NATIONAL STEEL & SHIPBUILDING CO.

OSHRC Docket Nos. 11011; 11769

Occupational Safety and Health Review Commission

June 9, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

John M. Orban, Associate Regional Solicitor

W. J. Lindgren, Kaiser Industries and Bruce E. Allen, Industrial Relations, NATONAL STEEL & SHIPBUILDING CO., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner.

A June 23, 1975 decision of Administrative Law Judge James A. Cronin is before this Commission for review pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970. n1 This consolidated proceeding involves three citations issued to Respondent (National) during two separate inspections of its worksites. The citations charge National with violating several of the Secretary's maritime safety standards. Judge Cronin found that National did not repeatedly violate 29 C.F.R. 1916.51(a). He did, however, affirm a nonserious violation of this standard. Judge Cronin also affirmed a willful violation of 29 C.F.R. 1916.41(i)(1), and he vacated a nonserious violation of 29 C.F.R. 1916.24(a)(1)(iii).

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n1 29 U.S.C. 651 et seq., hereinafter "the Act."

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The issues on review are whether the judge erred in (1) concluding that National did not repeatedly violate the housekeeping standard at 29 C.F.R. 1916.51(a); (2) holding that the Company willfully violated the scaffolding guardrail standard at 29 C.F.R. 1916.41(i)(1); and (3) vacating that portion of the citation alleging a violation of 29 C.F.R. 1916.24(a)(1)(iii) instead of amending the citation and complaint to conform to the evidence to find a violation of 29 C.F.R. 1916.82(e). For the following reasons we affirm the judge's decision regarding the repeated and willful issues. We also conclude that Judge Cronin acted properly in vacating the citation for violation of 1916.24(a)(1)(iii). However, we find that the pleadings concerning this standard should be amended to conform to the evidence, and a nonserious violation of 1916.82(e) should be found.

I. THE ALLEGED REPEATED VIOLATION OF 29 C.F.R. 1916.51(a) n2

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n2 The standard at 29 C.F.R. 1916.51(a) provides in pertinent part:

Good housekeeping conditions shall be maintained at all times. Adequate aisles and passageways shall be maintained in all work areas. All staging platforms, ramps, stairways, walkways, aisles, and passageways on vessels or drydocks shall be kept clear of all tools, materials, and equipment except that which is in use, and all debris . . .

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National, a Nevada corporation, is engaged in shipbuilding and ship repair. On October 10, 1974 and December 12, 1974, a compliance officer from the Occupational Safety and Health Administration inspected its San Diego shipyard. During the December 12 inspection, the compliance officer observed that the passageway giving access to the deck of the vessel Chelsea was cluttered with hoses, cords, vents, planks, and other such materials. National admits that these conditions constituted a violation of the housekeeping standard at 1916.51(a).

During the twelve months preceding the December inspection, the company received four citations alleging violations of 1916.51(a). None of these citations involved the Chelsea; however, all of them occurred at the company's San Diego shipyard. Although the second and fourth housekeeping violations were designated as repeated, none of the prior citations were contested. On these facts the Secretary issued a citation to National charging it with a repeated violation of 1916.51(a). A $750 penalty was proposed for the alleged violation.

Judge Cronin vacated [*4] the citation insofar as it alleged a repeated violation of 1916.51(a). Relying on the early case of General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD para. 19,567 (No. 2739, 1975), rev'd on other grounds, 540 F.2d 67 (2nd Cir. 1976), he found that National did not violate the standard "in a manner which flaunts the requirements of the Act . . ." Therefore, the judge concluded that the company did not repeatedly violate the housekeeping, requirements of 1916.51(a). He did, however, affirm a nonserious violation of the standard. Based on National's large size, the low gravity of the violation, and National's history of four prior violations of the same standard, he assessed a penalty of $150.

The Commission concludes that the judge's penalty assessment is appropriate for the reasons he assigned. Since that assessment is within the limits permitted for a violation which is not repeated, n3 we need not address the question of whether the violation should be properly classified as repeated. See Penn Central Transportation Co., 77 OSAHRC 15/F4, 4 BNA OSHC 2033, 1976-77 CCH OSHD para. 21,540 (No. 13084, 1977). Accordingly, we will affirm the judge's [*5] disposition of this charge.

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n3 A penalty of up to $10,000 may be assessed for a repeated violation of 29 U.S.C. 666(a). For a serious or nonserious violation which is not repeated, a penalty of up to $1,000 may be assessed. 29 U.S.C. 666(b) and (c).

