SALAH & PECCI CONSTRUCTION CO., INC.  

OSHRC Docket No. 15769

Occupational Safety and Health Review Commission

June 12, 1978

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Before CLEARY, Chairman; BARNAKO, Commissioner.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Office of the Solicitor, U.S. Department of Labor

Paul V. Lyons, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The issue in this case is whether an employee who is being lowered in an aerial lift is "working" within the meaning of the standard at 29 C.F.R. 1926.556(b)(2)(v), n1 and thus must wear a safety belt and lanyard tied off to the boom or basket. Judge Abraham Gold concluded that the standard applies only when "the employee is performing work, and does not apply while the employee is being lifted to or lowered from the work position." For the reasons that follow, we reverse and conclude that the standard applies in this circumstance.

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n1 Section 1926.556(b)(2)(v) provides:

A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.

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The Massachusetts Port Authority contracted with Respondent, Salah & Pecci Construction Company, to inspect the structural [*2]   condition of the Tobin Memorial Bridge in Boston, Massachusetts.   In performing this work Salah used a 15-ton hydraulic crane. The crane was equipped with a telescopic boom consisting of three sections to which a basket was affixed.   The basket was used to lift employees to the structural area they were inspecting.

On October 19, 1975, one of Salah's employees, John Gulla, was in the basket when the crane operator received a signal to bring the basket down.   As the operator began lowering the basket, however, one of the telescopic boom sections unexpectedly fell several feet as a result of a malfunction of an internal, unexposed section of the boom. Gulla fell from the basket to the ground and later died.   At the time of the accident Gulla was wearing a safety belt and lanyard but was not tied off to the basket or boom of the crane.

Following an inspection of the worksite by an OSHA compliance officer, the Secretary issued Salah a nonserious citation alleging a violation of Section 1926.556(b)(2)(v) for failure to assure that Gulla was tied off while in the basket. n2

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n2 The Secretary also issued Salah a serious citation alleging a violation of Section 1926.550(a)(16).   That standard requires an employer to obtain the manufacturer's written approval for any modifications or additions which affect the capacity or safe operation of a crane. Judge Gold vacated the serious citation, and the Commission subsequently granted the Secretary's petition for review of the Judge's action.   Thereafter, the Secretary withdrew his petition for review with respect to the serious citation.   Salah has not taken exception to the Judge's decision.   Since no party now takes issue with the vacation of the serious citation, the Commission will not review that aspect of Judge Gold's decision.   See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para.   20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

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Judge Gold vacated the citation on the grounds that Section 1926.556(b)(2)(v) applies only when the aerial lift is in a fixed position at a work station, but not when the lift is being moved up to or down from a work position.   He concluded that the language in the standard, "when working from an aerial lift," limits the standard's requirement of a tied-off safety belt to only that time during which an employee is actually performing work.   The Secretary petitioned for review of this interpretation and Chairman Cleary directed review of the issue. n3

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n3 Former Commissioner Moran also issued a direction for review but did not specify any issues.

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On review the Secretary argues that the term "working" should be broadly construed in order to best effectuate the remedial purpose of the Act. n4 He urges that the term "working" should cover any activity undertaken in furtherance of the employer's business, including ingress to or egress from [*4]   a work station. In support of this interpretation the Secretary notes that the Act empowers the Secretary to regulate only "employment and places of employment," and this authority covers specific work tasks as well as all activities incidental thereto.

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n4 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

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The Secretary also argues that our rule of access for determining employee exposure to violative conditions supports a broad interpretation of "working".   The Secretary cites out decision in Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976), where we said one basis for finding access to a hazard is where employees in the course of their normal means of ingress and egress to their workplaces are in a zone of danger.   He urges further that, as a practical matter, a broad interpretation of "working" is necessary in order to protect employees from the hazard of falling from an aerial lift. In this regard he contends that the hazard [*5]   exists regardless of whether the lift is moving or stationary, and that the need for protection is likely to be greater when the lift is moving.

