OSHRC Docket No. 13916

Occupational Safety and Health Review Commission

June 22, 1978


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.


Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

David W. Welch, for the employer

Arthur Rose, President, United Steelworkers of America, Local 1062, for the employees




CLEARY, Chairman:

Respondent, Scullin Steel Company, Inc., a Division of Diversified Industries, Inc., manufactures side frames and bolsters for railroad car wheel assemblies in St. Louis, Missouri. Its place of business was inspected by a safety and health compliance officer on October 15, 1974. After analysis of the data collected during the inspection, respondent was issued a two part citation. The citation was not contested and, in accordance with section 10(a) of the Act, n1 became final on January 3, 1975. n2 A second inspection was conducted on April 24, 1975, to ascertain whether respondent had abated the conditions that were alleged in the second part of the citation to be in violation of the Act. n3 Analysis of data collected at this [*2] abatement inspection gave the Secretary reason to believe that the violative conditions had not been abated. The Secretary, therefore, issued to respondent a Notification of Proposed Additional Penalty For Failure to Abate.

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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

n2 An $800 unapportioned penalty was proposed and also became final on January 3.

n3 The citation directed respondent to abate by April 16, 1975.

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Respondent timely contested the Notification, and a hearing was held before Administrative Law Judge Paul E. Dixon. The Judge affirmed the Notification and assessed a penalty of $1,060. n4 Respondent petitioned for review of the Judge's Decision and Order on the grounds that the conditions allegedly violative during the initial and abatement inspections were not in fact violative and that the penalty assessed by the Judge is excessive. The petition was granted and review was directed on August 5, 1976, pursuant to the authority granted by section 12(j) of the Act. [*3] We conclude that the Judge properly decided this case and, therefore, affirm his Decision and Order.

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n4 The Secretary of Labor initially proposed a penalty of $2,868, but amended the proposal at the hearing after discovering an error in the initial penalty calculation.

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Part II of the citation alleged that welders who trimmed n5 steel custings were exposed to concentrations of fluoride n6 that exceeded the eight hour time weighted average (TWA) prescribed by the standard codified at 29 CFR 1910.93, which subsequently was relocated to 29 CFR 1910.1000. n7 During the initial inspection on October 15, 1974, that gave rise to the citation, three air samples were taken from inside the welding hood of one welder. n8 The samples were of 13, 24, and 30 minutes duration. The fluoride concentrations in the samples, which were analyzed by the National Institute of Occupational Safety and Health (NIOSH), were 9.54 mg/M<3>, 18.33 mg/M<3>, and 28.73 mg/M<3>. The compliance officer calculated the eight hour TWA to be 19.95 [*4] mg/M<3>, far in excess of the 2.5 mg/M<3> permitted by the standard.

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n5 The welders performed two operations: filling and trimming. Filling consists of melting a filler metal to join two pieces of metal. Trimming consists of melting or vaporizing excess (non-filler) metal.

n6 The rods used by the welders were coated with fluoride to facilitate welding.

n7 The standard states, in pertinent part:


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(a)(2) Other materials -- 8-hour time weighted averages. An employee's exposure to any material in table Z-1, the name of which is not preceded by "C," in any 8-hour work shift of a 40-hour work week, shall not exceed the 8-hour time weighted average given for that material in the table.

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(e) To achieve compliance with paragraph (a) through (d) of this section, administrative or engineering controls must first be determined and implemented whenever feasible. When such controls are not feasible to achieve full compliance, protective measures shall be used to keep the exposure of employees to air contaminants within the limits prescribed in this section.

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Table Z-1


mg/M<3> [milligrams/cubic meter]



n8 The concentration of fluoride inside of a welder's hood is lower than the concentration outside the hood.


