INTERSTATE ROOFING CO., INC. OF GEORGIA

OSHRC Docket No. 16223

Occupational Safety and Health Review Commission

June 14, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., U.S. Department of Labor

Walter J. Merrill, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Review Commission Judge James D. Burroughs is before the Commission for review pursuant to 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (the Act). At issue is whether the Judge erred in finding respondent in violation of section 5(a)(2) of the Act for failing to comply with the safety standards published at 29 CFR 1926.28(a) and 29 CFR 1926.450(a)(10). For the reasons that follow, we affirm.

Respondent, Interstate Roofing Co., Inc. of Georgia, is a contractor that was engaged in reroofing work at the Anniston Army Depot. Respondent has performed roofing work at the same depot for several years. On September 24, 1975, two of respondent's employees, foreman Argrove and his helper, Kittle, were knocking out step flashing on the roof of Building No. 129. The roof was slanted on the sides and flat on top. Kittle was standing on the flat portion of the roof. Argrove was working from a [*2] ladder located on the slanted portion of the roof. The feet of the ladder were placed in a storm gutter and an upper rung was placed over a board protruding from the flat part of the roof. The gutter was broken, the ladder was not secured, and the employees were not wearing safety belts. The specific work location was directly above electric power transformers. The power to the transformers was not cut off before work was commenced, contrary to the terms of respondent's contract with the depot

Argrove fell from the ladder on which he had been standing, onto the energized transformers below. He was fatally injured. Respondent was issued a citation alleging a violation of section 5(a)(1) n1 of the Act, the general duty clause. The citation and subsequently filed complaint were amended without objection to allege, alternatively, a violation of section 5(a)(2) of the Act for noncompliance with the safety standards codified at 29 CFR 1926.28(a) n2 and 29 CFR 1926.450(a)(10). n3 Both section 5(a)(2) allegations were affirmed by the Judge.

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n1 Section 5 of the Act reads as follows:

Sec. 5(a) Each employer --

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

(2) shall comply with occupational safety and health standards promulgated under this Act.

n2 1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n3 1926.450 Ladders.

(a) General requirements.

* * *

(10) Portable ladders in use shall be tied, blocked, or otherwise secured to prevent their being displaced.

[*3]

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Respondent takes exception to the Judge's affirmance of these charges, arguing that it was without knowledge of the violations and that the actions of its foreman were contrary to respondent's known policies and instructions. It argues that by imputing the knowledge and conduct of Argrove to respondent, the Judge imposed upon it a theory of strict liability that is neither authorized nor intended by the Act.

Respondent argues that it did not know of the violation because it was unaware that its employees were at the worksite at the time of the inspection. The evidence reveals that foreman Argrove had reported in sick the morning of the inspection and said he would not be working. His helper had been sent home. Argrove decided later in the day to work at the depot, called in his helper, and went to work. He did not inform anyone at respondent's shop of this change in plans. Respondent also stresses that the employees would not have been permitted to work on the day in question for two reasons. First, respondent's policy is not to perform roofing work in inclement weather. It had been raining [*4] the morning of the accident. Second, according to the terms of respondent's contract with the depot, no work is to be done near transformers until the depot is notified and power is turned off. Notice is to be given 48 hours in advance, and the work is to be done only on Saturdays or holidays. Argrove was aware of these requirements.

Respondent relies on Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976), for the proposition that it should not be held liable for the unforeseeable and unpreventable acts of its employees. In support of its argument, respondent points out that it had no knowledge that the men were working and had no reason to even suspect that they were working at the place of the violation. Respondent also refers to evidence establishing that safety belts for employees were kept in a trailer at the depot, cards with basic safety rules were issued to each employee, safety was periodically discussed with supervisory personnel, and Argrove had previously used properly secured ladders. There also was testimony that employee safety meetings cover "safety things in regard to roofing." n4 In addition, testimony by the depot's safety officer indicates [*5] that respondent's employees had previously followed proper safety procedures while performing roofing work.

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n4 Testimony of James Henry Smith, III, respondent's president.

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Judge Burroughs determined that, since the employees were in fact working at respondent's worksite, the primary issue is whether respondent had uniformly and effectively enforced workrules applying to the violative conditions. He found that the adequacy of respondent's safety program could not be determined from the evidence, since the extent and coverage of its safety program was not delineated for the record. He held, therefore, that respondent had failed to sustain its burden of proving an "isolated incident" defense, and that respondent had knowledge of the violation through its foreman. We agree.

