HAMILTON ROOFING CO., INC.
OSHRC Docket No. 14968
Occupational Safety and Health Review Commission
June 23, 1978
[*1]
Before CLEARY, Chairman; and BARNAKO, * Commissioner.
* Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr. Regional Solicitor, U.S. Department of Labor
E. J. Holland, Jr., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
The primary issue in this case is whether Respondent (Hamilton) was properly cited for violating 29 C.F.R. 1926.105(a), n1 a general standard requiring fall protection, where its employees were engaged in repairing a roof with a slope of less than 4 inches in 12 inches when another, more specific standard, 29 C.F.R. 1926.451(u)(3), n2 requires protection against falling hazards on roofs only when the slope is greater than 4 inches in 12 inches. The original citation charged Hamilton with a serious violation of 29 C.F.R. 1926.500(d)(1) n3 in that Hamilton's employees working at the edge of a roof were exposed to the hazard of an open-sided floor perimeter unprotected by guardrails or the equivalent. Hamilton timely contested this citation and the proposed penalty of $500. In his complaint, the Secretary [*2] amended the citation to allege in the alternative a violation of 1926.105(a) in that Hamilton failed to provide any of the specific fall protection devices listed in the standard to protect its employees. Hamilton filed an answer generally denying the allegations, and among other things, raising the inapplicability of "the cited standard . . . to flat roofs." Although Hamilton did not specify to which standard it was referring, thereafter Hamilton filed a motion to dismiss the 1926.500(d)(1) charge on the basis that the standard does not apply to roofs.
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n1 29 C.F.R. 1926.105(a) provides:
(1) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.
n2 29 C.F.R. 1926.451(u)(3) provides:
(3) A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to the eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the protection of the eaves and shall be provided with a guardrail, midrail and a toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline.
n3 29 C.F.R. 1926.500(d)(1) provides in pertinent part:
(1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . on all open sides. . . .
[*3]
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In lieu of a hearing, the parties agreed to submit the case to the administrative law judge on a stipulated record. The parties stipulated facts concerning not only guardrails but also other fall protection devices including safety nets, lifelines, lanyards, and safety belts, and the parties agreed that the Judge should consider Hamilton's 1926.500(d)(1) motion in his decision with respect to the entire case. Thereafter, both parties filed briefs with the Judge regarding violation of the alternatively charged standards. Therein, for the first time in the case, Hamilton asserted that the Secretary improperly had amended the citation in the complaint to add the 1926.105(a) charge, arguing, among other things, that 29 C.F.R. 1926.451(u)(3) exclusively covers sloped roofs and that its roof is outside the scope of that standard.
In his decision, Judge Alan M. Wienman vacated the citation in full as amended, granting Hamilton's motion to dismiss the 1926.500(d)(1) charge, and agreeing with Hamilton that 1926.105(a) is inapplicable to the cited conditions. Inasmuch as the Secretary excepted to this latter [*4] holding and disposition, n4 the issue on review is whether Judge Wienmen erred in vacating the alleged violation of 1926.105(a).
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n4 The Secretary did not appeal the Judge's vacation of the 1926.500(d)(1) charge against Hamilton. In his decision, Judge Wienman applied the rationale of the 7th Circuit in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor, 524 F.2d 1337, (7th Cir. 1975) to find this standard inapplicable to flat roofs. Although the propriety of the Judge's treatment of this issue is not before us, we note that subsequent to his decision in this case, a majority of the Commission agreed that the floorguarding standard at 1926.500(d)(1) does not apply to flat roofs. See Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), lead opinion referring also to Diamond Roofing Company v. OSAHRC, 528 F.2d 645 (5th Cir. 1976); see also the concurring and dissenting opinions of Commissioner Barnako and Chairman Cleary, respectively, therein.
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On [*5] the day of the inspection, Hamilton was repairing the roof of the Grace Methodist Church in Emporia, Kansas, and the Secretary's compliance officer saw five of Hamilton's employees working at or near the edge of the roof, 36 feet above the ground, removing old roofing. There were no guardrails along the edge of the roof and the employees were not using safety nets, safety belts with lanyards or lifelines, or any other form of protection that would prevent them from falling over the edge to the ground below.
