Ray Boyd Plaster & Tile, Inc. (Commission decision, June 6, 1978)

Plain-English summary

Commissioner Barnako wrote for the Commission, modifying the decision of Judge Dee C. Blythe. The serious guardrail item and its $250 penalty were affirmed, subject to an offer of remand. The nonserious scaffold access item was modified to de minimis with no penalty and no abatement.

Ray Boyd was the plastering subcontractor on a medical school hospital in Lubbock, Texas. A compliance officer inspected on January 12 and 13, 1976.

The unguarded landing. The officer saw Ray Boyd's plaster foreman standing on an open-sided stairway landing, 8 by 14 feet and 40 feet above ground, spraying monokite, a vermiculite plaster used to fireproof steel, onto adjacent beams and columns. The sides were unguarded, the foreman was carrying a hose he could trip over, and the falling spray made the landing slippery. The Secretary alleged a violation of 29 C.F.R. § 1926.500(d)(1).

Ray Boyd argued that guardrails were impossible, impractical and a greater hazard. Any rail touching or attached to a column blocks spraying a single continuous layer, and the patches left after rails come off may lack the required depth and bond. Rails attached only to the landing force the sprayer to stand at the edge and lean over or bend under the rail. Monokite is sprayed at up to 500 psi, and a kink can plug the hose so that the pressure behind the plug makes it recoil and throw the employee holding it; without rails the foreman could stand back toward the center and work no closer than two feet from the edge.

The Commission rejected impossibility because the foreman conceded that a workmanlike job can be done with rails attached to the landing alone, and the standard asks whether compliance is impossible rather than whether it is a hindrance. The compliance officer had described two complying alternatives: steel wire wrapped around the columns, or sections of ready-built standard railing clamped or bolted to the landing in lengths that fit between the columns without touching them. The greater hazard defense failed too. Slipping, tripping, misstepping or recoil may cause falls toward the edge, but guardrails prevent falls over it, the record shows the chance of recoil to be relatively low, and there was no evidence that recoil has thrown an employee past a guardrail or that the sprayer must work entirely outside the rail. Ray Boyd also failed to show that it had sought a variance under section 6(d) or that a variance would be inappropriate, and failed to show that alternative means of protection were unavailable.

Ray Boyd's main defense was that the general contractor was solely responsible for creating and abating the hazard. Ray Boyd employs neither carpenters nor ironworkers, the trades permitted by union contract to install guardrails, and the general contractor's carpenters installed the rails after the inspection. Under Grossman Steel and Anning-Johnson, a subcontractor that neither created the hazard nor controls its abatement must still take realistic alternative steps to protect its employees. Ray Boyd conceded that it did not instruct its employees to avoid the hazard, did not ask the general contractor to abate, and did not erect any barricade itself, so on this record it had no defense. Because the case was tried before Grossman and Anning-Johnson issued, and because Ray Boyd asked for the chance, the Commission followed its consistent practice of offering a further opportunity to establish those defenses. The citation is affirmed with a $250 penalty unless Ray Boyd requests a further hearing within ten days of receiving the decision, in which event the order is withdrawn and the case remanded, with evidence limited to issues not previously tried, such as whether Ray Boyd had any safety program covering other forms of fall protection in this operation.

The scaffold rungs. Two laborers were installing guardrails on the platform of a tubular welded scaffold 13 feet above ground. The only access was the sets of rungs built into the scaffold frames, four to a section, one at each corner. The rungs measured four, six and nine inches wide from the bottom upward. Ray Boyd brought a complying portable ladder to the scaffold as soon as the officer raised the issue.

The Commission accepted the judge's inference that the employees used the built-in rungs, drawn from their presence on the scaffold when the rungs were the only access and from the foreman's testimony that he used the same means on a similar scaffold. It rejected the argument that the standard does not apply during assembly: that the employees were assembling the scaffold is a defense only where the assembly work makes complying access impossible, and these employees were merely adding finishing touches. It also rejected the argument that merely having a portable ladder available satisfies the standard. Commissioner Barnako read the implicit use requirement out of § 1926.450(a)(1), which directs that ladders described in the subpart be used to give safe access to all elevations; Chairman Cleary would not rely on the language of another standard and would hold that a standard requiring an employer to provide a safety device implicitly requires that it be used.

