HAVENS STEEL COMPANY

OSHRC Docket No. 15538

Occupational Safety and Health Review Commission

June 19, 1978

[*1]

Before CLEARY, Chairman; and 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

T. A. Housh, Jr., Reg. Sol., USDOL

Thomas M. Moore, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

On June 7, 1976, Administrative Law Judge Alan M. Wienman held that respondent Havens Steel Company had failed to comply with 29 CFR 1926.550(a)(9). He therefore affirmed item two of a citation alleging an other than "serious" violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter "the Act"]. The Judge also held that the Secretary had failed to prove that respondent had operated a crane while persons were on the hook or load. He therefore vacated a citation alleging a "serious" violation of section 5(a)(2) of the Act for noncompliance with section 5-3.2.3(e) of ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes, as adopted by 29 CFR 1926.550(b)(2).

On July 7, 1976, I granted petitions for discretionary review filed by both parties and invited [*2] submissions on the following primary issues raised by the petitions:

(1) Whether the Administrative Law Judge erred in not finding that the headache ball was part of the "load" as that term is used in ANSI B30.5 (1968), incorporated by reference in 29 CFR 1926.550(b)(2)?

(2) Whether the . . . Judge erred in finding that the unbarricaded swing radius of the respondent's crane was accessible to respondent's employees?

(3) In light of the statutory factors set forth in section 17(j) of the Act, did the . . . Judge err in determining that a penalty of $750 was appropriate under the facts of this case?

The parties have presented additional issues for our consideration. We find that respondent failed to comply with both of the cited standards. Accordingly, we order that both item 2 of the citation alleging a "nonserious" violation and the citation for "serious" violation be affirmed. n1

Riding on the Headache Ball

Section 1926.550(b)(2) provides:

1926.550 Cranes and derricks.

* * *

(b) Crawler, locomotive, and truck cranes.

* * *

(1) All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, [*3] testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

Section 5-3.2.3(e) of ANSI B30.5-1968, the provision cited by the Secretary, states:

Section 5-3.2 Handling and Load

* * *

5-3.2.3 Moving the Load

* * *

(e) The operator shall not hoist, lower, swing, or travel while anyone is on the load or hook.

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n1 Former Commissioner Moran issued an order also directing that the Judge's decision "be reviewed for error." The Judge's vacation of item 1 of the citation for a nonserious violation is not before us as no party has taken exception to the Judge's disposition of that item.

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On October 3, 1975, Havens was engaged as the steel erection subcontractor on a building construction site in Kansas City, Kansas. The record establishes, and the parties agree, that on that date two construction workers at the site rode a headache ball at the end of a hoisting rope of a Link-Belt crane used and controlled by Havens. Havens argues that the workers [*4] who rode the headache ball were not established to have been its own employees. Inasmuch as Havens clearly controlled the crane, however, it was under a duty to operate the crane in conformity with the standards even if such compliance would have protected only employees of other contractors at this multiple-employer construction worksite. n2 Jackson Construction Co., 77 OSAHRC 137/C14, 5 BNA OSHC 1608, 1977-78 CCH OSHD para. 21,981 (No. 13843, 1977); see Brennan v. O.S.H.R.C. and Underhill Construction Co., 513 F.2d 1032 (2d Cir. 1975). Moreover, we note that Judge Wienman specifically found that the workers on the headache ball were Havens' employees. This finding is soundly based on the testimony of Havens' own steel erection superintendent that only Havens' connectors are permitted to ride a headache ball.

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n2 We therefore need not pass upon the Secretary's argument that the standard is to be applied, by its own terms, to prohibit the operator (here, Havens) from moving the hoisting rope "while anyone is on the hook or load." (Emphasis added.)

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Respondent argues also that the employees' actions were in violation of Havens' company safety policy and was an isolated occurrence. This contention has no merit. We need only observe, in accordance with our precedent, that not only did respondent not have a work ruel n3 forbidding the operation of the crane while someone was riding the headache ball, but that Havens' own policies sometimes permitted such operation in contravention of the standard. Candler-Rusche, Inc., 76 OSAHRC 56/A2, 4 BNA OSHC 1232, 1976-77 CCH OSHD para. 20,723 (No. 4675, 1976), aff'd without opinion, No. 76-1645 (D.C. Cir., June 2, 1977). n4

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n3 See, e.g., Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977).

n4 See also Wisconsin Electric Power Co., 76 OSAHRC 134/B2, 4 BNA OSHC 1783, 1786, 1976-77 CCH OSHD para. 21,234 (No. 5209, 1976), aff'd, No. 76-2166 (7th Cir., December 14, 1977).

