not contain the "express determination" and "express direction" required by Rule 54(b), there was no final order as to the face protection item. To hold otherwise, the judge reasoned, would be contrary to the long-established federal policy against piecemeal appeals.

On February 21, 1984, after a hearing on the remaining item, which alleged a violation of the protective equipment standard at 29 C.F.R. ї 1910.132(a), the judge vacated this item as well as the item that alleged a violation of the face protection standard.

The Secretary filed a petition for review of the judge's disposition of the item concerning face protection under section 1910.133 in Hamilton II. He took exception only to the judge's earlier ruling that the undirected face protection item in Hamilton I was not a final order.[[3]] This petition was granted.

The Secretary argues that the judge's decision must be reversed. He cites several grounds for reversal, including various provisions of the Act, the Act's legislative history, the Commission's Rules of Procedure, Commission precedent, and policy grounds. The Secretary's principal concern is with delayed abatement. He is concerned that the abatement requirement of a citation item affirmed by a judge but not specifically directed for review would not become effective until all items in the case are adjudicated. He reasons that when the Commission's direction for review is limited to specific items in a judge's decision, the items affirmed by the judge but not specified in the direction for review become final and enforceable orders of the Commission. He therefore submits that citation of the face protection item in Hamilton II was proper since the face protection item in Hamilton I was affirmed by the judge and was not directed for review.

III

For the reasons that follow, we hold that when a Commission member directs review of a judge's decision the entire decision is on review; the failure to direct a particular citation item for review does not make the judge's disposition of that item a final order of the Commission. We note at the outset that a clear and consistent resolution of this finality issue is important to ensuring orderly adjudications under the Act--a matter that has been entrusted by Congress to the Commission. Recurring questions have arisen in our cases as to the finality of undirected items in cases under review. These questions include whether an undirected item in a case under review may be enforced immediately by the Secretary, when appellate review of such an item is still available, and whether the Commission still has the authority to consider the item if it notices error in the judge's disposition of that item during its review of related items. Because we hold under section 12(j) of the Act and Fed.R.Civ.P. 54(b) that undirected items are not final orders unless the Commission orders otherwise, such items may not ordinarily be enforced or appealed until the entire case under review is decided.

A. The Act

Section 12(j) of the Act, 29 U.S.C. ї 661(i) as amended by P.L. 95-239, 95-251 (1978), states:

An administrative law judge appointed by the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and any motion in connection therewith, assigned to such administrative law judge by the Chairman of the Commission, and shall make a report of any such determination which constitutes his final disposition of the proceedings. The report of the administrative law judge shall become the final order of the Commission within thirty days after such report by the administrative law judge, unless within such period any Commission member has directed that such report shall be reviewed by the Commission.

It is contended that, when review is explicitly directed on only part of a judge's report, the report becomes a "final order" as to items not specified in the direction. We disagree. Section 12(j) states only that a judge's "report" becomes final unless a Commissioner orders review. It is silent on the effect of a direction for review on those items decided in a judge's report that are not specified in the direction for review. Inasmuch as it speaks of the judge's "report" as a single unit, rather than citations or citation items disposed of by a report, the language of section 12(j) is more supportive of the conclusion that when review is directed, the entire judge's decision is before the Commission unless the Commission orders otherwise.[[4]]

We note that if an item not specifically mentioned in a direction for review were to become final, a party aggrieved by a judge's disposition of such an item would be required to pursue judicial review of this item in the court of appeals at the same time that the remainder of the case was still before the Commission. Otherwise, he would lose his right to judicial review. Such piecemeal review would be required even though the Commission's review of a directed item might involve issues common to the item being considered by the appellate court and even though the resolution of the item by the Commission or the court might affect the disposition of the item before the other body. This would obviously create the potential for confusion, overlapping adjudication, and wasted effort that the federal courts intended to avoid by adopting Fed.R.Civ.P. 54(b).[[5]] In sum, section 12(j) does not mean that citation items disposed of in a judge's report become final because a direction for review limits review to other items.[[6]]

The Secretary also asserts that the Commission's interpretation of section 10(a) of the Act, 29 U.S.C. ї 659(a), supports his view that unreviewed items in a judge's decision under review are final and enforceable orders. Section 10(a), together with sections 10(b) and (c), establishes a procedure for the adjudication of citations by the Commission. Section 10(a) states the consequence of an employer's failure to timely contest a citation--it "shall be deemed a final order of the Commission and not subject to review by any court or agency."[[7]] Section 10(b) states that the Secretary may propose additional penalties if an employer fails to abate a condition cited in an uncontested or otherwise final citation and that those additional proposed penalties become final if not timely contested. Section 10(c) requires that the Commission provide an opportunity for a hearing on a contested citation.

