SECRETARY OF LABOR,
Complainant,

v.

BURLINGTON NORTHERN RAILROAD COMPANY,
Respondent.

OSHRC Docket No. 87-0365

REMAND ORDER

Before: BUCKLEY, Chairman, and AREY, Commissioner.
BY THE COMMISSION:

This case results from the Secretary's inspection of a trench located alongside Burlington Northern's tracks in Kansas City, Missouri. Burlington Northern's employees were installing a sewer line in a portion of the trench when it collapsed, killing one employee. The Secretary cited Burlington Northern for several violations of OSHA standards governing excavations and trenches, and Administrative Law Judge Louis J. LaVecchia affirmed all but one of the citation items.

The only issue before us is whether the judge properly rejected Burlington Northern's argument that under section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. {sec} 653(b)(1)) [[1/]] regulations issued by the Federal Railroad Administration (FRA) preempt the Secretary from exercising authority over a trench located near and alongside railroad tracks. For the reasons that follow, we set aside the judge's decision and remand to afford an opportunity for the views of the FRA to be elicited.

It is well-settled, and the parties do not dispute, that the FRA has statutory authority to regulate the safety of railroad employees. However, that fact alone does not establish that the FRA has preempted the Secretary under 29 U.S.C. {sec} 653(b)(1). The Secretary is not divested of jurisdiction unless the FRA has exercised its statutory authority over the working conditions that are the subject of the Secretary's citations. Consolidated Rail Corp., 82 OSAHRC 25/B6, 10 BNA OSHC 1577, 1579, 1982 CCH OSHD [[P]] 26,044, p. 32,708 (No. 79-1277, 1982). In this case, the parties disagree on whether installation of a sewer line near a railroad track comes within the purview of the FRA's regulations and a "policy statement" the FRA has issued elaborating on the working conditions and hazards over which it has exercised authority. 43 Fed. Reg. 10583 (1978).

Since preemption of OSHA under 29 U.S.C. {sec} 653(b)(1) involves another agency's exercise of statutory authority over safety and health, any authoritative statements by that agency as to the scope of its regulations will greatly assist the Commission in deciding the preemption issue. Northwest Airlines, Inc., 80 OSAHRC 87/B5, 8 BNA OSHC 1982, 1988, 1980 CCH OSHD [[P]] 24,751, p. 30,487 (No. 13649, 1980) (Commission gives considerable weight to interpretation by the Federal Aviation Administration that it has exercised statutory authority to regulate the safety and health of airline maintenance personnel). In support of her position that FRA regulations do not preempt OSHA in the circumstances here, the Secretary has moved to supplement her brief before us with a letter the Secretary states she received from S. Mark Lindsey, the Chief Counsel of the FRA, after she sent a copy of her review brief to Mr. Lindsey for his consideration. The letter asserts that FRA regulations do not cover the working conditions at the trench on Burlington Northern's worksite. In effect, the Secretary asks that we accept this letter as stating the view of the FRA that its regulations do not preempt OSHA in this case. However, we conclude that the letter attached to the Secretary's brief does not show an official interpretation or position of the FRA for the following reason.

The record reflects that the FRA investigated the accident at Burlington Northern's worksite and prepared a report of its findings.[[2/]] Although the FRA did not release its investigative report until after this case was tried and the judge had issued his decision, the FRA's report was available at the time the Lindsey letter was written.[[3/]] However, the letter does not discuss the FRA report or any of its findings despite the fact that Mr. Lindsey acknowledges that "[a]ccident investigations determine whether regulations promulgated by the FRA have been violated or whether there may be need for additional regulations to ensure employee safety in areas not within another agency's jurisdiction." (emphasis added).