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II. THE ALLEGED WILLFUL VIOLATION OF 29 C.F.R. 1916.41(i)(1) n4

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n4 The standard at 29 C.F.R. 1916.41(i)(1) provides:

Scaffolding, staging, runways, or working platforms which are supported or suspended more than 5 feet above a solid surface, or at any distance above the water, shall be provided with a railing which has a top rail whose upper surface is from 42 to 45 inches above the upper surface of the staging, platform, or runway and a midrail located halfway between the upper rail and the staging, platform, or runway.

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On October 10, 1974, the same compliance officer inspected the vessel Golden [*6] Endeavor. During this inspection, he observed a painter performing touch-up work from a scaffold on the inside of the ship's No. 4 port wing tank. The overall dimensions of this tank were 160 feet long by 60 feet wide by 60 feet high. Located 45 feet above the bottom of the tank, the scaffold level on which the painter was working consisted of 2 planks, each 2 inches by 12 inches. Although the innermost plank rested against the bulkhead of the tank, no protective railings were attached to the outermost one. Moreover, the painter was required to lean out from the open side of the scaffold in order to reach the area to be painted with his 9 foot paint extension pole. On these facts National received a citation alleging that it willfully violated the guardrail requirements of 1916.41(i)(1). A $5,000 penalty was proposed by the Secretary of Labor.

At the time of the inspection, a crew of National's employees was in the process of dismantling the scaffold. Levels of scaffolding were partially installed on the pieces that form the sides of the tank prior to its erection. Each level normally consisted of three planks which had both toprails and midrails on the open sides. Except [*7] for any necessary touching up, all painting of the tank's subassemblies was completed prior to its erection. Upon completion of the tank, the levels of the scaffolding were dismantled from top to bottom. Since the toprail and midrail were attached to the outermost plank of the scaffold, they were removed first. Then the three scaffold planks were extracted, beginning with the outermost one. Upon removal of the planks, a number of paint "holidays" or flaws were discovered in the overall painting of the tank. Because they were covered by the planks and/or the rails, these spots were missed in the original painting. When he was observed by the compliance officer, a painter was engaged in covering these holidays. He was working from a partially dismantled scaffold, but he was not protected by either guardrails or a tied off safety belt. The company's supervisory personnel admitted knowledge of this condition. They also conceded knowledge of the requirements of the scaffold railing standard at 1916.41(i)(1). However, the paint supervisor in charge of the erection and dismantling process stated that he did not believe these requirements were applicable during the dismantling procedure. [*8]

Judge Cronin agreed that if only dismantling were going on, no guardrails would be required under 1916.41(i)(1). However, the added that "other work activity from the same scaffold may be simultaneously performed only by conforming with all scaffolding requirements or by eliminating the dangers created by their absence." In its determination to meet the demands of a busy production schedule, the judge found that National allowed an employee to paint on an unguarded scaffold in violation of the standard.

The judge also concluded that National's failure to provide fall protection for its pairter "was inexcusable and constitutes a deliberate flaunting of the Act." He stated that the company viewed its "responsibility to comply with the Act's scaffolding requirements as secondary; something to be consciously ignored or disregarded." Therefore, Judge Cronin affirmed the citation for willful violation of 1916.41(i)(1). However, because the company had no prior record of willful violations, and because only one employee was briefly exposed to the hazardous condition, he reduced the proposed penalty from $5,000 to $2,000.

On review, National raises its argument made before the Administrative [*9] Law Judge that no violation of 1916.41(i)(1) is committed during a dismantling operation. We reject this argument. Section 1916.41(i)(1) requires guardrails on all scaffolds used as working platforms and provides no exception with respect to the type of work being performed. Indeed the hazard to employees is the same regardless of whether the scaffold is permanent or in the process of being altered. Of course at some point in the dismantling operation the guardrails would to be removed but compliance with the standard would continue to be required until the operation reaches that point where a defense, such as impossibility of compliance, could be established. In any event, the exposed employee was not engaged in the dismantling operation but was using the scaffold here as a working platform to paint. Since this use was unrelated to the task of actually dismantling the scaffold, there is no basis to conclude that the painter's activity was exempt from the standard at 1916.41(i)(1) because of any defense based upon dismantling operations.

National's primary defense is that its employees will be exposed to a greater hazard by a requirement that painters touching up holidays be [*10] protected by scaffold railings. The Assistant Safety Supervisor for National conceded that touch up work could have been accomplished with guardrails in place. However, as the scaffold is presently constructed, the railings are attached to the outermost plank which is removed first during dismantling. In order to cover the holidays and comply with the standard at the same time, the railings and outermost plank would have to be removed in order to uncover the spots. Then, the railings would have to be reconstructed at a slightly different position to allow the painter to proceed with his work protected by standard railings. National argues that this procedure would cause additional danger to the dismantling crew by exposing employees who must re-erect the guardrails to additional falling hazards. It asserts that this danger "would not appear to be necessary in light of the minimal amount of work which is to be performed."

