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.

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[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.