FORD, BACON & DAVIS CONSTRUCTION CO., INC.

OSHRC Docket No. 76-0665

Occupational Safety and Health Review Commission

August 28, 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

James E. White, Acting Reg. Sol., USDOL

Burt W. Sperry, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge James A. Cronin is before the Commission pursuant to a direction for review issued under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. Judge Cronin affirmed a citation alleging a serious violation of 5(a)(1) of the Act, n1 the "general duty clause," and assessed a $600 penalty. His decision is affirmed for the following reasons.

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n1 Section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1), provides as follows:

(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[.]

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The citation was issued following an investigation of a natural gas explosion at a compressor station owned by Michigan Wisconsin Pipe Line Company ["Michigan"]. In preparation for making additions to its gas pipeline, Michigan contracted with respondent to perform "engineering supervision and inspection of construction of the pipeline facilities," and with a construction subcontractor to add the new facilities. The construction work required cutting into gas lines running through the compressor station. In preparation for that work Michigan conducted a "blow-down" n2 at the station so that it would be safe to cut into the pipeline.

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n2 The purpose of a "blow-down" is to depressurize a pipeline.

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The citation alleged that respondent violated 5(a)(1) because of its failing to take specified precautions to assure that the position of pipeline shut-off valves, set during the blow-down, would remain unchanged during the construction work. Specifically, respondent [*3] was charged with failing to lock and/or tag or blind n3 the valves on the disconnected gas line, or, alternatively, to assign employees to watch the valves.

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n3 Blinding is a means of blocking pipes so that gas cannot escape. Evidence supports the Judge's finding that blinding was not a feasible procedure at the compressor station worksite.

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Evidence establishes that Michigan, which was responsible for blow-down procedures, did not lock or tag the valves. Although Michigan employees were in the vicinity of the valves on the first two days of construction following the blow-down, Michigan's foreman testified that the employees were not assigned to the specific function of watching the valves. The explosion occurred on the third day of construction, at which time employees were not stationed in the area of the valves. The explosion was caused by an employee of Michigan opening a bypass valve. Gas in the line forced out a plug and liquid hydrocarbons spilled out and ignited, resulting in the deaths of certain employees [*4] and injuries to others working in a ditch. n4

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n4 The record does not indicate the precise number of fatalities and injuries.

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Respondent's inspector, Howse, testified that it would be hazardous to cut into a pressurized gas pipeline. He explained that noxious gas would escape and, if welding were being performed in the area, the gas could ignite. He stated that prior to the blow-down it occurred to him that locking the valves would be a "good" safety precaution, but he did not discuss the matter with any representative of Michigan. Howse testified that on each of the three days of construction he checked the pipeline for pressure and leaks. He stated that he considered the working conditions safe because he thought that Michigan employees were guarding the valves. However, on the morning of the explosion, from the time he arrived at the worksite at 7:30 A.M. until the explosion occurred shortly after 9:00 A.M., he was engaged in conducting his routine inspection. During that inspection he passed in front of the [*5] segment of pipeline located in the ditch and adjacent to the valves where the explosion later occurred. He also inspected the work being performed by the laborers in the ditch.

Judge Cronin found that uncontroverted evidence showed that "welding and working on a liquid petroleum gas pipeline containing flammable natural gas residue and gas under pressure is a universally-recognized hazard in the petroleum and related industries likely to cause serious physical injury or death," and that Howse's testimony showed he knew that welding on a pressurized gas pipeline is hazardous. He further ruled,

By logical inference, of course, this same evidence establishes that respondent recognizes that failure to maintain the pipeline valves that prevent the pressurized gas from flowing into the isolated segment of pipe in a closed position during the welding operation also is hazardous.

The Judge rejected respondent's contentions that there was no recognized hazard because industry practices were followed at the compressor station site, and that the explosion could have occurred even if the precautions recommended by complainant had been taken. The Judge stated,

[T]he questions are not whether [*6] the safety precautions referenced by the Secretary of Labor (tagging and locking or guarding valves) are customarily employed industry-wide or whether their absence caused a particular accident; rather, the questions are whether they are feasible and whether they would have materially reduced the likelihood of preventable hazardous conduct.

He found that complainant proved that either tagging and locking the valves, or having employees guard them, were feasible measures. He also found that either measure "would have reduced the likelihood that the valves would be opened mistakenly or without authority by employees or interlopers."

Judge Cronin affirmed a violation of 5(a)(1) because, on the third day of construction work, the valves were neither locked and tagged nor guarded. The Judge ruled that Howse knew or should have known that no employees were guarding the valves on the day of the explosion, and it was incumbent upon him to halt further construction until the valves were locked or guarded. n5 He imputed Howse's knowledge to respondent.

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n5 It was unnecessary for the Judge to rule that Howse should have stopped the construction work. Howse's failure to see that some precaution was taken on the day of the accident supports the conclusion that respondent violated 5(a)(1).

[*7]

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On review respondent makes the same contentions that were raised before the Judge. Inasmuch as the Judge correctly decided the issues before him, we adopt his decision. n6 See Gulf Oil Company, 77 OSAHRC 216/B10, 6 BNA OSHC 1240 (No. 14281, 1977).

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n6 The Judge's decision is in accord with National Realty & Const. Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), and with the holding in Brennan v. OSHRC and Vy Lactos Laboratories, 494 F.2d 460 (8th Cir. 1974), that an employer's actual knowledge of a hazard satisfies the requirement of 5(a)(1) that a hazard be "recognized." Here, the evidence supports the Judge's determination that respondent was aware of the hazards associated with welding on a pipeline without taking adequate precautions to see that the line remained depressurized.

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Accordingly, the Judge's decision is affirmed.

Commissioner COTTINE filing a separate opinion:

As a new member of the Commission, [*8] I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

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

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a 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 [*9] 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 existing tie where he had familiarized himself with the record. [*10] 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 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, [*12] 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 decision, my participation [*13] 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 filed, No. 77-1014 (4th Cir. [*14] 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 workers and the operation of American [*15] business while providing for the effective adjudication of cases by the administrative law judges.