On the merits of the access itself, the Commission departed from the judge. The compliance officer described rung spacing varying from six to 21 inches, but the photograph in evidence shows a much smaller variance, and from the number of rungs and the 13-foot height the Commission calculated an average spacing of 19 inches. The rung lengths increased upward and so were fairly uniform. The officer speculated that a four-inch rung would force a long step or a scramble up the cross bracing, but she observed neither, and the Secretary offered no evidence that it happened. Climbing safety was not appreciably diminished, so the item is affirmed as de minimis with no penalty and no abatement required.

Commissioner Cottine took no part, for the reasons in his separate opinion reproduced with the decision.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1), 29 C.F.R. § 1926.451(a)(13)
• Outcome: Serious guardrail item affirmed with a $250 penalty, subject to withdrawal and remand if Ray Boyd requested a further hearing within ten days. Nonserious scaffold access item modified from a nonserious violation to de minimis, with no penalty and no abatement.
• Key point: Impossibility means the work cannot be done in compliance, not that compliance hinders the work, and a greater hazard defense needs evidence that the added risk is real rather than theoretical. A subcontractor that neither created nor controls a hazard still owes realistic alternative steps, and doing nothing at all forecloses the defense. Where scaffold rungs are roughly uniformly spaced and no employee is shown to have struggled with them, the access violation is de minimis.

Full text (OSHRC public release)

Docket No. 76-814

RAY BOYD PLASTER & TILE, INC.
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OSHRC Docket No. 76-814

Occupational Safety and Health Review Commission

June 6, 1978

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Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Reg. Sol., USDOL

Ira J. Smotherman, Jr., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970. n1 The Respondent, Ray Boyd Plaster & Tile, Inc. (Ray Boyd), asserts that the Judge erred in affirming a serious item alleging violation of 29 C.F.R. �
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1926.500(d)(1) and a nonserious item alleging violation of 29 C.F.R. �
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1926.451(a)(13).
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The Judge assessed penalties of $250 and $30 for the respective violations.
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For the reasons that follow, we modify Judge Blythe's decision.

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n1 29 U.S.C. �
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651 et seq., hereinafter referred to as "the Act."

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SERIOUS CITATION - 29 C.F.R. �
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1926.500(d)(1) n2

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n2 The standard provides that "[e]very 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, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."

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Ray Boyd was the plastering subcontractor for the construction of a medical school hospital in Lubbock, Texas, when the Secretary's compliance officer inspected the construction site on January 12 and 13, 1976.
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During the inspection, the compliance officer saw Ray Boyd's plaster foreman standing on an open-sided landing of a stairway while he was spraying monokite, a vermiculite plaster used to fireproof steel, onto the adjacent beams and columns. The landing was 8 X 14 feet, and was 40 feet above ground.
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The compliance officer believed that the foreman was exposed to fall hazards because the sides of the landing were unguarded, the foreman was carrying a hose over which he could trip, and the liquid monokite spray was falling onto the landing making it slippery.
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The compliance officer believed also that guardrails should be installed, and accordingly the Secretary alleged that Ray Boyd violated 1926.500(d)(1).

After the inspection, the general contractor's carpenters had installed guardrails of an unspecified type, and on the basis of his experience with spraying the monokite with these rails in [*3]
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place, the plaster foreman determined that guardrails "get in the way" of the work n3 in two ways.
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Any form of guardrail that touches or is attached to a column prevents spraying the whole surface to make one continuous layer of fireproofing.
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The unsprayed patches which remain after the rails are removed must be sprayed, and the patched surface may well not have the requisite depth and strength of bond.
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Accordingly, the foreman was of the opinion that this form of guardrail makes it impossible to do the job properly.
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Nonetheless, during the hearing, after describing the hazard, the compliance officer particularly recommended that steel wire be wrapped around the columns or that sections of commercially-available, ready-built standard railing be clamped or bolted to the landing itself in such lengths as to fit between the columns without touching them.
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Using these forms of protection along the open sides, Ray Boyd could apply a single, continuous surface of fireproofing.

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n3 T. 71.

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Additionally, the foreman testified [4]
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that where guardrails are attached only to the landing so as not to touch the columns, the employee who is spraying the monokite must stand at the edge of the landing and either lean out over the rail or bend down under the rail to apply a continuous layer of monokite. The foreman conceded that it is not impossible to do the job properly in this way, but he was of the opinion that it is more difficult and that the employee is exposed to a greater hazard than that to which he may be exposed without any guardrails at all.
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Monokite is sprayed under a pressure of as much as 500 psi, and the hose can plug during spraying where there is a bend or kink in it.
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The force building up behind the plug can cause the hose to recoil and throw the employee who holds it.
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Generally, to protect himself from being thrown to the floor or over an open side, the foreman has relied on being able to move quickly out of the way of the hose; and where there are no guardrails, the employee can stand back toward the center of a landing and do most of the spraying while coming no closer than two feet from the edge. Inasmuch as any type of guardrail requires the employee to take the hose over or under rails [5]
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while he is at the edge, in the foreman's opinion, the chances of plugging and recoil are increased, enhancing the chance of being thrown over the edge. The foreman conceded, however, that a guardrail will prevent a fall when a person hits it, and he did not say that he had been thrown by recoil during spraying on this job.

