ILLINOIS TERMINAL RAILROAD COMPANY

OSHRC Docket Nos. 2679; 2680 (Consolidated)

Occupational Safety and Health Review Commission

November 26, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter raises the same questions of law resolved by our decision in Southern Pacific Transportation Co., Respondent was cited for non-serious violations of section 5(a)(2) and 8(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereinafter "OSHA") for failure to guard a floor opening contrary to the requirements of 29 C.F.R. 1926.500(a) and (f), and for failure to post an annual summary of accidental occurrences contrary to the requirements of 29 C.F.R. 1904.5.

Respondent defended on the precise grounds advanced in Southern Pacific. It was stipulated that Respondent has not complied with either OSHA regulation; that the Department of Transportation (DOT) has no standard corresponding to 29 C.F.R. 1926.500(a) & (f); and that Respondent maintains accident reports and files reports with DOT pursuant to regulations promulgated by DOT.

Thereafter, Judge Riehl affirmed the citation for failure to guard a floor opening and he assessed a penalty. He vacated the alleged accident reporting [*2] violation. In reaching his disposition he reasoned much as we did in our decision in Southern Pacific.

Complainant petitioned for discretionary review, and Commissioner Cleary ordered review pursuant to the authority granted by section 12(j) of OSHA. On review, Complainant seeks reversal of Judge Riehl's decision to vacate the recordkeeping citation. He argues precisely as he did in Southern Pacific. Respondent seeks affirmance of the Judge's decision in its entirety.

Since this case is controlled by our decision in Southern Pacific, the Judge's decision is affirmed for the reasons given by us therein; a copy of the decision is attached. It is so ORDERED.

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with the holding of the lead opinion that section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1), does not provide an industry exemption for the railroad industry. I therefore agree with the affirmance of the Judge as to the violation of section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), by failing to comply with 29 CFR 1926.500(a) and (f).

I dissent from the holding [*3] of the lead opinion that respondent is exempted from the recordkeeping provisions of the Act. I would find that respondent violated section 8(c) of the Act, 29 U.S.C. 657(c), by failing to comply with 29 CFR 1904.5.

My views on both of the above issues are set out in my separate opinion that was filed in Southern Pacific Transportation Co., No. 1348 (November 15, 1974).

MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the lead opinion as to the disposition of the recordkeeping charge. In all other respects, I dissent for the reasons given in my dissenting opinions in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) and Secretary v. Seaboard Coastline Railroad Company, (Docket No. 2802, Order of Remand, November 18, 1974).

[NOTE: SECRETARY V. SOUTHERN PACIFIC TRANSPORTATION COMPANY, 13 OSAHRC 258]

[The Judge's decision referred to herein follows]

RIEHL, JUDGE: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in the Complainant [*4] by Section 9(a) of that Act. The Citation alleged that an inspection of a workplace under the ownership, operation and control of the Respondent revealed the existence of workplace conditions that violate Section 5(a)(2) of the Act for the reason that these conditions failed to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

Two Citations were issued on March 26, 1973, pursuant to Section 9(a) of the Act, alleging that the violation resulted from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register. A description of the alleged violations contained in said Citation states:

CITATION FOR NONSERIOUS VIOLATION

Item Number -- Standard, regulation or section of the Act allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected.

1 -- 29 CFR 1926.500(a); 29 CFR 1926.500(f) -- Employer failed to install adequate guard rails around a hazardous opening in the floor of the diesel shop where employees could fall 10 to 12 feet and be injured on concrete with reinforcing rods of [*5] one-half inch steel extending vertically upward approximately 4 feet from the bottom of a pit. -- Immediately upon receipt of this citation.

Citation No. -- Item No. -- Proposed Penalty

1 -- 1 -- $90.00

Total Proposed Penalty for All Alleged Violations -- $90.00

Item Number -- Standard, regulation or section of the Act allegedly violated -- Description of Alleged violation -- Date on which alleged violation must be corrected.

1 -- 29 CFR 1904.5 -- Employer failed to post the annual report of accidents, OSHA 102, required in the OSHA recordkeeping specifications for each work location. -- Immediately upon receipt of this citation.

Citation No. -- Item No. -- Proposed Penalty

1 -- 1 -- $100.00

Total Proposed Penalty for All Alleged Violations -- $100.00

Complainant, on June 19, 1973, entered a motion to consolidate OSHRC Docket Number 2679 and 2680 on the ground that both cases arise out of the same investigation and present common issues of law and fact. On July 6, 1973, Complainant's motion to consolidate was granted.