The Commission had held that, although an employer is generally responsible for violations either created by supervisory employees or within their actual or constructive knowledge, an employer may defend by showing that it took all necessary precautions [*6] to prevent the occurrence of the violation. Ocean Electric Company, 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd, No. 76-1060 (4th Cir., August 2, 1977), opinion withdrawn and rehearing granted, No. 76-1060 (4th Cir., October 26, 1977). Here, foreman Argrove initiated and participated in the hazardous activity. Therefore, his conduct is imputable unless respondent proves that it was unpreventable. Alder Electric Company, Inc., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD para. 21,748 (No. 13573, 1977); Iowa Southern Utilities Company, 77 OSAHRC 32/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD para. 21,612 (No. 9295, 1977).

In order to defend against the prima facie showing of a violation on the basis of the unpreventable employee misconduct defense, n5 an employer must prove that the employee conduct was a departure from a uniformly and effectively enforced safety rule. Leo J. Martone & Associates, Inc., 77 OSAHRC 46/C4, 5 BNA OSHC 1228, 1977-78 CCH OSHD para. 21,718 (No. 11175, 1977); B.G. Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD para. 20,744 (No. 4713, 1976). To establish [*7] this defense, an employer must show that its employees received adequate training and instructions designed to prevent the violation. Specific safety instructions and workrules concerning particular hazards that may be encountered on the job are the essential foundations of an adequate safety program. Iowa Southern Utilities Co., supra; Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD para. 21,696 (No. 11015, 1977).

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n5 The availability of this defense assures that employers are not held to a standard of strict liability.

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Although the evidence of record in this case establishes that respondent has a safety program, the substance of respondent's safety rules regarding the need for, and manner of, complying with the terms of the cited standards, as well as its enforcement policy, was never disclosed. Thus, respondent has failed to prove that it took all necessary precautions to prevent the violation. n6 Accordingly, foreman Argrove's action is properly imputed to respondent. [*8] n7

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n6 We also note that the fact that Argrove proceeded to work without taking the basic precautionary measures required by the standards strongly suggests that any safety policy respondent may have had in this regard was not implemented effectively. National Realty & Construction Co. v. OSHRC., 489 F.2d 1257, 1267 at n.38 (D.C. Cir. 1975).

n7 Horne Plumbing & Heating Co. v. OSHRC, supra, is distinguishable. In that case the Fifth Circuit refused to hold the respondent liable for the violative conduct of its foreman of which it had no knowledge, could not have foreseen, and which it had taken "elaborate measures to prevent." The evidence in Horne established that the foremen had entered unshored portions of a ditch, contrary to specific instructions from respondent and despite continued warnings from other employees. It is this type of direct evidence concerning specific measures taken in response to the presence of the particular hazards involved that is lacking in the case before us.

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Our decision [*9] in Hogan Mechanical, Inc., 77 OSAHRC 214/D7, 6 BNA OSHC 1221, 1977-78 CCH OSHD para. 22,429 (No. 15438, 1977), appeal filed, No. 78-1367 (5th Cir., February 17, 1978), does not require a different result. Our holding in Hogan is limited to the peculiar facts of that case. In Hogan, a foreman who had been explicitly assigned to work at one jobsite proceeded on his own initiative to a different jobsite to perform some minor work and to observe the progress of the construction. While at this site, which was a multi-employer construction worksite, the foreman climbed a ladder that was not in compliance with two applicable standards in order to gain access to two unguarded levels of a bell tower. The foreman did not create or control the violative conditions; hey existed at the worksite when he arrived. Under these circumstances, the Commission vacated the citation because it was concluded that Hogan realistically could not have prevented the violations.

A similar conclusion is not warranted in the present case. Respondent's officials knew the precise nature of the work scheduled to be performed at the depot and they assigned this work to be done under Argrove's supervision. [*10] Respondent could have foreseen the hazards that Argrove and Kittle would encounter as these hazards were inherent in the very nature of the work the employees were assigned to perform. n8 Therefore, it was incumbent upon respondent to ensure that Argrove was instructed properly regarding the hazards and the specific safety precautions required by the cited standards. As discussed above, respondent has failed to establish that it took such affirmative steps.

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n8 See Enfield's Tree Service, Inc., 77 OSAHRC 32/B3, 5 BNA OSHC 1142, 1977-78 CCH OSHD para. 21,607 (No. 9118, 1977). For this reason, respondent's arguments that it should not be found in violation because it believed that Argrove would not be working at the site on the particular day that the violation occurred and because work above the energized transformer should not have been undertaken are misdirected.

The violations arose from the failure of respondent's employees to follow the fundamental safety procedures required by the cited standards. Respondent has not shown that the required precautions would have been followed if respondent had known that the employees would be working on the site on the day in question, nor has it shown that proper procedures would have been used in the performance of the roofing work if the transformer had been deenergized.

[*11]

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Accordingly, it is ORDERED that the decision of the Administrative Law Judge is affirmed.

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

SEPARATE OPINION

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

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending 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 [*12] 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 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 [*13] 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 Aeronauties Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted] [*14]

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 [*15] 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. 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. [*16] 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 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 [*17] 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. 561(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 [*18] 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.