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Havens' [*6] primary contention n5 is that the evidence does not show a failure to comply with the standard. It argues that the headache ball is not part of the hook or load and that the standard therefore permits it to operate the crawler crane n6 while employees ride upon the ball. Judge Wienman was persuaded by this argument. We are not.

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n5 Havens briefly argues that its right to due process guaranteed by the Fifth Amendment was violated because 1926.550(b)(2) does not set out verbatim the requirements of the ANSI standard but merely incorporates them by reference. We do not resolve this issue. Havens nowhere contends that the incorporation by reference of the ANSI standards violated the statute and regulations permitting the governing such incorporation. Compare Atlantic & Gulf Stevedoring, Inc., 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1008-1009, 1974-75 CCH OSHD para. 19,526 (Nos. 2818 etc., 1975), aff'd, 534 F.2d 541 (3d Cir. 1976); Corbin Lavoy, 76 OSAHRC 57/A2, 4 BNA OSHC 1259, 1976-77 CCH OSHD para. 20,715 (No. 782, 1976); Leader Evaporator Co., 79 OSAHRC 61/D2, 4 BNA OSHC 1292, 1976-77 CCH OSHD para. 20,781 (No. 5225, 1976); Louisiana-Pacific Corp., 77 OSAHRC 187/A2, 5 BNA OSHC 1994, 1999, 1977-78 CCH OSHD para. 22,261 (No. 10639, 1977). Under 44 U.S.C. 1507 we must presume that the ANSI standard was incorporated by reference in accordance with the Administrative Procedure Act, 5 U.S.C. 551 et seq., and the Federal Register Act, 44 U.S.C. 1501 et seq. Thus, adoption of Havens' argument would necessarily require that these statutes be found unconstitutional by the Commission. This we have no power to do. Montana Chapter of Assn. Civilian Technician, Inc. v. Young, 514 F.2d 1165, 1167 (9th Cir. 1975), cited in Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), pet. for review filed, No. 76-1467 (5th Cir., February 19, 1976).

n6 Respondent claims that there is a lack of evidence that its crane is covered by 1926.550(b), which refers to crawler, truck, and locomotive cranes. We disagree. At the hearing, the compliance officer confirmed, in response to a question posed by the Judge, the characterization in the citation of the crane as a crawler type, specifically as a Link-Belt LS 118 crawler crane. Also, inasmuch as the crane had a rotating superstructure, it appears to be one of the types covered by the standard. See the definitions at section 5-0.2.1 of the ANSI standard. We also take official notice that a Link-Belt LS 118 crane is stated in 1 OSHA Requirements for Construction Equipment Standards, Crawler Cranes at 48 (Nat'l. Research & Appraisal Co., 1977) to be a crawler type. Finally, we observe that at the hearing it was well understood by the parties that Havens' crane was of this type. Compare D. Federico., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1971 n.4, 1975-76 CCH OSHD para. 20,422 (No. 4395, 1976), aff'd, 558 F.2d 614 (1st Cir. 1977), citing Quick v. Martin, 397 F.2d 644, 647 (D.C. Cir. 1968). We therefore need not discuss the unreviewed portion of an Administrative Law Judge's decision in M-Co Equipment Co., 75 OSAHRC 37/C3, 2 BNA OSHC 1660, 1973-74 & 1974-74 CCH OSHD paras. 17,444 & 19,394 (No. 3811, 1974 (ALJ), 1975 (RC)), which is not precedent that we consider as binding upon us, and which, in view of our finding that respondent's Link-Belt LS 118 crane is a crawler crane within the meaning of 1926.550(b), is inapposite. In M-Co, the Judge held that an employer whose crane did not fall within the literal scope of 1926.550(b) could not be expected to look to the broad scope sections of ANSI B30.5.

[*7]

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The headache ball used by Havens was attached directly to and on top of the hook. Its purpose was to facilitate the lowering of the hoist rope by adding weight to it; without the ball, the hoist rope may not have enough weight to lower itself.