On August 17, 1973, St. Louis, Missouri, a prehearing conference was held for the purpose of airing the issues so far as possible [*6] with a view toward setting the case later or conceivably bringing it to a point where it could be resolved by stipulation.

Following the prehearing conference, a brief hearing was held on the same day. Before the hearing, the parties held a conference and reached certain agreements which they stated into the record. It was agreed that the issue was primarily jurisdictional dealing with the interpretation of Section 4(b)(1) of the Occupational Safety and Health Act. At this hearing, it was agreed that the entire matter would be presented on a stipulation of facts and submitted to this Judge.

STIPULATED FACTS

The parties agreed to the following Stipulation of Facts:

It is hereby stipulated by and between the complainant, PETER J. BRENNAN, Secretary of Labor, United States Department of Labor, and the respondent, ILLINOIS TERMINAL RAILROAD COMPANY, a corporation, acting through their respective counsel, that the following are true facts and may be accepted as true without further proof for the purpose of trial and hearing on the above-entitled cause and that this Stipulation may be admitted in evidence (subject to all pertinent objections as to relevancy and materiality), [*7] leaving as the sole issue before this Commission whether respondent, ILLINOIS TERMINAL RAILROAD COMPANY, being part of the railroad industry, is exempt under section 4(b)(1) of the Occupational Safety and Health Act.

I

Jurisdiction of this action is conferred upon this Occupational Safety and Health Review Commission by section 10(c) of the Act.

(a) Respondent, ILLINOIS TERMINAL RAILROAD COMPANY, is, and at all times hereinafter mentioned was, a Delaware corporation, with an office and place of business at 710 North 12th Boulevard, P.O. Box 7282, St. Louis, St. Louis County, Missouri; and at all times hereinafter mentioned, it was engaged in the handling and interstate transportation of commercial products by rail.

(b) Respondent at all times hereinafter mentioned had a workplace at Cut Street at the Railroad, Alton, Madison County, Illinois, where it was engaged in the handling and interstate transportation of commercial products by rail.

II

(a) Respondent at all times hereinafter mentioned was engaged in a business affecting commerce in that respondent was engaged in the handling and transportation of goods which had been moved in commerce.

(b) Respondent at all [*8] times hereinafter mentioned was an employer employing employees in said business at the aforesaid workplace.

III

On or about March 6, 1973, Compliance Officer Largent of the Occupational Safety and Health Administration, United States Department of Labor, pursuant to his official duties made an inspection and investigation of the respondent's Cut Street at the Railroad workplace described in paragraph I(b) hereof to determine compliance with the provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq. ), hereinafter called the Act.

IV

On the aforesaid date the following conditions existed at the respondent's Cut Street at the Railroad workplace:

(a) As alleged in paragraph IV(a) of the Complaint in OSHRC docket 2680, respondent failed to post the Summary of Occupational Injuries and Illnesses, OSHA 102, as required by 29 CFR 1904.5.

(b) As alleged in paragraph IV(a) of the Complaint in OSHRC docket 2679, respondent failed to install adequate guard rails around a hazardous opening in the floor or the diesel shop where employees could fall (10 to 12 feet) and be injured on concrete with reinforcing rods of one-half inch steel extending vertically [*9] upward approximately four (4) feet from the bottom of the pit.

The pit was approximately 10 to 12 feet deep and was being constructed in the Diesel Shop of the aforementioned workplace about 125 feet west of the east wall and about 20 feet north of the south wall. Reinforcing steel rods approximately four (4) feet above the concrete footing and one-half inch in diameter were extending into the uncovered pit area. The only guarding that was in existence at the time of the inspection was a cloth rope approximately one-fourth inch in diameter (sic) which could not prevent an employee from falling into the pit. It is agreed to by and between the parties that several of respondent's employees were exposed to this hazardous condition and that such condition is contrary to the language of 29 CFR 1926.500(a) and (f).

(c) Respondent employed approximately 32 employees at the aforesaid workplace many of whom were affected by the conditions alleged in OSHRC dockets 2679 and 2680 and set forth in subsections (a) and (b) above.

V

(a) On March 26, 1973, pursuant to section 9(a) of the Act, the complainant issued to the respondent, by mail, two Citations charging the respondent [*10] with violations of the Act.

(b) Each of the aforesaid Citations fixed an abatement date as 'immediate upon receipt of the Citation.'