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This calculation was based on employee exposure to fluoride for seven and one-half hours. The welders who trimmed castings worked on thirty castings daily. The work day began at 7 a.m., included a half hour lunch break, and normally ended four and one-half to five hours later. The welder monitored by the compliance officer worked until 2:30 p.m. on the day of the initial inspection and told the compliance officer that his (the welder's) work during the sampling period was typical of the work he performed during the balance of the day. Respondent challenges the accuracy of the time of exposure used in the compliance officer's calculations. It suffices to note, however, that exposure to the fluoride concentrations during only the 67 minute sampling is prohibited by the standard. n9

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n9 Respondent argues that the Secretary has not proven that the monitored welder began working at the normal starting time and welded until 2:30 p.m. In response to an inquiry by the compliance officer, the monitored welder admitted that he worked during the sampling period as he had all day. Absent evidence of unusual circumstances, we would infer from this that the welder worked steadily from 7 a.m. to 2:30 p.m., with a half hour lunch break and other normal personal comfort breaks. Thus, we would infer that the welder worked and was exposed to fluoride for a period of six to six and one-half hours on the day of the initial inspection. This inference is supported by the evidence that the welders monitored by respondent's expert worked between six and six and one-half hours. Six hours of exposure to the fluoride concentration discovered by the compliance officer is prohibited by the standard.


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The citation issued to respondent specified two abatement requirements. Respondent was directed to require welders to use respirators n10 by January 28, 1975, and to implement feasible administrative or engineering controls by April 16, 1975. These requirements became binding orders when respondent failed to contest the citation. When the compliance officer returned on April 24 to ascertain whether the orders had been followed, he discovered that welders still were not using, or required to use, respirators. He thereupon took additional air samples to discover if the fluoride to which welders were exposed in October had been reduced to permissible levels. On this occasion two air samples, of 20 and 62 minutes, were taken from inside of the welding hood of one welder. This welder was not the same one monitored previously. Analysis revealed fluoride concentrations of 3.45 mg/M<3> and 13.45 mg/M<3>. Based on an exposure of four and one-half hours, the compliance officer calculated the eight hour TWA to be 3.54 mg/M<3>. An additional penalty was proposed by the Secretary of Labor for respondent's [*7] alleged failure to implement engineering or administrative controls. n11

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n10 Respirators were provided to the welders, but the respirators were not used and their use was not required.

n11 Respondent was not charged with failing to require the use of respirators and, therefore, such a charge is not before us. As will be pointed out below, however, the evidence pertaining to this aspect of the citation is relevant to the penalty assessment.

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Respondent made its decision not to take action to comply with the abatement order based on the belief that the welders could not have been exposed to an excessive concentration of fluoride. Respondent relied on the statement of its chief metallurgist that welders could not be exposed to excessive amounts of fluoride, but there is no evidence that the chief metallurgist was qualified to make this determination, and there is no evidence that respondent conducted any tests before the initial inspection or between the initial and abatement inspections to ascertain the level of fluoride [*8] exposure.

After contesting the Notification of Proposed Additional Penalty, respondent requested its insurance carrier to conduct an air sampling survey. The insurance carrier measured the concentration of soluble fluoride while the compliance officer measured soluble and insoluble fluoride, both of which can be inhaled. Respondent did not attempt to introduce the results of this survey into evidence because they were not sufficiently probative. Six months after the abatement inspection, respondent hired a highly qualified independent consultant, John A. Jurgiel, to conduct a survey using the same methodology and techniques of analysis used by the compliance officer and NIOSH. Jurgiel sampled the air inside the hoods of three welders over a period of five and one-half hours. The highest concentration of fluoride he discovered was 2.9 mg/M<3>, and the highest eight hour TWA was 1.2 mg/M<3>.

The compliance officer suggested that the differences between his and Jurgiel's measurements could have been caused by, among other factors, variations in employee work habits and work rates. The compliance officer also testified that he observed the welder performing a substantial amount [*9] of trimming during the initial inspection but could not recall whether trimming was performed during the abatement inspection. The compliance officer's supervisor, a highly qualified industrial hygienist, testified that the fluoride concentration discovered at the initial inspection would be considered abnormal if the welder had performed only filling but was not surprisingly high for a trimming operation.

Jurgiel found the concentration measured at the initial inspection (19.95 mg/M<3>) to be "unbelievably high" and doubted the 3.54 mg/M<3> concentration measured at the abatement inspection. He speculated n12 that the high concentrations measured by the compliance officer could be attributed to the brevity of his sampling period, analytical errors, and sampling filter slippage and contamination. Jurgiel also testified, however, that differences in the measurements could be the result of variations in employee work habits, which, he stated, greatly influence the amount of fluoride to which a welder will be exposed. Jurgiel opined that variations were especially possible in this case because welders understood that they were being monitored for the fourth time when he conducted [*10] his survey and might, therefore, have increased their efforts to avoid fluoride fumes. He also admitted that the difference between his survey results and the results of the abatement inspection could be attributed to normal daily variations in a welder's work. Finally, because Jurgiel was unaware of the distinction between trimming and filling, he could not state what type of welding was performed by the welders he monitored.

