JOHN'S ROOFING & SHEET METAL COMPANY, INC.

OSHRC Docket No. 76-1140

Occupational Safety and Health Review Commission

June 23, 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

Bobbye D. Spears, Reg. Sol., USDOL

Robert E. Hamby, Vice Pres., John's Roofing & Sheet Metal Company, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This matter is on review to consider respondent's exceptions to Administrative Law Judge James D. Burroughs' decision, dated December 21, 1976, finding it in noncompliance with 29 CFR 1926.28(a). n1 We affirm.

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n1 Section 12(j) of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq (1970) ["the Act"].

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In March, 1976, the Occupational Safety and Health Administration (OSHA) conducted an inspection of a gymnasium construction worksite at Hiawasse, Georgia, where respondent was installing the roof. The roof area was round with a 72 foot diameter. It was sloped two inches in twelve inches. [*2] The outside edge was 32 feet above ground.

The compliance officer observed a number of respondent's employees working on the roof near the edge. They were not protected by any means from falling to the ground below. The compliance officer testified that respondent's employees could have been protected from this hazard by wearing safety belts attached to ropes affixed to, and hanging down from, the apex of the roof. Indeed, the employees of two other contractors also working on the roof were protected from falling in this manner. Moreover, the carpenter foreman for the general contractor told respondent's foreman of the inspection and that respondent's employees on the roof should be wearing safety belts. He offered to loan safety belts to respondent's employees inasmuch as respondent had none at the worksite.

Chief among respondent's exceptions is that 1928.28(a) n2 is inapplicable. First, it argues that in view of the court's decision in Langer Roofing and Sheet Metal, Inc., v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975), it is unfair for the Secretary to cite respondent for a violation of an alternative fall protection standard to 1926.500(d)(1) for conditions [*3] on a flat roof. Secondly, that 1926.451(u)(3) n3 establishes the fall protection requirements for workers on sloped roofs to the exclusion of all other standards.

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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 1926.451 Scaffolding

* * *

(u) Roofing brackets

* * *

(3) A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the protection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.

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The scope [*4] of the court's decision in Langer Roofing is narrow. It holds only that 1926.500(d)(1), which requires perimeter guarding (guardrails) on certain opensided floors, by its terms, does not apply to flat roofs. See also Diamond Roofing Company, Inc. v. O.S.H.R.C. and Usery, 528 F.2d 645 (5th Cir. 1976). Langer Roofing recognizes, however, that a guardrail standard could be promulgated in the future to cover such instances. Most importantly, Langer Roofing does not suggest that general standards concerning fall hazards, which require protection other than guardrails, do not now apply to such roofs much less a sloped roof as here. This is consistent with our own view. Central City Roofing Company, Inc., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976) (concurring and dissenting opinions). Thus, with the exception of perimeter guarding, Langer Roofing does not preclude the Secretary from citing respondent for noncompliance with an otherwise applicable fall protection standard.

Inasmuch as 1926.28(a) is applicable on its face, it was properly cited unless respondent's second contention has force. We hold that it does not. [*5] The standard at 29 CFR 1910.5(c)(1) provides in pertinant part:

If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.

In sum, this means that the most specifically applicable of several otherwise applicable standards controls to the exclusion of the others. See generally Irvington Moore v. O.S.H.R.C., 556 F.2d 431, 435 (9th Cir. 1977).

The Secretary cited respondent for noncompliance with 1926.28(a) for the distinct fall hazard presented by its employees working near the edge of this roof. The standard at 1926.451(u)(3) is directed at the separate fall hazard associated with working anywhere upon a sloped roof due to its pitch rather than working proximate to its edge. Hamilton Roofing Co., Inc. 78 OSAHRC    , 6 BNA OSHC    , 1978 CCH OSHD para.     (No. 14968, June 23, 1978).

Because 1926.451(u)(3) is not directed at the same hazard for which the Secretary alleged noncompliance with 1926.28(a) here, respondent's contention that [*6] the former prempts the latter is without merit. Hamilton Roofing Co., Inc., supra. In the absence of a more specifically applicable standard, the general performance standard at 1926.28(a) therefore applies. See Ray Evers Welding Company, Inc., 77 OSAHRC 181/F7, 5 BNA OSHC 1948, 1977-78 CCH OSHD para. 22,220 (No. 76-628, 1977) pet. for review docketed No. 77-3581 (6th Cir., Dec. 2, 1977). n4

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n4 In Hamilton Roofing Co., Inc., supra, the employer was cited for, and we affirmed, a violation of 1926.105(a) under similiar facts i.e., employees exposed to a fall hazard while working near the edge of a roof sloped less than four inches in twelve inches. In the instant case, however, the employer was cited for, and we affirm, a violation of 1926.28(a). In both cases the Secretary alleged that the appropriate means of hazard abatement was safety belts. This could pose the question of which standard is most specifically applicable. Inasmuch as respondent does not argue that 1926.105(a) is more specifically applicable we do not reach the issue.

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Respondent raises several other exceptions to the Judge's decision n5 viz., that 1926.28(a) is unconstitutionally vague, and that safety belts were not feasible. We reject both claims for the reasons assigned by Judge Burroughs. We add only that in PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD para. 22,344 (No. 15426, 1977) pet. for review docketed (3d Cir., Dec. 27, 1977) we rejected a vagueness claim regarding 1926.28(a) because of the obviousness of the fall hazard to employees working near the edge of an approximately 15 foot high ledge. That rationale applies with equal force here.

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n5 Respondent has appeared pro se throughout these proceedings. Accordingly, we have interpreted its petition for review liberally to reach these issues.

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Accordingly, it is ORDERED that the Judge's decision is affirmed.

Commissioner COTTINE filing a separate opinion:

As a new member of the Commission, I must resolve the [*8] 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 capacity only when [*9] 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 Aeronatics 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. [*10] 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, the FTC issued a cease-and-desist [*12] 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 would delay the issuance of decisions [*13] 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. Jan. 6, 1978), and, therefore, do not [*14] 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 business while providing for [*15] the effective adjudication of cases by the administrative law judges.