(c) If it is determined by this Commission that respondent is subject to the provisions of the Act and that respondent is not exempt, under section 4(b)(1) of the Act, from compliance with either of the requirements of sections 5(a)(2) and 8(c) of the Act, respondent herein admits that the aforesaid abatement dates for each of the Citations are reasonable and are thus not in issue before this Commission.

VI

(a) On March 26, 1973, pursuant to section 10(a) of the Act, the complainant issued to the respondent, by mail, a Notification of Proposed Penalties which proposed the assessment of a penalty as follows:

Citation No. 1 (OSHRC docket 2679) 90.00

Citation No. 2 (OSHRC docket 2680) $100.00

(b) If it is determined by this Commission that respondent is subject to the provisions of the Act and that respondent is not exempt, under section 4(b)(1) of the Act, from compliance with the requirements of sections 5(a)(2) and 8(c) of the Act respondent herein admits that the amount of each proposed penalty is appropriate and consistent with the [*11] requirements of section 17(j) of the Act and is thus not at issue before this Commission.

VII

(a) On April 13, 1973, pursuant to section 10(c) of the Act, the respondent duly filed, with a representative of the complainant, notifications of intent to contest each of the aforesaid Citations and each of the penalties proposed.

(b) On April 30, 1973, complainant filed his complaints in the above causes which were subsequently identified by the Commission as OSHRC docket 2679 and 2680.

(c) Respondent's answers to each of the aforesaid complaints were filed on May 9, 1973.

(d) On June 14, 1973, Judge Vernon G. Riehl was assigned as hearing Judge.

(e) On July 6, 1973, complainant's Motion to Consolidate, OSHRC dockets 2679 and 2680 was granted.

VIII

(a) Respondent herein amends its answers in OSHRC dockets 2679 and 2680, to admit each and every paragraph of complainant's complaints excepting paragraph IV(a) of each complaint wherein violation of the Occupational Safety and Health Act is alleged. To these allegations of violation, respondent assorts as its sole defense its claim that the Occupational Safety and Health Review Commission has no jurisdiction over the subject matter [*12] of these causes in that:

1) Congress has vested the authority to prescribe and enforce occupational safety and health standards relating to the railroad industry, of which respondent is a member, in the Department of Transportation pursuant to the Federal Railroad Safety Act of 1970, 45 U.S.C. 421, et seq.;

2) Section 4(b)(1) of the Occupational Safety and Health Act exempts the entire railroad industry from compliance with said act in that the Department of Transportation possesses and has exercised its authority to prescribe and enforce safety and health standards for the railroad industry.

IX

(a) With respect to the condition set forth in paragraph IV(b) hereinabove (OSHRC docket 2679), it is further stipulated by and between the parties that:

1) The Federal Railroad Safety Act has no established provisions nor presently existing safety standards which apply thereto;

2) The conditions as set forth in paragraph IV(a) of OSHRC docket 2679, did exist on the day of inspection contrary to the language of 29 CFR 1926.500(a) and (f);

3) Respondent's sole defense to the violation charged in OSHRC docket 2679 is that respondent, as a member of the railroad industry, is exempt [*13] under the provisions of section 4(b)(1) of said act from compliance with the requirements of the Occupational Safety and Health Act.

(b) With respect to the description of violation of the record keeping provision of section 8(c) of the Act, as charged in OSHRC docket 2680 and further set forth in paragraph IV(a) hereinabove it is further stipulated by and between the parties that:

1) Respondent did not make, keep and preserve a 'Summary of Occupational Injuries and Illnesses' (also known as the OSHA 102) as required by 29 CFR 1904.5;

2) Respondent is required to keep accident reports and make comprehensive monthly accident reports to the Federal Railroad Administration, Bureau of Railroads Safety;

3) The condition, as set forth in paragraph IV(a) of OSHRC docket 2680, did exist on the day of inspection contrary to the language of 29 CFR 1904.5;

4) Respondent's sole defense to the violation charged in OSHRC docket 2680 is that it is not required to comply with the recordkeeping and posting requirements of section 8(c) of the Act and herein specifically with the requirement set forth in 29 CFR 1904.5 in that it is required to keep accident records and make comprehensive monthly [*14] accident reports to the Federal Railroad Administration.

ISSUES

Whether Respondent, Illinois Terminal Railroad Company, being a part of the Railroad Industry, is exempt under Section 4(b)(1) of the Occupational Safety and Health Act.

STATUTORY REQUIREMENTS

Section 4(b)(1) of the Occupational Safety and Health Act of 1970 provides:

Nothing in the 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.