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n12 Jurgiel provided no basis for this testimony; he merely identified factors that he thought might account for an "unbelievably high" concentration of fluoride.

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Respondent does not argue that the Judge or compliance officer committed any single error of sufficient magnitude to require reversal of the Judge and vacation of the Notification of Proposed Additional Penalty. Rather, respondent argues that reversal and vacation are required because of a pattern of errors. Typical of the errors respondent alleges were committed are the compliance officer's reliance on an improper fluoride concentration [*11] figure in calculating the proposed additional penalty, n13 the compliance officer's inability to recall whether the monitored welder was trimming during the abatement inspection, the compliance officer's misunderstanding of the number of castings each welder worked on in one day, and the Judge's finding that the fluoride concentration discovered by the compliance officer was 9.54 mg/M<3> when the true figure was 19.95 mg/M<3>. However, the alleged errors do not, in our opinion, singly or collectively, undermine the validity of the data collected by the compliance officer and the analysis of that data by NIOSH.

n13 The compliance officer based his calculation on an eight hour TWA of 7.9 mg/M<3> while the actual concentration was 19.95 mg/M<3>, which is 7.9 times the permitted 2.5 mg/M<3>.

Respondent argues that the Judge erred by failing to credit Jurgiel's figures over the figures obtained by the compliance officer because his sampling period during the initial inspection was too brief in light of the high fluoride concentration that was discovered; his brief sampling of the air inside the hood of one welder is less reliable than Jurgiel's five and one-half four sampling of [*12] the air inside the hoods of three welders; and he was substantially less qualified in the field than Jurgiel. The evidence relied on to support respondent's argument consists of the variations between fluoride concentrations discovered by the compliance officer and Jurgiel, and Jurgiel's opinion that the compliance officer's figures are too high.

This evidence is insufficient to support respondent's argument for several reasons. The measurements of fluoride concentration made subsequent to the initial inspection are relevant to the issue of whether the concentration was excessive on the day of the initial inspection because the conditions under which the subsequent measurements were taken were similar to and not too remote in time from the initial measurements. See generally C. McCormick, Evidence 202 (2d ed. 1972). However, the fact that the latter tests obtained different results does not invalidate the first tests. n14 As noted above, the welder who was monitored during the initial inspection was trimming, which was the major source of fluoride. Neither Jurgiel nor the compliance officer could testify that trimming work was done during the subsequent sampling [*13] periods. In addition, both the compliance officer and Jurgiel testified that a welder's work habits have a significant influence on the amount of fluoride to which the welder is exposed. The compliance officer did not monitor the same welder during each inspection and we are unable to ascertain whether any of the welders monitored by Jurgiel also were monitored by the compliance officer. No comparison of welders' work habits was made. Finally, Jurgiel also testified that the welders understood that they were being monitored for a fourth time and might have attempted to minimize their exposure to fluoride.

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n14 The compliance officer's supervisor testified that the compliance officer's methodology and techniques were proper. Respondent does not argue to the contrary, except to the extent that Jurgiel speculated about the causes of the figures obtained during the initial inspection. We are not persuaded by Jurgiel's testimony. See note 15, infra, and accompanying text.

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Even if we were persuaded that the figures [*14] obtained from the initial inspection are too high to be believed, as Jurgiel opined, we still would hold that welders were exposed to more than 2.5 mg/M<3> of fluoride on the days of the initial and abatement inspections. Jurgiel testified that the fluoride concentration discovered at the abatement inspection might be within the range of normal daily variation from the concentration he discovered. Jurgiel's unexplained opinion that the abatement inspection figures are too high is insufficient reason to disregard those figures, particularly in the light of testimony that variations in employee work habits were likely to cause variations in the concentration of fluoride to which the employees were exposed. Thus, we conclude that respondent has failed to rebut the Secretary's proof that working conditions were violative during the abatement inspection.

