LOUISVILLE AND NASHVILLE RAILROAD CO.  

OSHRC Docket No. 5521

Occupational Safety and Health Review Commission

February 11, 1976

COUNSEL:

  [*1]  

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:

ORDER

The notice of contest in the above-captioned case has been received and docketed by the Commission.   The Complaint and Answer have been filed.   Respondent has filed a motion requesting a stay of future proceedings pending resolution of the jurisdictional issue as raised in other Railroad cases and as is presently pending before the U.S. Courts of Appeals.

The Stay sought by Respondent would prevent multiplicity of proceedings and circuity of actions before this Commission and the various circuits of the U.S. Courts of Appeals.

The Commission, therefore, finds that economy of judicial, admistrative, and financial considerations would be achieved by granting Respondent's Motion for Stay.

Therefore, Respondent's Motion for Stay is hereby Granted pending issuance of an Order by a U.S. Court of Appeal which is determinative of the jurisdictional issue, whereupon the Commission may take such appropriate action and enter such order as the circumstances at such time indicate.

I dissent from the Commission's [*2]   order granting a stay of proceedings before hearing in cases where a respondent railroad has contested a citation on the basis of section 4(b)(1) of the Act.

Commission precedent applying section 4(b)(1) suggests that development of a factual record in each case is virtually essential to disposition.   Southern Pacific Transport. Co., CCH OSHD para. 19,054, 2 BNA OSHC 1313 (No. 1348, 1974), petitions for review docketed, Nos. 74-3981 & 75-1091, 5th Cir., November 29, 1974 and January 10, 1975.   In the absence of the parties' agreement so submit a stipulation of facts, leaving only the interpretation of section 4(b)(1) and suitable measures for the protection of employees in issue, I would not grant a stay of proceedings.

In addition, it is not clear that the first decision by a court of appeals, concerning the application of section 4(b)(1) to the working conditions for which a particular railroad was found in violation of the Act, would be dispositive as to any other given case, especially in the absence of a factual record. The Commission has determined that it will reexamine its order staying proceedings after issuance of a court of appeals decision.   In the [*3]   meantime, however, employees may be exposed to conditions alleged by the Occupational Safety and Health Administration to be hazardous and in violation of the Act.   Of course, contested items of citations need not be abated until issuance by the Commission of a final order.   But, staying proceedings pending a judicial ruling, which may not be dispositive of a stayed case, unduly delays disposition and allows undue delay in deciding whether cited conditions are in violation of the Act.

The objective of the Act is to prevent job injuries and illnesses.   See Brennan v. O.S.H.R.C. and Gerosa, 491 F.2d 1340, 1343 (2d Cir. 1974). This objective is better served by not categorically staying the trial of these cases.