WINN-DIXIE ATLANTA, INC., STORE NO. 1810

OSHRC Docket No. 76-515

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

Bobbye D. Spears, Regional Solicitor, U. S. Department of Labor

Carlton J. Trosclair, Winn Dixie Stores, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John S. Patton 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]. At issue is whether the Judge erred in finding respondent in nonserious violation of 5(a)(2) of the Act for failing to comply with the safety standards codified at 29 C.F.R. 1910.36(b)(4) and 1910.37(q)(1). n1 The alleged violations concern conditions at respondent's retail grocery store in Warner Robins, Georgia. For the reasons that follow, we affirm the Judge's decision.

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n1 The standards provide as follows:

Subpart E - Means of Egress.

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1910.36 General requirments.

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(b) Fundamental requirments.

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(4) In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

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1910.37 Means of egress, general.

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(q) Exit marking.

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(1) Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.

[*2]

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The citation alleged that respondent was in violation of 1910.36(b)(4) for "failure to provide exits so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. Location: Both exits at rear of building were locked." The doors to which the citation refers were located on the back wall of the "receiving area" of the store, an area which was not open to the public and was used for storage of merchandise and other materials. Restrooms for employee use were also located in the receiving area. Respondent concedes that it was its policy at the time of the inspection to keep the two doors locked. They were unlocked only when used for receiving merchandise or for removing garbage from the store. In order to use one of the doors an employee would ask the store manager or one of the assistant managers to unlock it. Only managerial personnel had keys to the locked doors. At times a door would remain locked for 20 to 30 minutes after a request that it be opened.

The receiving area was separated from the public part of [*3] the store by a wall with three swinging doors. To leave the store from the receiving area, an employee would use one of the swinging doors to enter the public area and would exit to the outside through one of the doors in that part of the store. There were several doors, including a fire exit, in the front of the store.

The evidence also revealed that at the store's closing time all doors in the building were locked although the employees were required to remain on the job. In order for an employee to depart, the manager or one of his assistant managers would unlock a door.

Judge Patton held that there was not free egress from the receiving area with the rear doors locked. He reasoned that, if fire blocked the swinging doors, employees could be trapped in the rear of the store.

The Judge rejected respondent's contention that security considerations required keeping the rear doors locked. Relying on evidence that the doors had no handles on the outside of the building and a stipulation that panic locks could be installed, n2 the Judge ruled that with panic locks it would be difficult for an intruder to enter and that "[t]he necessity to secure the merchandise, therefore, is [*4] not an insurmountable obstacle to permitting an easy means of egress to the employees."

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n2 A panic lock allows a door to be locked on the outside while remaining unlocked on the inside.

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On review respondent's primary contentions are that the Judge erred in finding that there was not free egress from the receiving area, that the standard's requirement that there be "free and unobstructed egress" is so vague as to be invalid and unenforceable, and that the Judge's findings with respect to security considerations were improper. Respondent states that it is cncerned that its employees will pilfer goods and remove them through the rear doors if it is required to keep the doors unlocked.

We need not determine whether respondent's locking the rear doors violated the requirements of the first sentence of the standard, or whether that sentence is unenforceably vague. Our decision in Techno Products, Inc., d/b/a Techno Mfg. Co., 76 OSAHRC 13/D1, 3 OSHC 2009, 1975-76 CCH OSHD para. 20,413 (No. 3624, 1976), mandates affirmance [*5] of the alleged violation because locking the rear doors violated the standard's requirement that, "No lock or fastening to prevent free escape from the inside of any building shall be installed. . . ."

We agree with Judge Patton that respondent failed to show that the use of panic locks would create a substantial security threat from intruders. Moreover, respondent's argument that its own employees pose a security risk does not require a contrary conclusion. First, respondent's contention is based on speculation. Second, even if respondent were able to substantiate its contention, we would affirm the citation. In Techno, supra, we held that security considerations are insufficient justification for an employer to risk injury to its employees by denying them free egress from a building.

Respondent excepts to several statements in the Judge's decision that it characterizes as the Judge's Findings of Fact. The statements are actually not included in the Judge's Findings of Fact, but are only part of his discussion of the evidence. All statements to which respondent objects are supported by the record, with the exception of the Judge's reference to the presence of two, [*6] rather than three, swinging doors in the partition. The mischaracterization of testimony was harmless error, however, because the Judge's decision was not based on the number of swinging doors in the store.

Respondent's other contentions are also rejected. Respondent argues that the Judge did not adequately consider that respondent had built other safeguards against fire into its facility n3 and that no injuries from fire had occurred at the worksite. In Pratt & Whitney Aircraft, 75 OSAHRC 42/A2, 2 BNA OSHC 1713, 1974-75 CCH OSHD para. 19,443 (No. 510, 1975), and Techno, supra, we indicated that such considerations are relevant only to the assessment of an appropriate penalty under 29 U.S.C. 666(i). We find that the Judge's assessment of a $35 penalty was proper.

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n3 In its petition for review respondent refers to "brick walls, steel beams, fire retard[ant] materials, and an automatic sprinkler system that has been certified by the local governmental authorities."

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The citation also alleged that respondent's [*7] failure to mark the same rear doors "with readily visible signs" violated 1910.37(q)(1). The only evidence pertaining to the alleged violation was the compliance officer's testimony that the locked doors were not marked in accordance with the requirements of the cited standard. The Judge's discussion of the evidence was limited to stating, "It will also be noted that it is undisputed that there were not exit signs over any doors except the fire door." Respondent excepts to that statement. Although respondent is correct in contending that the Judge's discussion does not accurately reflect the record, the Judge's statement constitutes harmless error because he based the finding of a 1910.37(q)(1) violation only on respondent's failure to mark the rear doors. Conclusion of Law No. 5. That holding is supported by the compliance officer's testimony.

On review respondent argues that it was not required to mark the rear doors because they were locked and were not used for egress from the building, and that 1910.36(b)(5) n4 supports that contention. The Judge was correct in finding a violation. The requirements of 1910.36(b)(4) and 1910.37(q)(1) are complementary. Respondent [*8] was required by 1910.36(b)(4) to keep the doors unlocked in order to provide "free escape" and by 1910.37(q)(1) to mark the unlocked doors as exits. Furthermore, respondent's contention is not supported by 1910.36(b)(5). The doors were required exits from the rear of the store under 1910.36(b)(4). Section 1910.36(b)(5) applies only to a doorway or passageway "not constituting an exit or way to reach an exit."

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n4 Section 1910.36(b)(5) provides in pertinent part:

Any doorway or passageway not constituting an exit or way to reach an exit, but of such a character as to be subject to being mistaken for an exit, shall be so arranged or marked as to minimize its possible confusion with an exit and the resultant danger of persons endeavoring to escape from fire finding themselves trapped in a dead-end space, such as cellar or storeroom, from which there is no other way out.

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Accordingly, the Judge's decision is affirmed.

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons [*9] 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 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. [*10] 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 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 [*11] 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 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 [*12] 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 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 [*13] 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. 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 [*14] 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 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, [*15] 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, 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 [*16] and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.