“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 13029 PERINI CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 25, 1978DECISIONBefore CLEARY, Chairman; and BARNAKO,Commissioner.BY THE COMMISSION:??????????? Adecision of Review Commission Judge Foster Furcolo is before us for reviewpursuant to 29 U.S.C. ? 661(i). That decision affirmed two items of a citationalleging nonserious violations of 29 CFR 1926.153(j) which states that ?storageof LPG (liquid propane gas) within buildings is prohibited,? and1926.250(b)(1), which states that ?material stored inside buildings underconstruction shall not be placed . . . within ten feet of an exterior wallwhich does not extend above the top of the material stored.?[1] A $40 penalty wasassessed. We affirm the Judge?s decision.The Alleged Violation of 29 CFR1926.153(j)??????????? Periniwas the general contractor on a building construction project in Boston. Thisitem of the citation alleged that on March 18, 1975, when an OSHA inspection ofthe worksite occurred, LPG cylinders were stored on floors 7, 17[2] and 19 of one of thebuildings under construction. Perini?s employees were not working on any of thefloors where LPG cylinders were stored, but employees of various subcontractorswere working on these floors. The OSHA compliance officer thought that the LPGcylinders were hazardous because the gas is explosive and the residue in evenan ?empty? cylinder can be released if the container is knocked over.??????????? Perini?sassistant superintendent testified that the last work Perini did on the 19thfloor was the laying of concrete some six months before the inspection.Although LPG is sometimes used as fuel for heaters to cure concrete poured incold weather, the 19th floor was poured in September, when heating would nothave been necessary. The assistant superintendent also stated that othersubcontractors could have done work on that floor possibly requiring LPG afterthat time, and that contractors working on floors 7, 17, 19, and 27 at the timeof the inspection used LPG heaters. An electrical subcontractor?s employeetestified that only Perini or the plumbers used LPG, and the cylinders inquestion were of the type used by Perini.??????????? TheJudge found that Perini violated the standard by improperly storing LPG withinthe building. He stated that the testimony of the electrical subcontractor?semployee as a disinterested witness representing neither Respondent norComplainant was most persuasive. Implicit in the Judge?s decision is a findingthat Perini owned the cylinders.??????????? Perinitook exception to the Judge?s decision, asserting that it did not own thecylinders in question, that its employees were not exposed to the hazardcreated by the cylinders, and that it was therefore not responsible for thefact that the cylinders were improperly stored.??????????? Inits response to our supplemental briefing order (supra n. 1), Perini contendsthat its status as general contractor should not make it liable. It basicallyargues that it would not be feasible for a general contractor to be aware ofeach instance on a large construction site where a subcontractor is using a LPGcylinder, and that this type of violation is therefore not one a generalcontractor could prevent or abate by reason of its supervisory capacity.??????????? InGrossman Steel and Aluminum Corp., supra note 1,[3] the Commission consideredthe conditions under which employers on a multi-employer construction site areresponsible for violations of OSHA standards. We said, among other things, thatan employer who creates a violation is responsible if any employees on thesite, regardless of whether they work for that particular employer, areendangered. We also said that a general contractor is responsible forviolations it could prevent or abate by reason of its supervisory authorityover the entire site.[4]??????????? Weconclude that the Judge properly affirmed this item. The Judge made acredibility finding that Perini owned the cylinders. As his reliance on thetestimony of the ?disinterested witness? is supported by the evidence, weaccept his finding. Since employees of subcontractors were working on thefloors containing the cylinders, at least some employees on the site wereexposed to the hazard regardless of whether Perini?s employees were so exposed.As the employer creating the hazard, Perini is therefore liable. GrossmanSteel and Aluminum Corp., supra.??????????? Furthermore,even if Perini did not own the cylinders, we would find it liable because ofits position as general contractor. Perini?s assistant superintendent testifiedthat Perini could have either abated the hazard itself or had the responsiblesubcontractor abate. Additionally, the cylinders are readily visible and Perinicould have discovered their presence. Accordingly, the violation was of the typePerini could have prevented or abated by reason of its supervisory capacity. KnutsonConstruction Co., supra n. 4.Alleged Violation of 29 CFR 1926.250(b)(1)??????????? Onthe third and fourth floors of the building concrete blocks on wood palletswere located two and five feet, respectively, from the edge of the building. Itis not disputed that Perini owned the material. The Judge found that employeesbelow the third and fourth floors were subject to injury should any of thestored materials fall, and he concluded that the materials were ?stored? withinthe meaning of the standard because Perini failed to prove they had only beenplaced there temporarily.??????????? Periniargues that the Judge erred in placing on it the burden to prove that thematerials were placed in their location only temporarily. It contends that theburden is on the Secretary to prove ?storage? of the materials. Perini furthercontends that the Commission should reject the broad interpretation of?storage? set forth in Secretary v. Underhill Construction Co., 513 F.2d1032 (2nd Cir. 1975), where the court held that all material on a constructionsite is deemed ?stored? until it is incorporated into the building or used. Itcontends that the ordinary meaning of ?stored? connotes the putting aside ofmaterials for safekeeping, and not the mere ?placement? of materials.??????????? Wehave followed the Second Circuit?s interpretation in Underhill andtherefore reject Perini?s argument. See Sierra Construction Corp., 78 OSAHRC2\/E6, 6 BNA OSHC 1278, 1977-78 CCH OSHD para. 22,506 (No. 13638, 1978). Thestandard is directed at the hazard that materials falling from the edge of thebuilding might strike employees below. That hazard exists even if the materialsare only near the edge of the building for a short time. We therefore concludethat the standard prohibits any unnecessary placement of materials within tenfeet of the edge of the building. See Whitcomb Logging Co., 74 OSAHRC89\/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD para. 19,128 (No. 1323, 1974). As therecord shows that the materials involved here were not in use, and there is noshowing 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 SecretaryDATED: MAY 25, 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 unanimous decisionon the merits before I received my commission on May 1, 1978. A decision wasalready in preparation when I assumed office. I have concluded that the wisestexercise of discretion is to decline to participate in this case even though anew Commission member has authority to participate in pending cases. It shouldbe emphasized that by declining to participate I express no opinion on theprocedural or substantive issues in this case or on the appropriateness of theaccompanying 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 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.[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 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 should initiallybe 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; KeystoneRoofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution ofpending issues also promotes a more uniform application and development ofoccupational safety and health law. After reading the record, I willparticipate in the consideration and decision of these 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.[1] This case isbefore us pursuant to former Commissioner Moran?s issueless direction forreview. Perini?s brief in response to the direction for review takes exceptionto the two items described above. Pursuant to the Commission?s policy statementwe 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 lightof Secretary v. Grossman Steel and Aluminum Corp., 76 OSAHRC 54\/D9, 4BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1975), and to briefthe 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 otheralleged violations. As no party has taken exception to the Judge?s dispositionof those items, they are not before us for review.[2] The Secretaryargued before the Judge that the citation referred to floor 17 through eitherinadvertence 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 anamendment would prejudice Perini. Because the same issues are presented on the27th floor as the 7th and 19th floors, we need not decide whether the Judgeerred in denying the motion to amend.[3] See also Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (No.4409, 1976).[4] Perini correctlypoints out that this aspect of our decision in Grossman was dictum. Wehave since, however, applied that rule to find general contractors liable, andthe 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 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 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.”