The Federal Railroad Safety Act of 1970, 45 U.S.C. 421 et seq., provides:

Section 421. -- The Congress declares that the purpose of this Act is to promote safety in all areas of railroad operations and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving carriers of hazardous material.

Section 431. -- The Secretary of Transportation shall (1) prescribe as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety [*15] supplementing provisions of law and regulations in effect on October 10, 1970 and (2) conduct as necessary research, development, testing, evaluation, and training for all areas of railroad safety.

DISCUSSION

Respondent in the Stipulation amended its Answer in OSHRC Dockets 2679 and 2680, to admit each and every paragraph of Complainant's Complaint excepting paragraph IV(a) of each Complaint wherein violation of the Occupational Safety and Health Act is alleged. To these allegations of violation, Respondent asserts as its sole defense its claim that the Occupational Safety and Health Review Commission has no jurisdiction over the subject matter of these causes in that:

a. Congress has vested the authority to prescribe and enforce Occupational Safety and Health Standards relating to the Railroad Industry, of which Respondent is a member, to the Department of Transportation pursuant to the Federal Railroad Safety Act of 1970, 45 U.S.C. 421 et seq.;

b. Section 4(b)(1) of the Occupational Safety and Health Act exempts the entire Railroad Industry from compliance with said Act in that the Department of Transportation possesses and had exercised its authority to prescribe [*16] and enforce safety and health standards for the Railroad Industry.

A Stipulation entered into by the parties has placed before this Judge the sole issue as to whether Respondent, Illinois Terminal Railroad Company, being part of the Railroad Industry, is exempt under Section 4(b)(1) of the Act.

Section 4(b)(1) of the Occupational Safety and Health Act provides:

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.

The Federal Railroad Safety Act of 1970, 45 U.S.C., Section 421 et seq., provides:

Section 421. -- The Congress declares that the purpose of this Act is to promote safety in all areas of railroad operations and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving carriers of hazardous material.

Section 431. -- The Secretary of Transportation shall (1) prescribe as necessary, appropriate rules, regulations, orders, and standards for [*17] all areas of railroad safety supplementing provisions of law and regulations in effect on October 10, 1970 and (2) conduct as necessary research, development, testing evaluation, and training for all areas of railroad safety.

The question we must decide therefore is whether this Judge has the power to hear and determine these causes of action presented to him. 20 Am Jr. 2d, "Courts," Section 88 (1965). Jurisdiction is generally split into two branches, jurisdiction over the parties and jurisdiction over the subject matter. Jurisdiction of a party is obtained when the employer is a person engaged in a business affecting commerce within the definition of Section 3(5) of the Act and when the Citation has properly issued and been served upon him. The basis of the Commission's subject matter jurisdiction in cases arising under the Act is a proper and timely filed Notice of Contest. There has been a timely and proper Notice of Contest, therefore, the Commission may proceed to adjudicate matters within the boundaries established by the Notice of Contest.

Issues such as whether certain working conditions are regulated by another Federal agency would go to the merits of the [*18] controversy, rather than the jurisdiction of the Commission.

Section 4(a) of the Act is a Congressional statement that the "Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia, . . . and the Canal Zone." To this mandate, there is an exemption, the provision of Section 4(b)(1). This section creates a limited exemption from general applicability of the Act's provisions, the exemption being limited to working conditions over which the agencies exercise regulatory authority affecting occupational safety and health.

Section 4(b)(1) falls within the definition of a proviso. It is a clause, or part of a clause in a statute, the office of which is either to exempt something from the enacting clause, or to qualify or restrain it generally. U.S. v. Clifford, 137 F.2d 565 (3rd Cir. 1943). Black's Law Dictionary, "Proviso" page 1390 (Revised 4th ed. 196). Respondent is saying, therefore, in effect that they are an employer within the meaning of the Act but they are exempt from its applicability.

Exceptions and exemptions to statutory requirements are to be narrowly construed with the burden on the defendant to prove that he falls [*19] within the exemption. Herren v. United States, 317 F. Supp. 1198 (D.C. Texas, 1970), aff'd 442 F. 2d 1363 (5th Cir. 1971). The above is a cardinal rule of statutory construction and derives from the fact that provisos and exceptions in statutes restrain or except that which would otherwise be within the scope of the general language.

Section 4(b)(1) of the Act provides in pertinent part that:

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.

We hold that the removal of specific working conditions of employees from the Secretary's authority in the Act occurs only where another Federal agency has exercised its statutory authority by promulgating or enforcing standards and regulations with regard to specific working conditions. Therefore, if there are working conditions over which another Federal agency has statutory authority to prescribe standards but in actuality no standards have been promulgated to cover the situation, then the authority of the Secretary would continue [*20] to apply.

