Docket No. 3638

UNION PACIFIC RAILROAD COMPANY

OSHRC Docket No. 3638

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 presents the precise question we decided in Southern Pacific Transportation Co., Following an inspection of the machine and wheel shops at its railroad yard in Cheyenne, Wyoming, Respondent received a citation alleging eight non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereinafter "the Act") and a notice of proposed penalties totalling $405. After timely filing a notice of contest the matter went to hearing befere Judge John A. Carlson. He affirmed five of the alleged safety standard violations, vacated the other three because of insufficiency of Complainant's evidence, and assessed $295 in penalties.

In affirming, Judge Carlson rejected Respondent's claim to an industry-wide exemption based on section 4(b)(1) of the Act, correctly anticipating our decision in Southern Pacific. In that case we determined that section 4(b)(1) exempts specific working conditions and not entire industries when an agency other than the Department [*2] of Labor exercises its statutory authority to regulate occupational safety and health conditions.

Respondent adheres to its position on review and does not challenge Judge Carlson's factual determinations.

Accordingly, for the reasons given in Southern Pacific, a copy of which is attached, and for the reason that there does not appear to be any prejudicial error in the Judge's factual determinations the Judge's decision is affirmed, and it is so ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: 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]

CARLSON, 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 Complainant against Respondent under authority vested in Complainant by Section 9(a) of the Act. [*3] The citation alleges that as the result of an inspection conducted on April 10, 1973, of a workplace under the ownership, operation or control of the Respondent, located at 121 West 15th Street, Cheyenne, Wyoming and described as follows: "Wyoming Division Union Pacific Railroad," Respondent was determined to have violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

Specifically, the citation which was issued on June 29, 1973, alleges that violation resulted from failure to comply with certain standards promulgated by the Secretary and codified at 29 CFR, Part 1910. Eight separate items of violation were set forth.

The descriptions of these alleged violations, designations of the standards specifically violated and abatement dates, as contained in the citation, are as follows:

Item -- Standard Allegedly Violated -- Description of Alleged Violation

1 -- 29 CFR 1910.179(b)(5) -- The overhead monorails for the following lifting hoists were not capacity rated nor placarded. Overhead cranes -- Machine Shop west side -- north crane 20 ton -- 3034 west side [*4] -- south crane 20 ton -- 3033 east side -- north crane 20 ton -- 3032 east side -- south crane 20 ton -- 3031 1-250 ton crane west side, 1-100 ton crane in wheel shop. There were also numerous jib cranes throughout that were not so rated and marked. [Correction required by 8-31-73.]

2 -- 29 CFR 1910.179(c)(2) -- Access to overhead traveling crane cabs were provided by fixed metal ladders; these were more than 20 ft. (to a maximum unbroken length of 30 ft.) and they were not provided cages (basket guard loops) as adopted in standard and referenced in American National Standard Safety Code for fixed ladders ANSI 14.3-1956. [Correction required by 8-31-73.]

3 -- 29 CFR 1910.179(j)(1)(ii) -- Inspection procedure for cranes in service as directed by 29 CFR 1910.179(j)(1)(ii) through 29 CFR 1910.179(j)(4)(iii) was not in effect nor were records maintained. [Correction required by 8-31-73.]

4 -- NFPA Code 70-1971 Article 110-14(b) as adopted by 29 CFR 1910.309(a) -- Machine shop area: Electrical conductors located under electrical motor in drop pit were spliced in three locations and did not conform to requirements of NFPA Code 70-1971 Article 110-14(b). [Correction required [*5] by 8-1-73.]

5 -- 29 CFR 1910.157(d)(2)(i) -- Machine shop and wheel shop: Fire extinguishers were not inspected on a monthly basis as required. [Correction required by 8-1-73.]

6 -- 29 CFR 1910.157(d)(3)(iv) -- Machine shop and wheel shop: fire extinguishers did not have a durable tag securely attached to show maintenance or recharge date and the initials or signature of the person who performed the service. [Correction required by 8-1-73.]