Although the direction for review asks whether the headache ball is part of the "load" as that term is used in the standard cited, the Secretary argues additionally that, because the standard was intended to forbid riding on the entire load lifting apparatus, including the headache ball, the ball could be considered as part of the hook. We agree with this position.

As Judge Patton n7 stated in Poston Bridge & Iron Co., 74 OSAHRC 1/D2, 1 BNA OSHC 3273, 1973-74 CCH OSHD para. 16,997 (No. 3561, 1974) (Administrative Law Judge):

As hereinabove stated, it is the position of the respondent that the prohibition is against riding up the "hook" and the accusation is that the employees rode up the "ball." This Judge is of the opinion that the word hook is broad enough to cover the ball. The hook is a device whereby things are picked up and lifted and the ball is [*8] attached to the hook as a steadying influence on the hook and in the broad sense of the word the ball is a part of the hook. It would appear that the word "hook" is not just the end of the device but is the entire device for hooking or picking up the necessary beams. This Judge is, therefore of the opinion that the respondent's position is too technical insofar as said word is concerned and that it is contemplated in the standard that it is illegal to ride the ball.

This view is consistent with the Commission's own precedent. In Candler-Rusche, Inc., supra, the Commission found that an employer had violated the standard when an employee had ridden in a sling fashioned out of the crane's rigging that was attached to the headache ball. Under the narrow view urged by the respondent, the standard could not have been so applied. Moreover, under that view, another employee in Candler-Rusche, who had grabbed hold of the spreader hook, would have been protected by the standard, but his fellow worker riding inches above him would not have been so protected. In view of the standard's obvious purposes of protecting employees against falling from the load and load lifting apparatus [*9] and swinging against other objects, we find that the standard was not intended to yield such an absurd result. Accordingly, we reject the interpretation urged by Havens. Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1166-1167 (D.C. Cir. 1975). n8

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n7 On the precedential value of an unreviewed Judge's decision, see Turner Co., 76 OSAHRC 108/A2, 4 BNA OSHC 1554, 1559 n.11a, 1976-77 CCH OSHD para. 21,023 (No. 3635, 1976), rev'd and remanded on other grounds, 561 F.2d 82 (7th Cir. 1977); Penn-Dixie Industries, Inc., 76 OSAHRC 55/D13, 4 BNA OSHC 1209, 1975-76 CCH OSHD para. 20,703 (No. 8380-P, 1976); and Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976). Taken together, these cases hold that, although such a decision is not precedent binding upon us, we may, depending on the intrinsic merit of the Judge's opinion, adopt it as our own in later cases.

n8 We note that section 5-0.2.2.25 of the ANSI standard defines "load (working") as "[t]he external load, in pounds, applied to the crane, including the weight of load-attaching equipment such as load blocks, shackles, and slings." In Alfred A. Austin Construction Co., 73 OSAHRC 50/A2, 4 BNA OSHC 1166, 1976-77 CCH OSHD para. 20,660 (No. 4809, 1976), the Commission faced a problem somewhat different from that presented here and referred to another definition if "load" in section 2-0.2.2.27 0 ANSI B30.2-1967, Safety Code for Overhead and Gantry Cranes, to determine that the term "load" as used in section 20-3.2.3(e) included a material box, carried below the hook, in which employees were riding.

[*10]

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Havens also argues that, despite the standard, the Commission should permit it to continue to operate the crane while employees ride the ball under the procedure it has required: that the employees wear a safety belt tied off to the shackle affixed to the hoisting rope while standing on two one-foot square shackles fastened to the top of the ball. The standard, however, forbids such riding, and, inasmuch as Havens has not attempted to bring itself within any recognized affirmative defense, we reject its argument.

Havens contends that its procedure comports with the Secretary's Field Information Memorandum #75-13 (February 13, 1975), n9 which deals with difficulties of compliance with this standard. The memorandum reads as follows:

FIELD INFORMATION MEMORANDUM #75-13

To: Assistant Regional Directors/OSH

Subject: Crawler, Locomotive, and Truck Cranes, 1926.550(b)(2)

Reference: Crawler, Locomotive, and Truck Cranes, USAS B30.5-1968, page 19, paragraph 5-3.2.3.e

No citations will be issued under 29 CFR 1926.550(b)(2) in situations where there are no other practical alternative means of transporting [*11] persons and where transportation of persons is not immediately on the crane hook, but is on equipment designed for passenger service and suitable side and end protection is provided. Platform stability and integrity must be maintained and there must be positive means of preventing the bridles from becoming disengaged from the crane hook. The standard is currently being reviewed.

