“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4172 DYE CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 June 14, 1978DECISIONBEFORE CLEARY, Chairman; BARNAKO,Commissioner.Barnako, Commissioner:??????????? AnAugust 25, 1976 decision of Administrative Law Judge John J. Morris is beforethis Commission for review pursuant to section 12(j) of the Occupational Safetyand Health Act of 1970.[1] The Judge found thatRespondent violated three safety standards and that the violation was of aserious nature. The issue is whether the trial Judge erred in amending thepleadings in accordance with Federal Rule of Civil Procedure 15(b) to find thatthe violation was serious.[2] For the reasons whichfollow, we affirm the Judge?s decision.??????????? Respondent,a trenching contractor, was originally cited for a willful violation of thestandards published at 29 C.F.R. 1926.651(c) (excavations creating a hazardfrom moving ground shall be guarded by shoring, sloping or some equivalentprotection), 29 C.F.R. 1926.651(i) (materials shall be effectively stored andretained to prevent their falling into an excavation), and 29 C.F.R.1926.652(h) (adequate means of exit from trenches four feet deep or more shallbe provided). A penalty of $9,500 was proposed. It was stipulated that three ofRespondent?s employees were working inside a trench box at the time of theinspection. The box was eight feet high and was located inside an excavationfifteen feet deep. It was located underneath the edge of a spoil pile eightfeet in height. The spoil pile posed a hazard to the workers in the box due toits potential for collapse. A ladder which was readily available could haveprovided a means of exit, but it was not present in the trench box at the timeof the inspection. The ladder was placed in the trench box immediately afterthe OSHA compliance officer notified the supervisor on the site. Additionally,the walls of the excavation above the trench box were sloped at an inadequateangle.??????????? Duringthe hearing, the compliance officer who inspected Respondent?s worksite wasquestioned concerning the types of injuries the violation would cause. Thefollowing exchange occurred:Mr.Whiting (Secretary?s counsel): And if an accident did occur, what kinds ofinjuries would arise??Mr.Armour (Respondent?s counsel): I object. He is asking for the wildest kind ofspeculation and I object to it.?Mr.Whiting: The Commission has time and time again indicated that gravity, i.e.,the kinds of injuries that can occur as a result of an accident is an importantconsideration in assessing the penalty and as such, they have constantly askedthat the Compliance Officer give his assessment of the situation and I wouldsubmit that under the circumstances that is a proper question.?Mr.Armour: I would speculate that if the Commission has said that, that they haveignored most of the established rules of evidence in the federal courts. Ibelieve any witness can speculate as to what might happen in the future, butthe only person who can give you a proper opinion is a duly qualified expertand certainly this witness isn?t one.?JudgeMorris: I think the witness may testify as it goes to gravity.???????????? Thereafter,the witness expressed his opinion that if an accident occurred, eitherextremely critical or fatal injuries would result. Upon cross-examination byRespondent?s counsel on the point, he reiterated his opinion that death orserious injury could result.??????????? TheAdministrative Law Judge found the evidence insufficient to establish a willfulviolation and therefore vacated the citation and proposed $9,500 penalty. Weaffirmed the ruling that willfulness had not been established. However, weremanded the case for a determination as to whether the alleged violation hadbeen established and, if so, whether it should be classified as serious ornonserious. Dye Construction Co., 4 BNA OSHC 1444, 1976-77 CCH OSHDpara. 20,888 (No. 4172, 1976). Upon remand, the Judge ruled that the evidenceestablished that a violation of the three cited standards had been proven andthat the three violations in combination were serious.[3] He therefore amended thepleadings to conform to the proof in accordance with F.R.C.P. 15(b),[4] and assessed a penalty of$950.[5]??????????? Inreaching his conclusion that a serious violation was tried and proven, theJudge relied on Complainant?s introduction of evidence relating to likelyinjuries in the event of an accident and Respondent?s cross-examination of thewitness offering such evidence. Respondent argues, however, that it did notconsent to trial of the seriousness issue, pointing out that it objected to theevidence when it was first offered. It contends that its objection precludes afinding that it consented to trial of the issue.