“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14739 JOSEPH BUCHEIT & SONS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 25, 1978DECISIONBefore: CLEARY, Chairman; and BARNAKO, Commissioner.BY THE COMMISSION:??????????? Adecision of Review Commission Judge Frank B. Zinn is before the Commissionpursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ? 651 et seq. That decision affirmed a citation alleging a nonseriousviolation of 29 C.F.R. ?\u00a01926.450(a)(10) and a citation alleging a seriousviolation of 29 C.F.R. ? 1926.28(a), which was amended at trial to includereference to 29 C.F.R. ? 1926.105(a). As to the latter citation, the Judgefound a violation only of ? 1926.28(a) and assessed a $500 penalty. Respondentpetitioned for review of the Judge?s decision, taking exception to thatfinding.[1]??????????? Respondentwas engaged in building a bridge that was part of a highway constructionproject when the worksite was inspected by a representative of the OccupationalSafety and Health Administration. The inspecting officer observed andphotographed two of respondent?s employees working without fall protection fromloose planks located beneath the span of the bridge. The employees werestripping form lumber that had held concrete in place during the pouring andcuring of the bridge deck. The inspector testified that, based on hisconversation with respondent?s foreman, he concluded that the distance from thebridge to the ground was more than 26 feet. At trial respondent disputed thisdistance. Respondent?s general carpenter foreman testified that he measured thefall distance to be 23 feet, 4 inches.??????????? JudgeZinn accepted the testimony of the foreman and found that the fall distance was23 feet, 4 inches. We have no reason in this case to evaluate differently theevidence underlying the Judge?s credibility finding and we adopt the Judge?sfinding as to the height of the working surface. CTM, Inc., 77 OSAHRC136\/C12, 5 BNA OSHC 1578, 1977-78 CCH OSHD para. 21,957 (No. 13008, 1977); PaulL. Heath Contracting Co., 75 OSAHRC 84\/B2, 3 BNA OSHC 1550, 1975-76 CCHOSHD para. 20,006 (No. 5467, 1975).??????????? Basedon his conclusion that the fall distance was less than 25 feet, the Judge heldthat ?\u00a01926.105(a)[2] did not apply to the citedcondition. He found, however, that a violation had been established under ?1926.28(a).[3]??????????? Onreview respondent argues that the Judge?s decision should be reversed. Itclaims that ? 1926.28(a) is a general standard that cannot independentlysupport the citation. Since ?\u00a01926.105(a) is the specific standardapplicable to the facts or this case, relying on the Judge?s finding that theheight of the bridge was less than 25 feet, and that ? 1926.105(a) was for thatinapplicable, respondent concludes that this holding also requires a findingthat ? 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 distancespecified 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). Thesedecisions are controlling here.??????????? TheJudge further found that there was an obvious need for fall protection in thiscase. Based on the photographs of the worksite and consideration of the natureof the employees? work, he found that tied off safety belts would have reducedthe hazard of a fall and that there were many places available to whichemployees could have tied their safety belts.??????????? Havingexamined complainant?s photographic exhibits, including exhibits C1-4, weconclude that the evidence in this case establishes exposure to hazardousconditions requiring the use of personal protective equipment. Chairman Clearyfinds that the employees were exposed to an obvious fall hazard that could havebeen eliminated by the use of safety belts. Commissioner Barnako finds that areasonably prudent employer would recognized a need for personal protectiveequipment under the circumstances of this case. PPG Industries, Inc., 77OSAHRC 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, 1977-78CCH 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 ofsafety belts.[4]The photographs show any number of places to which employees could readily tieoff, the Judge so found, and respondent has never contended otherwise.?Accordingly, it is ORDERED that the Judge?s decisionis affirmed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: MAY 25, 1978\u00a0??????????? 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. Adecision was already in preparation when I assumed office. I have concludedthat the wisest exercise of discretion is to decline to participate in thiscase even though a new Commission member has authority to participate inpending cases. It should be emphasized that by declining to participate Iexpress no opinion on the procedural or substantive issues in this case or onthe appropriateness of 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:Forthe purposes of carrying out its functions under this chapter, two members ofthe Commission shall constitute a quorum and official action can be taken onlyon the 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)[5]. In Unitedthe court indicated that, where a member voting with the majority withouthearing 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. Thereare numerous other cases supporting this holding. The clearest statement of lawis set forth in 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.[6] See AuYi 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 toparticipate in all 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 a cease-and-desistorder based on the affirmative vote of only two members. Despite its obviousimpact on the number of members constituting a majority, the Court did notreview the exercise of discretion by the new member. Instead, the Courtaccepted the abstention at face value and upheld the action of the two membersof the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5th Cir. 1966); AtlanticRefining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition,administrative decisions involving two or more abstentions have been upheld byreviewing courts without question or comment on the grounds for theseabstentions. 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[1] Respondent doesnot take exception to the Judge?s holding with respect to the nonseriousviolation of ? 1926.450(a)(10). Accordingly, we will not address that citationon review. Water Works Installation Corp., 76 OSAHRC 61\/B8, 4 BNA OSHC1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976).[2] The standard at29 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 theground or water surface, or other surfaces where the use of ladders, scaffolds,catch platforms, temporary floors, safety lines, or safety. belts isimpractical.[3] The standard at29 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 personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[4] See FrankBriscoe Co., Inc., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHDpara. 21,162 (No. 7792, 1976); B & B Insulation, supra.[5] 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).[6] The Court distinguishedWIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. CrosleyBroadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oralargument was statutorily required if a party requested it. 348 F.2d 798, n. 14.”