Ray Boyd, as the plaster subcontractor, employs neither carpenters nor ironworkers, who are the tradesmen permitted, pursuant to union contracts, to install either wooden or metal guardrails. Ray Boyd's general superintendent was uncertain that the latherers and plasterers employed by Ray Boyd would be permitted to install clamp-type or bolt-type guardrails. The general contractor's carpenters actually installed guardrails after the inspection. Ray Boyd's general superintendent did not know whether, before beginning the monokite spraying process, Ray Boyd had asked the general contractor to install guardrails. The foreman did not use a safety belt, and on the basis that the violation pertained only to guardrails, Ray Boyd objected to questions pertaining to safety belts or personal protective equipment generally.

Relying essentially on the testimony of its [*6]
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plaster foreman, Ray Boyd argues in defense to the citation that it is impractical, impossible, and a greater hazard to use guardrails during the spraying of monkite.
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After reviewing Ray Boyd's evidence concerning the impossibility of using guardrails attached to columns and the impracticality of using guardrails attached only to the landing, Judge Blythe found that the evidence as a whole established no more than that the use of guardrails is a hindrance.
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Because the employer must show the impossibility of performing the work using a standard railing, or the equivalent, within the meaning of the cited standard, Judge Blythe rejected Ray Boyd's defense.
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We agree that Ray Boyd's defense of impossibility must be rejected on this basis, inasmuch as Ray Body conceded, through the testimony of its foreman, that a workmanlike job of spraying monokite can be performed with guardrails attached to the landing alone.
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Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (Nos. 6767, 7721 & 9496, 1976); Sheet Metal Specialty Company, 75 OSAHRC 51/F1, 3 BNA OSHC 1104, 1974-75 CCH OSHD para. 19,546 (No. 5022, 1975).

Judge Blythe also rejected Ray Boyd's defense [7]
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of greater hazard on finding that any hazard created by using guardrails was less than that created by leaving the sides open, because, without guardrails, the employee could slip or trip and fall over the edge 40 feet to the ground.
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We agree that the defense must be rejected.
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Slipping, tripping, misstepping, or hose recoil may cause falls toward the edge, but guardrails can prevent falls over the edge. While the chances of hose recoil may be increased to some unspecified extent by working around guardrails, this record shows the chance of recoil while spraying monokite to be relatively low.
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Moreover, Ray Boyd Presented no evidence showing that recoil has thrown employees past guardrails, or showing that an employee must work standing entirely outside of the guardrail. Accordingly, Ray Boyd has failed to establish as an element of its defense that the hazard of complying exceeds that of not complying. Russ Kaller, Inc., t/a Surfa-Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).
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Ray Boyd additionally has failed to adduce evidence showing that an application for variance pursuant to section 6(d) of the Act either has been filed [8]
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or would be inappropriate.
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General Electric Company, No. 77-1616 (3rd Cir., Feb. 21, 1978); Russ Kaller, supra. Finally, the record lacks evidence showing that alternative means of protecting employees are unavailable.
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Russ Kaller, supra.

