GENERAL DYNAMICS CORPORATION, QUINCY SHIPBUILDING DIVISION

OSHRC Docket No. 12212

Occupational Safety and Health Review Commission

June 19, 1978

[*1]

Before CLEARY, Chairman; BARNAKO, * Commissioner.

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Paul V. Lyons, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issue in this case is whether the Quincy Shipbuilding Division violated the Act's general duty clause n1 by failing to provide adequate safety instructions on the procedure for supporting vertically-standing steel plates. Judge Ben D. Worcester vacated the serious citation and proposed $800 penalty. We reverse.

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n1 Section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., states that each employer:

shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

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The Quincy Shipbuilding Division, located in Quincy, Massachusetts, [*2] is a subsidiary of General Dynamics Corporation. In its No. 1 Fabrication Ship Quincy forms steel plates into subassemblies for ships. The primary work consists of welding web frames to bulkhead panels.

On December 20, 1974, a fatal accident occurred in an area of Quincy's facility known as the "A" platform. At the time of the accident a 43' by 26 1/2' steel plate called a bulkhead rested on the A platform. Running the length of the bulkhead were nine raised rails known as longitudinals. The web frames used in the makeup of the subassembly were flat steel plates that measured 26 1/2' long, 6 1/2' wide, 5/8" thick, and weighed 3,500 pounds.

A number of web frames were lowered onto the bulkhead by overhead cranes. The web frames were positioned across the width of the bulkhead and mounted perpendicular to it, so that each web frame stood 6 1/2 feet high. Each web frame had slots along the base in order that the longitudinals could pass through when the frame rested vertically on the bulkhead. Each web frame also had a series of perpendicular, protruding members on one side called stiffeners.

In order to prevent the web frames from toppling over before they are securely welded [*3] to the bulkhead, they are supported by pairs of supporting devices known as monuments. Each monument weighs 80 pounds, and is placed flush against one side of a web frame and bolted to a longitudinal.

A shipfitter first "tack welds" to the bulkhead the base of the web frame on the side without stiffeners. These tack welds are temporary welds consisting of a series of welds one inch long and several inches apart. This procedure causes the web frame to lean slightly to the side which has been tack welded. The shipfitter then plumbs the web frame upright and proceeds to tack weld the stiffeners on the other side of the web frame to the longitudinals. This side may then be tack welded to the web frame. Later, the web frame is permanently welded to the bulkhead.

On the day of the accident the first shift had not completed work on a particular bulkhead when the second shift commenced work at 3:30 P.M. Paul Grant, the second shift foreman, assigned two beginner ship-fitters, Robert Coutts and Robert LeVangie, to work on web frames #76 and #76 1/2 respectively on the bulkhead. Four monuments were originally in place on web frame #76, one on each side of the two end longitudinals. [*4] However, from where he was standing at the time he assigned the work, Grant could see only three of the four monuments in place on web frame #76. Sometime shortly after Grant left the two men, three of the monuments were removed from web frame #76. n2

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n2 Judge Worcester found that Edwin Sullivan, an experienced shipfitter, removed these three monuments. Sullivan was not called by either party to testify, and in their review briefs both parties continue to dispute the issue of who removed the monuments. Quincy's position is that the record supports a finding that Sullivan removed the monuments while the Secretary argues that such a finding is not supported by the record as a whole. In view of our finding that Quincy's safety training with respect to the use of monuments was inadequate, we need not resolve the question of who removed the monuments.

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The first shift had already tack welded web frame #76 on the side opposite the stiffeners. Coutts began the work of tack welding the stiffeners to the longitudinals. [*5] As frequently happened, several of the longitudinals did not match up with the corresponding stiffeners. Coutts spoke with Grant concerning the proper method of moving the longitudinals. Coutts then obtained a hydraulic jack called a power pack to align the longitudinals with the corresponding stiffeners.