[6]??????????? Aswe noted in our remand decision, when a willful violation is alleged and theviolation is proven but the element of willfulness is not, a determination asto whether the violation is serious or nonserious must be made. See GravenBrothers and Co., 76 OSAHRC 40\/A5, 4 BNA OSHC 1045, 1975-76 CCH OSHD para.20,544 (No. 2538, 1976); Toler Excavating Co., 75 OSAHRC 76\/C8, 3 BNAOSHC 1420, 1975-76 CCH OSHD para. 19,875 (No. 2637, 1975). Since both thecitation and the complaint alleged willfulness only, a determination withrespect to seriousness necessitates amendment of the pleadings. Where, as here,there is no timely motion to amend pursuant to F.R.C.P. 15(a), amendment of thepleadings may nonetheless be appropriate in accordance with F.R.C.P. 15(b).Rule 15(b) is divided into two parts. The first part mandates that issues triedby the express or implied consent of the parties shall be treated as if raisedby the pleadings. The second part of the rule governs the situation whereobjection is raised at trial on the ground that the evidence is not within thepleadings. This part of the rule urges the trier of fact to permit theamendment if it will be helpful in deciding the case on the merits and wherethe objecting party fails to demonstrate countervailing prejudice. See Useryv. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977).??????????? JudgeMorris did not state on which part of Rule 15(b) he was relying. Rather, henoted the evidence of record relating to the likelihood of serious injury andpremised the result of his remand decision on the rule announced by the ReviewCommission cases in Graven Brothers, supra, and Toler Excavating, supra.[7] As the Judge noted, bothof those cases held that when an employer is charged with a willful violationand the evidence establishes the existence of violation but fails to establishwillfulness, a nonserious violation may ordinarily be affirmed but a seriousviolation may not be affirmed unless the parties have consented to trial of theseriousness issue.??????????? Weagree with the Judge?s result and would hold that amendment is proper under thefirst part of Rule 15(b) in that Respondent impliedly consented to evidence tosupport a serious violation. Although Respondent objected to the taking ofevidence regarding the seriousness of injury, its objection was based solely onthe witness? lack of qualification and on the nature of the question in callingfor speculation. The objection therefore was not related to the question ofconsent as that word is used in Rule 15(b) Respondent?s objection was not basedon the evidence being outside the pleadings.[8] Indeed it was the type ofobjection that could be made to questions solely within the confines of thepleadings and unrelated to any possible amendment.??????????? Inanswering the objection of Respondent?s counsel and explaining why a questionconcerning the types of injuries that could be sustained from the citedconditions was appropriate, Complainant?s counsel explained that complianceofficers often give testimony regarding injuries for purposes of penaltyassessment.[9]He also could have added, but did not, that the same question is asked andtestimony given for purposes of establishing a serious violation. His failureto do so, however, is not relevant since the very nature of the question andthe explanation given by Complainant?s counsel put Respondent on notice thatthe Secretary meant to litigate the nature of potential injuries.[10] After the Judge overruledthe objection and on cross-examination, Respondent introduced evidence on theissue. We conclude therefore that Respondent was on notice that the nature ofthe risks posed by the alleged violation was being litigated, and impliedlyconsented to try the issue.??????????? Aswe have previously noted, the second part of Rule 15(b) is not applicablebecause the objection was not the type specified by the rule. In any event, ifwe were to apply this part of the rule, we would still conclude that theamendment was proper. The second part of Rule 15(b) directs the court to permitan amendment of pleadings where the amendment will promote resolution of thecase on the merits and the party raising the objection is unable to demonstratethat it will be prejudiced by the amendment. Respondent has not demonstratedthe requisite prejudice in this case. It neither claimed surprise nor asked fora continuance. Additionally it has not asked for leave to present additionalevidence nor has it informed this Commission of any significant evidence itwould offer in rebuttal to the seriousness charge.??????????? Respondent?semployees were working inside an eight-foot trench box located in afifteen-foot trench and underneath the edge of a spoil pile eight feet inheight. Because of the severity of likely injuries in the event of collapse, wehave generally viewed trench violations of this type as serious. See e.g., Accu-Namics,Inc., 74 OSAHRC 35\/A2, 1 BNA OSHC 1751, 1973-74 CCH OSHD para. 17,936 (No.477, 1974), aff?d 515 F.2d 828 (5th Cir. 1975), cert. denied, 96 S. Ct. 1492(1976); Colorado Pipe Lines, Inc., dba CPL Constructors, 75 OSAHRC23\/A2, 3 BNA OSHC 1865, 1975-76 CCH OSHD 20,251 (No. 2805, 1975). We thereforefail to see how Respondent was prejudiced by the amendment.??????????? Wehave given consideration to the factors enumerated in Sections 17(b) and (j) ofthe Act, and determined that the assessment of a $950 penalty was appropriatein the circumstances. Accordingly, the Judge?s decision is hereby affirmed.