In view of the admitted significance of FRA investigative reports, the failure of the Lindsey letter to address or indeed to make any reference whatever to the FRA's inquiry into the incident that precipitated the Secretary's inspection is a substantial omission that precludes us from treating the letter as an expression of the official view of the FRA regarding the scope of the FRA regulations in question. Cf. Long Beach Container Terminal, Inc. v. OSHRC, 811 F.2d 477 (9th Cir. 1987) (official statements of the agency that promulgates the standards in question constitute the proper guide to their meaning). We simply cannot accept the letter as an authoritative statement of the FRA's position when it ignores a report prepared in the normal course of the FRA's business pursuant to the FRA's regulations and dealing with the very factual situation at issue. We therefore deny the Secretary's motion to supplement her brief with Mr. Lindsey's letter.

Nevertheless, we do not think this case can be properly decided on the present record. It is at least arguable that the results of the FRA investigation could support or could counter the Secretary's contention that the FRA's regulations do not extend to the working conditions at issue. See Dillingham Tug & Barge Corp., 82 OSAHRC 40/D6, 10 BNA OSHC 1859, 1862, 1982 CCH OSHD [[P]] 26,166, p. 32,997 (No. 77-4143, 1982) (reliance on findings of a Coast Guard investigation of the incident that resulted in the Secretary's citations). The bearing the FRA's report may have on the preemption issue is best determined by the trial judge since the significance of the report, if any, depends on whether it is offered and admitted into evidence and on whatever factual findings may be deduced from the investigative report should it become part of the record. Cf. Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1898-99, 1979 CCH OSHD [[P]] 24,002, p. 29,133 (No. 15242, 1979) (recently-discovered evidence not in existence at the time of the hearing as a ground for reopening the record). Regardless whether the report itself is produced, a remand to the judge will also allow the parties an opportunity to present an official or authoritative statement of position by the FRA by any other appropriate means, including the filing of a brief by the FRA.[[4/]] See Puget Sound Tug & Barge, 81 OSAHRC 50/A2, 9 BNA OSHC 1764, 1766, 1772-73, 1981 CCH OSHD [[P]] 25,373, pp. 31,586, 31,592-93 (No. 76-4905, 1981) (appearance at oral argument and amicus curiae brief by Coast Guard regarding its exercise of its authority over the safety of employees on vessels in navigable waters).

Accordingly, the judge's decision is set aside and this case is remanded for further proceedings consistent with this opinion.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: March 10, 1989




SECRETARY OF LABOR,
Complainant,

v.

BURLINGTON NORTHERN RAILROAD COMPANY,
Respondent.

OSHRC Docket No. 87-0365

APPEARANCES:

Mary D. Wright and Stephen G. Reynolds,
Attorneys for the U.S. Dept. of Labor.

Edward W. Mullen and Daniel J. Ryan,
Attorneys for the Respondent.


DECISION AND ORDER


Louis G. LaVecchia, Judge

This proceeding arises under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. sec. 651 et seq.), also referred to as the "Act."

A fatal accident during a trenching operation occurred on November 22, 1986 at the respondent's workplace in North Kansas City, Missouri. An investigation by the Occupational Safety and Health Administration (OSHA) resulted in the issuance of a citation alleging serious violations of the safety standards promulgated under the Act and civil penalties were proposed. The respondent seeks review of the citation and penalties proposed.

A hearing was held in the matter on November 4-5, 1987 in Kansas City. Briefs have been filed by the parties.

The threshold question finds the respondent contending that OSHA was without jurisdiction to take action against it on the theory that the Federal Railroad Administration had preempted the authority to regulate safety matters pertaining to the respondent's operation, leaving OSHA without enforcement authority. The complainant denies that the FRA regulations amounted to a preemption of its authority.

Section 4(b)(1) of the Act provides 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."

The Secretary of Labor (the complainant herein) acknowledges that under the Federal Railroad Safety Act of 1970, 45 USC 421 et seq., the Secretary of Transportation, acting through the FRA, has authority to promulgate and enforce safety regulations affecting the working conditions of railroad employees. However, the complainant argues that the exemption provided by section 4(b)(1) is not activated by the mere existence in the FRA of statutory authority to regulate railroad safety, citing the following authorities:

"OSHA's authority to regulate a given working condition. . . is foreclosed only insofar as another agency has exercised its authority to regulate that working condition." Practico v. Portland Terminal Co., 783 F.2d 255, 262 (1st Cir. 1985); PBR, Inc., v. Secretary of Labor, 643 F.2d 890,896 (1st Cir. 1981); Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 389 (5th Cir. 1976).