The Commission has held that uncontested citation items become final orders at the end of the fifteen working-day contest period, but this does not require us to read section 12(j) to hold that contested items not mentioned in a direction for review become final orders at the end of the thirty-day review period. Section 10(a), unlike section 12(j), has no relevance to the problem of piecemeal adjudication. It is true that section 10(a) employs piecemeal finality to advance the public interest in prompt abatement. If an employer contests only some of a group of citation items, the uncontested ones become final and enforceable under section 10(a) while the contested ones remain to be adjudicated. However, a countervailing policy arises under section 12(j) that does not arise under section 10(a)--the policy of avoiding piecemeal adjudication. Under section 10(a), the problem of piecemeal adjudication does not arise. If an employer contests only some of the items in a citation, there would not be piecemeal adjudication because only the contested items would be adjudicated. Uncontested items would become final orders by operation of section 10(a) because the employer elected not to contest them.

Under section 12(j), however, the problem of piecemeal adjudication does arise. When a judge issues a decision disposing of several citation items but the Commission sets down for review only some of the judge's dispositions, the party aggrieved by the judge's dispositions of the other items might immediately seek judicial review of these other items in the court of appeals if they were deemed to be final. Thus, part of the case might be pending before the Commission and part before a court of appeals. Inasmuch as this can never happen under section 10(a), we find that the principles that operate under section 10(a) are not analogous here.

B. Legislative history of the Act

According to the Secretary, the legislative history of the Act demonstrates that items not mentioned in a direction for review should be considered final. He relies on the comments of Senator Javits, who effectively authored section 12(j) of the Act. During the debates preceding the passage of the Act, Senator Javits successfully opposed a provision of a committee bill that would have provided for mandatory review of judges' decisions and would have delayed the enforcement of citations until the completion of appellate review. The Secretary notes that Senator Javits remarked that under the rejected committee bill:

[N]o enforceable order to correct a violation would issue until the completion of all administrative and judicial review proceedings.

S. Rep. No. 91-1282, 91st Cong. 2d Sess. at 55 (1970), reprinted in Senate Committee on Labor and Public Welfare, 92 Cong. 1st Sess. Legislative History of the Occupational Safety and Health Act 194 (1971), and 1970 U.S. Code Cong. & Ad. News. 5220. This quoted observation is, however, but a fragment of the following lengthier comment by Senator Javits:

Under the Committee bill, no enforceable order to correct a violation would issue the completion of all administrative and judicial review proceedings. This would involve, at a minimum in a contested case, (1) hearings by a trial examiner, (2) mandatory review of the decision by the Secretary or his designee, and (3) review by a Court of Appeals. It is doubtful that this process could be completed in less than 18 months (two years would be a more realistic estimate) in a seriously contested case.

Under my amendment, an enforceable order would issue at the end of the administrative review stage, rather than after judicial review (unless the Court of Appeals issued a stay). Furthermore, the administrative review stage itself would be shortened by three to six months in many cases by making review by the Panel of trial examiners' decisions discretionary. If review were denied, the trial examiners' decision would automatically become the final order of the panel and enforceable as such.
(Emphasis added.)

Senator Javits' comments do indicate an intent that there should be no delay in the "resolution of violations"; however, his concern was that a citation would not become enforceable under the committee bill until mandatory review of a judge's decision was over and the opportunity for judicial review had been exhausted. Senator Javits' comments were not directed to whether individual citation items decided in a judge's decision achieve finality in piecemeal fashion. We therefore find that the legislative history of section 12(j) does not support a theory of piecemeal finality.

C. Rules of procedure of the Commission

Section 12(g) of the Act, 29 U.S.C. ї 661(f), states that "[u]nless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure." See also Commission Rule 2(b), 29 C.F.R. ї 2200.2(b). We must therefore consider whether the finality question presented here is addressed by the Commission's rules of procedure.

Several Commission rules set forth the procedures to be followed when Commission review of a judge's decision is sought. Commission Rule 90(b)(3) states that if no Commissioner directs review of a judge's report within thirty days, it "shall become a final order of the Commission." Rule 91(c) states that "[a] petition [for review] shall contain a precise statement of each portion of the [judge's] decision and order to which exception is taken . . . . " Rule 91(d) provides that when the Commission fails to act upon a petition within the review period, the petition is deemed denied. Rule 92(c) states that:

When a petition for discretionary review is granted, review shall be limited to the issues specified in the petition, unless the order for review expressly provides differently.

None of the Commission's rules either states or suggests that items not mentioned in a direction for review are final orders. They do not address the question.

As Judge Burroughs observed, Rule 90(b)(3) contains "no reference to the automatic severance of issues if the Commission decides to review [fewer] than all the issues petitioned by the aggrieved party." The same is true of Rule 91(d). Rule 91(c) states only that a party aggrieved by the judge's decision "should" specify in its petition for discretionary review those portions of a judge's decision it wishes to be reviewed. Inasmuch as the rule uses the word "should," it is not a mandatory requirement. Moreover, a request that a party specify that which he wishes reviewed is not an indication that what he does not mention thereby becomes a final order of the Commission and ripe for judicial review.

The same is true of Rule 92(c), which states that when a petition is granted, "review shall be limited to the issues specified in the petition, unless the order for review expressly provides differently." Judge Burroughs correctly evaluated this rule:

The Secretary misconstrues the purport of Commission Rule 92(c). The purpose of the rule is not to automatically sever issues for piecemeal appeals to the circuit court. Its primary purpose is to advise the parties as to what issues will be considered by the Commission and as to the issues to be briefed. This prevents the parties from wasting their time briefing issues that will not be considered on review by the Commission.