As the charged party in a failure to abate proceeding in which the Secretary has proven that an uncontested citation has become final by operation of law, respondent can successfully defend against the charge by proving that no violation occurred at the time of the initial inspection. York Metal Finishing Co., 74 OSAHRC 19/D2, [*15] 1 BNA OSHC 1655, 1973-74 CCH OSHD para. 17,633 (No. 245, 1973), pet. for rev. dismissed, No. 74-1544 (3d Cir., June 6, 1974). n15 The figures obtained during the abatement inspection are, however, at least as likely to reflect accurately the fluoride concentration at respondent's plant during the initial inspection six months earlier as are Jurgiel's figures, which were obtained one year after the initial inspection. Respondent has failed to sustain the burden imposed by York Metal Finishing Co.

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n15 The Secretary argues that York Metal and its progeny permit an employer in a failure to abate proceeding to raise questions of law in challenging the underlying citation, but do not permit a challenge to the facts that gave rise to the citation. The Fifth Circuit Court of Appeals recently interpreted the Act in a somewhat different way. In Marshall v. B.W. Harrison Lumber Co., No. 76-2619 (March 23, 1978), the Court held that an employer that failed to contest a citation may defend against a charge of failure to abate on the ground that the underlying citation lacked the particularity required by section 9(a) of the Act. The Court supported this holding in part by concluding that Congress intended to permit an employer in such a proceeding to protest the existence of a violation at the time the citation was issued only on the ground that the Secretary of Labor failed to follow statutory procedures in such a way as to affect the integrity of the abatement proceeding. Although the positions of the Secretary and the Fifth Circuit are not entirely harmonious, either would have foreclosed respondent in this case from challenging the underlying citation as it was challenged. We need not attempt here to resolve the apparent conflicts among our case law and the positions of the Secretary and the Court because our disposition of this case is unaffected by the scope of challenges respondent may have faised.


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Finally, respondent argues that the $1060 penalty assessed by the Judge n16 is excessive. We believe that the penalty is appropriate. The criteria used in assessing penalties includes the size of an employer's business, an employer's history of previous violations, an employer's good faith, and the gravity of the violation. Respondent is a moderate to large employer that employs 1100 people and has a gross annual volume of $3 million. As noted above, respondent failed to contest the citation out of which this case arose and, therefore, both parts of the citation became final. n17 Respondent has shown substantial bad faith in responding to the citation. First, respondent did not conduct tests to evaluate the allegations included in the citation before deciding that it was not valid and that its abatement orders need not be followed. Second, respondent failed to correct the hazardous conditions described in part I of the citation by the date specified. n18 Third, respondent did not require welders to use respirators by April 24, 1975, even though the uncontested citation ordered respondent to implement [*17] such a requirement by January 28, 1975. n19 We assume, for the purposes of our penalty assessment, that the gravity of the violation was low. n20 Respondent argues that it exhibited good faith by hiring independent consultants to test for fluoride, but we note that the consultants were not hired until respondent had contested the Notification of Proposed Additional Penalty and was preparing for trial.

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n16 Respondent contends that although the Judge discussed the criteria that must be considered while deciding upon an appropriate penalty, he in fact merely, and improperly, adopted the Secretary's proposed penalty. We find no evidence to support this contention and, therefore, flatly reject it.

n17 It is significant to note that part I of the citation also alleged that certain of respondent's employees were exposed to excessive amounts of the air contaminant silica dust and were not required to use respirators.

n18 The Notification of Proposed Additional Penalty for part I of the citation is part of the record in this case. We have taken official notice of our docket and discovered that respondent did not contest the Notification.

n19 See note 11, supra.

n20 Respondent argues that if a violation was committed, it was not serious within the meaning of section 17(k) of the Act. This argument misses the mark. Failures to abate hazardous conditions are not subject to the classifications established by section 17(k). Penalties assessed for failures to abate depend in part on the type and likelihood of injury that could be caused by the hazardous conditions, not on the classification of the violation per se. For this reason, and because we cannot believe an employer from paying the penalty specified in an uncontested citation, see York Metal Finishing Co., supra, we need not address respondent's argument.