The remaining monument was bolted to one of the unmatched longitudinals. In order to weld this longitudinal to the appropriate stiffener, Coutts upbolted the monument and moved it away from the web frame in order to reposition the longitudinal and tack weld the corresponding stiffener. At approximately 4:45 P.M., Coutts was using the power pack to push on one of the longitudinals when web frame #76 fell upon and killed LeVangie.

At the time of the accident Coutts was 18 years old and had been in the employ of Quincy for three months. He spent his first week on the job attending tack welding school. Next he was assigned to perform web frame erection in the fabrication shop under a foreman named Phillip Pitts. A week later, Grant became foreman of the A platform and both Coutts and Le Vangie worked for him. Grant assigned Coutts to work with second class shipfitter Vinnie [*6] Raia who spoke little English. Approximately one week before the accident Coutts was assigned to work alone on web frame erection.

Coutts testified that he did not notice if monuments were in place on web frame #76 on the day of the accident. He stated that he had received neither instructions on the use and placement of monuments nor on the proper time to remove them. He also stated that Pitts had not trained him in the use of monuments, nor had anyone told him to leave monuments in place until the web frame was securely welded to the bulkhead. He further testified that he was never told when a web frame could be considered securely welded.

Coutts was also unaware that a web frame could topple if the monuments were not in place. He testified that he felt tack welding on one side was sufficient to hold the web frame in place without monuments, that he had done so previously, and that he had observed other employees working on web frames without monuments and before the stiffeners were also tack welded.

The union steward, Stanley Short, a shipfitter for 35 years, testified that monuments had only been in use for several months before the accident, and previously another method [*7] of supporting web frames had been used. He also testified that before the accident he had not received any instructions in the use of monuments. In Short's opinion, it was safe to remove monuments only after both sides of the web frame and the stiffeners were tack welded because tack welds often broke.

Donald Mahar and Michael Murphy, both Quincy employees and former shipfitters, also testified that they were never told when it was safe to remove monuments. Mahar stated that he had removed monuments without checking the status of the welds. Later, he testified that before he worked on a web frame the first thing he would do is check to see if the monuments were in place.

Murphy testified that he was told when and how to put monuments on but not when to remove them. He stated that he and others had worked on web frames which were neither completely tack welded nor with the necessary monuments in place. However, he could not recall specific instances when they worked on web frames under these conditions. Finally, Murphy testified that he had never attended any safety meetings prior to the day of the fatal accident.

OSHA's area director, John Fiatarone, faulted Quincy for failing [*8] to maintain a formal, written program on the subject of web frame erection and support. He felt that an adequate program should include definite instructions that employees were to ensure that a web frame was adequately secured before working on it. He recommended further that employees be instructed to keep monuments in place until the web frame is properly welded or the supervisor authorizes their removal.

Wesley Holbrook, the compliance officer who inspected the worksite, thought that Quincy's safety program was inadequate because both Sullivan and Coutts were not adequately trained, and the proper procedure for using monuments was not written or well known.

Quincy's safety director, Paul Sousa, testified that all new employees received a half hour long safety orientation. He stated that as part of their duties foremen were supposed to hold weekly safety meetings with their men. n3 Sousa also pointed out that Quincy's new employee handbook and safety manual contained safety instructions and rules for shipfitters. However, neither contained any rules regarding the proper procedure for the securing of web frames, and Sousa admitted that prior to the accident Quincy had no written [*9] rule pertaining to the removal of monuments. Sousa also admitted that before the accident he had not conducted, nor had Grant, Coutts, or LeVangie attended, any safety meeting on the proper procedure for monument removal.

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n3 Richard Piccuito, a shop steward and chairman of the union safety committee, testified that only about 40% of the foremen gave weekly safety talks.

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Grant testified that as foreman on the A platform he constantly checked the work under his supervision for safety and had never noticed anyone working on an inadequately secured web frame. Grant stated that prior to the day of the accident it was not common practice for an employee needing monuments to take ones that were already in use. Finally, Grant acknowledged that before the accident an employee was not required to obtain a foreman's permission before removing a monument.