The asphalt roof on which the employees were working was "barrel" shaped, that is, curved or rounded so as to be nearly flat at the top but sloped to an increasingly steeper angle down toward the edge. The maximum slope was approximately 4 inches in 12 inches, or 20 degrees. Toward the edge of the roof and at the base of the slope, there was an 8-inch wide "valley," so described because it was bordered at the perimeter of the roof by a 6 to 12-inch high brick parapet. To repair the roof, Hamilton stripped the old roofing from the 8-inch valley, and replaced it with several applications of felt paper and a final "flood coat" of asphalt. The felt paper and asphalt also were [*6] applied to the parapet, inside and top. Finally, Hamilton "capped" the barrel with a single layer of felt paper and asphalt. Of the total job, 90 percent of the work was done on the valley and parapet along the perimeter of the roof.
Judge Wienman dismissed the citation and complaint as to 1926.105(a) on the ground that the standard does not apply to protect roofers performing work on roofs. He held that 29 C.F.R. 1926.451(u)(3) is the only standard expressly requiring fall protection for employees performing work on roofs and noted that the slope of the roof in question was less than the slope of the roofs covered by 29 C.F.R. 1926.451(u)(3). He reasoned that inasmuch as 1926.105(a) refers to catch platforms, if the Secretary can apply this standard to require fall protection for employees working on more "gently sloped" roofs than those to which 1926.451(u)(3) specifically applies, then 1926.105(a) can require catch platforms where 1926.451(u)(3) by implication does not. Such a result, in the Judge's opinion, would lead to an "evident ambiguity" in interpreting the standards. He opined that the Secretary should promulgate new regulations comprehensively and clearly setting [*7] forth the fall protection requirements for employees working on roofs.
On review Hamilton contends Judge Wienman was correct in concluding 1926.105(a) is inapplicable and cannot be cited to require fall protection for employees constructing or repairing roofs that are gently sloped to a pitch of no more than 4 inches in 12 inches. Eamilton argues that the Judge correctly reasoned that inasmuch as 1926.451(u)(3) does not require a catch platform unless the slope exceeds 4 inches in 12 inches without a parapet, then 1926.105(a) cannot apply to require a catch platform or any other form of fall protection where the slope is 4 inches in 12 inches or less and there is a parapet. In support, Hamilton points to the Secretary's explanation of revisions in 1926.451(u)(3), published in 37 Fed. Reg. 25,712-25,714 (1972), arguing that the Secretary indicated there that roofs with slopes of 4 inches in 12 inches or less were not covered by the standard because such slopes do not present any substantial danger of falling. Hamilton also notes the court decision in Langer Roofing & Sheet Metal, Inc. v. Secretary of Labor, supra, in support of its contention. In that case the court stated, [*8] with regard to the inapplicability of 1926.500(d)(1) to flat roofs, that perimeter protection for flat roofs appears not to have been contemplated by the Secretary inasmuch as 1926.451(u)(3) "specifically exempts even roofs having slopes of less than 4 inches in 12." n5
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n5 See Hamilton's Brief in Response to Petition for Discretionary Review at p. 6. See also note 7 infra.
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The Secretary contends that 1926.105(a) does require Hamilton to provide one of the fall protection devices listed in that standard to protect its employees working at the edge of the roof, and that the Judge erred in concluding the inapplicability of this standard from the requirements of 1926.451(u)(3). The Secretary emphasizes that the charged standard, 1926.105(a), is a general fall protection standard n6 requiring that the construction employer provide whichever listed fall protection device is practical in the circumstances to protect his employees whenever they perform any construction work 25 feet above the ground. As a general fall [*9] protection standard, 1926.105(a) contains no language stating or suggesting that it does not apply to employees working on flat roofs or on roofs having a gentle slope not exceeding 4 inches in 12 inches, such as that involved herein. Accordingly, the Secretary asserts 1926.105(a) can be applied to require use of any practical fall protection device listed therein to protect employees working on a slope not exceeding 4 inches in 12 inches.