7 -- NFPA Code 70-1971 Article 400-4 as adopted by 29 CFR 1910.309(a) -- Machine shop and wheel shop: there were flexible electrical cords and cables running across floors and passageways which were used as fixed wiring for electrically powered equipment such as saws, drills, etc. [Correction required by 8-31-73.]

8 -- 29 CFR 1910.22(b)(1) -- Machine shop and wheel shop: aisles and passageways were not clear of flexible cords and cables, which created a tripping hazard. [Correction required by 8-1-73.]

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, Respondent was notified on June 29, 1973, by the Area Director of the Denver, Colorado office of the Occupational Safety and Health Administration that the following [*6] penalties were proposed for each of the items of alleged violation: for item 1, $90.00; for item 2, $35.00; for item 3, $110.00; for item 4, $40.00; for item 5, $30.00; for item 6, $30.00; for item 7, $40.00; and for item 8, $30.00.

Respondent filed a timely notice of contest as to all violations and complaint and answer were thereafter duly filed by the respective parties.

The matter came regularly on for hearing at Cheyenne, Wyoming before the undersigned judge on October 30, 1973. Owing to excusable oversight on the part of Respondent, the numerous authorized employee representatives potentially affected by the contest did not receive advance notice of the hearing. As the record herein discloses, however, all authorized employee representatives filed waivers, and notices were posted granting any affected but unrepresented employee the right to object to the holding of the hearing, and no such employee availed himself of the right accorded. It is hence clear upon the record that no affected employee or representative thereof wished to appear to participate in the proceeding.

STANDARDS INVOLVED

The standards allegedly violated in connection with each of the items [*7] of the citation read as follows:

Item -- Standard

1 -- Sec. 1910.179 Overhead and gantry cranes. (b) General requirements. (5) Rated load marking. The rated load of the crane shall be plainly marked on each side of the crane, and if the crane has more than one hoisting unit, each hoist shall have its rated load marked on it or its load block and this marking shall be clearly legible from the ground or floor.

2 -- Sec. 1910.179 Overhead and gantry cranes. (c) Cabs. (2) Access to crane. Access to the cab and/or bridge walkway shall be by a conveniently placed fixed ladder, stairs, or platform requiring no step over any gap exceeding 12 inches. Fixed ladders shall be in conformance with the American National Standard Safety Code for Fixed Ladders, ANSI A14.3-1956.

3 -- [The standards in question require in essence inspections of varying degrees of thoroughness and at certain intervals for certain defects or deficiencies. The cited subsections, owing to their length, are set forth in the Appendix attached to this decision.]

4 and 7 -- Sec. 1910.309 National Electrical Code. (a) The requirements contained in the following articles and sections of the National Electrical Code, [*8] NFPA 70-1971; ANSI C1-1971 (Rev. of 1968) shall apply to all electrical installations and utilization equipment:

Article 110-14. Electrical Connections. (b) Splices. Conductors shall be spliced or joined with splicing devices suitable for the use or by brazing, welding, or soldering with a fusible metal or alloy. Soldered splices shall first be so spliced or joined as to be mechanically and electrically secure without solder and then soldered. All splices and joints and the free ends of conductors shall be covered with an insulation equivalent to that of the conductors or with an insulating device suitable for that purpose.

Article 400 -- Flexible Cords and Cables. 400-4. Prohibited Uses. Except where installed in accordance with Article 645, flexible cord shall not be used (1) as a substitute for the fixed wiring of a structure; (2) where run through holes in walls, ceilings, or floors; (3) where run through doorways, windows, or similar openings; (4) where attached to building surfaces; or (5) where concealed behind building walls, ceilings, or floors.