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Accordingly, we conclude that the Judge properly held that respondent failed to fulfill its obligation to implement controls that would reduce employee exposure to excessive fluoride and properly assessed a penalty of $1060. The Judge's decision is, therefore, affirmed.




I agree with Chairman Cleary that we should affirm the notification of failure to abate and assess a penalty of $1,060. However I would comment further on several of the issues presented.

Scullin asserts that at the time of the original inspection, it did not violate the standard at 29 C.F.R. 1910.1000. Relying on the Commission decision in York Metal Finishing Co., 74 OSAHRC 19/D2, 1 BNA OSHC 1655, 1973-74 CCH OSHD para. 17,633 (No. 245, 1973), the company argues that the notification of failure to abate should not be affirmed because the conditions existing at the time of the initial inspection were not violative of the Act.

Essentially, Scullin is asking the Commission to make a determination as to the factual validity of the original uncontested citation. Because it believes that [*19] the Secretary's exposure limits were erroneous at the time of the initial inspection, the company seeks to have the notification of failure to abate vacated. The Judge concluded that Scullin did not rebut the Secretary's evidence showing a violation at both the original and the abatement inspections.

At issue, therefore, is whether or not the defense outlined in York Metal permits a showing that the facts which established the underlying violation were not as the Secretary alleged them to be at the time of the initial inspection.

The Secretary maintains that York Metal was wrongly decided and that the Commission should not allow an employer, in a failure to abate hearing, to challenge the validity of the final order. But even assuming York Metal is correct, the Secretary maintains it does not apply here. He asserts that York Metal permits an employer only to show that the facts alleged in the citation did not constitute a violation of the Act, but it does not allow an employer to challenge the existence of those facts.

I disagree. In York Metal, the Respondent was permitted to show in a failure to abate hearing that the facts were not as the Secretary [*20] originally alleged them to be. In contesting a continuing violation of 29 CFR 1910.157(d)(1)(iii), which requires fire extinguishers to be hydrostatically tested at five year intervals, the Respondent was allowed to show that at the time of the original inspection, the extinguishers in question were less than five years old. Therefore, the notification of failure to abate was vacated. Accordingly I conclude that the Secretary's suggested interpretation of York Metal is incorrect and that as a defense to the failure to abate charge, York allows Scullin to show that the facts were not as alleged by the Secretary at the time of the first inspection.

The Secretary's position is nevertheless supported by the recent court decision in Marshall v. B.W. Harrison Lumber Co., 569 F.2d 1303 (5th Cir. March 23, 1978) at 1306-1307, wherein the 5th Circuit also addressed the question of defenses available to an employer in a failure to abate proceeding. Implicitly rejecting York Metal, the court specifically held that in the ordinary case, the existence of a final order precluded in a failure to abate action "objections that could have been raised to the citation, most specifically, [*21] the fact of violation."

The case law is hence conflicting regarding employer defenses in a failure to abate proceeding. n1 However, I need not reach a decision regarding this issue herein. Even assuming that Scullin can challenge the facts underlying the original citation, I would conclude, for the reasons that follow, that the company did not rebut the exposure figures obtained during the compliance officer's testing at the initial inspection.

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n1 Although the Commission is not bound by the decisions of courts of appeals, see Grossman Steel and Aluminum Co., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,690 (No. 3694, 1976), it may nevertheless re-evaluate its position in light of those decisions. See, for example, Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976).

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Scullin contends that the measurements of its independent consultant, Jurgiel, made one year after the first inspection, demonstrate that the concentration of fluoride [*22] fumes obtained by the compliance officer at the original inspection was too high to be credited. Furthermore, the company asserts that Jurgiel's results are a more accurate indication of the concentration present at the time of the initial violation.