Ray Boyd's primary defense throughout the proceeding has been that inasmuch as the general contractor was solely responsible for creating or abating the violation, Ray Boyd should not be found in violation as alleged.
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Relying on certain language in the Commission decision in Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD para. 20,691 (No. 12775, 1976), Ray Boyd asserts that little purpose will be served by holding responsible a subcontractor who could not realistically have abated the violation.
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Ray Boyd also asserts that the court in Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), correctly decided the question of employer responsibility, and that the Commission should follow the decision of the court.
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Recognizing, nevertheless, that the Commission has determined that the subcontractor who did not create the hazard and who does not control its abatement must take
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realistic alternative steps to protect its employees, Ray Boyd contends that this record shows that it took all steps reasonable in the circumstances.
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Because the fireproofing must be done when scheduled and the employee doing it must pass near open sides, Ray Boyd asserts it is unrealistic to instruct employees to avoid the open sides.
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Ray Boyd also asserts that ". . . it is understandable in light of (impossibility, impracticality, and greater hazard) . . ., that the Respondent did not in fact exert any effort to erect the guardrails or have them erected by the general contractor," (emphasis added). n4 For the same reason, Ray Boyd asserts that there were no realistic alternative forms of barricades to be used along the open sides.
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Ray Boyd specifically argues on review that the Commission has erred in placing the burden on the employer to show that any available alternative forms of protection have been used or are not feasible, but asks that the Commission remand the case to give it the opportunity to present evidence concerning any available alternative protection provided to its employees in these circumstances.
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As reason for remand, Ray Boyd notes that the evidence here [10]
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was presented before the Commission issued its decisions in Grossman, supra., and Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD para. 20,690 (Nos. 3694 & 4409, 1976).

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n4 Ray Boyd's Petition for Discretionary Review at p. 4.

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The Secretary contends that Ray Boyd was in violation, and that the item should be affirmed without remand inasmuch as Ray Boyd failed to show it took realistic alternative steps to protect the employee; moreover, the Secretary argues the record strongly suggests that Respondent did not take any such steps.
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The Secretary particularly points out that, were Ray Boyd to try to prove that it asked the general contractor to install guardrails, the evidence should not be given weight in view of Ray Boyd's consistent assertions that to ask was unrealistic where guardrails make the work impossible and more hazardous.
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The Secretary contends also that the Commission has correctly placed the burden on the employer to show that it took realistic alternative steps inasmuch [*11]
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as the Act makes it the duty primarily of the employer to protect employees by complying with the standards and it is the employer who best knows what mitigating steps were available and taken.

On the basis of the principles set forth in the Commission decisions in Grossman, supra., and Anning-Johnson, supra., Judge Blythe found that, although Ray Boyd did not create the hazard, Ray Boyd did not ask the general contractor to abate and did not use any alternative means to protect employees.
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We agree that on the record as it presently exists we must find Ray Boyd in violation.
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Ray Boyd's arguments that it took all realistic alternative steps to protect the employee are rejected for the reasons set forth in Grossman, supra., and Anning-Johnson, supra., as discussed in Limbach Co., 77 OSAHRC 216/D14, 6 BNA OSHC 1244, 1977-78 CCH OSHD para. 22,467 (No. 14302, 1977).
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Moreover, the record shows, and Ray Boyd concedes, that Ray Boyd did not instruct its employees to avoid the hazard, ask the general contractor to abate the hazard, or itself erect any form of barricade to protect the employee from the hazard. Accordingly, we conclude that Ray Boyd has [*12]
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no defense on these grounds.
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Nevertheless, since it has been our consistent practice to offer employers a further opportunity to establish the defenses announced in Grossman and Anning-Johnson in cases tried before these decisions were issued, and because Ray Boyd has requested such an opportunity, we will grant its request.
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Accordingly, we affirm the citation but offer Ray Boyd the opportunity to request a remand on the Grossman and Anning-Johnson defense.
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However, the presentation of any evidence on remand should be limited to those issues not previously tried, such as the question of whether Ray Boyd had any safety program regarding utilization of any other form of fall protection in this operation.
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Having reviewed the evidence regarding gravity of the violation and the good faith, prior history, and size of the employer, we assess a penalty of $250, as did Judge Blythe.

NONSERIOUS ITEM - 29 C.F.R. �
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1926.451(a)(13) n5

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n5 The standard provides that "[a]n access ladder or equivalent safe access shall be provided," and is among the general requirements for scaffolds.

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During the inspection, two of Ray Boyd's laborers were installing the guardrails around the platform, 13 feet above the ground, of a tubular welded scaffold. The sole means of access to the platform were the sets of rungs built into the frames comprising the scaffold. The 13-foot high scaffold consisted of two sections of frame, one on top of the other, and each section of frame was equipped with four of the built-in sets of rungs, one at each corner.
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The corner post and a vertical strut served as the side rails. The bottom rung was formed by the curve of the strut into the corner post, and there were two other rungs between the post and side rail above the curve.
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The widths of the rungs were, from bottom upward, four inches, six inches, and nine inches.
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The distance between the rungs varied; the compliance officer described the variance as from six to 21 inches, but the Secretary's photograph of the scaffold, introduced in evidence, shows that the variance was not the substantial 6-21 inch variance to which the compliance officer testified.
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Because the rung widths and distance between the rungs [*14]
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varied and did not meet the requirements of standards pertaining to specifications for manufactured protable ladders, the compliance officer considered that the built-in rungs were not either "[a]n access ladder or equivalent safe access" within the terms of 1926.451(a)(13).