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDate: JUN 14, 1978??????????? CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.SEPARATE OPINION??????????? Asa new member of the Commission, I must resolve the issue of my participation inpending cases. It is also necessary for me to set out the principles guiding mydecision on this important issue.??????????? Inthis case, Chairman Cleary and Commissioner Barnako reached a unanimousdecision on the merits before I received my commission on May 1, 1978. A decisionwas already in preparation when I assumed office. I have concluded that thewisest exercise of discretion is to decline to participate in this case eventhough a new Commission member has authority to participate in pending cases.It should be emphasized that by declining to participate I express no opinionon the procedural or substantive issues in this case or on the appropriatenessof the accompanying order.Discretion of Commission Members??????????? Asa matter of law, it is not necessary for all Commission members to participatefor 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 TradeCommission issued a cease-and-desist order with only three of its five membersparticipating. The Court of Appeals rejected petitioner?s contention that theFTC can act in its adjudicatory capacity only when all members participate,except when there is a vacancy. The court ruled that official action can betaken 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 thepurposes of carrying out its functions under this chapter, two members of theCommission shall constitute a quorum and official action can be taken only onthe affirmative vote of at least two members.???????????? Thus,the unanimous decision already reached in this case satisfies the quorum andofficial action requirements of the Act and my participation is not necessaryfor the Commission to carry out its adjudicatory functions in this particularcase.??????????? However,it is also settled that a new member of an administrative agency mayparticipate in pending cases. For example, a new member of the CivilAeronautics Board who had not participated in previous proceedings was entitledto vote and break an existing tie where he had familiarized himself with therecord. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing UnitedAir Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[11]. In United thecourt indicated that, where a member voting with the majority without hearingoral argument ?had the record before him and the benefit of briefs?, there wasno abuse of discretion in his participation, 281 F.2d at 56. There are numerousother cases supporting this holding. The clearest statement of law is set forthin Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):Thedecisions of numerous courts and administrative agencies establish that, evenwithout agreement of the parties, a member of an administrative agency who didnot hear oral argument may nevertheless participate in the decision where hehas the benefit of the record before him. [footnotes omitted] \u00a0348 F.2d at 802.[12] 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 inall cases pending before the Commission on assuming office.??????????? Thougha new member may participate in all pending cases, particularly those involvingan impasse, the decision remains a matter of discretion since adjudicatorydecision 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 memberappointed to fill one of two vacancies, declined to participate because he hadnot heard the oral argument. Thus, three of the possible four Commissionersactually participated in the decision. As a result, the FTC issued acease-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 thetwo members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5thCir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965).In addition, administrative decisions involving two or more abstentions havebeen upheld by reviewing courts without question or comment on the grounds forthese abstentions. All that was necessary to sustain the agency decision was amajority 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??????????? Idecline to participate in this case because a majority of the Commission hasreached agreement on the merits and my vote would have no effect on theoutcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako havereached a unanimous decision, my participation would delay the issuance ofdecisions and conflict with the goal of a prompt and efficient decision-makingprocess. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d960, 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 Commissionenters a final order, 29 U.S.C. ? 659(b), additional deliberations would delaythe control of hazardous working conditions in any case where the Commissionhas determined that a violation of the Act exists. That result would beinconsistent with the statutory purpose to assure so far as possible safe andhealthful working conditions for every working man and woman. 29 U.S.C. ?651(b).??????????? Iwill, however, participate fully in all cases in which previous Commissiondeliberations have resulted in a one-to-one deadlock. Decisions by an equallydivided Commission are without precedential value, e.g., Life SciencesProducts Co., 77 OSAHRC 200\/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCHOSHD ?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?sadministrative law judges. Moreover, these decisions also promote needlesslitigation in the U.S. Courts of Appeals to decide issues which shouldinitially be determined by the Commission, because its members have specializedtraining, education, and experience in occupational safety and health. 29U.S.C. ? 