LOUISVILLE & NASHVILLE RAILROAD CO.
OSHRC Docket No. 5521
Occupational Safety and Health Review Commission
May 1, 1975
[*1]
Before VAN NAMEE and CLEARY, Commissioners.
COUNSEL:
Marvin Tincher, Regional Solicitor U.S. Department of Labor
Robert C. Haynes, Louisville & Nashville Railroad Co., for the employer
Joseph E. Stopher, for the employer
OPINION:
DECISION
BY THE COMMISSION:
Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter, the "Act") Commissioner Cleary ordered review before the full Commission of a decision by Administrative Law Judge J. Marker Dern on an exception to the vacating of a citation issued respondent due to the Secretary's failure to comply with section 9(a) of the Act, because the citation was not issued with "reasonable promptness." Respondent had raised alternative defenses, that involving section 9(a) and also an assertion that there was no jurisdiction under the Act because of the application of section 4(b)(1) thereof. The Judge did not rule on the latter assertion.
On July 23, 1973, a joint inspection of respondent's workplace in Louisville, Kentucky, was conducted by OSHA and the Federal Railroad Administration of the Department of Transportation. During the inspection certain air samples were taken and sent to Salt [*2] Lake City, Utah for analysis for fumes, dusts and other industrial hazards.
On August 23, 1973, the samples having been analyzed, the area director of OSHA, pursuant to OSHA Program Directive #200-2, sent a draft of a proposed citation to the OSHA national office in Washington, D.C. for a determination of any conflicts with the Federal Railroad Administration. On November 2, 1973, the area director received approval of the citation. On the same day, the citation was retyped and issued to respondent. The text of the citation is appended to this decision. The time between transmittal of the proposed citation to the national office and actual issuance was 71 days. The total time elapsed from inspection to the issuance of the citation was 102 days.
Having timely filed his notice of contest, respondent raised two defenses:
(a) That the citation should be vacated for the Secretary's failure to issue the citation with "reasonable promptness," it not being issued within 72 hours from the inspection. Chicago Bridge & Iron Co., No. 744 (Jan. 29, 1974).
(b) That the railroad industry is not subject to the Act because of section 4(b)(1), n1 since the Federal Administration has general [*3] authority over safety in the railroad industry.
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n1 Sec. 4(b)(1):
Nothing in this Act shall apply to working conditions of employees, with respect to which other Federal agencies, and state agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
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At the hearing evidence was received only on the section 9(a) issue. Respondent reserved the right to contest the factual merits of the case.
In his decision, Judge Dern vacated the citation because he found a failure by the Secretary to issue the citation with "reasonable promptness." This was error.
The delay occasioned by the necessity for clearing of the citation by the national office was an "exceptional circumstance" encompassed by the majority's opinion in Chicago Bridge & Iron Co., No. 744 (January 29, 1974). n2
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n2 On the basis of his dissent in Chicago Bridge & Iron, Commissioner Cleary would go further. He would not apply the "72-hour" rule in any event, and would "also require a showing of prejudice before a citation would be vacated for a lack of" reasonable promptness.
[*4]
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We also find no merit in the asserted lack of jurisdiction over safety in the railroad industry. Our decision in Southern Pacific Transport. Co., No. 1348 (November 15, 1974), is controlling. In accordance with the majority view expressed therein it is concluded that the Act applies to all items of the citation except those related to recordkeeping (29 CFR § 1904.2(a); 1904.4; and 1904.5). n3
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n3 Commissioner Cleary would find jurisdiction over all the items of the citation in accord with his dissent in Southern Pacific.
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Accordingly it is ORDERED that:
a) The items of the citation alleging a failure to comply with the recordkeeping requirements published at 29 CFR § 1904.2(c), .4, and .5 be vacated; and
b) All other items of the citation are remanded for a hearing on the merits.
APPENDIX
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Item No. |
Standard Allegedly Violated |
Description of Alleged |
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Violation |
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1 |
29 CFR 1910.252(e)(2)(iii) |
Workers or other persons adjacent |
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to the welding areas were not pro- |
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tected from the rays (welding) by |
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non-combustible or flame-proof |
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screens or shields, or were not |
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required to wear appropriate goggles, |
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i.e. departments 13 and 14. |
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2 |
29 CFR 1910.23(c)(1) |
Every open-sided platform four (4) |
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feet or more above the adjacent |
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floor or ground level was not |
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guarded by a standard railing on |
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all open sides, i.e. work plat- |
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form at box car line, track 5 - |
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dept. 13. |
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3 |
29 CFR 1910.24(h) |
Standard railings were not pro- |
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vided on the open sides of all |
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exposed stairways, i.e. stairs |
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up to work platform at boxcar |
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line, track 5 - dept. 13. |
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4 |
29 CFR 1910.252(b)(4)(vii) |
Electrode holders when not in use |
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were not so placed that they could |
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not make electrical contact with |
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persons or conducting objects, i.e. |
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departments 13 and 14. |
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5 |
29 CFR 1910.242(b) |
Compressed air was being used for |
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cleaning purposes and was not re- |
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duced to less than 30 p.s.i., i.e. |
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cleaning area prior to railroad |
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car painting. |
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6 |
29 CFR 1910.107(e)(2) |
The quantity of flammable or com- |
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bustible liquids kept in the |
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vicinity of spraying operations |
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was not the minimum required for |
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operations and exceeded a supply |
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for one day or one shift. |
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7 |
29 CFR 1904.2(a) |
The log of recordable occupational |
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injuries was not being maintained |
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i.e., Form OSHA No. 100. |
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8 |
29 CFR 1904.4 |
The supplementary record for each |
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occupational injury and illness |
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was not being maintained, i.e., |
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Form OSHA No. 101. |
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9 |
29 CFR 1904.5 |
The annual summary of occupational |
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injuries and illnesses had not |
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been compiled and posted. |
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10 |
29 CFR 1903.2(a) |
The notice informing employees of |
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the protections and obligations |
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provided for in the Occupational |
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Safety Act of 1970 had not been |
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posted. |
[*5]
The notification of proposed penalty issued on November 2, 1973, proposed penalties as follows for the alleged violations.
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Item No. |
Proposed penalty |
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1 |
$50.00 |
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2 |
$50.00 |
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3 |
$40.00 |
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4 |
$40.00 |
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5 |
None |
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6 |
$40.00 |
|
7 |
$100.00 |
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8 |
$100.00 |
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9 |
$100.00 |
|
10 |
$50.00 |