TITANIUM METALS CORPORATION OF AMERICA

OSHRC Docket No. 15411

Occupational Safety and Health Review Commission

June 20, 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

John M. Orban, Assoc. Reg. Sol., USDOL

Kenneth R. Cass, Allegheny Ludlum Industries, Inc., for the employer

Edward S. Suvoski, Jr., President, USWA, Local 4856, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issue before us for review in this case is whether Administrative Law Judge Erwin L. Stuller acted properly in vacating Complainant's citation alleging that Respondent failed to comply with 29 C.F.R. 1910.134(b)(11) n1 in that its employee was exposed to concentrations of sulfur dioxide gas which exceeded the level for which his respirator was approved. We conclude that the Judge erred; we reverse his decision in part and affirm this portion of the citation. n2

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n1 This standard in pertinent part requires:

Approved or accepted respirators shall be used when they are available. The respirator furnished shall provide adequate respiratory protection against the particular hazard for which it is designed in accordance with standards established by competent authorities. The U.S. Department of Interior, Bureau of Mines, and the U.S. Department of Agriculture are recognized as such authorities.

n2 The citation in addition contained allegations regarding excessive concentrations of chlorine gas but the parties at trial stipulated to withdrawal of these allegations. See note 6 infra and accompanying text.

The Judge also affirmed two citation items pertaining to monitoring employee exposure and to providing certain medical determinations. Since neither party takes exception to the Judge's disposition of these items, they are not before us for review.

[*2]

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The citation was issued following two inspections of Respondent's magnesium recovery operation which is performed in two buildings containing a number of electrolytic pits known as "cells." Magnesium chloride placed in these cells is separated into its component parts, magnesium and chlorine gas, by the application of an electric current. The process also requires the use of sulfur dioxide gas (SO[2]). This gas is used in an annex adjoining one of the cell buildings and is discharged from a "small diameter tube" into the atmosphere where the employees work.

Respondent's employees are required to wear chemical cartridge respirators while in the work areas in the two buildings containing the cells and in the annex. Such respirators are approved under testing procedures prescribed by the National Institute for Occupational Safety and Health (NIOSH) in conjunction with the Bureau of Mines for a maximum concentration of not more than 50 ppm of SO[2] and not more than 10 ppm of chlorine. n3 Using a respirator when the concentration of air contaminant at any one time exceeds the peak limit for which the [*3] respirator is approved will lead to saturation of the absorbing media, causing the contaminant to pass directly into the breathing zone of the wearer. Such saturation is known as "breakthrough."

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n3 We take official notice of 30 C.F.R. 11.150 entitled "Chemical cartridge respirators: description," which provides that such respirators "are described according to the specific gases or vapors against which they are designed to provide respiratory protection, as follows:

Type of chemical

Maximum use

cartridge

concentration, parts

respirator

per million

Chlorine

10

Sulfur dioxide

50"

Prior to November 5, 1974, the responsibility for approval of respirators was exercised jointly by the Bureau of Mines and NIOSH. On that date, as a result of establishment of the Mining Enforcement and Safety Administration (MESA) within the Department of the Interior, that portion of the function exercised by the Bureau of Mines was transferred to MESA, and the provisions of Part 11, Title 30 C.F.R., which prescribes procedures and requirements for the approval of respirators, were amended to substitute "MESA" for the terms "Bureau of Mines" or "Bureau." 39 Fed. Reg. 39039 (1974).

As indicated in note 4 infra, Respondent does not dispute that its respirators were approved for a maximum of 50 ppm of SO[2].

[*4]

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On August 5, 1975, the first inspection, Complainant's industrial hygienist, Ott, measured the maximum level of SO[2] in Respondent's facility to determine if that level exceeded the approved limit. He obtained two readings in excess of 50 ppm -- 81 and 58 ppm. The record does not show which work function or functions or which employee or employees were examined for SO[2] exposure. n4 However, Ott testified that he took the SO[2] samples using the same equipment and the same techniques as he and another inspector, Williams, used on the second inspection about three weeks later, on August 27, when they measured the level of chlorine gas to which employees were exposed.

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n4 Complainant's citation alleged failure to comply with 1910.134(b)(11) in that the respirator "was not approved" for the maximum concentration of SO[2], found at the "magnesium recovery pour operator left [sic] truck driver's breathing zone." His subsequent complaint reiterated this allegation. Prior to trial, in response to Complainant's request for admissions, Respondent admitted that its employees in the magnesium recovery area were using respirators approved for a maximum concentration of 50 ppm SO[2]. Respondent, however, refused to admit that a "lift-truck" operator was exposed to concentrations of SO[2] up to 50 ppm and that another worker whom Complainant did not specify was exposed to more than 50 ppm. There is no other evidence to identify the exposed employees.