The judge's view is confirmed by the legislative history of the rule. When the Commission proposed the first version of Rule 92(c), it explained that without the rule, "[t]he parties ... and the remaining members [i.e., those who did not grant the petition] are without guidance as to specific issues to be discussed or as to any specific, alleged error in the judge's decision." 41 Fed. Reg. 24724 (1976); see also 41 Fed. Reg. 53015 (1976) (adopting proposed rule). In short, Rule 92(c) merely regulates briefing practice.

The Commission's application of the rule also bears this out. The Commission has on numerous occasions considered issues outside the four corners of a direction for review for the sake of fairness and uniformity in adjudication. See Dravo Corp., 82 OSAHRC 30/A2, 10 BNA OSHC 1651, 1652-53 n.2, 1982 CCH OSHD І 26,076, p. 32,809 n.2 (No. 14818, 1982)(after review directed, supplemental briefing order issued specifying additional issues); Farmers Cooperative Grain & Supply Co., 82 OSAHRC 59/C12, 10 BNA OSHC 2086, 1982 CCH OSHD І 26,301 (No. 79-1177, 1982)(issue directed for review was whether judge erred in vacating a 5(a)(1) citation; Commission raised issue of potential applicability of certain standards and later amended citation to allege a violation of standard); John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNA OSHC 1385, 1982 CCH OSHD І 25,941 (No. 76-2894, 1982)(case decided on grounds other than those included in the direction for review; controlling precedent issued after direction for review), rev'd on other grounds, No. 82-4082 (2d Cir. Oct. 14, 1982); B.J. Hughes, Inc., 82 OSAHRC 17/D5, 10 BNA OSHC 1545, 1982 CCH OSHD І 25,977 (No. 76-2165, 1982) (concurring opinion).[[8]]

Thus, under our rules, the parties are not expected to brief issues regarding an item that is not specified in a direction for review. The item still remains within the jurisdiction of the Commission, however, and in the Commission's discretion, may be reviewed after the parties have been afforded any necessary opportunity to brief the issues it raises.

D. Federal Rules of Civil Procedure

Inasmuch as no Commission rule addresses the finality issue, we look to the Federal Rules of Civil Procedure. Judge Burroughs concluded that Fed.R.Civ.P. 54(b) addresses the finality question presented by this case. We agree.

Federal Rule 54(b) forbids partial judgment in a case involving multiple claims or multiple parties, except under certain circumstances. The rule states:

JUDGMENT UPON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Rule 54(b) strikes a balance between two conflicting interests. It preserves the long-standing federal policy against piecemeal appeals while providing a means for avoiding the injustice that might result if judgment or a distinctly separate claim were delayed until adjudication of an entire case was complete. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 432, 76 S.Ct. 895, 898 (1956). See generally 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure ї 2654 (2d ed. 1983).

We are not unmindful of the Secretary's concern with prompt abatement. However, the means for obtaining finality provided by Rule 54(b) accommodate the Secretary's concern that those citation items that truly involve abatement problems should be enforceable without undue delay. Rule 54(b) provides for the entry of a final judgment on a single claim when four basic conditions are met. There must be multiple claims in the case. At least one claim must be decided. There must be an "express determination that there is no just reason for delay." And, there must be an "express direction for the entry of judgment."

Thus, if the Secretary wishes to enforce an item affirmed by the judge but not specifically mentioned in a direction for review, he may file a motion under Rule 54(b) requesting that the item in question be severed from the case and adjudged a final order. Similarly, any party who wishes to seek appellate review of an undirected item could employ Rule 54(b) to pursue such review.

We now apply Rule 54(b) to this case. Judge Burroughs found that in Hamilton I his disposition of the undirected item concerning section 1910.133 had not been severed and declared to be a final order under Rule 54(b). Specifically, he found that neither he nor the Commission in Hamilton I had "direct[ed] the entry of a final judgment as to . . . fewer than all of the claims . . . upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment" within the meaning of Rule 54(b). Judge Burroughs noted:

The direction for review by [former] Commissioner Cottine was insufficient to grant the [employer] an immediate appeal under Rule 54(b) as to the violation of 29 C.F.R. ї 1910.133 (a)(1). Rule 54(b) requires the court to take two separate steps before an appeal can be perfected. The court must make "an express determination that there is no just reason for delay" and it must make "an express direction for the entry of judgment." Obviously, the direction for review did not fulfill these requirements.

We agree. We would add that even if the direction for review in Hamilton I was the equivalent of "an express direction for the entry of judgment," it could not have met the requirements of section 12(f) of the Act, 29 U.S.C. ї 661(e) because it was the action of only a single Commission member. Section 12(f) states that "official action can be taken only on the affirmative vote of at least two members." Accordingly, we conclude that the item concerning section 1910.133 in Hamilton I did not become a final Commission order when the review period expired.

