TEXACO, INC.  

OSHRC Docket Nos. 77-3040; 77-3542

Occupational Safety and Health Review Commission

July 22, 1980

  [*1]  

Before CLEARY, Chairman; BARNAKO, Commissioner. *

* Commissioner Cottine took no part in the consideration or disposition of this case.

COUNSEL:

Baruch A. Fellner, Counsel for Regional Litigation, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Charles L. Irvin, Texaco, Inc., for the employer

Steven Wodka, International Representative, Oil, Chemical & Atomic Workers International Union, for the employees

OPINION:

ORDER

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A desision of Administrative Law Judge Dee C. Blythe is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).   Judge Blythe affirmed three citations issued to Texaco, Inc., alleging violations of the Act at its Port Arthur, Texas facility.   The citations alleged that Texaco failed to comply with 29 C.F.R. § §   1910.1000(b)(1), (b)(2), and (e).

All three citations involve exposure of Texaco employees to excessive amounts of benzene (C[6]H[6]) vapors at its Port Arthur marine terminal.   While affirming the citations, Judge Blythe refused to order the installation of the Secretary's proposed engineering controls   [*2]   for containing the benzene vapors. The judge found that the Secretary had established the technological, but not the economic, feasibility of the proposed controls.   Judge Blythe also concluded, contrary to the allegation of the citation, that the violations were not serious in nature.   Further, the judge ruled that in the event the Commission reversed his conclusion on economic feasibility and ordered the installation of the proposed controls, an 18-month abatement period would be appropriate.

The Oil, Chemical and Atomic Workers International Union and its Local 4-23, which had adopted party status in these proceedings, filed a petition for discretionary review of the judge's decision.   The Union took exception to the judge's conclusions on the issues of economic feasibility, the allegedly serious nature of the violations, and the length of the abatement period.   Chairman Cleary granted the Union's petition in its entirety.

The two participating Commission members are divided on the appropriate disposition of the case on the merits.   This fact presents an obstacle to resolving the case in any manner, because the Commission can take official action only with the affirmative vote [*3]   of at least two members.   Section 12(f) of the Act, 29 U.S.C. §   661(e).   In the recent past the Commission has disposed of cases in which its members were evenly divided by both participating members agreeing to affirm the order of the judge but according his decision the precedential value of an unreviewed judge's decision.   E.g., Life Science Products Co., 77 OSAHRC 200/A2, 6 BNA OSHC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, 1977), aff'd sub nom. Moore v. OSHRC, 591 F.2d 991 (4th Cir. 1979). This formulation was found not to constitute official action of the Commission by the Ninth Circuit in Willamette Iron & Steel Co. v. Secretary of Labor, 604 F.2d 1177 (9th Cir. 1979), cert. denied, 100 S. Ct. 1337 (1980), although subsequently it received approval of the Third Circuit in Marshall v. Sun Petroleum Products Co.,    F.2d   , 8 BNA OSHC 1422, 1980 CCH OSHD P24,509 (3d Cir. 1980). We do not agree with the Ninth Circuit's conclusion that by affirming the judge's order but limiting its precedential value the Commission fails to take official action.

However, the result that is attained by affirming the judge's order and according it the precedential [*4]   value of an unreviewed judge's decision also can be achieved by vacating the direction for review.   Since we believe that all courts of appeals are likely to find our vacation of a direction for review to constitute official action of the Commission, we adopt this mode of disposing of the present case.   Therefore, the Commission members agree to vacate the direction for review, as they are unable to resolve the case on the merits.   This action leaves any aggrieved party free to seek review in an appropriate court of appeals.   Section 11(a) of the Act, 29 U.S.C. §   660(a).

Accordingly, the direction for review is vacated.   SO ORDERED.