This FIM supersedes the memorandum dated May 22, 1972, subject: Telegram to Florida Constructors in Reference to Crane Operations 1926.550(b)(2).

We have previously considered this memorandum at some length in Alfred A. Austin Construction Co., supra note 8. It is inapplicable in the instant case for several reasons. It was not established that there were no other practical means of transporting employees. Also, the equipment used by respondent was not designed for passenger service and lacked side and end protection. Finally, we observe that any difficulties respondent may have encountered could have been presented to the Secretary in an application for a variance under sections 6(b)(6)(A) and 6(d) of the Act. See e.g., Grant of Variance to Interpace Corp., 42 Fed. Reg. 40271, [*12] 1 BNA OSHR Reference File 35:1293, 1977 CCH E.S.H.G. Developments para. 10,991 (1977); Grant of Interim Variance to Interpace Corp., 42 Fed. Reg. 57181, 7 BNA OSHR Current Report 795, 1977-78 CCH E.S.H.G. Developments para. 11,087 (1977), both dealing with 1910.180(h)(3)(v), which is virtually identical to the cited standard.

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n9 The Memorandum is published at 1974-75 CCH E.S.H.G. Developments para. 9707 (1975), stated to remain in effect, Field Information Memorandum No. 77-9 (September 8, 1977), published at 7 BNA OSHR Current Report 505 (September 22, 1977).

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Accordingly, we find that respondent failed to comply with 1926.550(b)(2) and violated section 5(a)(2) of the Act. We also find that the violation was "serious" within the meaning of section 17(k) of the Act. If an employee had fallen from the ball or had been swung into another object, there was a substantial probability that death or serious physical harm would occur. For the reasons stated in our discussion of Havens' practices, we [*13] find that Havens knew or should have known that the crane would be operated while employees were on the ball.

The Secretary proposed a penalty of $600. Considering the factors in section 17(j), as set forth more fully in my discussion of the penalty with respect to the barricading violation and Commissioner Barnako's concurring opinion, we find that a $600 penalty is appropriate, particularly, in view of the gravity of the violation. In assessing this penalty, I have also considered respondent's lack of good faith, as discussed infra.

Failure To Barricade The Crane

Citation number 1 alleges a violation of section 5(a)(2) of the Act for failure to comply with 1926.550(a)(9). That section reads in pertinent part, as follows:

1926.550 Cranes and derricks.

(a) General requirements.

* * *

(9) Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

The inspection was conducted under unusual circumstances. When the compliance officers arrived at the construction site, they [*14] went to the trailer used by the general contractor, Universal Construction, and spole to its superintendent, Mr. George Cook, about arranging an opening conference and a walkaround inspection with representatives of all the contractors on the site. Mr. Cook left the trailer to gather the various employer representatives. Mr. Larry Larson, the superintendent for Havens, came into the trailer to use the telephone, unaware that the compliance officers were on the site. The compliance officers presented their credentials to Mr. Larson and explained that they were about to inspect the site. Mr. Larson's immediate response was to turn and leave the trailer. He returned a few minutes later and informed the compliance officers that he had sent Havens' employees home for the rest of the day. He stated that if there was no employee exposure, no citations could be issued. n10

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n10 In its brief on review, Havens states that "employees of Havens left the jobsite and refused to work during the . . . inspection." The record shows, however, that Havens' employees did not leave the site of their own accord, and it furnishes no support for counsel's assertion that they were unwilling to work simply because a compliance officer was conducting an inspection.

[*15]

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The compliance officers then proceeded with the walkaround inspection without a Havens' representative. During the walkaround they did not observe any Havens' employees on the site, nor did they then see the crane in operation. Compliance officer Barker did, however, testify that the unbarricaded crane was located in the middle of the basement of the building under construction and that he observed employees of other contractors in a confined area so near the crane that if the superstructure had rotated, employees could have been struck by it.

Havens argues that the citation should be vacated because the crane was not in operation during the walkaround inspection and because its own employees were not present within the swing radius of the crane during its operation. These contentions have no merit.