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n6 The Secretary characterized 1926.105(a) as a "general personal protection and life equipment standard," on the basis of the listing therein of various fall protection devices, only one of which is catch platforms. In this regard, the Secretary specifically refers to the interpretation given to the standard by the court in Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The Secretary's Petition for Discretionary Review at pp. 4-5.
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The Secretary further emphasizes that 1926.451(u)(3), by its own terms, clearly does not cover, or deal with, the working [*10] conditions under consideration here. That is, because the standard only specifically requires a catch platform where employees are working on a sloped roof steeper than 4 inches in 12 inches without a parapet and where employees do not use safety belts tied-off in some manner, 1926.451(u)(3) itself plainly does not pertain to matters of general fall protection where employees are exposed to the open perimeter of a roof of a gentler slope, along a low parapet and using no fall protection equipment. Moreover, because the standard does not deal with these matters, no inference arises that the Secretary intended to require neither a catch platform nor, as well, any form of fall protection for employees exposed to the open perimeter of gently sloped roofs. The Secretary argues that, in any event, even if 1926.451(u)(3) implies that no catch platform is required below a roof with a slope of 4 inches in 12 inches or less having a parapet, 1926.451(u)(3) gives rise to no implication that other forms of fall protection are unnecessary. Accordingly, one of the other devices listed in 1926.105(a) is required by the standard. Here, the Secretary emphasizes that Hamilton was cited for failure [*11] to provide any form of fall protection rather than for specifically failing to provide a catch platform. On this basis, the Secretary asserts that the coincidence of reference to catch platforms in both the cited and another standard applicable to other different conditions is not an ambiguity in the fall protection requirements relevant to Hamilton's working conditions.
We agree with the Secretary that the Judge improperly restricted the application of 1926.105(a). As set forth in greater detail below, we find that 1926.451(u)(3) is explicitly a catch platform requirement which is directed toward the hazard created by a roof's steep slope (greater than 4 inches in 12 inches) in and of itself, that is, the slope itself may cause employees to lose their balance, and either roll, slide or fall over an unguarded or unprotected edge. As such, it does not address the falling hazard to which Hamilton's employees were exposed. Even if Hamilton's employees were not exposed to a hazard created by the slope itself, which was less than 4 inches in 12 inches, they nevertheless were exposed to a hazard created by working at the edge of the roof -- this hazard of tripping or stepping over [*12] the edge exists on any surface, whether flat, steeply or gently sloped. The standard at 1926.105(a) addresses this hazard and accordingly the Secretary properly cited Hamilton for violation of 1926.105(a) in this case.
We have reached this result after examining the language of the standard, the context in which it appears, and the Secretary's explanation of the amendment to 1926.451(u)(3), published in 37 Fed. Reg. 25,712-25,714 (1972).
On its face, 1926.451(u)(3) explicitly appears as a catch platform requirement. In its first sentence, the standard states "[a] catch platform shall be installed. . . ." The width and guardrail requirements for the platform then follow. Although the standard permits two other means of protection, parapets and safety belts, these devices are specifically associated with and are alternatives to the catch platform requirement. In contrast to the specifications set forth for the catch platform, however, no width and guardrail requirements are given for the parapet.
The language of 1926.451(u)(3) also establishes that the purpose for requiring utilization of catch platforms is protection against hazards created by steep roof slopes where the perimeters [*13] of the roof are unguarded. The standard specifies that catch platforms shall be installed 'below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet." It is evident, moreover, that nothing in the wording of the standard precludes application of other standards which are directed toward other hazards, that is, hazards created solely because of the existence of an unguarded edge and unrelated to any slope criteria.