[*5]

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Two employees were tested for chlorine exposure -- a cell operator, who is responsible for monitoring the flow of magnesium chloride into the cells and insuring that the proper amount is placed in each cell, and another employee who at the time was removing debris from the cells caused by the recovery operation. Ott and Williams used a personal sampler approved for such testing by NIOSH. This sampler consisted of a pump which draws air through a glass tube containing a calibrated marker sensitive to the substance to be measured. It is necessary that the ends of the glass tube be broken off when the tube is inserted into the pump. In each instance Ott or Williams placed the tube as near the nose and mouth area of the employee as possible considering the broken end of the tube and the need to avoid interference with the employee's work. They then drew a preset volume of air through the tube by depressing the plunger for one minute and measured the level of chlorine by visually observing the extent to which the tube became discolored along the linear scale by which it was calibrated. The SO[2] samples [*6] were taken in the same manner except that Ott inserted a glass tube sensitive to SO[2] rather than chlorine and adjusted (corrected) the readings for barometric pressure and temperature as prescribed in the instructions accompanying the SO[2] tube. n5 Respondent's representative, Baker, accompanied the inspectors on both days and observed the testing.

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n5 It was not necessary to make any corrections to the chlorine readings because the temperature on August 27 was within the range permitted according to the instructions accompanying the chlorine tube and Ott had determined that the barometric pressure differential on that day was negligible.

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Complainant contended before the judge, without elaboration, only that the tests for SO[2] "were not subject to the same infirmities as the tests for chlorine." n6 Also without further discussion, Complainant stated that those tests showed readings, as corrected, well in excess of the limit for which the respirators worn by Respondent's employees were approved. He argued that [*7] the citation should be affirmed because this evidence clearly shows a violation and was not rebutted by Respondent.

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n6 In addition to the charge in issue pertaining to SO[2] exposure, Complainant alleged that Respondent failed to comply with 1910.134(b)(11) in that a cell worker was exposed to peak concentrations of chlorine in excess of that for which his respirator was approved, that is, in excess of 10 ppm. Complainant further alleged that contrary to 1910.1000(e), Respondent had not implemented feasible engineering controls to reduce the level of chlorine to within the 8-hour time-weighted average limit of 1 ppm. Ott testified that the cell operator was exposed to an average daily concentration of 2.27 ppm of chlorine and that the employee removing debris from the cells was exposed at one time to as much as 18 ppm.

Complainant subsequently withdrew the 1910.1000(e) charge and that portion of the 134(b)(11) charge pertaining to chlorine after Respondent asserted at the hearing that it had been surprised by the testimony of a NIOSH statistician describing how he had processed Ott's data and the computations he had performed. According to Respondent, it had not been previously aware "of the method of calculation and the manner, the numbers that he used," and therefore requested a recess to prepare cross-examination. The parties thereafter agreed to a stipulation in lieu of cross-examination of the statistician. According to the stipulation, these charges were to be withdrawn because additional investigation "disclosed enough evidence to cause us to question the accuracy of certain data." The data to which the parties refer and how or why it is inaccurate were not specified.

In his brief on review Complainant asserts that the portion of the 1910.134(b)(11) charge pertaining to chlorine was withdrawn for reasons "unrealated to" the issue before us on review regarding the sufficiency of the testing for SO[2]. Respondent does not object to this assertion, nor does it present any argument predicated on the withdrawal of the chlorine allegation. Accordingly, for purposes of our review in this case we do not attribute any significance to the stipulated withdrawal.

[*8]

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Respondent argued before the judge that Ott's testimony fails to specify where the SO[2] tests were taken, which employees or work functions were tested, and whether the tests were taken in any particular employee's breathing zone. Nor, said Respondent, has Complainant presented any evidence that the concentration of SO[2] as it came out of the "small diameter tube" equalled or exceeded 50 ppm. Considering also the requests for admissions and responses thereto, n7 Respondent asserted that Complainant adduced no evidence to establish that the lift truck operator specified in the citation and complaint or any other employee was exposed to SO[2] in a concentration exceeding that for which his respirator was approved, and it pointed out that no specific exposure level was alleged in the citation or complaint. Respondent, however, conceded in its brief that the lift truck operator was using a respirator approved for 50 ppm.

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n7 See note 4 supra.

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Respondent contended as well that in view of the "numerous uncertainties" of both the complaint and Ott's testimony with respect to the test procedures and results, the two measurements in excess of 50 ppm are inaccurate. In addition, in its view Ott's testimony that SO[2] was discharged into the atmosphere surrounding the employees is not sufficient to show that any employees actually were exposed to any concentrations of SO[2]. And even assuming their accuracy, a violation is not shown because Complainant did not establish either the length of time the employees were supposedly exposed or any correlation between the length of exposure and the moment when breakthrough would occur.