It is not necessary that the crane be found to have been in operation during the walkaround inspection. The record establishes that the crane was in operation on October 3, 1975, the time the violation was alleged in the Secretary's complaint to have occurred. The record also establishes that areas [*16] within the unbarricaded swing radius of the superstructure were then accessible to employees of other contractors. This satisfies the Secretary's burden of proof under the access rule announced in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1975), and embodied in the standard itself. Jensen Constr. Co., 77 OSAHRC 201/C6, 6 BNA OSHC 1070, 1072, 1977-78 CCH OSHD para. 22,323 (No. 14300, 1977). Furthermore, as previously indicated, the respondent, as the operator of the crane, was required to comply with the standard even if the endangered employees were not its own. Accordingly, we find that respondent did not comply with 29 CFR 1926.550(a)(9) and violated section 5(a)(2) of the Act.

We now turn to the assessment of a penalty. The Secretary proposed a penalty of $50 for the violation. Judge Wienman found that respondent had acted in bad faith, expressed concern with the gravity of the violation, and assessed a penalty of $750. The Secretary now submits that $750 is an appropriate penalty. Havens argues that such a penalty is inappropriate, and that the penalty should not have been "increased" by the Judge. n11 [*17]

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n11 Havens also contends that the Judge erred in observing that the compliance officer used a "manifestly erroneous" test to determine whether the violation was serious or nonserious, and that the Judge assessed the penalty as if the violation were "serious" within the meaning of section 17(k). We disagree. Our decision in Lipsky & Rosenthal, 74 OSAHRC 29/A8, 1 BNA OSHC 1736, 1973-74 CCH OSHD para. 17,814 (No. 690, 1974), was correctly cited by Judge Wienman for the proposition that Havens' violation cannot be found to have been serious because the issue was neither pleaded nor tried by the consent of the parties. The Judge properly considered, however, the different issue of gravity, which under section 17(j) is always open to his examination if the penalty is disputed by the parties. Havens' arguments are therefore misconceived. Nevertheless, we agree with the Judge's view of the compliance officer's error. As Judge Wienman observed, the probable severity of possible injuries and not the likelihood of their occurrence controls the classification of violations as "serious" and "nonserious." California Stevedore & Ballast Company, 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1307, 1973-74 CCH OSHD para. 16,520 at 21,364 (No. 14, 1973), aff'd and approved, 517 F.2d 986, 987-988 (9th Cir. 1975); Brady-Hamilton Stevedore Company, 76 OSAHRC 5/D9, 3 BNA OSHC 1925, 1975-76 CCH OSHD para. 20,342 (No. 2265, 1976) and cases cited therein. The compliance officer erroneously considered the likelihood of injury in classifying the violation, even though this consideration is relevant only in determining the gravity of the violation.

[*18]

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It is well-settled that the Commission and its Judges have authority to access penalties in light of the entire record, even if this results in an assessment greater than the amount proposed by the Secretary. See e.g., Long Manufacturing Co., N.C., Inc. v. O.S.H.R.C., 554 F.2d 903 (8th Cir. 1977); Clarkson Construction Co. v. O.S.H.R.C., 531 F.2d 451 (10th Cir. 1976); Dan J. Sheehan Co. v. O.S.H.R.C., 520 F.2d 1036 (5th Cir. 1975), cert. denied, 424 U.S. 965 (1976); Worcester Pressed Steel Co., 75 OSAHRC 89/A2, 3 BNA OSHC 1661, 1975-76 CCH OSHD para. 20,104 (No. 4237, 1975), and the cases cited therein.

After reviewing the evidence, Commissioner Barnako and I have concluded that a penalty of $250 would be appropriate. However our reasons for assessing this amount differ. My views are set forth below. Commissioner Barnako's views are set forth in his concurring opinion.