5 -- Sec. 1910.157 Portable fire extinguishers. (d) Inspection, maintenance, and hydrostatic tests. (2) Inspection. [*9] (i) Extinguishers shall be inspected monthly, or at more frequent intervals when circumstances require, to insure they are in their designated places, to insure they have not been actuated or tampered with, and do detect any obvious physical damage, corrosion, or other impairments.

6 -- Sec. 1910.157 Portable fire extinguishers. (d) Inspection, maintenance, and hydrostatic tests. (3) Maintenance. (iv) Each extinguisher shall have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person who performs this service.

8 -- Subpart D -- Walking-Working Surfaces. Section 1910.22 General requirements. (b) Aisles and passageways. (1) Where mechanical handling equipment is used, sufficient safe clearances shall be allowed for aisles, at loading docks, through doorways and wherever turns or passage must be made. Aisles and passageways shall be kept clear and in good repairs, with no obstruction across or in aisles that could create a hazard.

CORRECTION OF TRANSCRIPT

The transcript is hereby ordered corrected on page 80 thereof by striking the entirety of line 5 and inserting in lieu thereof the following: ". . . the Federal [*10] Register as proposed rule making by the Federal. . . ."

JURISDICTION

Respondent readily concedes that it is a large interstate railroad operator engaged in freight transportation and that its Cheyenne yards are a part of that operation (answer and brief).

The jurisdictional issue presented in this case involves the scope and application of Section 4(b)(1) of the Occupational Safety and Health Act of 1970 as it pertains to the railway industry. That section as here pertinent provides:

Nothing in 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 (Emphasis added).

Respondent Union Pacific urges that it is exempt from coverage under the Act since the Federal Railroad Safety Act of 1970 (45 USC 421 et seq ) grants authority to the Secretary of Transportation to provide for the occupational safety and health of railroad employees. The pertinent portions of that act provide:

§ 421. The Congress declares that the purpose of this Act is to promote safety in all areas of railroad operations [*11] and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous materials (Emphasis added).

§ 431(a). The Secretary of Transportation (hereafter in this subchapter referred to as the "Secretary") shall (1) prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on October 16, 1970. . .

The scope of section 4(b)(1) has been considered by the Commission or its judges with reference to several industries whose activities are subject to other federal statutes which grant powers to regulate safety matters.

In Secretary of Labor v. Phoenix, Inc. -- Legore Quarries Division, et seq ), administered by the Department of Interior, deprived the Secretary of Labor of jurisdiction to issue valid citations against an employee engaged in a limestone pulverizing operation. The Complainant Secretary of Labor conceded his lack of jurisdiction at [*12] the Commission review level.

Several cases have dealt with the question of whether the Motor Carrier Safety Regulations enforced by the Department of Transportation divested the Secretary of Labor of power to enforce his own regulations relating to precautions to be taken to immobilize motor freight vehicles in the loading and unloading process. The principal case in this area is Secretary of Labor v. Mushroom Transportation Company, Inc., The Commission observed:

Thus, what is needed in order for section 4(b)(1) to apply is regulation by another Federal agency that insures non-movement of the truck during loading and unloading.

Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. (Emphasis added; footnote [*13] omitted.)

In Secretary of Labor v. Southern Terminal and Transport Company,

Three railroad cases of which this judge is aware involved the jurisdictional issue with which we are confronted here. These are: Secretary of Labor v. Southern Pacific Transportation Company, Secretary of Labor v. Penn Central Transportation Co., Secretary of Labor v. Illinois Terminal Railroad Company, OSAHRC Dockets No. 2679 and 2680 (consolidated). All are presently before the Commission on review. In each the judge held that neither existence of the Railroad Safety Act nor the mere fact that certain regulations or standards may have been issued under its authority was sufficient to invoke the exclusionary effect of section [*14] 4(b)(1) of the Occupational Safety and Health Act. In each it was concluded, in essence, that section 4(b)(1) does not apply where the Federal Railroad Administration has not exercised its granted authority by adopting safety rules purporting to govern the working conditions of the particular employees in question.