Judge Stuller found that the respirators used by Respondent's employees have an approved ceiling limit for SO[2] of 50 ppm and that two tests taken by Complainant showed that that limit had been exceeded. He vacated that portion of the citation relating to SO[2], however, on his determination that although there was "detailed testimony" concerning the testing for chlorine on August 27, "little testimony" was presented regarding the method by which the SO[2] testing was conducted, and [*10] the evidence "failed to show" where the SO[2] tests or samples had been taken. He further reasoned that it could not be "presumed" that the samples had been taken on August 6 in a similar manner as on August 27. He therefore vacated for failure by Complainant to prove that the concentrations of SO[2] in the employees' breathing zone exceeded the capacity of the respirators. He did not discuss the other arguments raised by Respondent.

In its brief to us on review, Respondent repeats the arguments it made before the judge. Respondent also expresses agreement with the judge's reasoning. In its view, the fact that a specific employee was tested for chlorine exposure on August 27 does not permit an inference that the breathing zone of a particular employee was tested for SO[2] on August 6. According to Respondent, such an inference would be fallacious and contrary to Ott's direct testimony, although Respondent does not cite any specific testimony in support of this conclusion.

Complainant contends before us that the judge erred in concluding that the location and methodology of the SO[2] sampling was not adequately shown. In Complainant's view, the evidence fully sets forth these [*11] elements because Ott testified he used the same techniques and equipment as for the chlorine sampling which he described in detail. Complainant further asserts that Respondent did not present any evidence to rebut or otherwise dispute the adequacy of these techniques as applied to SO[2]. Finally, noting Ott's testimony specifying where he took the chlorine samples in relation to the employee's breathing zone, Complainant argues that Judge Stuller erred in concluding Complainant had not shown that the SO[2] samples were taken in an employee's breathing zone.

We agree with Complainant that the judge erred in vacating the citation as it pertains to SO[2]. Ott testified, and it is not disputed, that he used the same apparatus and techniques as for the chlorine testing. The judge therefore erred in concluding that he could not "presume" the manner by which the SO[2] samples were taken. He was not asked to draw any such presumption because Ott's unrebutted testimony is direct evidence that the same methods and techniques were used during both inspections.

For the same reason, the judge also erred in determining that the evidence failed to show where the SO[2] samples had been taken. [*12] Ott specifically described the method by which the breating zone of a cell operator was tested for chlorine on August 27. Neither Judge Stuller nor Respondent, despite its argument, direct us to any testimony in contradiction of this description or to show that Ott did not apply the same techniques when he conducted the SO[2] testing.

The evidence is also undisputed that the respirators being used by Respondent's employees had an approved ceiling limit for SO[2] of 50 ppm, and Ott testified that the SO[2] concentrations to which these employees were exposed exceeded that level. n8 Neither Respondent's refusal to admit to such exposure levels nor the failure of the record to show the concentration at the moment of discharge contradict Ott's testimony. Respondent presented no evidence to rebut Ott's measurements or to show that the concentration at discharge was such that exposure levels above 50 ppm did not exist. n9 We therefore reject Respondent's argument that Ott's SO[2] measurements were not shown to be accurate or reliable. n10

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n8 Respondent in its submissions cites only one example of supposed inconsistency in Ott's testimony. It refers to a question asked by Ebert, the union representative, regarding Ott's measurements:

Q. Okay. On those two readings you said you would get it corrected for those readings, one was nine and one was seventy-five?

A. Those were uncorrected.

Q. Those were uncorrected.

Respondent does not explain how this dialogue demonstrates inconsistency in Ott's testimony. We note that Ott had not previously testified to readings of either 9 or 75 ppm, although he indicated he had received and corrected a reading of 90 ppm. We assume Ebert meant to say "90" rather than "9," and that Ott also understood him to mean 90. Respondent does not refer us to any evidence to rebut or otherwise contradict Ott's testimony of 90 and 75 ppm as the uncorrected readings, and it cannot be said that such readings are inconsistent with corrected readings of 81 and 58 ppm.

n9 Nor is Complainant's failure to specify Ott's exposure measurements in the pleadings dispositive absent a showing by Respondent that it was thereby misled. Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976); B.W. Harrison Lumber Co., 76 OSAHRC 49/A2, 4 BNA OSHC 1091, 1975-76 CCH OSHD para. 20,623 (No. 2200, 1976), aff'd, No. 76-2619 (5th Cir. Mar. 23, 1978).

n10 Complainant suggests that Respondent by failing to object during the inspection to Ott's sampling methods thereby conceded their accuracy. However, Complainant presented no evidence to show such a concession, and Respondent refused to admit that its representative, Baker, was silent. Furthermore, Respondent affirmatively asserted that Ott's techniques were questioned during the August 27 inspection when the chlorine measurements were taken. On the other hand, Respondent did not adduce any evidence to contradict or otherwise rebut Ott's testimony of the methods used in the chlorine testing, and in its briefs both before the judge and before us Respondent does not argue that the testing was inadequate as to chlorine.