Judge Burroughs recognized that the item in Hamilton I covered the same condition as the face protection item here and vacated the item in this case. The judge reasoned that because the face protection item in Hamilton I had not become a final order of the Commission, the employer was neither required to abate the cited condition nor pursue an appeal. We agree. Section 10(b) of the Act, 29 U.S.C. ї 659(c), provides that an employer who files a notice of contest in good faith is not required to abate the cited condition in the absence of a final Commission order. Inasmuch as the Secretary does not argue that the notice of contest in Hamilton I was filed in bad faith and does not argue that any other special circumstances were present here that would warrant overturning Judge Burrough's conclusion, we adopt the judge's view that citation of the same condition under the same standard in this case was improper.

Accordingly, the judge's vacation of item three of the serious citation is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: April 22,1986

SECRETARY OF LABOR,

Complainant,

HAMILTON DIE CAST, INC.,

Respondent,

and INTERNATIONAL MOLDERS UNION,

Authorized Employee
Representative.

OSHRC Docket No. 83-0308

APPEARANCES:

F. Benjamin Riek, III, Esquire, Office of the Solicitor, U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.

Bruce A. Hoffman, Esquire, Graydon, Head and Ritchey, Cincinnati, Ohio, on behalf of respondent.

DECISION AND ORDER

Burroughs, Judge: Respondent, an Ohio corporation engaged in the production and sale of aluminum die castings, contests an alleged violation of 29 C.F.R. ї 1910.132(a) for failure of a die cast operator and a furnace and pot tender to wear a 100 percent long-sleeved cotton shirt or flame retardant protective clothing while engaged in work around certain die cast machines. The violations allegedly occurred on March 22, 1983, the time of an inspection conducted by Industrial Hygienist Frank E. Carroll at respondent's die casting facility in Hamilton, Ohio.

As a result of the inspection, respondent was issued a serious citation and "other" citation on April 1, 1983. Respondent, by letter dated April 13, 1983, from its counsel, contested all of the alleged violations. The serious citation alleged violations of the following standards and proposed the penalties indicated:

Item No.	Standard	Assessed Penalty
1a	29 C.F.R. ї 1910.95(a)	$700
1b	29 C.F.R. ї 1910.95(k)(3)
2	29 C.F.R. ї 1910.132(a)	$700
3	29 C.F.R. ї 1910.133(a)(1)	$900

The "other" citation alleged a violation of 29 C.F.R. ї 1904.5(c). No penalty was proposed for the "other" alleged violation.

A hearing was initially held in this matter on August 10, 1983. At that time, respondent withdrew its notice of contest to items 1a and 1b of the serious citation and to the "other" citation. The Secretary agreed to reduce the proposed penalty for items 1a and 1b from $700 to $250 (Tr. 4-5). Respondent withdrew its notice of contest with respect to subitems (a) and (b) of item two (Tr. 16, 24). This left subitems (c) and (d) of item two and item three of the serious citation for determination.

Item two consisting of subitems (c) and (d) was set forth in the citation in the following manner:

29 CFR 1910.132(a): Protective equipment was not used when necessary whenever hazards capable of causing injury and impairment were encountered:
***
(c) On March 22, 1983, the operator of Die Cast machine #13 was observed operating the machine and pushing ingots into the furnace next to it and was not wearing a 100% cotton long sleeved shirt or flame retardant protective clothing.

(d) On March 22, 1983, a furnace and pot tender was observed placing ingots on top of the furnaces and adding die lubricants to the pots for Die Cast machines #2 and #10 and was not wearing a 100% cotton long sleeved shirt or flame retardant protective clothing.

The alleged violation of 29 C.F.R. ї 1910.133(a)(1) (item 3) was described as follows:

29 CFR 1910.33(a)(1): Protective face equipment was not required where there was a reasonable probability of injury that could be prevented by such equipment:

(a) Employees operating Die Cast Machines #2, 10, 11, 13, 14 and 15 were wearing their face shields, but did not have them in the down position to cover their faces and necks. This practice did not protect their faces and necks from coming in contact with molten aluminum, while placing ingots into furnaces, transferring molten aluminum and removing hot castings from the Die Cast machines.

During the course of the hearing held on August 10, 1983, the Secretary moved to amend the descriptions of subitems (c) and (d) of item two of the serious citation to delete the reference to a 100 percent cotton long-sleeved shirt and substitute language to indicate that "the clothing should consist of either 100 percent wool clothing or flame retardant clothing suitable for molten aluminum exposure" (Tr. 6). Respondent objected to the amendment for the reason that the 100 percent cotton long-sleeved shirt was required to be worn by employees as a result of a settlement in a previous OSHA case, docket number 79-1698 (Tr. 6-7).

One of the issues in docket 79-1698 involved a repeat violation of 29 C.F.R. ї 1910.132(a) for failure to provide operators of die casting machines with "flame-retardant protective clothing including long-sleeved shirts and/on jackets." The issue was settled with the stipulation that the die cast operators would "wear long sleeve cotton shirts" (Ex. A). The settlement was approved by an order dated December 11, 1979.