Havens argues that a finding of bad faith based on the removal of its employees' work from the purview of the compliance officers, would, in effect, penalize it for exercising its Fourth Amendment [*19] right to "deny permission to a [compliance officer] to make an inspection and cause the Secretary to obtain a search warrant." I disagree. First, respondent's superintendent, did not object to the inspection on Fourth Amendment grounds. Second, it is clear that Havens did not possess any Fourth Amendment rights at this site, for it had no reasonable expectation of privacy. Bloomfield Mechanical Contracting, Inc. v. O.S.H.R.C., 519 F.2d 1257, 1263 (3d Cir. 1975); see Accu-Namics, Inc, 74 OSAHRC 35/A2, 1 BNA OSHC 1751, 1973-74 CCH OSHD para. 17,936 (No. 477, 1974) (lead and concurring opinions), aff'd, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976); Western Waterproofing Co., 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1311-1312, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976) (Cleary, Commissioner, concurring in part and dissenting in part), rev'd and remanded on other grounds, 560 F.2d 947 (8th Cir. 1975). Also, as respondent concedes, the general contractor had at least common authority over the site. It could therefore have validly consented to the presence of the compliance officers where the work of Havens' employees [*20] could have been viewed. See the judicial and Commission opinions in Marshall v. Western Waterproofing Co., 560 F.2d 947, 950-951 (8th Cir. 1977), rev'd and remanding on other grounds, 76 OSAHRC 64/A2, 4 BNA OSHC 1301, 1304, 1310-1311, 1976-77 CCH OSHD para. 20,805 (No. 1087, 1976) (opinions of Commissioners Barnako and Cleary).

Havens also argues that its actions at the time of the inspection cannot be relied upon as evidence of bad faith because those actions were consistent with its duty under section 5(a)(2) of the Act. It views itself to have been obligated to send its employees from the project site to protect them from violations created by other contractors. It also appears to contend that it was making a good faith attempt to exercise its Fourth Amendment rights. I disagree.

Havens both created and controlled the hazards caused by the two violations under review. It could have protected employees having access to the hazards by simply complying with the standards. Furthermore, these violations did not affect all employees throughout the site and did not require Havens to send its own employees from the worksite. If Havens' purpose was to [*21] comply with the Act, its actions were unnecessary, excessive, and not indicative of good faith.

I find, however, that, despite assertions to the contrary, such was not Havens' purpose. The record shows that Havens sent its employees home to prevent the compliance officers from gathering evidence of employee exposure or access. Its actions, rather than reflecting a concern with vindicating any Fourth Amendment rights, protecting the lives and safety of employees, or complying with the Act, were an attempt to frustrate the enforcement of the Act. Havens released its employees only when federal officials appeared at the site, not when they were endangered by violations of the Act. Furthermore, Havens' actions displayed a disregard for the rights of its employees to participate in the walkaround inspection n12 and to privately communicate and consult with the compliance officers. n13

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n12 Section 8(a) of the Act, which authorizes the Secretary to inspect workplaces, authorizes him to "question privately" any employee. Section 8(e) requires the Secretary to extend to a representative authorized by employees an opportunity to participate in the walkaround inspection, or, if there is no authorized employee representative, the Secretary is required to "consult with a reasonable number of employees concerning matters of health and safety in the workplace." On the importance of these provisions to Congress, see S.Rep. No. 91-1282, 91st Cong., 2d Sess. 11 (1970), reprinted in Staff of Senate Committee on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 151 (Comm. Print 1971); and Marshall v. Daniel Constr. Co., 563 F.2d 707, 711 (5th Cir. 1977), pet. for reh. filed, December 15, 1977.

n13 Havens argues that the walkaround rights of employees were not frustrated because at the time of its actions they were directory rather mandatory. See Chicago Bridge & Iron Co., 74 OSAHRC 92/A2, 1 BNA OSHC 1086, 1971-73 CCH OSHD para. 15,416 (No. 224, 1973). The question of whether the walkaround provision of section 8(e) is directory, rather than mandatory, relates to what action should be taken by the Commission when an inspection does not comply with section 8(e). Even if the providing is directory, it does not preclude the Commission from considering an employer's bad faith for penalty purposes when the employee was improperly frustrated his employees' walkaround rights, as was done here. Havens' argument is therefore infirm.

[*22]

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This is not to say that an employer who removes his employees from hazardous conditions, rather than correcting the condition, necessarily acts in bad faith. The purpose of the employer's action is crucial to the determination. If his purpose is to carry out his obligations under the Act or to vindicate what he reasonably believes are his Fourth Amendment rights, he has not acted in bad faith. If as here, however, his only purpose is to frustrate the enforcement of the Act by limiting employee access or exposure only at those times when compliance personnel are at the worksite, a finding of bad faith is appropriate. This bad faith is compounded when employees are precluded from exercising their inspection rights because they are sent away from the worksite. For these reasons, I agree with Judge Wienman's finding that respondent acted in bad faith.