That 1926.451(u)(3) is purely a requirement for a catch platform for employee protection from the hazards created by the incline of unprotected roofs is further shown by examination of the context in which the standard appears. The standard appears in Subpart L entitled "Ladders and Scaffolding," and in 1926.451 thereof pertaining to scaffolds specifically. The scaffolding provisions in 1926.451 cover particular types of scaffolds used in the various forms and phases of construction, 1926.451(u) of which pertains to roofing brackets. Accordingly, the catch platform standard at 1926.451(u)(3) is actually a scaffolding standard pertaining expressly to requirements concerning roofing brackets. [*14] The term "[r]oofing or bearer bracket" is defined in 1926.452(a)(25) as "[a] bracket used in slope roof construction, having provisions for fastening to the roof or supported by ropes fastened over the ridge and secured to some suitable object." [emphasis added]. The first standard pertaining to the roofing brackets in 1926.451(u), paragraph (1) thereof, further states that "[r]oofing brackets shall be constructed to fit the pitch of the roof." [emphasis added]. In view of these references to "slope roof construction," "fastening to the roof," and "fit the pitch of the roof," we consider that the provisions preceding 1926.451(u)(3) indicate that where employees use roofing brackets, the brackets are fastened upon the roof slope itself to support the employees as they perform roof-construction or related work upon the slope roof. Cf. Tilo Company, 73 OSAHRC 15/F5, 1 BNA OSHC 1206, 1971-73 CCH OSHD para. 15,678 (No. 211, 1973). These provisions indicate, too, that one major consideration of the Secretary in setting forth requirements concerning use of brackets for support on a sloped roof is the existence and nature of the slope as a problem in itself. [*15] Because the catch platform provision immediately follows and is part of these standards regarding fitting and securing roofing brackets to the pitch of the roof, it follows that the catch platform is also related to the existence and nature of the slope as a problem in itself. Hence it appears that the Secretary intended employees working on steeply sloped roofs to be protected by catch platforms to break a fall down from the brackets or roof slope itself to the ground.
Viewed in this context, 1926.451(u)(3) is internally logical. Because roofers who work on a sloped roof are faced with a hazard from a slope that exceeds a particular angle, those employees need catch protection at the perimeter, or else need to use tied-off safety belts or be provided with a parapet. It is this hazard to which 1926.451(u)(3) is addressed. However nothing in 1926.451(u)(3) either addresses or prevents the Secretary from citing for other hazards caused by other conditions attendant to working on roofs.
Contrary to Hamilton's assertion, the Secretary's explanation in connection with promulgation of a change in the slope to which 1926.451(u)(3) refers actually supports this result. As we noted earlier, [*16] Hamilton asserts that, in this commentary, the Secretary indicated that he had determined there was no substantial danger of falling from the edge of the roof where its slope does not exceed 4 inches in 12 inches. Therein, the Secretary stated that he was increasing the slope to which 1926.451(u)(3) refers because the hazard becomes significant only with the increased slope:
The requirements for catch platforms apply where the slope of a roof exceeds 3 inches in 12 inches without a parapet. The greatest number of comments indicated the belief that this slope did not present any significant danger of falling. Accordingly, the Committee has recommended and I have decided to adopt a standard of 4 inches in 12 inches without a parapet. [emphasis added]. 37 Fed. Reg. at 25,712 (1972)
This statement merely indicates that the Secretary determined that the danger of falling presented by the slope itself is not significant enough to warrant requiring a catch platform unless the slope exceeds 4 inches in 12 inches, as opposed to 3 inches in 12 inches. We reject the view advocated by Hamilton that here the Secretary plainly indicated he had determined that roofers generally are not [*17] exposed to any falling hazards unless the roof on which they work is sloped to exceed 4 inches in 12 inches. As we stated earlier these roofers are still exposed to a falling hazard when working at the edge of the roof.
In a paragraph preceeding the one quoted above, the Secretary stated the issue presented for consideration in this rulemaking proceeding in the following way:
Whether the height after which catch platforms must be used below sloped roofs should be raised from 10 feet to 16 feet or some greater height and whether this requirement should continue to apply to slopes greater than three in 12 or should be changed to apply to some greater slope. 37 Red. Reg. at 25,712 (1972).
