SEABOARD COAST LINE RAILROAD CO.; WINSTON-SALEM SOUTHBOUND RAILWAY CO.

OSHRC Docket Nos. 11904; 11237

Occupational Safety and Health Review Commission

December 1, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Beverley R. Worrell, Regional Solicitor, U.S. Department of Labor

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Edward A. Charron and John W. Weldon, Seaboard Coast Line Railroad Co., Law Department, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

Pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter cited as the "Act"] review has been directed in these cases, which are consolidated for purposes of rendering a decision, to determine whether section 4(b)(1) n1 of the Act exempts respondent employers from the Act's provisions.

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n1 That section reads in pertinent part:

Nothing in this Act 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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Having considered the entire record, we answer the question [*2] in the negative and affirm the decisions of the Administrative Law Judges finding respondents in violation of the Act.

The facts of both cases are not in dispute. In No. 11904, respondent Seaboard Coast Line Railroad Company was cited, on December 26, 1974 for non-serious violation of section 5(a)(2) of the Act for failure to comply with the occupational safety and health standards published at 29 CFR 1910.24(h), 1910.157(c)(3)(i), and 1910.252(a)(2)(iv)(c). No penalty was proposed. Before the hearing, respondent entered into a stipulation with the Secretary admitting its failure to comply with the cited standards.

In No. 11237, respondent Winston-Salem Southbound Railway Company was cited, on November 14, 1974, for a non-serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1910.157(a)(3). No penalty was proposed. Although respondent contested the substance of the violation during the hearing, its petition for review took no exception to the Judge's finding of non-compliance. Therefore, that issue is not before us.

Both respondents claim that section 4(b)(1) exempts railroads from the coverage of the Act because exclusive [*3] authority over all areas of railroad safety has been vested in the Federal Railroad Administration pursuant to the Federal Railroad Safety Act of 1970, 45 U.S.C. 431 et seq.

These cases present the precise question of law which we decided in Southern Pacific Transportation Company, No. 1348 (November 15, 1974), petitions for review docketed, Nos. 74-3981 and 75-1091, 5th Cir., November 29, 1974 and January 10, 1975. In that case, we held that section 4(b)(1) does not create an industry exemption. Rather, it provides an exemption for specific working conditions when another federal agency exercises its authority over safety and health to regulate those conditions.

Respondents claim that the Department of Transportation has exercised its authority by virtue of its Advance Notice of Proposed Rulemaking, published in 40 Fed. Reg. 10693 (March 7, 1975). We reject respondents' argument. In the instant cases inspections were conducted and citations issued before publication of the Advance Notice of Proposed Rulemaking. Belt Railway Company of Chicago, et al., Nos. 4616, et al., (October 20, 1975). Also, the Advance Notice is plainly antecedent [*4] to any "rulemaking" as that term is applied in the Administrative Procedure Act. See 5 U.S.C. sections 551(5) and 553. This inchoate action is therefore not an "exercise" of authority within the meaning of section 4(b)(1) of the Act. To conclude differently would permit a void in the protection of employees. This is something plainly not contemplated by the purpose of the Act. The purpose is, of course, to provide a safe working place for every worker. See section 2(a).

Respondents argue further that a bill (S. 1743) recently introduced in the Senate by Senator Harrison Williams, the co-sponsor of the Act, which would transfer to OSHA full authority over the safety and health of railroad employees, indicates that section 4(b)(1) of the Act was intended to provide an industry exemption. Respondents' argument is frivolous. The bill patently goes beyond anything contemplated by section 4(b)(1). It provides no insight as to its legislative history.

Finally, respondents submit that since the scope of section 4(b)(1) is currently pending before several United States Courts of Appeals this Commission should stay its decision of the instant cases. In support respondents [*5] point to an order by the United States District Court for the Middle District of Georgia, n2 enjoining the Secretary of Labor from inspecting the workplaces of Southern Railway Co. and Seaboard Coast Line Railroad Co. until such time as cases involving those railroads which are pending before the Courts of Appeals decide the section 4(b)(1) question.

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n2 Brennan v. Southern Railway Co., Civil No. 75-38 MAC (M.D. Ga., June 13, 1975); Brennan v. Seaboard Coastline Railway Co., Civil No. 75-8-ALB (M.D. Ga., June 13, 1975).

