GEORGE J. IGEL & CO., INC.

OSHRC Docket No. 76-1087

Occupational Safety and Health Review Commission

May 25, 1978

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James P. Friedt, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Ben D. Worcester is before the Commission for review pursuant to section 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, George J. Igel & Co., Inc., in violation of section 5(a)(2) of the Act for failing to comply with the construction safety standards published at 29 C.F.R. 1926.150(c)(1)(viii) (item 1 of nonserious citation no. 1, alleging that a portable fire extinguisher was not properly maintained) and 29 C.F.R. 1926.652(c) (serious citation no. 2, alleging improper shoring in a trench).

Respondent was engaged in laying pipe in a trench when its worksite was inspected by an OSHA compliance officer. The compliance officer observed a portable fire extinguisher located behind the driver's seat in the cab of a backhoe. The pressure gauge on the extinguisher indicated that the unit was in need of recharging. The backhoe was not in use at the time of inspection. [*2]

The compliance officer also observed one of respondent's employees working in a trench that was 30 feet long, varied in depth from 7 to 13 feet, and varied in width from 31 to 37 inches. He described the soil in the trench as hard and compact. There were two hydraulic trench jacks in the 30-foot length of the trench. One jack was located approximately 12 feet from the south end, extending across the trench into uprights that were 4 to 5 inches wide and 7 feet high. A similar jack with like supports was located approximately 9 feet from the north end of the trench. Twelve feet of unsupported earth extended between the two jacks. n1 A ladder was located in the south end of the trench.

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n1 We note that the sum of the distance between the jacks and the distances between each jack and the closest end of the trench does not equal the overall length of the trench. The compliance officer measured the overall length of the trench and the interior distance between the two jacks. The distances between each jack and the closest end of the trench were approximations. We find the inconsistency to be insignificant in the context of the case.

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Respondent was charged with violating the following standards:

1926.150 Fire protection.

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(c) Portable firefighting equipment --

(1) Fire extinguishers and small hose lines.

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(viii) Portable fire extinguishers shall be inspected periodically and maintained in accordance with Maintenance and Use of Portable Extinguishers, NFPA No. 10A-1970.

1926.652 Specific trenching requirements.

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(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal. When the outside diameter of a pipe is greater than 5 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

In its arguments to the Judge and on review before the Commission, respondent defends against the 1926.150(c)(1)(viii) allegation on two grounds. First, respondent maintains that there was no [*4] employee exposure to a hazard because the backhoe was not being operated at the time of the inspection and it is reasonable to assume that the extinguisher would have been recharged before the backhoe was used. Second, respondent asserts that the extinguisher is of the "stored pressure" type that need not be inspected periodically under the referenced NFPA standards. Respondent argues that because the standard does not require periodic inspection and because there is no evidence that respondent had prior knowledge that the extinguisher needed recharging, there is no basis for a finding that it failed to maintain the extinguisher as required by the standard. Judge Worcester rejected these defenses, concluding that, "It can reasonably be presumed that a backhoe at an unfinished construction project will be used again. . .," n2 and indicating that under no circumstances does an empty fire extinguisher satisfy the purposes of the Act. Respondent's interpretation of the exclusion contained in the NFPA standards was also found unpersuasive.

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n2 The Judge stated that it would be "illogical" to assume that respondent would have had the extinguisher charged before using it again.

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Judge Worcester properly rejected respondent's first argument. The standard requires that fire extinguishers be properly maintained and inspected. Hence, so long as the extinguisher is present on the worksite, compliance with the standard is required. It is therefore irrelevant whether, as here, the extinguisher is on a vehicle which is not in use. Moreover, the standard presupposes existence of a hazard so long as the extinguisher is defective. See Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD para. 22, 247 (No. 15579, 1977). Indeed, we can conceive of circumstances where a fire could develop either in the backhoe when it is not being operated and employees are in the vehicle or in locations adjacent to the backhoe where the extinguisher would be useful. Accordingly, we reject respondent's argument that evidence of use of the backhoe is relevant. It is sufficient that the cited extinguisher was available for use at the worksite in a defective condition. This evidence establishes employee exposure to the hazard addressed by the cited standard. [*6] See Mayfair Construction Co., 77 OSAHRC 178/A14, 5 BNA OSHC 1877, 1977-78 CCH OSHD para. 22,214 (No. 2171, 1972), and the cases cited therein.

We also agree with the Judge that respondent's second argument fails to withstand scrutiny, but for reasons different from those assigned by the Judge. We do not agree that stored-pressure extinguishers are excluded from the NFPA requirements that extinguishers be inspected and properly maintained.

NFPA No. 10A-1970 discusses recommended good practices for the maintenance and use of extinguishers. Chapter I, para. 1320, requires the following:

Maintenance is conducted at regular intervals, not more than one year apart, or when the need is specifically indicated by an inspection.

The following appears immediately under this paragraph:

Note: Stored-pressure extinguishers equipped with pressure indicators or gages are not required to be maintained at annual intervals in accordance with the provisions of Paragraphs 1320 and 3110. Each such extinguisher should be thoroughly exmained in accordance with the guidance given in Chapter 3 whenever an inspection (see Section 1200 and Chapter 2) determines the need for such action, whenever [*7] the pressure indicator or gage shows the extinguisher to be in other than fully operable condition (see Paragraph 2253), or whenever any of the other acts or conditions listed in Paragraph 3110 are observed. Factory-sealed ("disposable type") extinguishers should be inspected and maintained only in accordance with the nameplate instructions found on each.