Coutts' first foreman in the fabrication shop, Phillip Pitts, testified that he instructed Coutts in the proper erection of web frames and use of monuments. He stated that [*10] he told Coutts not to remove monuments until the stiffeners and the opposite side of the web frame were tack welded.

Judge Worcester ruled that the Secretary had the burden of proving Quincy could have prevented the hazardous conduct of Sullivan and Coutts. The Judge found it was not foreseeable that an experienced employee like Sullivan would remove the monuments, and that the Secretary failed to establish that Quincy provided inadequate supervision.

As for Coutts, Judge Worcester found that he had gone through an orientation program, worked under an experienced shipfitter, knew the work procedure, and had shown that he was a capable employee. The Judge found, therefore, that there was no basis upon which to find Coutts was inadequately trained or supervised. He held that it was not foreseeable that Coutts would fail to make certain that the web frame upon which he was working was securely fastened to the longitudinals and stiffeners.

On review the Secretary argues that Quincy failed to take reasonable precautions which were available to eliminate or prevent the creation of the hazard of an inadequately supported standing web frame. He contends that if Quincy, at the time [*11] it began using monuments, had clearly instructed its employees that it was dangerous to remove monuments from a web before the stiffeners were tack welded and had assured that all new employees understood this before being allowed to work alone on web frame erection, the hazard could have been prevented. The Secretary also argues that a rule prohibiting employees from removing monuments without supervisor approval could have prevented the accident. He contends that Quincy's failure to inform its employees of the danger is evident from Coutts' lack of knowledge that a web frame tack welded on only one side might fall, from the fact that Coutts observed other employees prematurely removing monuments, and, assuming he removed them, from Sullivan's misinformation as to when it was safe to remove the monuments.

Quincy first argues that an isolated incident of employee misconduct created the hazard and caused the resulting accident. It contends specifically that the unprecedented and unforeseeable actions of Sullivan, an experienced employee, caused the accident, that this was the first such accident of this type at the shipyard, and that it had instructed its employees not to remove [*12] monuments until tack welding was completed. Based on these contentions, Quincy argues that it never knew or could have been expected to know of the hazard until after the accident, particularly since no similar accident had ever occurred.

Quincy next argues that the Judge's finding that its safety training and supervision were adequate should not be disturbed on review, citing Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976). In this regard, Quincy asserts that Sullivan was an experienced and safe worker who was adequately supervised on the day of the accident, but who nevertheless violated a well-established policy by removing the monuments.

Regarding Coutts, Quincy argues that his training and supervision is irrelevant since he did not remove the monuments, but in any event he was adequately trained and supervised. In support of this contention Quincy states that its supervisors conducted weekly safety meetings and, based on Pitts' testimony, maintains that its employees were instructed in the use of monuments. Further, Quincy notes that Coutts was adequately supervised by Grant who remained in the area of the A [*13] platform throughout his shift, supervising the nine men assigned to him.

To establish a violation of the general duty clause, the Secretary must prove that the employer failed to render its workplace (1) free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm. National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973). The parties agree that a web frame standing vertically without adequate support presents a hazard recognized by the shipbuilding industry and that the hazard is likely to cause death or serious physical harm. The question then is whether the employer failed to render its workplace free of the hazard.

The parties agree that the use of monuments to support the vertically standing web frames would prevent the hazard, if not removed prematurely. Quincy used such monuments and therefore argues that it should not be held responsible for the unsupported web frame which caused the accident because the hazard was created by the unforeseeable action of Sullivan in removing the monuments. The Judge essentially accepted this argument.