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After considering respondents' request, we decline to postpone our decision. The litigation concerning the application of the Act to railroads is extensive, and may be of long duration. We are concerned about the immediate need of protecting the safety and health of railroad employees.

Section 4(b)(1) is in the nature of an exemption from the Act which must be pleaded and proved as an affirmative defense. See Idaho Travertine Corp., No. 1134 (September 30, 1975) and cases cited therein. [*6] Respondents have failed to sustain their burden of proving the application of the exemption.

Accordingly it is ORDERED that:

1) The Judge's decision in docket No. 11237, Seaboard Coast Line Railroad Co., is affirmed;

2) The Judge's decision in docket No. 11904, Winston-Salem Southbound Railway Co., is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons expressed in my opinion in Secretary v. Bolt Railway Company of Chicago, 20 OSAHRC     (Docket No. 4616, October 17, 1975), I would vacate both citations because the railroad industry, of which the respondents are a part, is not subject to the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. 653(b)(1).

Although it would ordinarily be unnecessary for me to say any more on this matter, I am constrained to register my disagreement with the dicta in the Commission's decision which relies on the Administrative Procedure Act, 5 U.S.C. 551(5), to reject the respondents' contention that the secretary of Transportation's advanced notice of proposed rulemaking does not constitute an exercise of authority under section 653(b)(1). The respondents' contention is supported by [*7] the clear and unambiguous language of the Act and by the Act's legislative history.

As the district court correctly observed in Dunlop v. Burlington Northern Railroad, 395 F. Supp. 203, 205 n. 1 (D. Mont. 1975):

". . . 29 U.S.C. 653(b)(1) by its own language triggers the exception to the chapter if a Federal agency 'exercises statutory authority' to prescribe or enforce standards or regulations affecting occupational safety or health. The section does not require that the regulations actually be adopted before the Occupational Safety and Health Act is inapplicable. If Congress had so intended, it could have drafted the section so as to make the Act inapplicable only when other Federal agencies 'have prescribed' safety or health regulations." (Emphasis added.)

Moreover, the legislative history of the Act supports this literal interpretation of section 653(b)(1). The following remarks of Congressman Steiger in House Report 91-1460 are instructive in this regard:

"While this section does not foreclose the authority of the Secretary of Labor in instances where another agency or department has statutory authority in the area of occupational safety and health, but has taken [*8] no action, it is anticipated that these instances will be extremely rare. It is intended that the Secretary of Labor will not exercise his authority where another agency with appropriate jurisdiction has taken steps to exercise its authority, even though the action might be at the formative stage of regulations or enforcement." n3

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n3 Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 997 (Comm. Print 1971) (emphasis added).

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Another indication of congressional intent that this Act excludes railroads - the recent introduction of a bill (S. 1743) to extend such coverage - is termed "frivolous" by my colleagues. "It provides no insight as to [the Act's] legislative history," they say. The short answer to that comment is the following statement which Senator Williams made in introducing that bill on May 14, 1975:

"[T]wo important occupations, mining and railroad work, remain outside the protection of the Occupational [*9] Safety and Health Act and the Department of Labor. Time has proven that in both instances the better course would have been to accord these employees the same protection as nearly all others now receive."

121 Cong. Rec. S8093 (1975).

Senator Williams and Congressman Steiger were the two co-authors of what has since become known as the Williams-Steiger Occupational Safety and Health Act of 1970. Their statements - quoted above - clearly indicate the exclusion of railroads from that Act. Messrs. Barnako and Cleary, however, have apparently discovered the real intent of Congress - as distinguished from that intent that has been merely expressed by the members of Congress themselves. Since I have no psychogenetic powers - and I construe my function as one of analysis of statutes not psychoanalysis of Congress - it is my conclusion that railroads are excluded from the Act's coverage.

Finally, since the majority decision does not fully state the matters covered by Judge Burroughs in the Winston-Salem Southbound Railway Company case, his decision is quoted in full text as follows:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, [*10] 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter "Act"). Respondent seeks review of a non-serious citation issued to it on November 14, 1974, pursuant to section 9(a) of the Act. No penalty was proposed for the alleged violation.