The scope of a greater hazards defense is narrow. It is not enough that literal compliance with the terms of the standard would create a new hazard. In order to defend against an allegation of a 1916.41(i)(1) violation, National must show that the hazards [*11] of compliance with that standard are greater than those incurred by noncompliance, that alternative means of protecting employees are unavailable, and that a variance application under Section 6(d) of the Act would be inappropriate. See Russ Kaller, Inc. t/a Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).

National has not established this defense since it has not proved the elements of a greater hazard defense listed above. Assuming that National's assertion that additional employees will be exposed if it is required to re-erect the guardrails is a proper consideration of a greater hazard defense, National has not established that alternative means of protecting these employees are unavailable. Nor has National presented definitive evidence with respect to how many more employees will be exposed, or the length of their exposure versus the length of the painter's exposure. Therefore, the evidence is insufficient to evaluate National's assertion of a greater hazards defense. Moreover, National has not established that the painter himself could not be protected by other means which would remove the necessity of re-erecting [*12] the guardrails. Indeed a review of the record indicates that Judge Cronin properly found that the painter could have worn a safety belt tied off to welded eyes in the bulkhead or to the brackets on the bulkhead for protection from a fall. Although in its brief on review, National raises several objections to the feasibility of using safety belts, its assertions of infeasibility are unsupported by the record and, at best, are speculative. Therefore, we reject National's "greater hazard" defense.

Finally, National argues that even if it did violate the guardrail requirements of 1916.41(i)(1), it did not commit a willful violation of the standard. The company contends that its decision not to use rails was the result of a good faith difference of opinion as to whether or not the cited standard applied during dismantling. National relies on C.N. Flagg & Co., Inc., dba Northeastern Contracting Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD para. 19,251 (No. 1409, 1975) for the proposition that a willful violation cannot be found if the employer has a good faith belief that its conduct conformed to the regulatory requirements.

We conclude that National's violation is [*13] properly classified as willful. National had actual knowledge that the cited standard required guardrails on scaffolds used by employees; nevertheless, it allowed its painter to work from a scaffold unequipped with guardrails. Although National claims that it had a good faith belief that the standard did not apply, this does not alter our conclusion that the violation is willful. Clearly where the standard unambiguously forecloses an employer from deciding that guardrails on a scaffold are unnecessary, such conduct, at the least, constitutes careless disregard of the standard and is therefore properly denominated willful. Western Waterproofing Co., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977), aff'd on this ground, No. 77-1324 (8th Cir. May 9, 1978); F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974). Moreover, the record establishes that National did not act in good faith since the record established it allowed its painter to work from the noncompliant scaffold for practical reasons rather than a serious belief that the standard did not apply. In any event, even assuming National's actions were done in good faith, [*14] that fact can be taken into account in assessing an appropriate penalty; however, it does not affect the classification of the violation as willful. Cf Dic-Underhill, A Joint Venture, 77 OSAHRC 77/46/A2, 5 BNA OSHC 1271, 1977-78 CCH, OSHD para. 21,721 (No. 9562, 1977).

C.N. Flagg and Co., supra, does not require a different result. In that case, the employer and the Secretary had a good faith difference of opinion as to the nature of the soil in which the employer had dug a trench. Thus, in that case a critical fact was in dispute; if the employer's belief in the fact had been correct, the standard under which it was cited would not have been applicable. Here, however, the facts are undisputed and the applicability of the standard is patent.

In assessing a penalty, the Judge properly considered the factors listed in section 17(j) of the Act, and we conclude that his assessment is appropriate.

III. ALLEGED NONSERIOUS VIOLATION OF 29 CFR 1916.24(a)(1)(iii) n5

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n5 The standard at 29 C.F.R. 1916.24(a)(1)(iii) provides;

In large and well ventilated areas, employees exposed to such spraying shall be protected by respirators in accordance with the requirements of 1910.82(a) and (e).

[*15]

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During the course of his October 10, 1974 inspection of the Golden Endeavor, the compliance officer observed an employee spray painting the king post located in the open deck area on the port side of the vessel. The employee was using a standard white marine finish paint, mixed with the flammable and toxic solvent ketone, otherwise known as hexone. He was not wearing any respiratory equipment. The compliance officer watched the painter for one or two minutes. He observed a spray paint mist "approximately three feet" from the employee's face. The mist was not heavy, and it travelled in a west to southwest direction away from the painter's face. The Assistant Safety Supervisor testified that the painting department has a rule requiring that employees wear respirators while spray painting. However, he admitted that when painters believe from experience that they have "enough open space, enough open air, then they sometimes paint without respirators."

