RED STAR MARINE SERVICES, INC.

OSHRC Docket No. 80-4057

Occupational Safety and Health Review Commission

August 31, 1982

COUNSEL:

[*1]

Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

James M. Kenny, for the employer

OPINION:

DIRECTION FOR REVIEW AND REMAND ORDER

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (the "Act"), the order of Administrative Law Judge Foster Furcolo, affirming items 1A and 1C of a citation for serious violations n1 of the Act, is hereby directed for review. For reasons that follow, we remand the matter to the Judge for further consideration.

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n1 Item 1A alleged a failure to comply with the noise standard at 29 C.F.R. 1910.95(a); item 1C alleged noncompliance with the noise standard at 29 C.F.R. 1910.95(b)(3).

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The matter was originally heard by Administrative Law Judge Barbara Hassenfeld. Respondent filed a motion to dismiss before Judge Hassenfeld on the grounds that (1) the ex parte warrants obtained by the Secretary were invalid, and (2) that under Section 4(b)(1) n2 of the Act, it was exempt from the Act because the working conditions of its employees were [*2] regulated by the United States Coast Guard. Judge Hassenfeld denied respondent's motion on the grounds that (1) the ex parte search warrants obtained by the Secretary were valid, and (2) the Coast Guard had not promulgated any regulations pertaining to the cited working condition.

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n2 Section 4(b)(1), 29 U.S.C. 653(b)(1), provides in pertinent part:

Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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Judge Hassenfeld's order was allowed to stand when Judge Furcolo issued his decision in this matter. In its Petition for Discretionary Review, respondent reiterates its position that it is exempt from the Act by virtue of Section 4(b)(1) and that the ex parte warrants were invalid. n3

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n3 In its Petition for Discretionary Review, respondent also raises issues concerning the credibility of the Secretary's witnesses. In light of our disposition, we do not address these other issues.

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Regarding the validity of the ex parte warrants, the Commission recently held that the versions of 29 C.F.R. 1903.4 in effect prior to November 8, 1980 authorized the Secretary to obtain ex parte search warrants. Davis Metal Stamping, Inc.,    OSAHRC   , 10 BNA OSHC 1741, 1982 CCH OSHD P26,134, (No. 78-5775, 1982); Roberts Consolidated Industries, Inc.,    OSAHRC   , 10 BNA OSHC 1861, 1982 CCH OSHD P26,135 (Nos. 80-2423, 80-2860, 1982). Accordingly, we find the warrants to be valid. n4

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n4 For reasons he expressed in Davis Metal Stamping, supra, and Roberts Consolidated Industries, supra, Chairman Rowland would find that the ex parte warrants obtained by the Secretary were invalid.

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The Commission recently reconsidered and overruled its decision in Puget Sound Tug & Barge, 81 OSAHRC 50/A2, 9 BNA OSHC 1764, 1981 CCH OSHD P25,373 (No. 76-4905, 1981), appeals filed, Nos. 81-7405 [*4] and 81-7406 (9th Cir. June 26, 1981); No. 81-4243 (5th Cir. June 24, 1981). In Dillingham Tug & Barge Corp.,    OSAHRC   , 10 BNA OSHC 1859, 1982 CCH OSHD P26,166 (No. 77-4143, 1982), the Commission held that Section 4(b)(1) precludes the Secretary from enforcing the Act with respect to the safety of seamen aboard vessels operating on the navigable waters of the United States.

Accordingly, we reverse Judge Furcolo's decision and remand for reconsideration in light of Dillingham Tug & Barge Corp. n5

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n5 Commissioner Cottine would follow the precedent established in Puget Sound Tug & Barge, 81 OSAHRC 50/A2, 9 BNA OSHC 1764, 1981 CCH OSHD P25,373 (No. 76-4905, 1981). See also Dillingham Tug & Barge Corp. ,    OSAHRC    10 BNA OSHC 1859, 1982 CCH OSHD P26,166 (No. 77-4143, 1982) (Cottine, Commissioner, dissenting). Accordingly, he would find that Judge Hassenfeld properly denied the Respondent's motion to dismiss on the ground that the Coast Guard has failed to promulgate regulations affecting the cited working conditions.

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SO ORDERED.