"Working conditions" as used in section 4(b)(1) "encompasses both a worker's 'surroundings' and 'hazardous incident to his work." Corning Glass Works v. Brennan, 417 U.S. 188, 202 (1974); Southern Pacific, 539 F.2d at 390; PBR, 643 F.2d at 896.

The complainant further notes that in the FRA's 1978 policy statement, subpart C, entitled OSHA JURISDICTION, the FRA stated that:

* * * If FRA were to address all occupational safety and health issues which arise in the railroad yards, shops, and associated offices, the agency would be forced to develop a staff and field capability which, to an extent, would duplicate the capability already possessed by OSHA. In view of this situation, FRA recognizes that OSHA currently is not precluded from exercising jurisdiction with respect to conditions not rooted in railroad operations nor so closely related to railroad operations as to require regulation by FRA in the interest of controlling
predominant operational hazards.

43 Federal Register, No. 50, March 14, 1978, at 10587. The term "railroad operations" refers to the movement of equipment over the rails. Id. at 10585.

Following the accident giving rise to the complaint herein the FRA conducted an investigation of the event, but a final report was never issued by that agency. (Tr. 232-233).

The respondent argues that OSHA jurisdiction is ousted and inapplicable where the physical structures involved, such as the tracks and adjacent excavation may be subject to FRA regulation.

There has not appeared any precedent covering the precise situation presented here. In the absence of such precedent I am inclined toward the position taken by the government--that the installation of a sewer line near a railroad track is not related to the movement of equipment over the tracks, and cannot be considered railroad operations or an activity so closely related to railroad operations as to require regulation by FRA in the interest of controlling predominant operational hazards.

The Alleged Violations

As amended, the citation and complaint assert, in essence, that the respondent violated the safety standard set forth at 29 CFR 1926.652(b) in that the sides of the trench, which were in unstable or soft material, and which were 5 feet or more in depth, were not shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them.

In the alternative the complainant alleges that the respondent violated 29 CFR 1926.652(c) in that the sides of the trench, which were in hard or compact soil, including embankments, were not shored or otherwise supported when the trench was more than five feet in depth and eight feet or more in length and the sides of the trench above the five-foot level were sloped steeper than a one-foot rise to each 1/2 foot horizontal.

Under Item 1b of the citation, as amended, the complainant alleges that the respondent was in violation of 29 CFR 1926.650(i) in that daily inspections of the excavation were not made by a competent person and, although evidence of a possible cave-in or slide was apparent, all work was not ceased until the necessary precautions had been taken.

Item 2 of the citation alleges that the respondent was in violation of 29 CFR 1926.651(i)(1) in that the excavated or other material was not effectively stored and retained at least 2 feet or more from the edge of the excavation.

Item 3a alleges a violation of 29 CFR 1926.652(e) in that additional precautions by way of shoring and bracing were not taken to prevent slides or cave-ins in an excavation which was subjected to vibrations from railroad traffic.

Item 3b alleges that the respondent was in violation of 29 CFR 1926.652(h) in that employees were required to be in a trench 4 feet deep or more, without adequate means of exit, such as a ladder or steps, having been provided and located so as to require no more than 25 feet of lateral travel.

Specific Findings

Consideration has been given to the entire record in this proceeding, and the following specific findings of fact are made:

1. The respondent Burlington Northern Railroad is a corporation with a place of business and a workplace in North Kansas City, Missouri.

2. The respondent employs in excess of 2,500 employees and is engaged in interstate commerce.

3. On November 22, 1986 and for several days prior thereto respondent's employees were engaged in installing a new sewer line within a trench.

4. On November 22, 1986 the sides of the trench were five feet or more in depth. (Tr. 33-34, 96).

5. On November 22, 1986 and for some time before that, the sides of the trench were in soil comprised of a sand and clay mix. (Tr. 41, 100, 139).