Quincy's argument, and the Judge's decision, focus on the [*14] foreseeability of the accident as it actually occurred. The question, however, is not whether or how some alleged dereliction of an employer or employee caused an accident, but whether a violation of the Act is shown by the evidence. Brennan v. OSHRC (Vy Lactos Laboratories, Inc.), 494 F.2d 460 (8th Cir. 1974); National Realty and Construction Co., supra; The Boeing Company, Wichita Division, 77 OSAHRC 188/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD para. 22,266 (No. 12879, 1977). "An employer must take reasonable precautionary steps to protect its employees from reasonably foreseeable recognized dangers that are causing or are likely to cause death or serious physical injury. And precautionary steps, of course, include the employer's providing an adequate safety and training program." Brennan v. Butler Lime and Cement Co., 520 F.2d 1011, 1017 (7th Cir. 1975). Thus, the question presented by this case is whether Quincy adequately instructed all its employees who worked with web frames in the practices necessary to prevent the occurrence of inadequately supported web frames. Unless Quincy did so, it cannot be said that the company rendered its workplace free of [*15] the recognized hazard such web frames present. National Realty and Construction Co., supra.

Quincy's use of monuments to support the vertically standing web frames until they were tack welded sufficiently that a frame could be relied on to stand would obviously only prevent the hazard if Quincy instructed its employees in the amount of welding which had to be done before a web frame could be considered secured without the support of monuments. See Barker Brothers, Inc., 78 OSAHRC 5/E7, 6 BNA OSHC 1282, 1977-78 CCH OSHD para. 22,488 (No. 12964, 1978). If Quincy's employees did not know when a web frame could be considered securely welded, then it is reasonably foreseeable that they might remove the monuments before a web frame was otherwise secured, thus creating the hazard of an inadequately supported web frame.

The witnesses at the hearing all agreed that, at a minimum, a web frame had to be tack welded on one side and the stiffeners welded to the longitudinals on the other side before it could be considered secure and the monuments removed. However, only one witness, Pitts, stated that he instructed any of Quincy's employees to this effect prior to the accident. [*16] Quincy's other supervisors, Sousa and Grant, stated that employees were instructed in the proper use of monuments, but neither testified that employees were told it was unsafe to remove the monuments before the frame was tack welded on one side and the stiffeners were welded to the longitudinals. Indeed, they themselves were uncertain prior to the accident of the degree of welding needed to secure a web frame. This uncertainty lends weight to the testimony of the employees who worked with the web frames, all of whom stated they were not instructed when it was safe to remove the monuments.

Pitts did testify that he instructed Coutts as to when monuments could be safely removed, but there is no evidence that any of Quincy's other employees were similarly instructed. Moreover, even if such instructions were generally given, the fact that none of the employees who testified knew the proper procedure establishes that the instructions were not effectively communicated. An employer must do more than simply give safety instructions; it must also take reasonable steps to see that the instructions are understood and are carried out. Getty Oil Co. v. OSAHRC, 530 F.2d 1143 (5th Cir. [*17] 1976); Champlin Petroleum Co., 77 OSAHRC 137/A2, 5 BNA OSHC 1601, 1977-78 CCH OSHD para. 21,951 (No. 13081, 1977), appeal filed, No. 77-2740 (5th Cir. Aug. 26, 1977).

Furthermore, even focusing on Coutts' role in the accident, n4 and accepting Pitts' testimony that he instructed Coutts in the proper time to remove monuments, we do not consider a single instruction of this type to be adequate. Coutts worked under Pitts for approximately two weeks, during most of which time Pitts also supervised nine other new employees. Pitts thus had relatively little time to instruct Coutts and, more importantly, to determine whether Coutts understood and was following the instructions Pitts had given him. Indeed, the fact that Coutts worked for several supervisors during the brief period he was employed by Quincy before the accident suggests that none of the supervisors could have known the extent to which he had absorbed the considerable amount of information he was given in those three months. We think that, in light of the serious hazard involved, it was incumbent on Quincy to determine that Coutts sufficiently understood the correct procedure before permitting him to work alone on web [*18] frame erection. We note the suggestion of Mr. Fiatarone that employees should have been instructed to obtain the authorization of a supervisor before removing monuments. At least as to young and inexperienced employees such as Coutts, this suggestion has obvious merit. See Getty Oil Co. v. OSAHRC, supra; cf. Advance Specialty Co., 76 OSAHRC 35/D4, 3 BNA OSHC 2072, 1975-76 CCH OSHD para. 20,490 (No. 2279, 1976).