I now consider the other statutory criteria of section 17(j). With respect to gravity, the compliance officer's testimony establishes that at least two employees of other contractors were endangered by the failure to barricade, and the duration of their [*23] access to the hazard is not known. Thus, despite the severity of a possible injury, I find that the gravity was moderately low. With respect to the size of the respondent's business, the record indicates the presence of only seven employees at this worksite; it was this number that the compliance officer used in his penalty calculations. An accurate determination of the size of the employer's business cannot be undertaken based only upon this knowledge. It is well settled that size is properly determined with reference to the total number of persons employed by the cited employer and the gross dollar volume of the employer's business. Jasper Construction, Inc., 73 OSAHRC 32/D7, 1 BNA OSHC 1269, 1973-74 CCH OSHD para. 16,375 (No. 119, 1973). A contrary holding would give large employers the benefit of a congressional policy designed to protect small employers from penalties out of proportion to the amount of business they transact. See Intercounty Construction Corp., 73 OSAHRC 59/E9, 1 BNA OSHC 1437, 1439, 1973-74 CCH OSHD para. 17,044 (No. 919, 1973), aff'd, 522 F.2d 777 (4th Cir. 1975), cert. denied, 423 U.S. 1072 (1976). Despite the absence of evidence [*24] produced at the hearing on these relevant factors, however, I can say that Havens is in no sense a small employer. I take official notice of Commission records which indicate that about six months before this inspection Havens employed over 90 persons at one construction site in Lenexa, Kansas. Havens Steel Co., No. 13463 (January 29, 1976) (Administrative Law Judge) (slip op. at 14), review directed, February 25, 1976; respondent's brief in same case at 4. As to Havens' history of previous violations, the compliance officer testified that Havens had received several citations, but he did not testify that any of them had become final orders of the Commission. Also, I am unaware of any previous violations by respondent culminating in a final order of the Commission. See General Steel Fabricators, Inc., 77 OSAHRC 173/F2, 5 BNA OSHC 1837, 1977-78 CCH OSHD para. 22,190 (No. 76-710, 1977).

Accordingly, citation number 2 and item 2 of citation number 1 are affirmed, and penalties of $600 and $250 are assessed, respectively.

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

SEPARATE [*25] 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 cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention [*26] 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 Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an exicting tie where he had [*27] 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). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming [*28] 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 [*29] 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 vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous [*30] 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 Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal [*31] 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 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 [*32] workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, Concurring:

I agree that Havens violated the cited standards for the reasons stated by Chairman Cleary, and I think that penalty assessments of $600 and $250 for the serious and nonserious violations are justified by the gravity of the violations. However, I disagree with Chairman Cleary concerning the rationale behind the assessment of these penalties. I would place primary reliance on the gravity of the violations. With respect to the citation for violation of 29 C.F.R. 1926.550(b)(2), the gravity was relatively high. Two employees were observed by the Compliance Officer riding the headache ball at the fourth level of steel. Although the Compliance Officer did not testify as to the injury that would result if the employees fell off this ball, I would take judicial notice that severe injury or death could result. On the other hand, I conclude that the gravity was moderately low with respect to the citation for violation of 29 C.F.R. 1926.550(a)(9), since the record is devoid of evidence from which I can conclude [*33] the nature of injuries, the length of employee exposure, or the degree of probability of occurrence of an injury. See National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD para. 15,188 (No. 85, 1972).

I disagree with Chairman Cleary's statement that for purposes of size "Havens is in no sense a small employer" and do not think the record justifies a finding that Havens acted in bad faith. While I agree that size is properly determined with reference to the total number of persons employed by the cited employer and the gross dollar volume of the employer's business, I disagree with Chairman Cleary that we can take judicial notice of the size of Havens based on the number of persons employed at a worksite six months before this inspection. There is no evidence in the record that the worksite in Lenexa, Kansas existed on the inspection date, or that even if it did exist, the number of employees imployed at the site was 90 at that time. As the record stands, the only evidence with respect to Respondent's size is that there were seven Haven employees at the worksite involved herein. Since the Secretary has the burden of proof with respect [*34] to the penalty assessment and has failed to establish that there were any more than seven employees in Respondent's employ, I would consider the size of Respondent to be small. n1