I do not agree. If they were made under the same conditions existing at the time of the initial inspection, Jurgiel's measurements would be relevant to the concentration existing in October, 1974. Jurgiel did not, however, know whether the employees he sampled were performing trimming work, as was the welder sampled by the compliance officer in October, 1974. Nevertheless, both the compliance officer and Jurgiel agreed that the specific operations being performed, as well as the work habits of individual welders could affect the results. Moreover, Jurgiel testified that the welders he tested appeared to be making a conscious effort to avoid the visible fumes generated by the welding process and that this could also account for the great discrepancy between his test results and those of the compliance officer. Other differences in conditions, such as whether the building was open or closed and whether there was air movement in the [*23] vicinity of the welders, could also affect the results. Since Scullin has not shown that Jurgiel's tests were made under conditions substantially similar to those existing when tests were made by the compliance officer, Jurgiel's results are not relevant to the concentration of fluoride existing in October, 1974. n2

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n2 Scullin also attempts to cast doubt on the results obtained at the reinspection conducted in April, 1975, arguing, among other things, that the compliance officer could not testify that the employee sampled was performing trimming work for the same amount of time as the employee sampled at the original inspection. But the compliance officer testified that the worker sampled during the reinspection was performing the same activity as the one at the initial inspection, so the results obtained from the reinspection related to the same condition for which Respondent was originally cited. The fact that the measurements made at the reinspection differed from those at the original inspection does not cast doubt on the accuracy of either set of measurements. Rather, it merely confirms the testimony of the compliance officer and Jurgiel that factors such as individual work habits can substantially affect the measured concentrations.


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Nor do I agree with Scullin that the judge erroneously relied upon the results of the testing performed by the compliance officer during the original inspection to find a violation. The compliance officer, a qualified industrial hygienist, testified as to the manner in which the sampling and analysis was done, and his supervisor testified that the testing was done properly. The Judge credited their testimony and concluded that the results of the compliance officer's test were accurate. It is the policy of the Commission to ordinarily accept an Administrative Law Judge's evaluation of the credibility of witnesses. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22, 481 (No. 14249, 1978). Scullin's arguments do not persuade me to follow a contrary rule.

Respondent attacks the compliance officer's credibility by pointing to alleged errors in his sampling technique and testimony. For example, Respondent contends that the total sampling time of 67 minutes was too short to give an accurate indication of the 8-hour time weighted average concentration, and that the [*25] compliance officer mistakenly included in the exposure time the 1/2 hour period when the sampled employee was eating lunch. But this is not a case where the measured concentration is so close to the limit prescribed by the standard that possible errors of the magnitude to which Respondent refers would cast doubt on the ultimate outcome. Indeed, as the compliance officer testified, the measured concentration was so high that, even assuming the employee was exposed to no fluoride outside the 67 minute sampling period, the employee was exposed to more than his allowed daily dose during that period. n3 Thus, the possible sources of error mentioned by Respondent would not affect the conclusion that a violation occurred during the original inspection.

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n3 See 29 C.F.R. 1910.100(d)(1)(i) for the formula to be applied in determining the permissible exposure when the concentration of a listed air contaminant varies throughout the workday.

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Moreover, Jurgiel's testimony as to possible sources of error which could have affected [*26] the compliance officer's measurements, such as improper positioning of the filter and analytical errors, is speculative, There was no evidence that such errors were actually made and accordingly such testimony is not entitled to any weight. Similarly, Respondent's other criticisms of the compliance officer's testimony are insubstantial. n4 I therefore accept the Judge's credibility determination that the compliance officer's measurements accurately represent the concentration of fluoride existing during the original inspection. Accordingly, Respondent failed to establish that it did not violate the Act at the time of the initial inspection and, therefore its defense to the notification of failure to abate must fail.

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n4 Scullin also contends that certain of the Judge's findings of fact are erroneous, and that this resulted from the "confused" state of the evidence. As an example, Scullin points to finding #28, in which the Judge found that the concentration in October, 1974 was 9.54 mg/M<3> instead of the 19.95 mg/M<3> to which the compliance officer testified. Although its argument is not entirely clear, Respondent is apparently saying that the Judge's findings should not be accepted because he misunderstood the "confusing evidence."

I do not agree. Although his extensive findings contain a few numerical errors, the Judge's decision as a whole demonstrates that he fully understood the issues presented and the testimony of all the witnesses. These minor errors therefore present no reason to believe that the Judge did not understand the case and that his findings should be rejected. See C. Kaufman, Inc., supra. Moreover, the evidence is not confusing, as Scullin suggests; it simply fails to support the company's arguments.


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Commissioner COTTINE filing a 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 by 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 [*28] 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 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 [*29] 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 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). [*30] 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 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 [*31] 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, 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 [*32] 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 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 [*33] 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.


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 [*34] 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.