Although the stored-pressure extinguishers are excluded from the requirement for annual maintenance, they must still be maintained whenever the need is indicated by the gauge. Paragraph 2253 states:

Gages exposed to view should be observed to see that the pointer indicates pressure in the operable range. It is advisable to tap the gage gently to secure a movement of the gage pointer as a check that the pointer is not stuck.

The gauge was exposed to view behind the operator's seat. It is clear that respondent failed in its duty to fully examine the extinguisher when it was in "other than fully operable condition" and to properly maintain the extinguisher in accordance with NFPA No. 10A-1970. The charge was properly affirmed.

Both in its post-hearing brief and on review, respondent defends against the 1926.652(c) allegation [*8] on the grounds that (1) the trench was "otherwise supported," within the meaning of the cited standard, by the use of trench jacks, (2) the employee was working where the trench jack was located, and (3) the employee was in the trench for only a few seconds at a time. Respondent also argues that the Judge erred in concluding that Table P-2, entitled Trench Shoring - Minimum Requirements, is applicable despite not being incorporated by reference in the cited standard.

The Judge based his finding of a violation solely on the fact that the trench supports failed to meet the requirements of Table P-2. This was in error. We have previously held that the table does not establish exclusive shoring requirements. D. Federico Company, Inc., 4 BNA OSHC 1790, 1976-77 CCH OSHD para. 21,233 (No. 9879, 1976). The Judge's disposition should have been based upon an examination of whether the shoring system in use was adequate to support the walls of the trench. D. Federico Company, Inc., Supra..

When a Judge fails to make findings of fact with respect to a material issue, the Commission would ordinarily remand to the Judge for such findings. Chevron Oil Company, 77 OSAHRC [*9] 29/A2, 5 BNA OSHC 1118, 1977-78 CCH OSHD para. 21,606 (No. 10799, 1977). In this case, however, the evidence of record is sufficient to permit resolution of all issues pertinent to the allegation. n3

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n3 The Commission rather than its Administrative Law Judges is ultimately responsible for the findings of fact in cases before it. In order to promote expeditious adjudication, the Commission may in its discretion consider the entire record and make appropriate findings of fact. Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976); C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD para. 22,481 (No. 14249, 1978).

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As noted, two trench jacks constituted the only protection provided in the 30-foot long trench. The walls of the trench were otherwise unsupported. The compliance officer observed a sewer line running diagonally across the trench, 4 or 5 feet below ground level, at approximately the middle of the trench. According to the compliance officer, [*10] that area of the trench had been backfilled previously, and a caved-in portion was visible. These statements were uncontroverted. The witness indicated that additional vertical uprights or jacks and sheeting should have been used. He noted that the two jacks were twelve feet apart and twelve and nine feet from the ends of the trench, respectively. In his view, the shoring used would not protect 30 feet of unshored ground. n4

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n4 According to this witness, respondent's foreman stated during the inspection that the trench was hazardous and corrective measures would be taken. The foreman was not questioned at the hearing about this statement and, inasmuch as independent evidence supports a finding of a violation, we need not consider whether it constitutes an admission. See Fed. R. Evid. 801(d)(2).

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Respondent's foreman, on the other hand, testified that the trench was properly shored, and that jacks were placed 6 feet apart except in the area where the intersecting pipe was located. He also testified that an [*11] employee would enter the trench for only 10 to 15 seconds at a time to unhook pipe sections after they were set with a backhoe.

Regardless of the precise spacing of the two trench jacks, n5 the preponderance of the evidence establishes that the showing method employed by respondent was inadequate to protect the employee entering the trench. The defenses urged by respondent are unpersuasive. Although respondent argues that the employee entering the trench to unhook pipe sections was in a protected area, Judge Worcester properly found that the photographic exhibits show an employee in an unprotected portion of the trench. Furthermore, a review of the photographic exhibits reveals an employee on a ladder in an unprotected area of the trench. We conclude that the employee observed in the trench was exposed to the hazard of a cave-in.

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n5 The Judge found that the jacks were placed six feet apart, but made no specific credibility finding. The parties do not dispute the Judge's finding, nor do we consider it necessary to the disposition of the case to reach the issue of whether the evidence supports the findings of the Judge.

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Respondent's contention that the employee was in the trench for only 10 to 15 seconds at a time does not constitute a defense to the alleged violation. Employees' brief exposure to a hazard may be considered for the purpose of penalty assessment, but it is not grounds for vacating a citation. American Bechtel, Inc., 77 OSAHRC 214/A2, 6 BNA OSHC 1246, 1977-78 CCH OSHD para. 22,466 (No. 13340, 1977). We conclude, however, the Judge's assessment of a $550 penalty is appropriate in view of the gravity of the violation. n6 Although the duration of the exposure was short, the potential for injury was high. Emerick Construction, 77 OSAHRC 191/B8, 5 BNA OSHC 2048, 1977-78 CCH OSHD para. 22,273 (Nos. 76-2851 & 76-4190, 1977).

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n6 In assessing penalties, the Commission is required by section 17(j) of the Act, 29 U.S.C. 661(i), to give due consideration to the size of respondent's business, the gravity of the violation, the good faith of respondent, and its history of previous violations. These factors need not be accorded equal weight in a given case, or the same weight in different factual situations. Keyes Associates, 76 OSAHRC 132/46, 4 BNA OSHC 1796, 1976-77 CCH OSHD para. 21,180 (No. 13410, 1976).

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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 members to participate [*14] 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 Frisher & 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 [*15] 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 Airlines 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 [*16] All 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, 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 [*17] 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 La Preyre 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. [*18] 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. OSHC, 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 [*19] deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission, because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational 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, [*20] 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.