6. The sides of the trench were sloped to less than 45 degrees on the day the sewer line crossed Atlantic Street, the day the line crossed the single tracks, and each day thereafter through the date of the cave-in on November 22, 1986. (Tr. 35,38,41,97-8,135-7).

7. The trench was not shored in the date of the accident. (Tr. 35,38,41,48).

8. For several days the deceased employee (Carpenter) and other employees worked in trenches over 4 feet deep, the sides of which were not sloped to less than a 45 degrees angle or shored. (Tr. 34-5, 37-8, 48, 130, 179, 209).

9. On the day the sewer line passed Atlantic Street Carpenter had to be told two or three times to get out of the unshored trench. (Tr. 208).

10. The respondent's employees were never instructed to stop work or get out of the trench until proper sloping had been done, or adequate shoring had been installed. (Tr. 38, 98, 131-2, 244).

11. On the date of the accident the trench was 8 to 9 feet wide at the top, about 15 feet deep, 15 to 18 feet long, and 4 to 4-1/2 feet wide at the bottom. (Tr. 48).

12. No ladder or steps were in the trench at the time of the accident or at any time before that. (Tr. 51, 140).

13. There was train traffic on the tracks near the trenching operation on the date of the accident. (Stip. 6; Tr. 46-7, 50, 143).

14. The respondent's safety training program was inadequate and the enforcement of its safety rules was lax and inefficient.

15. The emergency exit facilities and arrangements were inadequate.

16. The respondent's supervisory personnel were lax in their enforcement of the company safety rules.

17. The respondent knew or should have known that there was present a significant hazard to the safety of its employees in the manner in which the trenching operation was being performed.

Discussion

The evidence establishes that a trench between 10 and 15 feet deep was being dug by the respondent's employees on the respondent's property for the purpose of laying a sewer line. Although shoring and bracing materials were made available, the respondent's supervisory personnel failed to make certain that the shoring of the trench, which was not sufficiently sloped, was performed for the safety of the employees. Sloping of the trench wall when it reached a point close to one of the respondent's main tracks was not possible for proximity, but shoring, sheeting, or bracing of the wall could have been accomplished. None of these measures was undertaken, and the fatal cave-in of the trench wall occurred.

The supervisory personnel were aware of the proximity of the trench to the railroad tracks and the vulnerability of the trench walls to the vibrations caused by passing trains. They were under a duty to stop the work immediately as they saw that employees were working in a trench which had not been properly protected against cave-in hazards. No resumption of work should have been permitted until proper shoring had been effected.

Although the respondent contends that it had an adequate safety program for the instillation of safe working habits in its employees their action in entering a deep trench without protection against cave-ins belies the effectiveness of the program. The program must be considered inadequate in view of the results.
It is also evident that the safety measures which might have been ordered followed by the respondent's employees were not enforced by the company. No disciplinary action against the deceased employee or any other employee for violating the company safety regulations with respect to trench operations was taken.

In the circumstances shown the respondent's defense of employee misconduct will not lie.

Respecting the absence of a ladder or steps which could be used by an employee to exit the trench quickly in the event of an emergency the inadequacy of the sloping at the ends of the trench is shown in the fact that when the deceased attempted to climb out of one end of the trench he was unable to do so and was trapped by the cave-in.

There did not appear to be any violation of the applicable standard concerning the piling of the spoils on the sides of the trench. The conflicting testimony of the employees must be resolved in favor of the respondent.

The question of the inspection of the work by a competent person does not necessarily revolve around the actual competency of the persons who made the inspections. In this respect it appears that those who did so were competent to identify existing and predictable hazards which might have been evident during the progress of the work. It was the inaction on the part of these individuals - their failure to take prompt corrective measures to eliminate the hazards, that must be criticized.

It is axiomatic that the actions or inaction's of supervisory personnel are imputed to the employer in matters of this kind.

I conclude that the complainant has successfully sustained the burden of proving by a preponderance of the evidence that the respondent violated all items shown in the citation, as amended, with the exception of Item 2 regarding the storing of the spoils of the trench excavation. The affirmed violations were serious.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter herein.