The Secretary conceded that the previous settlement was based on the agreement by respondent to have the die cast operators wear long-sleeved cotton shirts; however, he argues that since 1979 new technology has provided new and better clothing and that cotton clothing has been shown to be a hazard for employees exposed to molten aluminum (Tr. 9). According to the Secretary, sometime in 1980, a new flame retardant clothing was designed for molten aluminum exposure (Tr. 9-10). Representatives of the Secretary were unaware of the new clothing at the time of the inspection and closing conference held in this case (Tr. 10, 18-19). Respondent argued that it had no knowledge of any superior fabric and that it was never given any notice by the Secretary that long-sleeved cotton shirts were no longer acceptable under the terms of the settlement concluded in docket number 79-1698 in December, 1979.

The motion to amend subitems (c) and (d) of item two of the serious citation was denied (Tr. 19-23). The respondent was never notified that the terms of settlement were no longer the best way of providing protection for its die cast operators. Carroll concedes that he was not aware of any better method of protection at the time of the inspection and closing conference (Tr. 85). He became aware of a more suitable fabric in late June or early July, 1983, in a discussion with the Secretary's counsel (Tr. 85-86). It would be extremely unfair to respondent to allow the Secretary to abrogate the terms of settlement in docket number 79-1698 after the inspection and then hold them in violation of 29 C.F.R. ї 1910.132(a) at the time of the inspection for having employees wear 100 percent long-sleeved cotton shirts.

At the hearing on August 10, 1983, respondent moved to strike item three of the serious citation, which alleged a violation of 29 C.F.R. ї 1910.133(a)(1) for failure of employees operating certain die cast machines to wear their face shields in a down position. Respondent sought dismissal of item three for the reason that a final order has not been entered by the Commission on the same standard contested in docket number 79-1686. Respondent argued that as a matter of law it could not be found to be in violation of 29 C.F.R. ї 1910.133(a)(1) since it did not have to abate the condition until docket number 79-1686 became a final order of the Commission.

Respondent was determined in serious violation of 29 C.F.R. ї 1910.133(a)(1) in docket number 79-1686 for failure of the operators of certain die casting machines to use their face shields. The judge's decision was issued in docket number 79-1686 on June 2, 1980. The decision affirmed the serious violation of 29 C.F.R. ї 1910.133(a)(1) and a repeat violation of 29 C.F.R. ї 1910.212(a)(1). Respondent filed a timely petition for discretionary review on June 25, 1980, requesting the Commission to review both issues decided by the Judge. On July 1, 1980, Commissioner Bertram Cottine granted the petition in part under 29 U.S.C. ї 661(i) and Commission Rule 92(a), 29 C.F.R. ї 2200.92(a). The direction for review stated that review was directed only as to the judge's affirmance of 29 C.F.R. ї 1910.212(a)(1). The case is still pending before the Commission. The Secretary argued that the judge's decision in docket number 79-1686 as to the violation of 29 C.F.R. ї 1910.133(a)(1) became a final order since direction for review was granted only as to the violation of 29 C.F.R. ї 1910.212(a)(1).

The August 10, 1983, hearing was recessed to afford the parties an opportunity to brief the issue as to whether item three should be dismissed. On September 10, 1983, a written order was issued discussing the issue and dismissing item three of the citation. This left in issue only subitems (c) and (d) of item two of the serious citation alleging a violation of 29 C.F.R. ї 1910.132(a) for failure of certain employees to wear a 100 percent cotton long-sleeved shirt or flame retardant protective clothing. A hearing was held on this issue on September 20, 1983.

ALLEGED VIOLATION OF 29 C.F.R. ї 1910.132(a)
The question presented by this proceeding is primarily factual and narrow in its scope. Under the terms of the settlement agreement in docket number 79-1698, approved by the judge on December 11, 1979, the die cast operators were required to wear long-sleeve cotton shirts. There is no dispute over the fact that the two employees, Donald Jenkins and Steve Haven, were wearing long-sleeved shirts. The dispute focuses on the question of whether the shirts were made of cotton or some type of synthetic material such as polyester. The only evidence presented in the case was the testimony of Frank Carroll, the person who conducted the inspection. Respondent presented no evidence since it concluded that the Secretary had presented insufficient evidence to prove the alleged violations.

Carroll testified that Steven Haven, the operator of die cast machine number 13, was "wearing a synthetic poly-blend type shirt that was opened" (Tr. 30, 31). When asked how he reached his conclusion, he stated (Tr. 31):

A From my observations it looked like a synthetic type shirt. It was wrinkle free and it had a shiny appearance and the cloth that it was made out of was very light. It did not have a work-type shirt look.

Q What do you mean by "work-type shirt look"?

A It did not look like a work uniform that you would generally see in an industrial setting, a heavy cotton or cotton polyester blend type of shirt. It looked like a casual shirt you would see someone wearing during a social occasion.

According to Carroll, Donald Jenkins, the furnace and pot tender assisting the operations of the number two and number ten die cast machines, was also wearing a synthetic or poly-blend type of shirt (Tr. 35-36). This conclusion was based on an assumption that was formed from his observation that the shirt had a wrinkle free look, was shiny in appearance and was made of light material (Tr. 36).