On these facts National received a nonserious citation alleging that it failed to comply with 1916.24(a)(1)(iii). A $50 penalty was proposed for [*16] the alleged violation. Judge Cronin held that the standard did not apply, and he vacated the citation concluding that 1916.24(a)(1)(iii) was not intended to apply to a spray painting operation conducted in the open air.

On review, the Secretary agrees with Judge Cronin that 1916.24(a)(1)(iii) does not apply to open air spray painting operations. However, he argues that the judge should have amended the pleadings to allege a violation of 1916.82(e). n6 The Administrative Law Judge himself stated that "the provisions of 1916.82 et seq., particularly 1916.82(e) clearly are applicable and afford ample protection to employees exposed to unsafe, exterior spray painting conditions."

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n6 The standards grouped under 29 C.F.R. 1916.82(e) provide:

(e) Protection against combinations of gaseous and particulate contaminants not immediately dangerous to life.

(1) When employees are exposed to combinations of gaseous and particulate contaminants not immediately dangerous to life, as in spray painting, they shall be protected by respiratory protective equipment approved for use in the type and concentrations of the contaminants, as follows:

(i) In high or unknown concentrations, a hose mask or an air line respirator. The use of either a hose mask or an air line respirator is permissible in lower concentrations.

(ii) In concentrations of gaseous contaminants of less than 2 percent by volume, a canister type gas mask with a combination canister approved for the particular type of gaseous contaminant as specified in paragraph (c)(2) of this section and a filter for the particular type of particulate contaminant as specified in paragraph (d)(1) of this section.

(iii) In low concentrations of gaseous contaminants (less than 0.1 percent by volume) a respirator equipped with the type of cartridge and filter as specified in subdivision (ii) of this subparagraph.

[*17]

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We agree with the Secretary. Therefore, we grant his motion to amend the pleadings under Rule 15(b) of the Federal Rules of Civil Procedure to allege a violation of 1916.82(e). n7 In Warnel Corporation, 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976), the Commission held that a "Rule 15(b) amendment is proper where all issues relevant to the amended theory, including issues of defense, have been tried."

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n7 Rule 15(b) of the Federal Rules of Civil Procedure provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues . . .

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In this case, the same facts that were tried of a violation of 1916.24(a)(1)(iii) are relevant to a violation of 1916.82(e). Both identify the same hazard to be covered -- spray painting. Both require the same measure for abatement -- a respirator. National does not allege that there are additional defenses that it could have raised to a 1916.82(e) charge that it did not present under the 1916.24(a)(1)(iii) allegation. Therefore, the pleadings shall be amended to conform to the evidence, and we shall consider whether the record establishes that National violated 1916.82(e).

National contends it did not violate 1916.82(e) because the Secretary failed to prove that the painter was actually breathing in the contaminated air. On the other hand, the Secretary contends that employees are exposed within the meaning of 1916.82(e) when they are shown to be near enough to the toxic spray to be able to inhale some of it.

We agree with the Secretary. When an employee is spray painting, it is reasonable to expect that he will breathe in some paint fumes. The standard at 1916.82(e) is intended to protect against any such ingestion, for it requires some type of respirator [*19] regardless of how low the concentration of paint fumes is in the air. Since the painter was not using any type of respirator and paint fumes were present in the air nearby, a violation of the standard occurred.

National did, however, provide respirators for all of its spray painters. It also had a workrule requiring the use of these respirators by all such employees. Only one painter was briefly exposed to the hazard. Therefore, because of the good faith of the company, we shall assess no penalty for the violation of 1916.82(e).

Accordingly, we affirm the judge's decision regarding the nonserious violation of 29 C.F.R. 1916.51(a) and the willful violation of 29 C.F.R. 1916.41(i)(1). Concerning the alleged 29 C.F.R. 1916.24(a)(1)(iii) violation, we amend the pleadings to conform to the evidence and find a nonserious violation of 29 C.F.R. 1916.82(e). We assess no penalty for this violation.

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set [*20] out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that [*21] official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930), cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. 661(a), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d [*22] 53 (D.C. Cir. 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily requied if a party requested it. 348 F.2d 798, 802 n. 14.

[*23]

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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also LaPeyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without [*24] question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S. Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that [*25] a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more [*26] uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. The full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.