The citation emanated from an inspection conducted on November 8, 1974, of the Schlitz Brewing Company switchpoint in Winston-Salem, North Carolina. Respondent is engaged in the business of operating a railroad.

The citation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with the standard published at 29 CFR 1910.157(c)(3). The citation described the alleged violation as follows:

"Failure to provide fire extinguisher for immediate use in event of fire at the Railroad Office (Caboose) located at the Schlitz Brewing Company switchpoint."

The respondent, by letter dated December 2, 1974 and received by complainant on December 4, 1974, timely transmitted a notice of contest advising complainant that it desired to contest the citation. The notice of contest alleged that respondent was exempt from occupational safety and health standards by virtue of the provisions of section 4(b)(1) of the Act. It was further [*11] alleged that the citation was not timely issued, i.e., issued with reasonable promptness as required by section 9(a) of the Act.

The case was called for hearing on April 4, 1975, in Winston-Salem, North Carolina. No additional parties desired to intervene in the proceedings.

Prior to the introduction of evidence, respondent moved to vacate the citation because it was not issued within 72 hours of the inspection as required by the Commission's decision in Secretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (1974), reversed and remanded,    F.2d    (7th Cir. No. 74-1214, April 22, 1975). The motion was denied since there was no evidence of record to establish when the Area Director made the decision to issue the citation (Tr. 12-14). Evidence was presented at the hearing in an attempt to establish when the Area Director decided to issue the citation. The motion was renewed at the end of the hearing and denied (Tr.43-44). The inspection was made on Friday, November 8, 1974, and the citation issued on November 14, 1974. The compliance officer did not return to his office until November 11, 1974 and his recommendation was not made to the Area Director any earlier than [*12] November 11, 1974.

In addition to the jurisdictional argument under section 4(b)(1), respondent further submits that jurisdiction was lacking because the North Carolina State plan which was in existance at the time of inspection specifically excluded railroad employees in North Carolina from its coverage (Tr. 7). This position is premised on the contention that the Secretary of Labor vested exclusive jurisdiction to enforce the Act, under Section 18 of the Act, to the State of North Carolina. The latter argument was raised at the hearing and judgment was reserved on a motion to vacate for this jurisdictional grounds (Tr. 44).

JURISDICTION AND ISSUES

Respondent concedes that it is engaged in the operation of an interstate railway system (Par III, Complaint and Answer; Tr. 5). It denies that it is subject to the provisions of the Act and submits that neither the Department of Labor nor this Commission has jurisdiction of this proceeding. This denial is premised on the belief that section 4(b)(1) exempts it from the provisions of the Act and that the North Carolina State plan specifically excludes railroad employees in North Carolina (Tr. 7).

The following issues are [*13] pertinent to a disposition of this proceeding:

1. Is respondent exempt from the provisions of the Act by virtue of section 4(b)(1) or provisions of the North Carolina State plan which were in existence at the time of the inspection?

2. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standard published at 29 CFR 1910.157(c)(3)?

FINDINGS OF FACT

The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving all issues in dispute:

1. Respondent, Winston-Salem Southbound Railway Company, is engaged in the operation of a railroad. It is a subsidiary of the Seaboard Coastline Railroad Company and the Norfolk and Western Railroad Company (Par. II, Complaint and Answer).

2. Respondent employs approximately 88 employees and maintains and office and place of employment at the Schlitz Brewing Company at Schlitz Avenue, Winston-Salem, North Carolina (Pars II, III, Complaint and Answer).

3. As a result of an employee complaint, complainant conducted an inspection in the switching yard of the Schlitz Brewing Company, Winston-Salem, North Carolina, on November 8, 1974 (Tr. [*14] 17).

4. On November 8, 1974, a caboose of steel frame and wood construction was located on two rails unconnected to any set of tracks in the switching yard at Schlitz Brewing Company, Winston-Salem, North Carolina. The caboose was immobile and stationary (Tr. 4).

5. The caboose was being used as a crew office by employees of respondent. The members of the crew had the caboose available to them as a place to eat, rest and change clothes. On November 8, 1974, no fire extinguisher was located in the caboose (Tr. 3-4, 34, 35).