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n1 In discussing the history criteria, Chairman Cleary states that he would take judicial notice of citations which were issued to Havens and have become final orders as a result of Commission action in Havens Steel Co., supra, (No. 13463, 1978). Although I would find it appropriate for purposes of determining history in penalty assessments to take judicial notice of citations which have been issued to Havens and have become final orders as of the date of the alleged violations herein, I disagree with Chairman Cleary that we should take judicial notice of the citations which were issued to Havens and were under contest in Havens Steel Co., supra, (No. 13463, 1978). The two citations involved in that case became final orders on May 20, 1978, thirty days following issuance of our decision therein. Hence they were not final orders as of the date the violations occurred. Moreover the sixty day period for review pursuant to section 11(a), 29 U.S.C. 660(a), has not elapsed. In such circumstances, I would ordinarily afford the parties an opportunity to brief the issue before issuing a decision on the matter. However because I have placed primary reliance on the gravity of the violations, my penalty assessment would not be altered regardless of whether or not I would take judicial notice of two previous citations issued to Havens. Accordingly I would neither request the parties to brief nor reach the issue raised by Chairman Cleary's actions. I would note further that the mere statement of the Compliance Officer that Havens had received some citations, without any identification of those citations and the date on which they became final orders, is insufficient evidence on which to base any finding regarding history.

[*35]

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I also disagree with Chairman Cleary's discussion concerning good faith. In my opinion, an employer's good faith for penalty assessment purposes depends on the attitude demonstrated by the employer with respect to the safety and health of its employees, and is reflected in the efforts the employer has taken to comply with the Secretary's standards. As the Secretary states in his brief, "(a) showing of demonstrable bad faith on the part of an employer justifies the imposition of a larger penalty because it is evidence that the employer will not comply voluntarily. Indeed, the entire statutory scheme for penalty assessment . . . reveals a Congressional emphasis on the interrelationship between the size of the penalty and the employer's attitude toward the safety and health of his employees."

In this case, beyond the fact that Havens violated several of the Secretary's safety standards, there is no evidence of its general attitude toward the safety and health of its employees and of its efforts to comply with the Act prior to the inspection. The Secretary argues, however, that Havens' attempt to frustrate [*36] the inspection by removing its employees from the site demonstrates bad faith. I disagree. An employer may, in good faith, provide for the safety and health of its employees, yet need not voluntarily accede to an inspection of its worksite by the Secretary. Marshall v. Barlows Inc., 46 U.S.L.W. 4483 (1978).

The compliance officer testified that the reason why Havens removed its employees was because there would be no exposure by those employees to the violative conditions while the compliance officer was on the site. Chairman Cleary finds that this motive demonstrates Haven's attempts to frustrate the enforcement of the Act. While Haven's actions do make the Secretary's enforcement efforts more difficult, n2 such analysis must not stop here nor can Havens actions be viewed in a vaccuum. Respondent urges that its motive in removing its employees was to vindicate Fourth Amendment rights. At the time of the inspection there was no definitive judicial guidance concerning the constitutionality of the Secretary's right to inspect workplaces under the Act, and Havens could well have believed it had a legitimate right to remove its employees from the jobsite while the inspection [*37] was conducted. n3 Such a motive clearly fails to demonstrate a lack of commitment to safety and health by Havens, and hence Havens removal of its employees for this reason does not justify a finding of bad faith.

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n2 I note however that contrary to the judge's finding respondent's actions have not "effectively precluded the Secretary's entry into areas where work was being performed" nor defeated operation of section 8(e) of the Act. The Secretary was still able to enter all areas of respondent's worksite. Moreover, there was no slowing by the Secretary that Respondent denied its employees the opportunity to accompany him on the walkaround. Indeed the mere fact that Respondent's employees were sent home at the time of the inspection does not preclude a representative of the employees from accompanying the compliance officer on the walkaround nor does the Secretary allege that he requested and was denied such a representative. Additionally, while the ability of the compliance officer to discuss conditions with individual employees whom he encounters during the walkaround was precluded by Respondent's actions, the Secretary can nevertheless request their names from Respondent and either through voluntary discussions outside the worksite or if necessary through utilization of his subpoena power under section 8(b) of the Act discuss the conditions with them.

n3 On January 9, 1978, the Supreme Court ruled that the Act is unconstitutional insofar as it purports to authorize OSHA inspections without a warrant or its equivalent and held that the Secretary of Labor must obtain a search warrant to conduct OSHA inspections where employers do not consent to the inspection. Marshall v. Barlows, Inc., supra.

[*38]

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