The Secretary directed the attention of concerned employers and other persons to the connection between the requirement for a catch platform and the steepness of the slope. Correspondingly, the portion of the succeeding comments to which Hamilton directs our attention actually explicitly relates the slope to the hazard under consideration in such a way as to indicate that the hazard for which the catch platform is needed is the danger of falling off of the roof because of the steepness of it: [*18] "[t]he . . . comments indicated . . . that this slope [of more than 3 inches in 12] did not present any significant danger of falling" such that the Secretary determined to raise the threshold to 4 in 12. In view of the reference exclusively to slope in considering the hazard of falling, it follows that the Secretary did not intend to indicate by the above-quoted comment, and by the change in terms of the standard, that he had comprehensively considered the entire question of the fall hazards to which a roofer is exposed in working on all roofs, flat, gently sloped, and steeply sloped. He had not determined that the only occasion on which a roofer is exposed to a hazard of falling off of the perimeter of a roof to the ground is while he works on a roof the slope of which exceeds 4 inches in 12 inches without a parapet.
Inasmuch as the commentary to which Hamilton points not only fails to provide support for Hamilton's interpretation of the standard but is additionally phrased in such a way as to be entirely consistent with and supportive of the Secretary's contentions, we find that the Secretary has not therein given an indication to roofing employers that fall protection is not [*19] required in any circumstances other than those specifically mentioned in 1926.451(u)(3). Accordingly, having found merit in several of the Secretary's contentions on behalf of reversing the Judge in his determination that 1926.105(a) cannot apply in view of 1926.451(u)(3), and having considered and rejected all of Hamilton's contentions in support of the Judge's conclusion and disposition, we conclude that 1926.105(a) can apply to require fall protection. We therefore reverse the decision of the Judge in this regard. Cf. Central City Roofing Co., supra, concurring opinion of Commissioner Barnako, Chairman Cleary dissenting. n7
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n7 For the reasons given herein, we respectfully disagree with the differing determination with respect to the scope and effect of 1926.451(u)(3) set forth by the court in Langer Roofing and Sheet Metal v. Secretary of Labor, supra in note 3 hereof. We note that the court there had before it the question of whether 1926.500(d)(1) applied to require the employer to install guardrails along the otherwise open perimeters of a flat roof. The Secretary asserted that the word "floor" in 1926.500(d)(1) must be construed to include a roof used by employees as a working surface in the course of their work. The employer Langer pointed to the requirements of 1926.451(u)(3) in support of its contention that the Secretary had indicated an intention to exempt flat roofs from perimeter protection. After rejecting the Secretary's construction of "floor" on its merits alone, the court also in dictum opined that the terms of 1926.451(u)(3) undermine further the Secretary's assertions because 1926.451(u)(3) apparently exempts roofs sloped not to exceed 4 inches in 12 inches from the catch platform requirement and because 1926.451(u)(3) is the only construction safety standard expressly requiring protection for roof edges. The court also stated that, in his published commentary with respect to changes in 1926.451(u)(3), the Secretary apparently had agreed that roofs of lesser slopes do not present a substantial danger of falls. Although the court considered the scope and effect of 1926.451(u)(3) for the purpose of determining whether the perimeter guardrail requirement of 1926.500(d)(1) applies to flat roofs, an issue varying from that presented to us here, we note that the effect of the court's determination has implications that directly differ from the position taken by us in this decision. Therefore we indicate here that we have considered the rationale set forth with respect to 1926.451(u)(3) by the court in Langer, but for the reasons given by us in this decision, we have interpreted the standard more narrowly than the court insofar as it pertains to fall protection for employees working on slope roofs.
In this regard, we note also the discussion of 1926.451(u)(3) set forth in another case regarding applicability of 1926.500(d)(1), Diamond Roofing Co. v. OSAHRC, supra in note 3 hereof. Therein, the court stated, again in dictum, that 1926.451(u)(3) appeared not to be "significantly probative" to a determination of whether 1926.500(d)(1) applies to require perimeter guarding on flat roofs inasmuch as 1926.451(u)(3) pertains to the unrelated matter of catch platforms for roofs sloped greater than 4 inches in 12 inches.
[*20]
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Having determined that 1926.105(a) can be applied to the circumstances of this case, we turn to Hamilton's other contention on review, that is, that the Secretary improperly amended the citation in his complaint to add the alternative allegation of violation of 1926.105(a). Pointing to section 9(a) of the Occupational Safety and Health Act of 1970 n8 which requires, among other things, that the Secretary describe with particularity in the citation the nature of the violation including therein a reference to the standard alleged to have been violated, Hamilton argues that the Secretary has attempted improperly to add in his complaint certain factual allegations not set forth in his citation, such that the Secretary has added a new allegation of violation. Hamilton notes that in its brief to the Judge, it argued that the amendment was improper, and asks that we disallow the amendment.