Carroll did not physically examine the shirts being worn by Haven and Jenkins. He did not examine the labels on the shirt, and he did not ask either employee if they were wearing 100 percent cotton or flame-retardant shirts (Tr. 76-77, 82). His conclusions were based solely on his observations of the shirts as he briefly observed the employees in their work routines (Tr. 77, 82).

Carroll indicated that he felt he "could visually observe the difference between a cotton type work shirt and a polyester or poly-blend synthetic type shirt" (Tr. 77). Yet, on cross-examination, he demonstrated a total lack of familiarity with cotton fabrics (Tr. 77-78). He appears to have concluded the shirts were not 100 percent cotton because they "did not look like a work uniform" (Tr. 31) or "work shirt that you commonly see in an industrial environment" (Tr. 82).

The Secretary bears the burden of proving alleged violations in proceedings before the Commission. Rule 73(a), Commission Rules of Procedure; Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D9, 9 BNA OSHC 2126, 1981 CCH OSHD І 25,578 (No. 78-6247, 1981). He must prove the existence of a violation by a preponderance of evidence. Dick Corp., 79 OSHRC 101/E8, 7 BNA OSHC 1951, 1956, 1979 CCH OSHD І 24,078 at p. 29,252 (No. 16193, 1979); Olin Construction v. OSHRC, 525 F.2d 464 (2d Cir. 1975). The term "preponderance of the evidence" has been defined by the Commission as "that quantum of evidence which is sufficient to convince the trier of fact that the facts asserted by a proponent are more probably true than false." Astra Pharmaceutical Products, Inc., supra, 9 BNA OSHC at 2131, n. 17. In Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1465, 1981 CCH OSHD І 25,300 (No. 13102, 1981), the Commission indicated that "the evidence must establish that the existence of the fact the Secretary seeks to prove is more likely than not."

A "preponderance of evidence" should be sufficient to convince as to its truth. The evidence, when considered fairly and impartially, should induce a reasonable belief that the fact in issue is true. In general, there must be more than a balance of probabilities. The evidence as a whole should incline an impartial and reasonable mind to one side rather than the other. Where the evidence is equally balanced or the trier of fact is unable to decide the controversy either way, judgment must be given against the party upon whom the burden of proof rests.

When the evidence is evaluated, it is just as reasonable to conclude that the shirts were 100 percent cotton as it is to conclude that they were made of synthetic material. There is no basis to conclude that one inference should outweigh all contrary inferences. Carroll's conclusions were derived from a brief observation of the two employees. He based his opinion on the fact that the shirts were wrinkle free, had a shiny appearance and did not have a work-type shirt look. Cotton fabrics can vary as to the weight of the material. The fact the shirts may have been light or had a shiny appearance does not per se mean they cannot be made of cotton.

Carroll was questioned about several different types of cotton fabrics and displayed a total lack of familiarity with their characteristics (Tr. 77-78). He was unfamiliar with cotton fabrics known as percale, cottonade, chintz and crinoline (Tr. 77-78). There is no evidence of record that he had any degree of expertise in recognizing and identifying cotton fabrics. His opinion that the shirts were made of a synthetic material must be regarded as nothing more than a guess. The circumstantial evidence offered by the Secretary, i.e., shiny appearance, wrinkle free and lack of a work-type shirt look, is not so conclusive as to exclude a reasonable inference that the shirts were made of cotton.

The Secretary states that the respondent "may not argue that there are no violations in this matter simply because Mr. Carroll did not determine the exact composition of these shirts." It is further pointed out that respondent offered no testimony to refute Carroll's observations and conclusions regarding the type of shirts being worn by Haven and Jenkins. These arguments presume that the Secretary established a prima facie case with the testimony of Carroll. Until or unless the Secretary establishes a prima facie case, these is no necessity for an employer to offer any evidence. A prima facie case meets the Secretary's burden of proceeding, and if no contradictory evidence is presented, it meets the Secretary's burden of proof. In this case a prima facie case has not been established, the Secretary's burden has not been met and these was no necessity for respondent to offer any contrary evidence.

Respondent further argues that the evidence is also insufficient to conclude that the shirts that Haven and Jenkins were wearing were not flame retardant. Carroll acknowledged that he did not know if the shirts worn by Haven and Jenkins would have burned if they had been subjected to a flame (Tr. 79-80, 82). The alleged violations are vacated.

The Secretary proposed a penalty of $700 for the serious violation of 29 C.F.R. ї 1910.132(a). Respondent conceded subitems (a) and (b), but the parties reached no stipulation as to the amount of penalty to be assessed. The two violations resulted from the fact that the operator of die cast machine number 11 and a furnace and pot tender observed at die cast machine number 16 were performing their duties while wearing short-sleeved shirts. The two employees were exposed to burns from molten aluminum.

The Commission is the final arbiter of penalties in all contested cases. Secretary v. Occupational Safety and Health Review Commission and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). Under section 17(j)[[*/]] of the Act, the Commission must find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Company, Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD І 15,032 (No. 4, 1972). In this case, two employees were exposed to possible burns from molten aluminum for the duration of their work shift. A penalty of $350 is assessed for the violations.