Respondent contends that Section 4(b)(1) provides for exclusion of "employments" of "industries," from coverage under the Act. It is Respondent's position that where another Federal agency has statutory authority to prescribe safety and health regulations for working conditions of employees and that if authority is exercised in any degree by the promulgation of regulations, including the formative stages of promulgation, then the Act does not apply to those working conditions, regardless of whether the other Federal agency has exercised authority over all working conditions of the employees of the particular industry involved.

This position of Respondent is not well taken and we disagree with his conclusion as his interpretation of the Act.

The sole object of construction is to determine legislative intent. Such intent must be found primarily in language of the statute itself; but when the language is ambiguous or the meaning is doubtful, the court should consider the purpose, the subject matter and the condition of affairs which led to its enactment, and so construe it as to affectuate and not destroy the spirit and force of the law. Lambur v. Yates, 148 F. 2d [*21] 137, 139 (2nd Cir. 1945).

The most rational method of interpreting the will of Congress is by exploring its intention at the time the questioned law was made, by signs the most natural and probable; and these signs are either the words, the context, the subject matter, the effect and consequences, or the spirit and reason of the law. Detroit Edison Co., v. SEC. 119 F. 2d 730, 738 (6th Cir. 1941).

The key statutory language around which the whole question of our jurisdiction revolves is "working conditions of employees" and "exercise statutory authority." The use of the words "working conditions of employees" means all workers wherever they maybe situated. The words "exercise statutory authority" means to this Judge that unless the Department of Transportation promulgated a standard covering the cited unsafe work condition prior to citation, then OSHA Standards covering this unsafe condition come into effect.

We agree with the reasoning in the case of Secretary of Labor v. Southern Pacific Transportation Company, Secretary of Labor v. Penn Central Transportation Company, [*22] 1973. These cases have had a lengthy treatment of the law and legislative history and we feel they are controlling. We also feel they correctly state the law that would apply to our instant situation.

The limitation of Section 4(b)(1) to "working conditions" is consistent with the scope of the Secretary's authority to promulgate standards and make inspections. "Conditions" pertinent to workplaces are mentioned in the definition of an Occupational Safety and Health standard in Section 3(8) of the Act, which defines the purpose and scope of a standard. The word is also used in Section 8(a)(2) which enumerates the specific subjects which a compliance inspection covers. The second phrase, "exercise statutory authority," sets forth a condition precedent which must occur before the limited exemption applies to Respondent. "Exercise" means to put in action or practice, to carry on something, to transact." Blacks Law Dictionary, "exercise," page 682, (4th ed., 1968).

Therefore, it follows, there must have been some positive action by the Federal agency. The positive action required is stated in the last part of Section 4(b)(1), "to prescribe or enforce standards or regulations affecting [*23] occupational safety or health." Insofar as the worker's safety and health is concerned, the mere existence of the authority to act without the Act, does not constitute an "exercise of authority." It would be an unreasonable stretching of statutory construction to hold that the partial exercise of authority, exempts an entire industry since the exemption is limited inscope to working conditions.

A reasonable interpretation of the Act and the legislative history supports a position that it is working conditions, and not industries that are exempted, and it is the exercise, and not merely the existence of authority, that governs. To hold otherwise would nullify the Occupational Safety and Health Act entirely. There has to be some point in time that is reasonable for agencies to adopt standards that govern. If they do not adopt such standards, then to protect the worker there must be some standards prevailing (for the work conditions) that protects and applies to him. If this were not so, then, any agency could simply not adopt standards covering vast portions of working conditions as far as injuries and death to workers, and, they would in effect nullify the entire Act [*24] by "massive inaction."

The Act very clearly states that its purpose is to require every employer to provide safe and healthful working conditions for his employees. So far as possible every working man and woman in the Nation are to be assured safe and healthful working conditions. The Act does not exclude any worker, private or Governmental. There are of course special provisions to the Act dealing with agencies and Federal employees.

The position that Section 4(b)(1) was enacted to avoid duplication of effort rather than to grant a blanket exemption to a particular industry is supported by Section 4(b)(3). That section provides in pertinent part:

The Secretary shall, within three years after the effective date of this Act, report to the Congress his recommendations for legislation to avoid unnecessary duplication and to achieve coordination between this Act and other Federal laws.