Respondent contends that the power granted the Secretary of Transportation is plenary since it applies to "all areas of railroad operations;" and that the Secretary, through the Federal Railroad Administration as his delegate, is in the process of full implementation of its safety mandate through the promulgation of rules. Bodies of rules were in effect in certain areas at the time of hearing n1 and another has since become final. n2 This judge has taken official notice of all such rules. A study thereof leads to the conclusion that their application is limited to those aspects of railroading which relate to the safety of locomotives and other rolling stock; and to track and associated appliances or equipment concerned with the safe movement and operations of trains over railroad systems. Railway crews are to that extent the safety beneficiaries of such rules. [*15] None, however, relates in any direct or meaningful way to the "working conditions" of maintenance employees in railroad shops. The present case is concerned with the work environments of these latter employees.

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n1 Rules published prior to inspection and hearing were: 49 CFR, Part 213, Track Safety Standards; 49 CFR, Part 225, Railroad Accidents, Reports and Classification; 49 CFR, Part 228, Hours of Service of Railroad Employees; 49 CFR, Part 230, Locomotive Inspection; 49 CFR, Part 231, Railway Safety Appliance Standards; 49 CFR, Part 236, Installation, Inspection, Maintenance, and Repair of Systems, Devices and Appliances (responses to Respondent's requests for admissions).

n2 Rule published subsequent to hearing was: 29 CFR, Part 215 -- Railway Freight Car Safety Standards.

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It is further concluded that the general determinations as to the construction of section 4(b)(1) reached by the judges in the three previously cited railroad cases were correct as a matter of law and should be followed. [*16] The exemption or exclusion provided in 4(b)(1) was not intended by the Congress to apply in cases where another federal agency, irrespective of the breadth of its statutory rule-making authority, has not actually exercised such authority with regard to specific working conditions of employees potentially covered. The Occupational Safety and Health Act as shown in section 2(b) was broadly intended ". . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." The creation of preemptive "no man's lands" through unexercised rule-making powers residing in other agencies is inimical to that purpose. The jurisdiction of the Secretary of Labor and this Commission were lawfully invoked in the present case.

EVIDENCE AND DISCUSSION

The evidence developed at trial herein discloses that Complainant's compliance officer on April 10 and 11, 1973, conducted an inspection of two buildings located in Respondent's Cheyenne rail yard (Tr. 14). The inspection was conducted jointly with two representatives of the Federal Railroad Administration. This joint inspection grew out of a recognition of possible conflict between the Occupational Safety [*17] and Health Act and the Railroad Safety Act (Tr. 15). The inspecting officers had the full cooperation of Respondent's officials. Complainant's compliance officer, who was his sole witness, indicated that his proposed citations and his penalty worksheet (as approved by his immediate superior) were sent to the central offices of OSHA in Washington for approval before issuance owing to the potential jurisdictional matter involved, but were ultimately approved for issuance in the form proposed. The FRA inspectors, insofar as Complainant's compliance officer knew, cited no violations in the places that he inspected. He was under the impression that a charge involving "switching" arising outside the shops had been made by FRA enforcement personnel (Tr. 43-44, 50-51).

It is apparent from the record that although Respondent presented evidence through the person of the assistant superintendent of its Wyoming division, such evidence was directed primarily toward establishing the relationship of the machine shop and the wheel shop with the total operation of the system in furtherance of its claim as to FRA jurisdiction. The Complainant's evidence as to individual violations or [*18] penalties was nowhere directly challenged. The evidence presented by Respondent indicated that the machine shop building and wheel shop building were in essence surrounded by trackage in the Cheyenne yard and that the operations carried on within the buildings involved major repair, overhaul and refurbishment of diesel units and cars, which were used throughout the Respondent's system. Diesel repairs were performed in one end of the machine shop and wheel changes were performed in the drop pit area. Use of the drop pit permits wheels to be removed from locomotive trucks and swung to the outside by use of the electrical tow motor referred to in item 1 of the citation. This allows removal of locomotive wheels without raising the locomotive unit (Tr. 65, 67). Larger overhead cranes in the machine shop were used to lift heavy items such as car tops for various repair purposes.