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964.Administrative resolution of pending issues also promotes a more uniformapplication and development of occupational safety and health law. Afterreading the record, I will participate in the consideration and decision ofthese cases.Conclusion??????????? Mydecision not to participate in pending cases which have reached a unanimousdecision by my colleagues, but to participate in those cases with unresolvedissues, promotes the prompt adjudication of cases. It also assures the partiesand the public of the full benefit of Commission review. Both of these resultsare essential in deciding cases affecting the lives, health and safety ofAmerican workers, the operation of American business, and the effectiveadjudication of cases by the administrative law judges.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ??????????????????????? ?????????????????????Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4172 DYE CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: August 24, 1976?DECISION AND ORDER (after remand)??????????? JohnJ. Morris, OSHRC Judge:??????????? OnJuly 12, 1976, the Commission remanded the above case to the undersigned torule on whether a violation had in fact occurred. The parties filed briefsstating their respective positions.??????????? Theapplicable rule of law is that when a respondent is charged with a willfulviolation and the evidence establishes that the violation is not willful, anonserious violation may be affirmed but, ordinarily, a serious violation maynot be affirmed. Secretary v. Gravens Brothers and Company, No. 2538,March, 1976; Secretary v. Toler Excavating Company, No. 2637, 19 OSHRC492 (1975); Secretary v. Amulco Asphalt Company, No. 3258, 19 OSHRC 467(1975). However, this case falls within the exception stated in Toler:Anexception to this rule exists when the issue of whether the violation isserious is tried by the express or implied consent of the parties. NationalRealty and Construction Co., Inc. v. OSAHRC, 489 F.2d 1257, 1264 (D.C. Cir.1973); Fed. R. Civ. P. 15(b).\u00a0??????????? Inthis case complainant introduced evidence relating to the types of seriousinjuries and possible fatalities that could occur if the cave-in occurred;respondent cross-examined on the issue (Tr. 52?53, 70). A serious violation asdefined by 29 U.S.C.A. 666(j) was clearly litigated. In accordance with Rule15(b), F.R.C.P., the pleadings are amended to conform to the evidence.??????????? Complainantin his brief argues that the respondent willfully violated the Act and that aserious violation existed.??????????? Complainant?sinitial argument has been heretofore adjudicated and it is again denied.??????????? Thetotal record persuasively convinces the undersigned that respondent violatedthe standards in issue.??????????? Respondent?scontentions in his post remand brief that no violation occurred and that therewas no trial of any other issue than ?willfulness? are denied.??????????? Theproposed civil penalty of $9500 is to be vacated. In assessing penalties theCongress in 29 U.S.C.A. 666(i) mandated that:TheCommission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty withrespect to the size of the business of the employer being charged, the gravityof the violation, the good faith of the employer, and the history of previousviolations.???????????? TheCommission has repeatedly ruled that of the four statutory factors bearing onthe appropriateness of a penalty the gravity of the violation should begenerally accorded the greatest weight. Secretary v. Baltz Brothers PackingCompany, No. 91, 2 OSHRC 384, (1973).??????????? Inthe instant case the gravity is apparent and respondent?s prior history isadverse (Tr. 114, 115, 131, 136?137, 142, 149?150). In respondent?s favor isthe fact that he immediately abated the defective conditions (Tr. 53). Onbalance a civil penalty of $950 is appropriate.FINDINGS OF FACT??????????? 1.Respondent is an employer engaged in a business affecting commerce within themeaning of 29 U.S.C.A. 651 et seq. (Facts relating thereto are as set forth inthis Judge?s decision dated December 10, 1974, which fact are incorporated byreference herein.)??????????? 2.Three employees of respondent worked in a trench box 19 feet wide, 15 feet 11inches long, and 7 feet high (Tr. 31?35, 44, 72, 90, 94; compl?s. ex. 1).??????????? 3.The trench box was located in an excavation 19 feet wide at one end, 40 feetlong and 15 feet deep (Tr. 33, 44, 50, 51, 80, 86?87, 93?94).??????????? 4.The soil in the excavation consisted of silt and sand and it lacked cementationand adhesion; the presence of water increased the danger of moving ground (Tr.46?47, 49, 95, 97).??????????? 5.The angle of repose of the trench was about 1\/2 to 1; it should have been 2 to1 and to the edge of the trench box (Tr. 47, 48, 80?81, 86, 88, 196).??????????? 6.Respondent?s superintendent was at the excavation (Tr. 53).??????????? 7.A 6 to 8 foot high spoil pile went to the edge of the excavation directly abovethe trench box (Tr. 34, 96).??????????? 8.The trench box did not have a ladder until after the inspection; prior theretoworkers would grab the top of the trench box to jump out (Tr. 72, 194, 195).CONCLUSIONS OF LAW??????????? 1.Respondent is subject to the Act (Facts 1).??????????? 