Therefore it can be seen that the problems of jurisdiction and duplication of effort were recognized by Congress. The Department of Labor has a memorandum of authority with the Federal Railroad Administration establishing a procedure for the handling of complaints from employees fo the railroad [*25] industry. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 When the Secretary determines that the Department of Transportation has promulgated standards which would provide a remedy for a situation, the complaint is referred to the Federal Railroad Administration, hereinafter FRA. Conversely, when FRA has no standard covering certain working conditions, the complaint is handled by the Secretary. In certain cases, joint investigations are made.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

This memorandum would not be necessary if the Secretary had no authority over railroad employees.

Senate Report Number 91-1282, explains coverage applicability in relationship to other laws and clearly states:

The bill does not authorize the Secretary of Labor to assert authority under this bill over particular working conditions regarding which another Federal agency exercises statutory authority to prescribe or enforce standards affecting Occupational Safety and Health.

While this section does not forclose the authority of the Secretary of Labor in instances where another agency or department has [*26] statutory authority in the area of occupational safety and health, but has taken no action, it is anticipated that these instances will be extremely rare (Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Committee on Labor and Public Welfare, 92nd Cong., 1st session, page 997) (emphasis added).

The following comment of Section 4(b)(1) of the Act, as passed recognizes that it is working conditions and not industries to which the exemption applies:

The bill recognizes that many employers are already covered by existing Federal safety laws, but does not exclude these employers from additional coverage of the new law. In other words, even though they are now covered by the Construction Safety Act, Walsh-Healy (sic) Act, or any other Federal safety law, the new act would overlap the existing safety laws and require compliance with each law. 116 Cong rec. 42200, 1970, Legislative History 1233 (1971) (emphasis added).

We have very carefully studied the briefs of the Respondent and the Secretary, the Stipulation of Facts submitted by the parties, the pleadings and other papers in the file, as well as the Legislative History of the [*27] Act and have concluded that the intent of Congress, as illuminated by the wording of the Section, the purpose of the Act, and the Legislative History, was that Section 4(b)(1) exempts specific working conditions of employees from the jurisdiction of the Secretary where another Federal agency has exercised its statutory authority respecting occupational safety and health with regard to those specific working conditions. With respect to working conditions over which the other Federal agency has not exercised its statutory authority, we conclude that the authority of the Secretary under the Act is applicable. This interpretation does not in any way abrogate the authority of the other Federal agencies or render its laws ineffective. The simple fact is that the other Federal agency need only exercise its authority in order to retain jurisdiction. Further, this interpretation does not render the employer subject to conflicting laws, since each working condition is regulated by a single enforcement agency. We must always keep in mind that the express intent of Congress was that protection be afforded all employees.

This interpretation of the Act has been fully sustained [*28] by Hodgson v. Southern Pacific Transportation Company, OSHRC 1348 and Hodgson v. Penn Central Transportation Company,

We particularily adopt and adhere to the following language in the Southern Pacific case:

In applying an exemption created by the Act, it must be remembered, since the overriding emphasis of its legislative history is first -- provide comprehensive occupational safety and health coverage for all employees, and, second -- avoid duplication and impractical or unreasonable consequences, that broad construction of the exemption in this instant case would be contrary to the express purpose of the Act. It appears to the undersigned Judge that the Respondent's position on this question would unquestionably exclude from coverage employees working in the area of railroading where no statutory authority has been exercised to protect against known risks to safety and health. These employees should have the same protection as those employees so covered under the Occupational Safety and Health Act. They deserve no less (emphasis added).

It is granted that over a period of several years, Congress has carefully developed a statutory pattern [*29] for the regulation of safety in the railroad industry. Nothing in the Occupational Safety and Health Act undermines this purpose, it merely supplements it and only until such time as the Federal agency so charged promulgates safety standards to afford protection to those railroad employees not now falling within the umbrage of the various railroad safety legislation previously alluded to. When that Federal agency provides the protection as provided for by the Occupational Safety and Health Act, then the provisions of the Occupational Safety and Health Act no longer apply to those working conditions . . .

The undersigned Judge agrees with a position that in applying an exemption created by the Act is should be strictly construed to the end that the exemption will not be enlarged beyond its necessary extent and in order that the Act will accomplish as fully as possible the remedial prupose for which it was designed. This stated purpose cannot be accomplished through the respondent's stated construction of Section 4(b)(1).