In the wheel shop old wheels and rollers are removed and rebuilt from rolling stock and replaced. New wheels are also installed (Tr. 69).

Respondent's witness acknowledged that some 25 employees work in the wheel shop. Approximately ten are machinists, another ten firemen or oilers and the remainder from [*19] other crafts (Tr. 70).

We now turn to a consideration of the actual violations alleged:

Item 1

The violation alleged in item 1 of the citation was established by the evidence. That evidence indicated that neither the heavy overhead cranes nor the lighter jib cranes were marked or placarded to show load capacities (Tr. 22-23, 58).

Complainant's inspecting officer indicated that failure to post rated loads could lead to inadvertent attempts to hoist loads which would cause collapse of the crane apparatus (Tr. 30). His testimony was unrefuted.

Item 2

A violation of item 2 as alleged in the citation was established by the evidence. Uncontradicted testimony of the compliance officer indicated that access to overhead crane cabs was provided by means of fixed metal ladders, more than 20 feet in height, which lacked ladder guards, offset platforms or baskets (cages) as required by the cited standard (Tr. 28-29). Lack of such guards or devices leave employees without means of breaking their falls should a slip occur while ascending or descending (Tr. 30).

Item 3

The violation of standards relating to frequent and periodic crane inspections was also established by the [*20] evidence. The compliance officer's testimony was uncontradicted to the effect that Respondent's members of the inspection party acknowledged that neither routine nor more thorough periodic inspections of the cranes were carried out. The standard requires, in essence, routine inspections of overhead or gantry cranes at daily to monthly intervals and more thorough inspections at one to twelve month intervals for a large variety of potential mechanical or structural defects or malfunctions which could result in accidents if undiscovered (Tr. 31-32, 48).

Item 4

Review of the evidence as presented by Complainant fails to show the existence of the violation alleged. Evidence of record does show that an electric motor was located in a drop pit in the machine shop area. The pit was indicated to be from 12 to 15 foot deep and the wiring was worn and spliced (Tr. 34-35). There is a total absence of evidence, however, indicating where the operator of the motor (which removed wheels from under diesel units) stood in relation to the motor or wiring in question and whether any employee of Respondent ever had occasion to enter the pit itself. Although not actively resisted by Respondent, [*21] Complainant's allegations of violation were not confessed. The mere allegation that employees were exposed cannot sustain a charge. There is no evidence of record either directly or by fair implication that any employee of Respondent was exposed to the undoubted hazard presented by the bad wiring. Item 4 must hence be vacated.

Item 5

The evidence of record establishes the existence of the fire extinguisher violation alleged in item 5. The evidence indicated that numerous fire extinguishers were located in both the machine shop and wheel shop. Management members of the inspection team acknowledged that monthly inspection of the extinguishers was not carried out (Tr. 35-36, 51-52). The testimony in this regard was uncontradicted. The compliance officer asserted that failure to inspect fire extinguishers could result in unexpected failures owing to pressure loss, etc. (Tr. 36).

Item 6

Complainant's evidence was also sufficient to establish that the maintenance provision for the same portable fire extinguishers had not been complied with; examination of the extinguishers indicated that no tags were present on the extinguishers. Hence maintenance or recharge dates could not [*22] be determined.