2.Respondent violated 29 CFR 1926.651(c) and (i) (Facts 2?7).??????????? 3.Respondent violated 29 CFR 1926.652(h) (Facts 8).??????????? 4.Respondent?s superintendent at the jobsite should have known of the violation(Facts 6).??????????? 5.Citation 2 should be affirmed and the proposed civil penalty reduced to $900.??????????? Basedon the foregoing findings of fact and conclusions of law the undersigned entersthe following:ORDER??????????? 1.Citation 2 is affirmed as a serious violation.??????????? 2.The proposed civil penalty of $9500 is vacated and a civil penalty of $950 isassessed in lieu thereof.John J. MorrisJudge, OSHRCDated: August 25, 1976Denver, Colorado\u00a0[1] 29 U.S.C. 651 etseq., hereinafter ?the Act.?[2] Section 12(g) ofthe Act makes the Federal Rules of Civil Procedure applicable to ReviewCommission proceedings absent adoption of a different rule by the Commission.[3] A seriousviolation, as defined in Section 17(k) of the Act, exists if the result of anaccident resulting from the violation would likely be death or serious harm.See Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 25\/E7, 5 BNA OSHC1091, 1977-78 CCH OSHD para. 21,582 (No. 12174, 1977); California Stevedore& Ballast Co., 73 OSAHRC 39\/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD para.16,520 (No. 14, 1973), aff?d 517 ,.2d 986 (9th Cir. 1975).[4] F.R.C.P. 15(b)provides:AMENDMENTS TO CONFORM TO THEEVIDENCE. When issues not raised by the pleadings are tried by express orimplied consent of the parties, they shall be treated in all respects as ifthey had been raised in the pleadings. Such amendment of the pleadings as maybe necessary to cause them to conform to the evidence and to raise these issuesmay be made upon motion of any party at any time, even after judgment; butfailure to so amend does not affect the result of the trial of these issues. Ifevidence is objected to at the trial on the ground that it is not within theissues made by the pleadings, the court may allow the pleadings to be amendedand shall do so freely when the presentation of the merits of the action willbe subserved thereby and the objecting party fails to satisfy the court thatthe admission of such evidence would prejudice him in maintaining his action ordefense upon the merits. The court may grant a continuance to enable theobjecting party to meet such evidence.[5] Both partiespetitioned for review of the Judge?s remand decision. Former Commissioner Morandirected that the Judge?s decision be reviewed, but did not state specific issue(s)for adjudication. Both parties filed briefs on review.TheSecretary continues to argue that a willful violation should be found. Ourprior decision held that willfulness was not shown, and is dispositive of thatissue.[6] There are twoelements of a serious violation: 1) the probability of death or seriousphysical harm should an accident result from the violation and 2) the knowledgeof the employer of the presence of the violative conditions. The second issuewas tried and proven without objection in the trial of the willful violationand Respondent does not argue otherwise.Onlythe first element is therefore relevant with respect to the amendment issue nowbefore us.[7] The Judge alsocited Amulco Asphalt Co., 76 OSAHRC 76\/A11, 3 BNA OSHC 1396, 1975-76 CCHOSHD para. 19,873 (No. 3258, 1975), but in that decision the Commission wasequally divided on whether Respondent could properly be charged with a seriousviolation. Hence, the Judge?s decision finding a serious violation in that casewas affirmed, but no precedential weight was attached to that aspect of ourdecision.[8] The second part ofRule 15(b) specifically relates to objections based upon the evidence beingoutside the pleadings. Accordingly this part of the rule is inapplicable.[9] Section 17(j) ofthe Act provides:The Commission shall have authorityto assess all civil penalties provided in this section, giving dueconsideration to the appropriateness of the penalty with respect to the size ofthe business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.[10] The definition ofseriousness under Section 17(k) of the Act has been previously set out, note 3at 4. While gravity and seriousness are not synonymous, both the nature andlikelihood of potential injury are factors which we have considered as elementsof gravity for purposes of assessing an appropriate penalty. See e.g., Lipsky& Rosenthal, Inc., 74 OSAHRC 29\/A8, 1 BNA OSHC 1736, 1973-74 CCH OSHDpara. 17,814 (No. 690, 1974); California Stevedore & Ballast Co., 73OSAHRC 39\/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973),aff?d 517 F.2d 986 (9th Cir. 1975). See also National Realty andConstruction Co., 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD para.15,188 (No. 85, 1972), rev?d on other grounds 489 F.2d 1257 (D.C. Cir.1973). Among the elements of gravity are such items as ?(1) the number ofemployees exposed to the risk of injury; (2) the duration of exposure; (3) theprecautions taken against injury, if any; and (4) the degree of probability ofoccurrence of an injury.? Id., 1 BNA OSHC at 1051.[11] A Commissionermay vote simply to avoid an impasse. Public Service Commission of State ofN.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 inresult).[12] The Courtdistinguished 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. 348F.2d 798, n. 14.”