FINDINGS OF FACT

1. Industrial Hygienist Frank Carroll commenced an inspection of respondent's plant on March 21, 1983 (Tr. 14).

2. On March 22, 1983, Carroll commenced his inspection in the die cast machine area of respondent's plant (Tr. 21).

3. The operator of die cast machine number 13, Steve Haven, and the furnace tender and pot boy, Donald Jenkins, assisting the operators of die cast machine numbers 2 and 10, were wearing light long-sleeved shirts (Tr. 23, 31, 34, 35-36, 75).

4. The shirt being worn by Steve Haven had a shiny appearance and was wrinkle free (Tr. 31). The shirt had a casual look as opposed to a work uniform look (Tr. 31).

5. The shirt being worn by Donald Jenkins had a wrinkle-free look and was shiny in appearance. It had a light look and did not appear like a work shirt. The look resembled that of a casual shirt (Tr. 36-37, 82).

6. Carroll did not examine the shirts worn by Haven and Jenkins. He visually observed the shirts (Tr. 76, 77).

7. Carroll was unaware of whether the shirts worn by Haven and Jenkins were flame retardant. He assumed the shirts were made of some synthetic material and would burn (Tr. 79-80).

8. Carroll was unaware of the exact material composition of the shirts worn by Haven and Jenkins (Tr. 80-81).

9. Carroll was not familiar with the characteristics of cotton fabrics known as percale, cottonade, chintz, and crinoline (Tr. 77-78).

10. Employees working around the die cast machines are exposed to the possibility of molten aluminum coming in contact with their clothing and skin (Tr. 31-32, 33, 36). The molten aluminum contained in the furnaces is at least 1200 degrees Fahrenheit (Tr. 27).

11. Respondent has in the past had employees in the die cast department burned by molten aluminum (Ex. 2; Tr. 33-34, 40-41, 42, 43, 44-45).

CONCLUSIONS OF LAW

1. Respondent, at all times material hereto, was engaged in a business affecting commerce within the meaning of the Act.

2. Respondent, at all times material hereto, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and the subject matter herein.

3. On March 22, 1983, Steve Haven, operator of die cast machine number 13, and Donald Jenkins, the furnace tender and pot boy assisting the operators of die cast machines number 2 and 10, were wearing light long-sleeved shirts that had a wrinkle free and shiny appearance.

4. The evidence is insufficient to establish a prima facie case that the shirts worn by Haven and Jenkins were not 100 percent cotton.

5. Subsections (c) and (d) of item two, alleging a violation of 29 C.F.R. ї 1910.132(a), of the serious citation issued to respondent on April 1, 1983, are vacated.

ORDER

Based upon the settlement stipulation of the parties, the findings of fact and conclusions of law for the issues in dispute, it is
ORDERED:

1. That respondent's motion to withdraw its notice of contest to items 1a and 1b of the serious citation and to item one of the "other" citation, both of which were issued on April 1, 1983, is granted pursuant to the terms of the agreement reached between the parties (Tr. 4-5, August 10, 1983, hearing);

2. That items 1a and 1b of the serious citation are affirmed and a penalty of $250 assessed for the violations (Tr. 4);

3. That item one of the "other" citation is affirmed and no penalty assessed for the violation;

4. That respondent's motion to withdraw its notice of contest to subitems (a) and (b) of item two of the serious citation is granted;

5. That subitems (a) and (b) of item two of the serious citation are affirmed and a penalty of $350 assessed for the violations;

6. That subitems (c) and (d) of item two of the serious citation are vacated; and

7. That item three of the serious citation and the penalty proposed for the alleged violation are vacated in accordance with the order issued on September 7, 1983.

Dated this 21st day of February, 1984.

JAMES D. BURROUGHS
Judge

FOOTNOTES:

[[1]] Section 1910.133(a)(1) states:

Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

[[2]] Section 1910.212(a)(1) states:

One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, in-going nip points, rotating parts, flying chips and sparks. Examples of guarding methods are--barrier guards, two-hand tripping devices, electronic safety devices, etc.

[[3]] We note that the Sixth Circuit evidently rejected this line of argument in Hamilton I, No. 84-3664 (6th Cir. Jan. 24, 1986). After the Commission vacated the citation item concerning section 1910.212(a)(1) in Hamilton I, Hamilton petitioned the Sixth Circuit for review of the remaining section 1910.133(a)(1) face protection item. Hamilton had awaited the Commission's decision on the directed machine guarding item before seeking appellate review of the face protection item. The Secretary moved to dismiss the petition for review of this latter item. He contended that since it had not been directed for review by the Commission, the item had become final; therefore, Hamilton's appeal to the Sixth Circuit was untimely because it had not been filed within sixty days of the date the judge's disposition of the item had allegedly become a final order. See 29 U.S.C. ї 660(a). The Sixth Circuit summarily denied the motion.