As soon as the compliance officer advised Ray Boyd during the inspection that she found a problem with using the built-in rungs as a way of access, Ray Boyd brought a complying manufactured portable ladder to the scaffold. The compliance officer did not see any employee actually use the built-in rungs but she did see the two employees on the scaffold before the portable ladder was brought to the scaffold. Ray Boyd's foreman admitted that he used the built-in rungs to gain access to another similar scaffold on the worksite.

Throughout the proceeding, Ray Boyd has contended that (1) access by way of the built-in rungs was not shown because the record as readily permits the inference that the employees used the available portable ladder, (2) the cited standard does not apply to the facts because the employees were still merely constructing the scaffold rather than working from it, (3) the standard was not violated [*15]
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because a complying ladder was "provided" within the meaning of the standard in that the portable ladder was readily available for use, and (4) the built-in ladder was "equivalent safe access" within the meaning of the standard.

Complainant contends and Judge Blythe agreed that exposure was shown by the fact that the employees were on the scaffold while the sole means of access was the built-in rungs. The Judge inferred that the employees used the rungs, finding support for the inference from the foreman's testimony that he had used a similar means of access to another scaffold. We accept the Judge's evaluation of the evidence.
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Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976).

On noting, among other things, that the employees were merely adding finishing touches to the assembly of the scaffold by installing the guardrails, and that there was no evidence that Ray Boyd intended to use any ladder other than the built-in rungs, Judge Blythe rejected the defense that the cited standard does not require a complying means of access during assembly of the scaffold. We agree that this defense must be rejected in view of these [*16]
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facts.
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That the employees were assembling the scaffold can be a sufficient defense only where the use of a complying means of access was impossible because of the work involved in assembling the scaffold. That is clearly not the case here.
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See Universal Sheet Metal Corp., 74 OSAHRC 44/D7, 2 BNA OSHC 1061, 1974-75 CCH OSHD para. 18,163 (No. 657, 1974).

We reject Ray Boyd's defense that it complied with the cited standard by providing the available manufactured portable ladder for access.
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Commissioner Barnako notes that 1926.451(a)(13) requires only that a ladder be provided.
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That standard, however, must be read in conjunction with �
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1926.450(a)(1), which states that "(e)xcept where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations," (emphasis added).
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Thus, a "use" requirement is implicit in 1926.451(a)(13).
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See Turnbull Millwork Co., 77 OSAHRC 205/C8, 6 BNA OSHC 1148, 1977-78 CCH OSHD para. 22,338 (No. 15047, 1977).
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Chairman Cleary would not rely on the "use" language in another standard.
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He would hold that a standard that requires [*17]
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an employer to "provide" a safety device implicitly requires that the device be used.
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Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD para. 20,860 (No. 5958, 1976) (Cleary, dissenting), aff'd sub nom Usery v. Kennecott Copper Corp., No. 76-1735 (10th Cir., December 23, 1977).
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See also Hillsdale Lumber & Mfg. Co., 77 OSAHRC 54/D2, 5 BNA OSHC 1281, 1977-78 CCH OSHD para. 21,766 (No. 5815, 1977) (Cleary, dissenting).
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We therefore reject Ray Boyd's argument that it complied with the standard by merely providing a ladder at the worksite. n6

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n6 Compare Kennecott Copper Corp., 76 OSAHRC 81/A2, 4 BNA OSHC 1400, 1976-77 CCH OSHD para. 20,860 (No. 5958, 1976), aff'd sub nom Usery v. Kennecott Copper Corp., No. 76-1735 (10th Cir., December 23, 1977), regarding the requirements of the identically-worded general industry standard at 29 C.F.R. �
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1910.28(a)(12).
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Therein, a divided Commission held that this standard did not impose a use requirement.
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The general industry standards, however, contain no counterpart to 1926.450(a)(1), and Kennecott is therefore distinguishable from this case.

