UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 13029

PERINI CORPORATION,

 

                                              Respondent.

 

 

May 25, 1978

DECISION

Before CLEARY, Chairman; and BARNAKO, Commissioner.

BY THE COMMISSION:

            A decision of Review Commission Judge Foster Furcolo is before us for review pursuant to 29 U.S.C. § 661(i). That decision affirmed two items of a citation alleging nonserious violations of 29 CFR 1926.153(j) which states that ‘storage of LPG (liquid propane gas) within buildings is prohibited,’ and 1926.250(b)(1), which states that ‘material stored inside buildings under construction shall not be placed . . . within ten feet of an exterior wall which does not extend above the top of the material stored.’[1] A $40 penalty was assessed. We affirm the Judge’s decision.

The Alleged Violation of 29 CFR 1926.153(j)

            Perini was the general contractor on a building construction project in Boston. This item of the citation alleged that on March 18, 1975, when an OSHA inspection of the worksite occurred, LPG cylinders were stored on floors 7, 17[2] and 19 of one of the buildings under construction. Perini’s employees were not working on any of the floors where LPG cylinders were stored, but employees of various subcontractors were working on these floors. The OSHA compliance officer thought that the LPG cylinders were hazardous because the gas is explosive and the residue in even an ‘empty’ cylinder can be released if the container is knocked over.

            Perini’s assistant superintendent testified that the last work Perini did on the 19th floor was the laying of concrete some six months before the inspection. Although LPG is sometimes used as fuel for heaters to cure concrete poured in cold weather, the 19th floor was poured in September, when heating would not have been necessary. The assistant superintendent also stated that other subcontractors could have done work on that floor possibly requiring LPG after that time, and that contractors working on floors 7, 17, 19, and 27 at the time of the inspection used LPG heaters. An electrical subcontractor’s employee testified that only Perini or the plumbers used LPG, and the cylinders in question were of the type used by Perini.

            The Judge found that Perini violated the standard by improperly storing LPG within the building. He stated that the testimony of the electrical subcontractor’s employee as a disinterested witness representing neither Respondent nor Complainant was most persuasive. Implicit in the Judge’s decision is a finding that Perini owned the cylinders.

            Perini took exception to the Judge’s decision, asserting that it did not own the cylinders in question, that its employees were not exposed to the hazard created by the cylinders, and that it was therefore not responsible for the fact that the cylinders were improperly stored.

            In its response to our supplemental briefing order (supra n. 1), Perini contends that its status as general contractor should not make it liable. It basically argues that it would not be feasible for a general contractor to be aware of each instance on a large construction site where a subcontractor is using a LPG cylinder, and that this type of violation is therefore not one a general contractor could prevent or abate by reason of its supervisory capacity.

            In Grossman Steel and Aluminum Corp., supra note 1,[3] the Commission considered the conditions under which employers on a multi-employer construction site are responsible for violations of OSHA standards. We said, among other things, that an employer who creates a violation is responsible if any employees on the site, regardless of whether they work for that particular employer, are endangered. We also said that a general contractor is responsible for violations it could prevent or abate by reason of its supervisory authority over the entire site.[4]

            We conclude that the Judge properly affirmed this item. The Judge made a credibility finding that Perini owned the cylinders. As his reliance on the testimony of the ‘disinterested witness’ is supported by the evidence, we accept his finding. Since employees of subcontractors were working on the floors containing the cylinders, at least some employees on the site were exposed to the hazard regardless of whether Perini’s employees were so exposed. As the employer creating the hazard, Perini is therefore liable. Grossman Steel and Aluminum Corp., supra.

            Furthermore, even if Perini did not own the cylinders, we would find it liable because of its position as general contractor. Perini’s assistant superintendent testified that Perini could have either abated the hazard itself or had the responsible subcontractor abate. Additionally, the cylinders are readily visible and Perini could have discovered their presence. Accordingly, the violation was of the type Perini could have prevented or abated by reason of its supervisory capacity. Knutson Construction Co., supra n. 4.

Alleged Violation of 29 CFR 1926.250(b)(1)

            On the third and fourth floors of the building concrete blocks on wood pallets were located two and five feet, respectively, from the edge of the building. It is not disputed that Perini owned the material. The Judge found that employees below the third and fourth floors were subject to injury should any of the stored materials fall, and he concluded that the materials were ‘stored’ within the meaning of the standard because Perini failed to prove they had only been placed there temporarily.

            Perini argues that the Judge erred in placing on it the burden to prove that the materials were placed in their location only temporarily. It contends that the burden is on the Secretary to prove ‘storage’ of the materials. Perini further contends that the Commission should reject the broad interpretation of ‘storage’ set forth in Secretary v. Underhill Construction Co., 513 F.2d 1032 (2nd Cir. 1975), where the court held that all material on a construction site is deemed ‘stored’ until it is incorporated into the building or used. It contends that the ordinary meaning of ‘stored’ connotes the putting aside of materials for safekeeping, and not the mere ‘placement’ of materials.

            We have followed the Second Circuit’s interpretation in Underhill and therefore reject Perini’s argument. See Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1977-78 CCH OSHD para. 22,506 (No. 13638, 1978). The standard is directed at the hazard that materials falling from the edge of the building might strike employees below. That hazard exists even if the materials are only near the edge of the building for a short time. We therefore conclude that the standard prohibits any unnecessary placement of materials within ten feet of the edge of the building. See Whitcomb Logging Co., 74 OSAHRC 89/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD para. 19,128 (No. 1323, 1974). As the record shows that the materials involved here were not in use, and there is no showing that their placement there was necessary to the work being performed, we conclude that Perini violated the standard.

            Accordingly, 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] This case is before us pursuant to former Commissioner Moran’s issueless direction for review. Perini’s brief in response to the direction for review takes exception to the two items described above. Pursuant to the Commission’s policy statement we issued a briefing order on these items. See 41 Fed. Reg. 53015 (Dec. 3, 1976). The parties were directed to brief the LPG cylinder allegation in light of Secretary v. Grossman Steel and Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1975), and to brief the storage allegation in light of the Circuit Court opinion in Secretary v. Underhill Construction Co., 513 F.2d 1032 (2nd Cir. 1975).

The Judge also vacated two other alleged violations. As no party has taken exception to the Judge’s disposition of those items, they are not before us for review.

[2] The Secretary argued before the Judge that the citation referred to floor 17 through either inadvertence or typographical error. He then orally moved to amend 17 to 27; however, the Judge denied this motion at trial on the grounds that such an amendment would prejudice Perini. Because the same issues are presented on the 27th floor as the 7th and 19th floors, we need not decide whether the Judge erred in denying the motion to amend.

[3] See also Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No. 4409, 1976).

[4] Perini correctly points out that this aspect of our decision in Grossman was dictum. We have since, however, applied that rule to find general contractors liable, and the rule is therefore now Commission precedent. Knutson Construction Co., 76 OSAHRC 131/F3, 4 BNA OSHC 1759, 1976-77 CCH OSHD para. 21,185 (No. 765, 1976), aff’d, 566 F.2d 596 (8th Cir. 1977).

[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.