Item 7

The evidence presented by Respondent in support of its claim of violation of article 400-4 of the National Electrical Code was not sufficient to establish a violation. A reading of the cited portion of the article indicates that use of flexible cords and cables is prohibited in five separately numbered and described situations. The situation described by the Compliance officer in his testimony and in the citation does not fall within the purview of any of these. The compliance officer concluded a violation existed because fixed power tools were connected by flexible cords. On the contrary, the previous section, 400-3(a) describing permissible uses of flexible cables describes one such use at (a)(6) as "connection of stationary equipment to facilitate their frequent interchange." There was testimony from Respondent's witness that he thought that the equipment in question was "portable," though further questioning revealed what he meant was that the heavy pieces of fixed equipment such as table saws were moved into work places adjacent to rolling stock under repair for performance of the actual job (Tr. 73). The practice would appear to be hazardous [*23] and more likely than not an appropriate article exists within the Code which would prohibit it. Article 400-4, however, appears clearly inapplicable and the item must be vacated.

Item 8

The evidence adduced by Complainant also failed to support its charge that Respondent was in violation of 29 CFR 1910.22(b)(1). The testimony of the compliance officer was to the effect that the same electrical cords which were believed to constitute an electrical hazard it item 8, constituted a tripping or falling hazard. At no time was any true physical description given of the area in which these cords were located. The compliance officer did make it clear that they were situated in a place where employees could fall over them. It is to be noted, however, that the specific sub-section of 1910.22 referred to pertains to "aisles and passageways." I know of no reason why these terms should not be accorded their customary dictionary definitions. There was no evidence that the area in question was anything but a normal work area. Thus, passing over any question of whether the first sentence of (b)(1) making specific reference to areas where "mechanical handling equipment is used" stands [*24] alone (there is no evidence whatsoever that mechanical handling equipment was used in the area), the charge must fall for the reason that as far as the record discloses the area in question was a normal work area, not an aisle or passageway. Again, from the compliance officer's description it appears that a hazard was presented to employees. The hazard described in the evidence does not, however, fall within the rather plain and limiting language of the cited portion of the standard.

PENALTIES

Assessment of appropriate penalties lies within the discretion of the Commission under the guidance of Section 17(j) of the Act. That section requires that the gravity of the violation, Respondent's good faith, size and prior history of violation be considered. The gravity factor is to be accorded paramount weight. Secretary of Labor v. Nacirema Operating Co., Inc., Four elements have been identified as calling for specific (but not exclusive) consideration in determining gravity. These are the number of employees exposed; the duration of exposure; the precaution taken against injury; and the degree of probability of occurrence of injury. Secretary of [*25] Labor v. Baltz Brothers Packing Company,

Complainant's compliance officer testified that he followed the internal directives of his agency in arriving at the penalties proposed. The same methodology was employed for all the alleged violations. A "guideline" sheet (Compl's. ex. 2) was first used on which a numerical weight was given to his assessment of what is essentially the "gravity" of the violation. These figures were converted to a dollar figure, which is an "unadjusted penalty" carried to the "penalty assessment worksheet" (Compl's. ex. 1). These amounts were then adjusted downward. In each case the original figure was diminished by 20% based on Respondent's prior history free of violation and a further 20% for Respondent's good faith. An additional 50% reduction was allowed in anticipation of prompt abatement. In this manner each of the ultimately proposed penalties was calculated (Tr. 25-26). The fundamental evidence relating to penalty assessment was somewhat meager when one looks beyond the obvious factors of Respondent's prior history of good faith. The burden with respect to penalty, as with all other items, rests upon Complainant. [*26] Having independently considered the entire record, however, including the fact that Respondent at no time questioned in any manner the appropriateness of the proposed penalties, this judge is inclined to assess the penalties originally proposed by the Secretary as to those items of violation sustained herein. In view of Respondent's overall size, a factor which the Commission has indicated should be given consideration, n3 such penalties appear relatively modest.

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n3 Secretary of Labor v. Jasper Construction, Inc.,

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FINDINGS OF FACT

The entire record herein supports the following material facts:

1. Respondent is a corporation engaged in the operation of a railroad system in some 13 states and was at the times material hereto the operator of a railroad yard at Cheyenne, Wyoming, where, inter alia, extensive switching and repair activities were carried on.