[*13]

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Respondent also argues that the citation should be vacated because specific employees were not shown to have been exposed to excessive concentrations of SO[2]. While it may be that the complaint does not correctly identify the employee or employees allegedly exposed to excessive concentrations of SO[2], and that Ott did not testify as to which employees he examined, Respondent's representatives accompanied Ott and had an opportunity to observe the testing. Respondent, given its familiarity with its own workplace, therefore knows or should know which employee or employees were actually tested for SO[2]. If it had evidence to rebut Ott's testimony, it was in a position to present such evidence. Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976).

Respondent, however, also claims that a violation is not shown because Complainant tested only the atmosphere surrounding the employees. Although the argument is not entirely clear, it appears based on the view that it is not sufficient merely to test the ambient air as breathed by the employee. n11 We rejected a similar argument [*14] in Turner Co., 76 OSAHRC 108/A2, pp. 7-8, 4 BNA OSHC 1554, 1557, 1976-77 CCH OSHD para. 21,023 at 25,275 (No. 3635, 1976), remanded on other grounds, 561 F.2d 82 (7th Cir. 1977), and reject the argument here.

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n11 Respondent cites an unreviewed decision in which Judge Charles K. Chaplin, vacating a citation alleging excessive exposure to chlorine of employees wearing respirators, stated in dicta that such measurements are not probative unless made of the air inside the respirator, that is, after the air has been processed by the respirator. FMC Corp., 74 OSAHRC 80/E2 (No. 4871, 1974). This decision is not precedent binding on the Commission. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

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Lastly, Respondent contends that even assuming the accuracy of Ott's measurements a violation is not shown because of Complainant's failure to show the duration of exposure in relation to the length of time required for breakthrough to occur. That is, in Respondent's [*15] view Complainant must establish the inadequacy of a respirator by specific evidence that the respirator will fail or be otherwise insufficient in the particular circumstances of its use. We reject the argument. The standard in issue imposes a general requirement that respirators provide adequate protection against the air contaminants for which they are designed. It may be that by itself this provision would require Complainant to prove precisely how a respirator would be inadequate in a given situation. However, the standard also refers to criteria established by competent authorities and provides that adequacy is to be viewed in accordance with those criteria. Reading the standard as a whole n12 we conclude that Complainant establishes a prime facie case by showing use of a respirator in a manner contrary to the guidance of the approving authority and that Complainant need not show specific circumstances which would cause the respirator to fail. See Greyhound lines-West v. Marshall, Nos. 76-2608 & 76-3246 (9th Cir. May 25, 1978); Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973-74 CCH OSHD para. 17,693 (No. 1105, 1974), aff'd, 511 F.2d 864 (10th [*16] Cir. 1975).

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n12 United States Steel Corp., 77 OSAHRC 64/C8, p. 19, 5 BNA OSHC 1289, 1296, 1977-78 CCH OSHD para. 21,795 at 26,225 (Nos. 10825 & 10849, 1977).

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There is no dispute that Respondent's employees were using respirators approved for a maximum concentration of 50 ppm of SO[2]. Respondent presented no evidence to rebut Ott's measurements showing exposure of employees to concentrations in excess of that limit, and it adduced no evidence from which we could conclude that in these circumstances a hazard did not exist. Since we find Respondent's other arguments to be without merit, we hold that Complainant by a preponderance of the evidence established a violation of the standard.

The parties stipulated that Respondent has a history of prior violations of the Act and is a large company with approximately 800 employees. On the other hand, the record does not show how many employees were exposed to excessive concentrations of SO[2], and one of Ott's two readings exceeded the limit by only a fairly small amount. [*17] Complainant proposed a single penalty of $100 for the two allegations contained in the citation concerning 1910.134(b)(11), one of which was withdrawn. In the circumstances, we think a penalty of $50 is appropriate.

Accordingly, we reverse the judge's decision insofar as it vacates the citation for failure to comply with 1910.134(b)(11) with respect to exposure to SO[2]. We affirm that portion of the citation and assess a penalty of $50 therefor.

So ORDERED.

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 [*18] 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 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 [*19] 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 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, [*20] 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 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 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. [*22] 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 a violation of the Act exists. That result would be inconsistent [*23] 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 uniform application and development of occupational [*24] 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.