2. The Federal Railroad Administration has not exercised its authority to regulate the working conditions at issue and, therefore, the Occupational Safety and Health Administration (OSHA) regulations have not been preempted under Section 4(b)(1) of the Act.

3. At all times material hereto the respondent was an employer within the meaning of Section 3(5) of the Act, engaged in a business affecting commerce, and having employees.

4. The citation, as amended, the notification of proposed penalty, and the notice of contest were served by and upon the respective parties in accordance with Section 10 of the Act.

5. The respondent violated the safety standard set forth at 29 CFR 1926.652(b), or, in the alternative the standard set forth at 29 CFR 1926.652(c).

6. The respondent violated the safety standard set forth at 29 CFR 1926.650(i).

7. The respondent violated the safety standard set forth at 29 CFR 1926.652(e).

8. The respondent violated the safety standard set forth at 29 CFR 1926.652(h).

9. The violations shown above were properly categorized as "serious" within the meaning of Section 17(k) of the Act.

10. The penalty assessed below is reasonable and appropriate in light of the criteria in Section 17(j) of the Act.

11. The respondent did not violate the safety standard set forth at 29 CFR 1926.651(i)(1).

ORDER


1. Items 1a, 1b, 3a, and 3b of Citation No. 1, as amended, are affirmed.

2. Item 2 of Citation No. 1, as amended, is vacated.

3. A civil penalty of $910 is assessed for the violations found under items 1 and 3 (and subsections thereof) of the described citation.

So ORDERED.

Louis G. LaVecchia
Judge, OSHRC

Date: July 5, 1988





SECRETARY OF LABOR,
Complainant,

v.

BURLINGTON NORTHERN RAILROAD COMPANY,
Respondent.

OSHRC Docket No. 87-0365

Appearances: As shown in my initial decision. In addition, on brief: Mark J. Lerner, Esquire, for the Complainant.

Decision on Remand

The Commission remanded this matter for further consideration of the 4(b)(1) exemption discussed previously. The parties agreed to present their arguments on brief, eschewing the necessity of a further hearing.

The briefs expand upon the arguments made earlier. The respondent's brief while demonstrative of erudite analysis of the railroad's position, fails to convince me that OSHA does not have jurisdiction of the case under the facts found.

The complainant's brief contains a statement from the FRA's chief counsel recognizing OSHA's expertise and jurisdiction in areas outside traditional railroad operation, reserving to FRA those areas that are directly related to the provision of a transportation service by rail. It considers the digging of a trench for the installation of a water line to be a "construction" activity, and therefore defers jurisdiction to OSHA.

In these circumstances I find no reason for any revision in the findings of fact and conclusions of law set forth in my initial decision. It is, therefore, reaffirmed.
So ORDERED.

Louis G. LaVecchia
Judge, OSHRC

Date: November 2, 1989



FOOTNOTES:

[[1/]] 29 U.S.C. {sec} 653(b)(1) 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 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

[[2/]] Under 49 C.F.R. 225.31, the FRA, in addition to investigating all accidents arising out of rail transportation that cause death to a railroad employee, also investigates any accident or incident "when it appears that an investigation would substantially serve to promote railroad safety."

[[3/]] The Secretary's review brief states that the Secretary's counsel has received a copy of the FRA report. However, the Secretary's counsel has not moved to admit the report into evidence.

[[4/]] We do not necessarily require the parties to introduce the FRA's investigative report into the record if they do not wish to do so. However, we expect at the very least that the substance or significance of the report will be addressed in whatever documents are submitted to establish the FRA's position so that we are not forced to speculate on how the FRA's investigation affects or relates to the preemption issue raised here.
We also express no opinion on Burlington Northern's cryptic statement that "it is of absolutely no importance here what action FRA may have taken upon concluding its own investigation in this case, or upon the issuance of its final report." Contrary to Burlington Northern's argument, this case does not involve the adequacy of FRA's enforcement of its regulations. The issue regarding the FRA investigation is whether, and if so how, the FRA investigation bears on the scope of the FRA regulations alleged to preempt OSHA.