2. On April 10 and 11, 1973 an inspection of two buildings located in Respondent's yard at Cheyenne, Wyoming known as the [*27] "maintenance shop" and "wheel shop" was carried out by a duly authorized representative of the Complainant Secretary of Labor.

3. Both shops above referred to were workplaces in which extensive heavy repair and refurbishment of diesel units, cars and rolling stock in general was carried on. The conduct of such activities constituted an integral part of the overall operation of Respondent's railroad system in that the locomotives and cars repaired were used throughout its line.

4. At the times material hereto Respondent had under its operation and control three large overhead cranes and a number of smaller jib cranes, which had no visible placards indicating their rated load capacities. Access to the cabs of overhead cranes was furnished by fixed metal ladders more than twenty feet in height which were not provided with cages or other safety devices. No regular inspection procedures were maintained for Respondent's cranes nor, consequently, were any records maintained.

5. Electrical conductors used in connection with an electric motor in the drop pit in Respondent's machine shop were spliced and worn. No evidence was adduced to indicate whether any employee was exposed [*28] to this hazard.

6. Numerous fire extinguishers located in Respondent's machine shop and wheel shop had not been inspected on a monthly basis.

7. The fire extinguishers referred to in the numbered paragraph immediately above had no tags attached and consequently did not show maintenance and recharge dates.

8. In the machine shop and wheel shop flexible electric cords attached to stationary electrically powered equipment or appliances ran across the floors. No evidence was adduced showing that such situation was violative of any numbered provision of article 400-4 of the National Electrical Code as adopted in 29 CFR 1910.309(a).

9. The flexible cords referred to in the numbered finding above created a tripping or falling hazard to employees, but were not established by the evidence to be located in either aisles or passageways.

10. Respondent railroad company had no prior history at the time of inspection of any violation of the Occupational Safety and Health Act.

CONCLUSIONS OF LAW

1. That Respondent at the times material hereto was an employer engaged in a business affecting commerce within the meaning of the Occupational Safety and Health Act.

2. That as to the specific [*29] working conditions which were the subject of the items of violation cited by Complainant herein, section 4(b)(1) of the Occupational Safety and Health Act does not preclude the Secretary of Labor asserting his enforcement jurisdiction in that the Federal Railroad Administration has not purported to exercise authority it may possess under the Federal Railroad Safety Act to make occupational safety and health rules governing such working conditions.

3. That this Commission has consequent jurisdiction to entertain and decide this present contest.

4. That the evidence of record establishes that Respondent violated:

(a) 29 CFR 1910.179(b)(5) as alleged in item 1 of the citation and that a penalty of $90.00 is appropriate for such violation;

(b) 29 CFR 1910.179(c)(2) as alleged in item 2 of the citation and that a penalty of $35.00 is appropriate for such violation;

(c) 29 CFR 1910.179(j)(1)(ii) through (j)(4)(iii), as alleged in item 3 of the citation and that a penalty of $110.00 is appropriate for such violation;

(d) 29 CFR 1910.157(d)(2)(i) as alleged in item 5 of the citation and that a penalty of $30.00 is appropriate for such violation; and

(e) 29 CFR 1910.157(d)(3)(iv) [*30] as alleged in item 6 of the citation and that a penalty of $30.00 is appropriate for such violation.

4. That the evidence of record fails to establish that Respondent violated:

(a) NFPA Code 70-1971 [National Electrical Code, 1971] article 110-14(b) as adopted by 29 CFR 1910.309(a) as alleged in item 4 of the citation;

(b) NFPA Code 70-1971 [National Electrical Code, 1971] article 400-4 as adopted by 29 CFR 1910.309(a) as alleged in item 7 of the citation; and

ORDER

In accordance with the foregoing it is ORDERED:

1. That items 1, 2, 3, 5 and 6 of the citation are hereby AFFIRMED and penalties aggregating $295.00 are hereby assessed in connection therewith.