We also concur with the Judge's holding in Penn Central case wherein he stated:

I believe it is clear without further laboring the point that the mere grant of [*30] authority to an agency to enforce occupational safety and health standards within an industry is insufficient to exempt the industry under Section 4(b) of the Act. An exemption is not effective until the agency by rules or regulations actually takes affirmative steps to exert its authority in this field. . . To hold that Section 4(b)(1) excludes an industry from the coverage of the Act simply because some aspects of the industry operations are regulated by a Federal agency, would be tantamount to excluding many major industries from the coverage of the Act, a result not intended by the Congress (emphasis added).

Recordkeeping, OSHRC Docket 2680

We have carefully examined the Stipulation of Facts, the previous decisions on the question, the entire file, and Respondent and Complainant's respective briefs and have concluded that Respondent has kept records within the meaning of the Act so as to exclude them from coverage. Therefore, they are not in violation as they have substantially complied with the law insofar as recordkeeping is concerned. There are some differences but they are not of such magnitude as to place the Respondent within the control of OSHA insofar [*31] as citations for lack of recordkeeping is concerned.

We note that the Respondent is required as a matter of fact to keep accident reports and make comprehensive monthly accident reports to the Federal Railroad Administration, Bureau of Railroads Safety, and a sample of said action reports is in the file. Our examination of these records compels us to state that they are sufficient within the meaning of the Act and therefore the Department of Transportation has "exercised statutory authority" to set forth regulations and standards insofar as recordkeeping is concerned within the industry.

This decision, and other of like holding previously rendered, have complied with Congress' intent to see that all employees are covered by the Occupational Safety and Health Act and that there are no exemptions caused either by "massive inability to act" on the part of agencies or for other reasons.

We note however that there is no really effectual coverage on one other class of employees, and that apparently the time has come to set forth regulations for them to be covered as expressed by Section 19(a) of the Act. We mention this as obiter dictum.

The Federal employees have also come under [*32] the category of "all persons employed" as used so frequently in the discussions of the Act.

The period in which Federal employees are not de facto covered by some sort of effective safety and health provisions is apparently about to come to an end.

We note that 29 CFR, Part 1960 provides for safety and health provisions for Federal employees and then it also provides that this is apparently the year in which something effective must be done to protect their safety and welfare.

We comment on this for the reason that apparently we will be confronted sooner or later with a Federal employee case, possibly being brought through the U.S. District appellate Courts by some employee attempting to achieve redress from an unsafe working condition and who has been refused by one agency or another to be effectively heard.

We note that this plan (29 CFR, Part 1960) provides for a variety of things such as recordkeeping, inspections, etc., but nothing whatsoever is provided by way of effective enforcement.

This leaves open the whole question of how Federal employees will be properly protected.

We have no doubt whatsoever that Congress intended every working person to be covered by [*33] the Act within a reasonable time. Congress did set up exemptions and restrictions in the Atomic Energy Field because of the peculiar situation existing there. The total job of preparing standards for every working person in America is a tremendous one, however, we note the Act was passed in 1970 and great strides have been made towards covering most of industry with proper workable standards. Probably 90 percent of the U.S. Government workers, which number over two million in all, are engaged in very similar occupations to those for which standards have already been promulgated. The Government workers consist of a range of employments starting with clerical workers in offices to include construction work, factory work, and related trades. There is no reason whatsoever why they can not either have adopted the present codes as existing for an interim period and then made whatever changes necessary or to have adopted standards of work conditions at least equal to those already promulgated.

We note in the Legislative History of the Act remarks made by Congressman Steiger on page 989 which we feel are pertinent to the whole issue, and which will probably come to our notice in [*34] some near future date. We quote the following language by Congressman Steiger:

Statutory regulatory programs buried in agencies with broad and diverse missions have, with few exceptions, rarely fulfilled their mission.

The reasons for their weaknesses include lack of adequate funding and staffing because of competition with other deserving programs within any agency; lack of vigor in enforcing the law caused by an absence of authority and independence in some Federal administrators, and a low priority assigned to programs of low visibility.

When a Federal agency must take up substantial and controversial issues of consumer safety and economics, we believe it needs independent status.

Independence can be furthered by appointment of Commissioners on a non-partisan basis . . . (emphasis added).

It is our feeling that Congressman Steiger and those who enacted the Act are trying to tell us something, namely, that they have not cast Federal employees into a limbo of forgotten stepchildren insofar as "working conditions" are concerned, but that at the time the bill was passed there was need to get the legislation through, and, it was passed with the amendments regarding [*35] Federal employees as a matter of temporary expediency; that they never intended Federal employees to lack an enforcing authority such as the Occupational Safety and Health Review Commission to hear its cases.

