UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 14739 |
JOSEPH
BUCHEIT & SONS CO., |
|
Respondent. |
|
May 25, 1978
DECISION
Before: CLEARY, Chairman; and BARNAKO, Commissioner.
BY THE COMMISSION:
A
decision of Review Commission Judge Frank B. Zinn is before the Commission
pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. That decision affirmed a citation alleging a nonserious
violation of 29 C.F.R. § 1926.450(a)(10) and a citation alleging a serious
violation of 29 C.F.R. § 1926.28(a), which was amended at trial to include
reference to 29 C.F.R. § 1926.105(a). As to the latter citation, the Judge
found a violation only of § 1926.28(a) and assessed a $500 penalty. Respondent
petitioned for review of the Judge’s decision, taking exception to that
finding.[1]
Respondent
was engaged in building a bridge that was part of a highway construction
project when the worksite was inspected by a representative of the Occupational
Safety and Health Administration. The inspecting officer observed and
photographed two of respondent’s employees working without fall protection from
loose planks located beneath the span of the bridge. The employees were
stripping form lumber that had held concrete in place during the pouring and
curing of the bridge deck. The inspector testified that, based on his
conversation with respondent’s foreman, he concluded that the distance from the
bridge to the ground was more than 26 feet. At trial respondent disputed this
distance. Respondent’s general carpenter foreman testified that he measured the
fall distance to be 23 feet, 4 inches.
Judge
Zinn accepted the testimony of the foreman and found that the fall distance was
23 feet, 4 inches. We have no reason in this case to evaluate differently the
evidence underlying the Judge’s credibility finding and we adopt the Judge’s
finding as to the height of the working surface. CTM, Inc., 77 OSAHRC
136/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977); Paul
L. Heath Contracting Co., 75 OSAHRC 84/B2, 3 BNA OSHC 1550, 1975-76 CCH
OSHD para. 20,006 (No. 5467, 1975).
Based
on his conclusion that the fall distance was less than 25 feet, the Judge held
that § 1926.105(a)[2] did not apply to the cited
condition. He found, however, that a violation had been established under §
1926.28(a).[3]
On
review respondent argues that the Judge’s decision should be reversed. It
claims that § 1926.28(a) is a general standard that cannot independently
support the citation. Since § 1926.105(a) is the specific standard
applicable to the facts or this case, relying on the Judge’s finding that the
height of the bridge was less than 25 feet, and that § 1926.105(a) was for that
inapplicable, respondent concludes that this holding also requires a finding
that § 1926.28(a) was not violated. We disagree. The Commission has held that §
1926.28(a) applies when the fall distance is less than the 25 foot distance
specified in § 1926.105(a). Jensen Construction Company of Oklahoma,
Inc., 77 OSAHRC 180/B1, 5 BNA OSHC 1906, 1977-78 CCH OSHD para. 22,215 (No.
12940, 1977); Carpenter Rigging and Contracting Corp., 75 OSAHRC 32/D13,
2 BNA OSHC 1544, 1974-75 CCH OSHD para. 19,252 (No. 1399, 1975). These
decisions are controlling here.
The
Judge further found that there was an obvious need for fall protection in this
case. Based on the photographs of the worksite and consideration of the nature
of the employees’ work, he found that tied off safety belts would have reduced
the hazard of a fall and that there were many places available to which
employees could have tied their safety belts.
Having
examined complainant’s photographic exhibits, including exhibits C1-4, we
conclude that the evidence in this case establishes exposure to hazardous
conditions requiring the use of personal protective equipment. Chairman Cleary
finds that the employees were exposed to an obvious fall hazard that could have
been eliminated by the use of safety belts. Commissioner Barnako finds that a
reasonably prudent employer would recognized a need for personal protective
equipment under the circumstances of this case. PPG Industries, Inc., 77
OSAHRC 196/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD para. 22,344 (No. 15426,
1977); B & B Insulation, 77 OSAHRC 49/A2, 5 BNA OSHC 1265, 1977-78
CCH OSHD para. 21,747 (No. 9985, 1977), appeal docketed, No. 77-2211 (5th Cir.,
June 14, 1977).
Moreover,
the photographic exhibits clearly establish the feasibility of the use of
safety belts.[4]
The photographs show any number of places to which employees could readily tie
off, the Judge so found, and respondent has never contended otherwise.
Accordingly, it is ORDERED that the Judge’s decision
is affirmed.
FOR THE COMMISSION:
Ray H. Darling, Jr.
Executive Secretary
DATED: MAY 25, 1978
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
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 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)[5]. 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.[6] 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.
Though
a new member may participate in all pending cases, particularly those involving
an impasse, the decision remains a matter of discretion since adjudicatory
decision 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 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 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 ¶22,313 (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, but to participate in those cases with unresolved
issues, promotes the prompt adjudication of cases. It also assures the parties
and the public of the full benefit of Commission review. Both of these results
are essential in deciding cases affecting the lives, health and safety of
American workers, the operation of American business, and the effective
adjudication of cases by the administrative law judges.
[1] Respondent does
not take exception to the Judge’s holding with respect to the nonserious
violation of § 1926.450(a)(10). Accordingly, we will not address that citation
on review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC
1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976).
[2] The standard at
29 C.F.R. § 1926.105(a) provides as follows:
§
1926.105 Safety nets.
(a)
Safety nets shall be provided when workplaces are more than 25 feet above the
ground or water surface, or other surfaces where the use of ladders, scaffolds,
catch platforms, temporary floors, safety lines, or safety. belts is
impractical.
[3] The standard at
29 C.F.R. § 1926.28(a) provides as follows:
§
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.
[4] See Frank Briscoe Co., Inc., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976); B & B Insulation, supra.
[5] 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).
[6] 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.