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Because the built-in ladder did not conform with the requirements for standard ladders, Judge Blythe rejected Ray Boyd's defense that the built-in rungs were the equivalent of a ladder to provide safe access.
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He therefore found the nonserious violation as alleged.
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We agree with the Judge that the standard was violated for the reason given by him, but we find the violation de minimis for the reasons that follow.
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While the compliance officer described, and the Judge found, the distances between the rungs as varying from six to 21 inches, examination of the photograph clearly shows that the actual variance was much less.
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From the number of rungs shown in the photograph and the fact that the overall height of the scaffold was 13 feet, we calculate that the average rung spacing was 19 inches.
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This case is therefore similar to prior cases in which we have concluded that the rung spacing was sufficiently uniform and of such a size as to provide a reasonably safe and suitable means of access.
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See Charles H. Tompkins, 77 OSAHRC 197/D1, 6 BNA OSHC 1045, 1977-78 CCH OSHD para. 22,337 (No.
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15428, 1977); Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1976-77 CCH OSHD para. 21,790 (No. 12589, 1977); Rust Engineering Co., 77 OSAHRC 37/C8 5 BNA OSHC 1183, 1976-77 CCH OSHD para. 21,693 (Nos. 12200 & 12201, 1977).
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The variance in the rung lengths, from four to nine inches, was fairly uniform also, inasmuch as the length increased upward.
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Additionally, although the compliance officer opined that the four inch length was too small in that "a lot of men can't put their foot on that so he's either going to make a long step up or he's [going to] . . . just scramble up the cross bracing," n7 the compliance officer did not observe either of these latter actions by any employees using the rungs, and the Secretary did not present any evidence to show that this had occurred.
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Ray Boyd's foreman testified that he had climbed similar rungs on another scaffold and that employees did use the rungs of the scaffold shown in the photograph to mount the scaffold to apply fireproofing at another location before the inspection. n8 Accordingly, we conclude that the climbing safety of the employees was not appreciably diminished by the four to nine inch lengths of the rungs. n9 We therefore [20]
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affirm the item as de minimis, assessing no penalty and requiring no abatement.

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n7 T. 36.

n8 T. 66-67, 73-74.

n9 In Ringland-Johnson, Inc., 76 OSAHRC 63/A2, 4 BNA OSHC 1343, 1976-77 CCH OSHD para. 20,801 (No. 3028, 1976), aff'd, 551 F.2d 1117 (8th Cir. 1977), we held that a nonserious violation of this standard was established because some of the rungs were only six inches wide in a set of rungs spaced from 17 to as much as 27 inches apart.
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Thereafter in Otis Elevator Company, 78 OSAHRC    /    , 6 BNA OSHC    , 197 -7 CCH OSHD para.     (No. 76-267, 1978), we affirmed a de minimis violation of this standard where the spacing between the rungs was 18-20 inches and where the rungs were narrow in length, similar to those involved in the instant case.
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Although one employee had caught his foot on the bottom rung of the scaffold, the record record established that the employee did this while turning on the ladder rather than while using it in climbing.

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Accordingly, we affirm the Judge's
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decision affirming the serious item of violation of 29 C.F.R. �
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1926.500(d)(1) and assessing a penalty of $250 unless Ray Boyd requests further hearing within ten (10) days of its receipt of this decision.
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In such event, the order will be withdrawn and the case remanded for further proceedings consistent with this decision.
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We modify the Judge's decision to find a de minimis violation of 39 C.F.R. �
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1926.451(a)(13), affirm the item as such, and assess no penalty.
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So ORDERED.

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases.
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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 my commission on May 1, 1978.
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A decision was already in preparation when I assumed office.
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I have concluded that the wistest exercise of discretion is to decline to participate in this case even though a new Commission member has authority [*22]
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to participate in pending cases.
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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 official action.
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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.
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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.
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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. �
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661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the
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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.

However, it is also settled that a new member of an administrative agency may participate in pending cases.
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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.
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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.
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281 F.2d at 56. There are numerous other cases supporting this holding.
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The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 [*24]
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(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.
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[footnotes omitted]

348 F.2d at 802. n2 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 in all cases pending before the Commission on assuming office.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 A Commissioner may vote simply to avoid an impasse.
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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.
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348 F.2d 798, 802 n. 14.

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• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

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. 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.
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As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members.
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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.
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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 [*26]
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question or comment on the grounds for these abstentions.
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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).

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.
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Moreover, in case 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.
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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. �
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555(b).
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Since abatement is stayed until the Commission enters a final order, 29 U.S.C. �
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659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that [*27]
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a violation of the Act exists.
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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.
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29 U.S.C. �
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651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock.
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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.
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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.
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29 U.S.C. �
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661(a).
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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
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more uniform application and development of occupational safety and health law.
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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, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases.
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The full benefit of Commission review is also assured the parties and the public.
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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.
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