6. The caboose was located on the right-of-way of the respondent (Tr. 34).

7. During the course of the inspection, an employee was working inside the caboose on some paper work (Tr. 38, 39).

8. A locomotive was being used in switching operations at the yard. When the compliance officer arrived to commence the inspection, the locomotive was located 500 to 1000 yards away from the caboose. The distance of the engine from the caboose varied because of switching operations (Tr. 20, 25, 29, 34, 37, 39-40). An employee was working inside the caboose at one time during the inspection while the locomotive was approximately 1500 feet from the caboose (Tr. [*15] 39).

9. At one point during the inspection, the locomotive was located on a rail siding some 30 to 40 feet from the caboose (Tr. 18, 19, 25). A fire extinguisher was located in the cab of the locomotive (Tr. 27).

10. Employees of respondent are not required to stay outside the caboose whenever the locomotive is more than 50 feet from the caboose (Tr. 29-30). There were no established procedures which required the locomotive to be within 50 feet of the caboose whenever employees were in the caboose (Tr. 30).

11. The caboose contained an oil heater (Tr. 28). The oil heater has caught on fire. (Tr. 31).

12. The inspection was conducted on a Friday (Tr. 18). The compliance officer made his recommendation to the Area Director no earlier than November 11, 1974 (Tr. 19, 22).

13. A fire extinguisher was placed in the caboose on the afternoon of November 8, 1974, subsequent to the inspection (Tr. 26).

14. A five gallon bucket of water was in the caboose for use by employees to wash their hands (Tr. 26).

LAW AND OPINION

I. Jurisdiction

The apex of respondent's position in this proceeding rests squarely on the question of jurisdiction. Jurisdiction has been [*16] attacked on two fronts. The first argument is based on the contention that section 4(b)(1) exempts the railroad industry from safety standards promulgated under the Act. The second argument is premised on the contention that the Secretary of Labor had vested exclusive jurisdiction at the time of inspection for safety to the State of North Carolina, and that by statute railroads are specifically exempt in North Carolina.

A. SECTION 4(b)(1)

The Commission held in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), that section 4(b)(1) does not provide an industry exemption, but does provide an exemption for specific working conditions. The decision in Southern Pacific is controlling. n1 The purport of the Southern Pacific decision is that if any of the alleged violations are covered by regulations promulgated by the Secretary of Transportation, then the Act would not apply to that specific alleged violation or violations. The violations, if any, must be determined on an individual basis by ascertaining whether or not regulations promulgated by the Department of Transportation cover the specific working conditions. Respondent [*17] is not entitled to a blanket exemption under section 4(b)(1).

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n1 The recent decision in Dunlop v. Burlington Northern,    F.S.    (D. Mont. C.V.. -75-3-BLG, May 13, 1975) denying the Secretary of Labor the right to inspect the workplaces of Burlington Northern in Laurel, Montana, draws some conclusions contrary to those of the Commission in Southern Pacific. The decision of the district court in Burlington Northern is not binding on the Commission.

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B. NORTH CAROLINA STATE PLAN

The authority for development and approval of state plans evolves from section 18 of the Act. A state has the option of submitting a plan, pursuant to section 18(b), for the development and enforcement of safety standards within its boundaries. The state plan concept was conceived to be, in effect, a state counter-part to the Federal Act. The Secretary of Labor must approve the state plan if, in his judgment, it meets the eight requirements set forth in section 18(c).

If a state plan is approved, the Secretary [*18] may, but is not required to, exercise his enforcement authority with respect to Federal standards in accordance with the provisions of section 18(e). Continued Federal enforcement is a matter of discretion with the Secretary of Labor. 29 CFR 1954.3(a)(1).

On January 26, 1973, the Secretary approved the plan submitted by the State of North Carolina as developmental. Approval was published in the Federal Register on February 1, 1973. 38 Fed. Reg. 3011(1973). The approval of the plan provided as follows:

"3. Decision. After careful consideration of the North Carolina plan and comments submitted regarding the plan, the plan is hereby approved under section 18 of the act and Part 1902.

"This decision incorporates requirements of the act and implementing regulations applicable to State plans generally. It also incorporates our intentions as to continued Federal enforcement of Federal standards in areas covered by the plan and the State's developmental schedule as set out below.