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n8 29 U.S.C. § 658(a) of 29 U.S.C. § 651 et seq.
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We reject Hamilton's argument in this case, and allow the amendment for the following reasons. I conclude the amendment to be proper because, although the original citation alleged a guardrail violation of 1926.500(d)(1) whereas the complaint added an allegation of violation of 1926.105(a) as to fall protection generally, Hamilton made no objection to the amendment until its brief to the Judge, which was after the parties had created the factual record by entering into a stipulation. I note particularly that Hamilton moved only to dismiss the 1926.500(d)(1) allegations but not the 1926.105(a) allegations in its motion during the pre-trial proceedings. I find that this omission is significant inasmuch as the parties did include in their stipulation their agreement that the Judge should consider the 1926.500(d)(1) motion in ruling on the entire case. Because Hamilton did not object until after the hearing stage (after the stipulation of facts), I consider that Hamilton has waived its objection and has consented to the amendment. See McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1976-77 CCH OSHD para. 21,972 (No. 12618, 1977); Warnel Corp., 76 OSAHRC [*22] 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976); See also Cornell & Co. v. OSAHRC, No. 76-2513 (3rd Cir., March 9, 1978), reversing 76 OSAHRC 122/C11, 4 BNA OSHC 1715, 1876-77 CCH OSHD para. 21,118 (No. 9054, 1976).
In Chairman Cleary's view, there is no real problem in any amendment before a hearing so long as there is ample time for the parties to prepare their case. The Chairman finds that the gravamen of the citation was a failure to provide fall protection. The amendment, therefore, did not alter the factual predicate of the case. For a further discussion on the Chairman's view on the permissibility of pre-hearing amendments see his separate opinion in Tri-State Roofing and Sheet Metal Co., 77 OSHRC 208/A2, 6 BNA OSHC 1152, 1977-78 CCH OSHD para. 22,409 (No. 16121, 1977). Accordingly, we allow the amendment.
Having determined 1926.105(a) to be inapplicable in this case, the Judge did not make findings or reach conclusions with respect to violation of 1926.105(a). Furthermore, in their stipulation of facts, the parties included stipulated testimony that effectively raises the question of whether it was impossible to use any of the [*23] fall protection devices listed in 1926.105(a). There is included testimony that there was no place to which to attach, and no place that would support the weight of a counterweight to hold, any safety device in general. n9 Accordingly, we remand the case to the Judge for findings as to whether Hamilton violated 1926.105(a).
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n9 We note that the allegation of violation here was that Hamilton failed to use any of the 1926.105(a) fall protection devices, thereby implicitly including the allegation that, among other things, Hamilton failed to use safety nets. Accordingly, with regard to our respective views concerning proof of violation of 1926.105(a), we refer to Havens Steel Company, 78 OSAHRC 33/E6, 6 BNA OSHC 1564, 1977-78 OSHD para. 22,689 (No. 13463, 1978), and cases cited therein. Chairman Cleary considers that 1926.105(a) requires employers to use ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts where practical. If none of these devices are practical, the Chairman believes that employers are obligated to provide safety nets unless the employer can prove that the use of nets is impossible or would sult in a greater hazard. I consider that 1926.105(a) is purely a safet, net standard supplementing other fall protection standards, such as 1926.28(a); hence the standard requires safety nets where other devices are impractical.
[*24]
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Accordingly, we reverse the decision of the Judge insofar as it holds 1926.105(a) to be inapplicable, and we remand the case to the Judge. So ORDERED.
Commissioner COTTINE filing a 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 by 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 [*25] 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 Frischer & 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. [*26]
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 Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960). n1 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. n2 See Au Yi Lau v. U.S. [*27] 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.
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n1 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).
n2 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, 802 n. 14.
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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. [*28] 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 LaPeyre 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). [*29]
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 [*30] 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 P22,313 (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, [*31] but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. The full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.