There are over two million Federal employees, some clerical, some working factory type work, some in construction and some in other allied fields that need the effective coverage of the Occupational Safety and Health Act. They need some tribunal such as this with adjudicatory powers to determine whether or not they are getting the equal protection of the law as provided by the constitution insofar as the Occupational Safety and Health Act is concerned.

Certainly the Federal employees are citizens, husbands, fathers, persons in the community as well as employees in our economy. Certainly Congress intended them to be fully protected -- how? It is entirely conceivable that some Federal employee will attempt to get relief from a hazardous condition and be refused help from either his agency, OSHA, or the Occupational Safety and Health Review Commission; that following such refusal he might go directly into the District or Appellate Federal Courts and ask for equal protection [*36] of the law and we would get some sort of ruling at that time as to how the matter should be handled. Certainly the Federal employee is entitled to have an independent tribunal divorced from his or her agency hear his case and decide whether or not he has indeed been afforded safe working conditions. I doubt that there is one Occupational Safety and Health Review Judge who has not, on trying a case, had an independent expert come up and point out to him a number of hazards in the very Federal building in which the case had been heard. It is most embarrassing I am sure to all Judges but it is a fact of life.

There must apparently be therefore some sort of adjudicatory tribunal with right to issue orders under the peculiar conditions of Federal employment that will be effectuated. What sanctions to be used are a matter of conjecture at this time. The Federal employee is in a different situation in that he works for the Government and the Government cannot effectively be fined. Perhaps sanctions could be applied wherein abatement periods are created and if they are not met, then, employees be moved into quarters that are safe. We don't know at this point, but it is a [*37] problem which will apparently be upon us at some near date in the future.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Based on the stipulated facts of record and agreed to by the parties, which we adopt as our own findings of facts, we make the following conclusions of law:

1. As hereinafter excepted, Illinois Terminal Railroad Company, a corporation, Respondent, is subject to regulations under provisions of the Occupational Safety and Health Act of 1970 as concerns the working conditions of its employees subject to the Secretary's Complaint, and, as hereinafter excepted, Section 4(b)(1) does not prohibit the Secretary from asserting his authority in matters made subject to the Complaint in this proceeding.

2. Section 4(b)(1) of the Occupational Safety and Health Act of 1970 does not provide for an overall general exemption of the railroad industry in matters made subject to the Complaint in this proceeding.

3. During the period in question, the Illinois Terminal Railroad Company, a corporation, Respondent, was an employer engaged in business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. As hereinafter excepted, [*38] the Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

4. As hereinafter excepted, Section 5(a)(2) of the Act, 29 USC 654(a)(2) imposed a duty on Respondent to comply with Safety and Health Regulations promulgated by the Secretary pursuant to Section 6(b)(2) of the Act.

5. All violations of standards and Section 5(a)(2) of the Act, March 6, 1973, by Respondent's non-compliance with certain Occupational Safety and Health Regulations, as charged by the Citation issued March 26, 1973, and further alleged in the Complaint filed April 30, 1973, having been admitted by Respondent, are deemed final orders of this Commission except as noted below.

a. The Department of Transportation exercised statutory authority and prescribed and enforced standards regarding preparing and submitting monthly reports of all accidents and illnesses occurring in connection with Respondent's operation, and pursuant to Section 4(b)(1) of the Act, and 29 CFR 1904.5 of Occupational Safety and Health Administration Standards. The Secretary's cited Occupational Safety and Health Standard promulgated under the Act and [*39] codified as 29 CFR 1904.5, Citation No. 1, paragraph IV of the Complaint, may not be legally asserted against this Respondent insofar as maintaining a log of occupational injuries and illnesses.

b. The proposed penalty for the aforesaid violation of 29 CFR 1926.500(a) and (f) is appropriate giving due consideration to size of Respondent's business, gravity of the violation, good faith, previous history and action to abate the condition.

ORDER

Based on the above stipulation of facts, which are adopted by this judge, and conclusions of law, it is ORDERED that:

1. Item Number 1, of the Citation issued Respondent, March 26, 1973, and further alleged in paragraph IV of the Complaint, filed April 30, 1973, alleging violation of 29 CFR 1904.5, and the proposed penalty therein be and is vacated.

2. Item Number 1 of the Citation issued Respondent, March 26, 1973, and further alleged in paragraph IV of the Complaint, filed April 30, 1973, alleging violation of 29 CFR 1926.500(a) and 29 CFR 1926.500(f), having been admitted by the Respondent and deemed final orders of this Commission, together with the proposed penalty is affirmed in all respects.