[[4]] See Schiavone Construction Co., 84 OSAHRC ___, 12 BNA OSHC 1105, 1110 n.8. 1985 CCH OSHD І 27,145, p. 35,041 n.8 (No. 80-914, 1984)(view of Chairman Buckley), and Curt Bullock Builders, Inc., 85 OSAHRC ___,12 BNA OSHC 1283, 1285 n.5, 1985 CCH OSHD І 27,238, p. 35,166 n.5 (No. 82-65, 1985) (view of Chairman Buckley). Cf. Dun-Par Engineered Form Co., 84 OSAHRC ___, 11 BNA OSHC 1912, 1913-14, 1984 CCH OSHD І 26,883, p. 34,432-33 (No. 79-2553, 1984)(Rowland, Chairman, dissenting)(although direction limited review to consideration of judge's penalty assessment, Commission has authority to consider underlying question of whether a violation was proven); Accu-Namics, Inc. v. OSHRC, 515 F.2d 828, 834 (5th Cir. 1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492 (1976) ("although the Commission invited submission on two questions, this cannot be construed as a limitation on its review power").

[[5]] Cases that have proceeded on the assumption that undirected items are final, enforceable orders have engendered considerable confusion for parties before the Commission as well as for appellate courts. For example, in Gates & Fox, Docket No. 78-2831, the employer's petition for review was granted. Some, but not all, of the items decided by the judge were specified in the February, 1980 direction for review. In April, 1980, Gates petitioned the D.C. Circuit for review of those items that were not specified in the Commission's direction for review. It also sought court review of a companion case, Docket No. 78-2830, an unreviewed judge's decision which had become a Commission final order in its entirety. On July 30, 1980, the Commission, in passing on a motion by Gates to stay payment of the penalty in Docket No. 78-2831, ruled that it lacked jurisdiction over the case because the Commission had certified the record to the court of appeals on June 6, 1980. About two weeks earlier, unbeknownst to the Commission, the court of appeals, in an order that was not received by this agency, stayed proceedings before it in Commission Docket Nos. 78-2830 and 78-2831 "pending completion of administrative review before the Commission in its Docket No. 78-2831." After learning of the D.C. Circuit's stay order, the Commission issued another order in which it retained jurisdiction so that the items on review could be decided. The Commission decision on this item subsequently was rendered and appealed to the D.C. Circuit by the employer in December, 1984. Thus, in addition to the December, 1984 appeal, the two previously stayed appeals that were docketed in 1980 now are pending before the D.C. Circuit.

[[6]] Simplex Time Recorder Co., 83 OSAHRC ___, 11 BNA OSHC 1758 (Nos. 82-12 & 82-301, 1983)(severance order and judge's decision), aff'd, 766 F.2d 575 (D.C. Cir. 1985), and Cardinal Operating Co., 83 OSAHRC 41/A2, 11 BNA OSHC 1675, 1983 CCH OSHD І 26,652 (No. 80-1500, 1983), do not suggest a contrary view. In Simplex, a consolidated case, the Commission issued an order of severance in which it severed all items in the case that were not specifically directed for review and stated that the severed items were "deemed" final orders. Simplex does not provide that undirected items automatically become final. If the items not specified in the Simplex direction for review became final "by operation of law," a severance order would have been unnecessary. In any event, Simplex did not consider the effect of Fed.R.Civ.P. 54(b), which we view as governing this situation. In Cardinal Operating, the Commission stated only that "[t]he issues involved in Cardinal's petition [which was denied in its entirety by the Commission] have been appealed separately to the Sixth Circuit Court of Appeals." The Commission did not comment on the propriety of the employer's appeal.

We acknowledge that in a footnote in Capaldi Brothers Corp., 77 OSAHRC 193/B13, 5 BNA OSHC 2066, 2067 n.3, 1977-78 CCH OSHD І 22,291, p. 26,844 n.3 (No. 14817, 1977), the Commission stated that the judge's disposition of a citation item that was not included in the direction for review "is the final order of the Commission." We also note that RSR Corp. v. Donovan, 733 F.2d 1142 (5th Cir. 1984), could be read to support Capaldi. However, the RSR court did not discuss section 12(j) of the Act, and neither the parties, the court, nor the Commission in RSR and Capaldi considered the effect of Fed.R.Civ.P. 54(b). In light of our discussion here and the federal rule, we overrule Capaldi to the extent that is inconsistent with this decision.

[[7]] Section 10(a) states:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

(Emphasis added by Secretary.)

[[8]] See also Supplemental Briefing Order dated October 17, 1985, in L.E. Myers Co., 12 BNA OSHC 1609, 1986 CCH OSHD І 27,476 (No. 82-1137, 1986); Supplemental Briefing Order dated October 3, 1985 in Nu-Way Mobile Home Manufacturing, Inc., 12 BNA OSHC 1670, 1986 CCH OSHD І 27,489 (No. 80-7082, 1986); Supplemental Briefing Order dated February 13, 1984, in City Oil Well Service Co., 12 BNA OSHC 1249, 1985 CCH OSHD І 27,229 (No. 81-1797, 1985), appeal filed, No. 85-4376 (5th Cir. June 4, 1985).

[[*/]] Section 17(j) of the Act states:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.