2. That items 4, 7 and 8 of the citation are hereby VACATED together with the penalties proposed in connection therewith.

APPENDIX

Item 3:

1910.179 -- OVERHEAD AND GANTRY CRANES

(i) Inspection.

(1) Inspection classification.

(i) Initial inspection. Prior to initial use all new and altered cranes shall be inspected to insure compliance with the provisions of this section.

(ii) Inspection procedure for cranes in regular service is divided [*31] into two general classifications based upon the intervals at which inspection should be performed. The intervals in turn are dependent upon the nature of the critical components of the crane and the degree of their exposure to wear, deterioration, or malfunction. The two general classifications are herein designated as "frequent" and "periodic" with respective intervals between inspections as defined below:

(a) Frequent inspection -- Daily to monthly intervals.

(b) Periodic inspection -- 1 to 12-month intervals.

2) Frequent inspection. The following items shall be inspected for defects at intervals as defined in subparagraph (1)(ii) of this paragraph or as specifically indicated, including observation during operation for any defects which might appear between regular inspections. All deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(i) All functional operating mechanisms for maladjustment interfering with proper operation. Daily.

(ii) Deterioration or leakage in lines, tanks, valves, drain pumps, and other parts of air or hydraulic systems. Daily.

(iii) Hooks with deformation or cracks. Visual [*32] inspection daily; monthly inspection with signed reports. For hooks with cracks or having more than 15 percent in excess of normal throat opening or more than 10 degrees twist from the plane of the unbent hook refer to paragraph (1)(3)(iii) (a) of this section.

(iv) Hoist or load attachment chains, including end connections, for excessive wear, twist, distorted links interfering with proper function, or stretch beyond manufacturer's recommendations. Visual inspection daily; monthly inspection with signed report.

(v) Rope slings, including end connections, for excessive wear, broken wires, stretch, kinking, or twisting. Visual inspection daily; monthly inspection with signed report.

(vi) All functional operating mechanisms for excessive wear of components.

(vii) Rope reeving for noncompliance with manufacturer's recommendations.

(3) Periodic inspection. Complete inspections of the crane shall be performed at intervals as generally defined in subparagraph (1)(ii) (b) of this paragraph, depending upon its activity, severity of service, and environment, or as specifically indicated below. These inspections shall include the requirements of subparagraph (2) of [*33] this paragraph and in addition, the following items. Any deficiencies such as listed shall be carefully examined and determination made as to whether they constitute a safety hazard:

(i) Deformed, cracked, or corroded members.

(ii) Loose bolts or rivets.

(iii) Cracked or worn sheaves and drums.

(iv) Worn, cracked or distorted parts such as pins, bearings, shafts, gears, rollers, locking and clamping devices.

(v) Excessive wear on brake system parts, linings, pawls, and ratchets.

(vi) Load, wind, and other indicators over their full range, for any significant inaccuracies.

(vii) Gasoline, diesel, electric, or other powerplants for improper performance or noncompliance with applicable safety requirements.

(viii) Excessive wear of chain drive sprockets and excessive chain stretch.

(ix) Crane hooks. Magnetic particle or other suitable crack detecting inspection should be performed at least once each year.

(x) Electrical apparatus, for signs of pitting or any deterioration of controller contactors, limit switches and pushbutton stations.

(4) Cranes not in regular use.

(i) A crane which has been idle for a period of 1 month or more, but less than 6 months, shall [*34] be given an inspection conforming with requirements of subparagraph (2) of this paragraph and paragraph (m)(2) of this section before placing in service.

(ii) A crane which has been idle for a period of over 6 months shall be given a complete inspection conforming with requirements of subparagraphs (2) and (3) of this paragraph and paragraph (m)(2) of this section before placing in service.

(iii) Standby cranes shall be inspected at least semi-annually in accordance with requirements of subparagraph (2) of this paragraph and paragraph (m)(2) of this section. Standby cranes exposed to adverse environment should be inspected more frequently.