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n4 Quincy argues that the accident was solely the fault of Sullivan, not Coutts. We note, however, that if Coutts had been adequately trained in the proper time to remove monuments, he would have checked and recognized that the monuments had been removed prematurely and could have assured that they were replaced before performing further work on the unit. Indeed, the fact that he himself removed the last monument from the area of the web frame is further evidence that he was not adequately trained to recognize when a web frame could safely stand without being supported by monuments. Accordingly, even if this case turned solely on the circumstances surrounding the accident, we would find that, because Quincy did not adequately train Coutts, it did not take sufficient steps to prevent the violation.

[*19]

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We also reject Quincy's argument that the Judge's findings with regard to its safety training and supervision were based on credibility determinations and should therefore not be disturbed. As discussed above, since the Judge improperly focused on the foreseeability of the accident as it actually occurred, the Judge's conclusion was based on an erroneous view of the dispositive issue in this case. For this reason alone, the weight which the Judge's analysis of the evidence should be accorded is substantially reduced. C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978). In any event, the vast preponderance of the evidence establishes that Quincy did not adequately train its employees in when it was safe to remove monuments, and that Quincy therefore did not render its workplace free of the recognized hazard presented by inadequately supported web frames.

Quincy also argues that compliance officer Holbrook's meeting with union representatives after the closing conference violated 29 C.F.R. 1903.7(e) and prejudiced Quincy's case. n5 Quincy points [*20] out that, after holding a closing conference with Quincy representatives, Holbrook held a meeting with union representatives at which he took an affidavit from Stanley Short. Quincy alleges that the area director relied in part on this affidavit in issuing Quincy a citation and that therefore the citation was issued in violation of 1903.7(e).

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n5 29 C.F.R. 1903.7(e) states:

At the conclusion of an inspection, the Compliance Safety and Health Officer shall confer with the employer or his representative and informally advise him of any apparent safety or health violations disclosed by the inspection. During such conference, the employer shall be afforded an opportunity to bring to the attention of the Compliance Safety and Health Officer any pertinent information regarding conditions in the workplace.

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We reject the argument. Section 1903.7(e) requires the compliance officer to conduct a closing conference with the employer after an inspection and advise him of any violations the inspection disclosed. This Holbrook [*21] did. Section 1903.7(e) does not preclude the compliance officer from meeting thereafter with employees and union representatives. n6 Indeed even assuming that Section 1903.7(e) precludes the compliance officer from continuing his inspection following a closing conference, that section does not govern the Secretary's powers of investigation, which continue even after the closing conference ends. Section 8(a)(2) of the Act authorizes the Secretary not only to inspect but also gives the Secretary the right "[to] investigate . . . any . . . place of employment . . . and . . . to question privately any . . . employee." [emphasis supplied]. Additionally Section 8(b) of the Act gives the Secretary subpoena power to require the attendance and testimony of witnesses. It prescribes no time period within which such power shall be exercised and applies to investigations as well as inspections. Hence, even if we accept Quincy's argument that the Secretary's inspection powers end with a closing conference, Section 8(b) permits the questioning of witnesses pursuant to subpoena after a closing conference, at least with respect to his investigative powers. It follows therefore that [*22] the Secretary can also question employees without a subpoena, at any time, so long as they consent. Thus, the Act provides the compliance officer with investigation as well as inspection authority and the power to speak with employees even after the formal inspection has been completed.

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n6 We note in this regard that 29 CFR 1903.10 authorizes the compliance officer to consult with employees regarding occupational safety and health in order to conduct an effective and thorough inspection, and prescribes no time period within which such talks shall be held.

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In any event, even assuming that the meeting with union representatives following the closing conference was completely unauthorized and violated 1903.7(e), Quincy has not indicated how it was prejudiced as a result and therefore would not be entitled to any relief.

Finally, Quincy argues that it was prejudiced by the Secretary's failure to answer interrogatories until the first day of the hearing, and then in only oral, unsworn, and incomplete form and it [*23] asks that we dismiss the complaint. We reject this argument as well.