Regarding the merits of the violation, the Secretary contends that a presumption arose that Salah knew of the violation because it had control over Gulla's conduct and the crane's operation, and could have learned of Gulla's failure to tie off if it had checked prior to the accident.   The Secretary also argues that Salah did not establish that the failure to tie off was an isolated occurrence.   That is, Salah failed to prove that it was unaware of Gulla's conduct, and that his conduct was contrary to instructions and a uniformly enforced company rule. n5

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n5 As a threshold matter the Secretary also argues that Judge Gold erred in raising the issue of the standard's applicability on his own motion and in deciding this issue without at least requesting party submission on the matter.   Commissioner Barnako agrees that the Judge should have first requested submissions prior to deciding the issue.   See D. Federico Company, Inc., 76 OSAHRC 13/A2, 3 BNA OSHC 1970, 1975-76 CCH OSHD para. 20,422 (No. 4395, 1976).

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Salah urges that Judge Gold's interpretation of "working" was correct, citing Gelco Builders, Inc., 1976-77 CCH OSHD para. 20,714 (No. 14505, 1976) (judge's decision).   Salah also argues that, if the standard is applicable, it did all it could to ensure compliance with the standard, that the alleged violation was an isolated incident, and that it could not have known that Gulla Failed to tie off.

In the Commission decision in Gelco Builders, Inc., we addressed the issue of the interpretation of a standard worded similar to Section 1926.556(b)(2)(v).   77 OSAHRC 203/B14, 5 BNA OSHC 1104, 1977-78 CCH OSHD para. 22,353 (No. 14505, 1977).   In Gelco the issue arose whether employees using a ladder to gain access to a work station were engaged in "work" within the meaning of Section 1926.700(b)(2).   That standard states that employees may not "work" above vertically protruding rebar unless it is protected to eliminate the hazard of impalement. We concluded that the use of the ladder constituted "work" within the meaning of Section 1926.700(b)(2) because, in our opinion, "work" includes the necessary [*7]   activity of gaining access to the work station. Furthermore, we stated that a narrow reading of the standard which did not consider use of a ladder as work would be inconsistent with the standard's purpose of protecting employees against impalement.

Applying that reasoning to this case we conclude that Judge Gold erred in his interpretation and that "working" within the meaning of Section 1926.556(b)(2)(v) includes the act of being transported in an aerial lift to or from a work level.   See Gilles & Cotting, Inc., Supra; Robert E. Lee Plumbers, Inc., 75 OSAHRC 56/C2, 3 BNA OSHC 1150, 1974-75 CCH OSHD para. 19,594 (No. 2431, 1975).   We note that the standard's purpose of protecting employees from the hazard of a fall from an aerial lift would be hindered by a narrow reading of the standard.   Brennan v. Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974).

The record establishes that, at the time he fell, Gulla's safety belt was not tied off.   This failure to tie off was contrary to the requirements of Section 1926.556(b)(2)(v).   We have held, however, that an employer may defend against a violation committed by an employee on the basis that the employer took all steps   [*8]   necessary to prevent the violation by establishing and enforcing a work rule aimed at preventing such violations.   Utilities Line Construction Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681, 1976-77 CCH OSHD para. 21,098 (No. 4105, 1976); B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976).   In this case, Salah has presented evidence relevant to such a defense.   Because he found Section 1926.556(b)(2)(v) inapplicable, however, the Judge did not reach the question of whether Salah established the defense.   In this case, the Judge is in a better position to decide this issue.   We will therefore remand to the Judge to determine whether, on the existing record, Salah violated Section 1926.556(b)(2)(v).

Accordingly, the Judge's decision is set aside and the case is remanded for further proceedings consistent with this decision.

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

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases.   It is also necessary for me to set out the   [*9]   principles guiding my decision on this important issue.

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

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action.   In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating.   The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official [*10]   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 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 [*11]   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 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 [*13]   question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision way 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 not effect on the outcome.   Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a nuanimous 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 [*14]   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 {22,313} (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 [*15]   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 workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.