"Pursuant to Sec. 1902.20(b)(iii) of Title 29, Code of Federal Regulations, the present level of Federal enforcement in North Carolina will not be diminished. Among other things, the U.S. Department [*19] of Labor will continue to inspect catastrophes and fatalities, investigate valid complaints under Section 8(f), continue its target safety and target health programs, and inspect a cross section of all industries on a random basis."

The approval of the plan provided for continual Federal enforcement within the state.

Since the state plan was approved with the express reservation by the Federal Government of enforcement powers within the state, the argument that the Secretary divested himeself of authority to inspect within the state is unpersuasive. The state plan was subject to the terms stated in the approval. The subsequent action by the North Carolina legislature in enacting legislation to implement the plan could not increase the authority of the state under the plan of approval. The concurrent jurisdiction of the Secretary under the agreement was not and could not be eliminated by the legislation enacted by the North Carolina legislature. Section 18(e) of the Act gives the Secretary the authority to determine when enforcement activities will be conducted exclusively by a state.

Effective February 20, 1975, the Secretary determined that the North Carolina plan was operational [*20] and stated that the discretionary Federal enforcement authority under Section 18(e) would not be initiated with regard to Federal occupational safety and health standard in issues covered under 29 CFR Part 1910 and 29 CFR Part 1926. See 29 CFR 1952.152, as amended at 40 F.R. 16843, April 15, 1975. Until February 29, 1975, the Secretary retained concurrent authority to enforce the standards under 29 CFR Part 1910, which are involved in this proceeding. Since the inspection was conducted on November 8, 1974, the Secretary was within his authority in conducting the inspection. The motion to dismiss is denied.

II. Alleged Violation of 29 CFR 1910.157(c)(3)

Section 1910.157(c)(3) of 29 CFR provides as follows:

"Fire extinguisher size and placement for Class B fires other than for fires in flammable liquids of appreciable death. (i) Minimal sizes of fire extinguishers for the listed grades of hazard shall be provided on the basis of Table L-2. Extinguishers shall be located so that the maximum travel distances shall not exceed those specified in Table L-2."

Table L-2 specifies 50 feet as the maximum travel distance to the fire extinguisher. Complainant alleges that respondent [*21] violated the cited standard by failing to provide a fire extinguisher in a caboose located on its right-of-way in the switching yard at Schlitz Brewing Company, Winston-Salem, North Carolina.

There is no contention made by respondent that the Federal Railroad Administration, Department of Transportation, has any comparable standard that would apply to the caboose. The issue must be resolved by an analysis of the facts as they existed on November 8, 1974.

Respondent concedes that no fire extinguisher was located in the caboose. It submits that a fire extinguisher was located on a locomotive in the switch yard and that a 5 gallon bucket of water was available for use in the caboose. The 5 gallon bucket of water would not qualify as a fire extinguisher.

The locomotive was constantly moving in the switching yard. Its distance from the caboose was continually varying. There were no procedures which required the locomotive to be within 50 feet of the caboose whenever employees were in the caboose. Employees were not required to remain outside the caboose if the locomotive was located more than 50 feet from it.

Respondent is correct in concluding that the standard does not require [*22] that the fire extinguisher be located inside the caboose. The standard is satisfied if an employee does not have to travel in excess of 50 feet to reach the fire extinguisher. The location of a fire extinguisher on a locomotive which is moving about the yard does not satisfy the standard. Undoubtedly, there would be occasions when the fire extinguisher would be within 50 feet of the caboose but such occasions would occur through mere happenstance. The safety of employees must be based on better protection than that furnished by mere happenstance. The standard requires a fire extinguisher within 50 feet of the caboose at all times an employee is inside. Respondent failed to comply with the standard.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. Respondent is not totally exempt from the jurisdiction of the Act by virtue of the provisions of section 4(b)(1) of the Act or from Federal enforcement because North Carolina had a state plan approved and in effect on the date of inspection. The Commission has jurisdiction of the parties and the subject matter [*23] herein.

3. On November 8, 1974, employees of respondent were in a caboose located on respondent's right-of-way at the Schlitz Brewing Company, Winston-Salem, North Carolina. A fire extinguisher was not located within 50 feet of the caboose as required by 29 CFR 1910.157(c)(3).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED: That the non-serious citation issued to respondent on November 14, 1974, is affirmed.