Quincy filed a motion to allow discovery through interrogatories on May 8, 1975. n7 On June 30, 1975, Quincy also requested a postponement of the hearing, scheduled for July 9, 1975, in order, among other things, to provide the Judge an opportunity to consider Quincy's discovery motion, and to give the Secretary a chance to prepare answers to the interrogatories. On this latter date Judge Worcester orally granted Quincy's discovery motion. The trial, however, was not postponed. n7

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n7 Rule 53(a) of the Commission's Rules of Procedure provides:

Except by special order of the Commission or the Judge, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.

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Quincy submitted 36 interrogatories to the Secretary which he received on July 7, 1975, two days before the start of the hearing. During the hearing Quincy renewed a motion to dismiss the case, arguing [*24] that the Secretary's oral responses were unsatisfactory because they were incomplete, unsworn, denied Quincy the benefit of written responses, and left Quincy at a distinct disadvantage in the conduct of cross-examination. The Judge again denied Quincy's motion to dismiss. Quincy's counsel then agreed to accept oral responses if they were confirmed in writing, under oath. After an off-the-record discussion of the interrogatories Judge Worcester ordered the Secretary to put any further responses to 13 of the 36 interrogatories in written form later. The Judge also authorized Quincy's counsel to bring up these 13 interrogatories on cross-examination in any manner he chose.

We first note that whether to grant discovery through interrogatories is within the Judge's discretion and that therefore failure to obtain discovery is not inherently prejudicial to the requesting party. See KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD para. 22,350 (No. 13490, 1977). In this case the circumstances were such that the Secretary had insufficient time to respond to the interrogatories in written form prior to the hearing. Thus, the Secretary cannot be faulted for failing [*25] to provide, before the hearing, written responses to Quincy's interrogatories.

As we noted above, Quincy's counsel agreed at the hearing to accept oral responses to his interrogatories. Furthermore, he did not move at trial for a continuance when it became apparent that he would not be provided any written responses until later. We hold that under these circumstances Quincy waived any right to receive written responses before the merits of the case were tried.

Moreover, although Quincy neither received a continuance nor sought one at trial, it did obtain the practical effect of a continuance due to the delays between hearing dates in the five-day hearing. There was a two month delay between the second and third day of the hearing and a seven week delay between the fourth and fifth day. Quincy did not begin its case-in-chief until the third day. In our opinion the two month delay before Quincy presented its case gave it the practical effect of a continuance and it therefore could have resolved any alleged problem involving the interrogatories during those two months.

Quincy also has failed to establish that it was specifically prejudiced by the manner in which the interrogatories [*26] were answered. To the contrary it only makes a generalized claim of prejudice and even that prejudice, Quincy admits, was "somewhat ameliorated by the fact that the final three days of the hearing were not held until several months later. . . ."

Finally, we would hold that, even assuming he erred in refusing to postpone the hearing in order for the Secretary to file written answers to Quincy's interrogatories, the Judge's error was harmless and does not warrant dismissal of the citation and complaint. Fed. R. Civ. P. 61. Again, in this regard we note the time delay between hearing dates, the solution authorized by Judge Worcester at the hearing, and Quincy's failure to make specific its allegation of prejudice.

Turning to the assessment of an appropriate penalty, we note that Quincy is a large subsidiary of General Dynamis Corporation and has acted in good faith as indicated by its subsequent efforts to improve its safety program with respect to the use of monuments. Nevertheless, the gravity of the violation is high in view of the hazard of an unsupported, standing web frame weighing 3,500 pounds. On balance, we conclude that the Secretary's proposed penalty of $800 is appropriate. [*27]

Accordingly, we reverse the decision of Judge Worcester and affirm the citation for violation of section 5(a)(1). A penalty of $800 is assessed.

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 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 case. 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 [*28] 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 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(e), 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 [*29] 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 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 [*30] 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 required if a party requested it. 348 F.2d 798, 802 n. 14.

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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 [*31] 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 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, [*32] 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 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 [*33] 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 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 [*34] 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.