UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

October 17, 1975

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

BY THE COMMISSION:

These matters present the precise questions of law1 which were decided in Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), petitions for review docketed, Nos. 74-3981 and 75-1091 (5th Cir., Nov. 29, 1974 and Jan. 10, 1975). Following inspections of their respective worksites, each Respondent was cited for allegedly violating the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter ‘the Act’). The existence of the violations is not in dispute.2 Rather, Respondents defended primarily on the theory that section 4(b)(1) of the Act creates an industry-wide exemption for railroads by virtue of the fact that the Secretary of Transportation has promulgated some safety regulations affecting the industry.3 Other than the alleged recordkeeping violations,4 there was no showing that the working conditions involved herein are the subject of Department of Transportation regulations.5

The Administrative Law Judges in conformity with our prior decisions uniformly rejected the argument of an industry-wide exemption for railroads. Except for one instance,6 our decision in Southern Pacific was properly applied by vacating the alleged recordkeeping violations and affirming the other violations.7 Accordingly, the Judge’s decisions are affirmed in Belt Railway Company of Chicago, Number 4616;8 Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Numbers 7978 and 11251; Newburgh & South Shore Railway Company, Number 9078; Norfolk & Western Railway Company, Numbers 9642, 10758 and 10771; Southern Pacific Transportation Company, Number 10332; Baltimore & Ohio Railway Company, Numbers 10686 and 10832; Penn Central Transportation Company, Numbers 10886, 11013 and 11177; Burlington Northern, Inc., Number 11325; Illinois Central Gulf Railroad Company, Number 11338; Chicago Union Station Company, Docket 10917; and Richmond, Fredericksburg & Potomac Railroad Company, Dockets 10836 & 10857. In Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Docket Number 5860, we vacate item 34, alleging a recordkeeping violation for the reasons given in Southern Pacific, and we otherwise affirm the Judge’s decision and assess a penalty of $635.9

For the reasons given in his separate opinion in Southern Pacific, Commissioner Cleary would affirm the alleged recordkeeping violations in Docket Numbers 5860, 10832 and 11338.

MORAN, COMMISSIONER, concurring in part, dissenting in part:

All citations in these cases should be vacated because the respondents are not subject to the jurisdiction of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 et seq., by virtue of 29 U.S.C. § 653(b)(1) which provides in pertinent part:

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

This provision reflects the intent of Congress not to place regulation of job safety and health conditions of all employees under OSHA and not to repeal or modify a number of other laws enacted over a span of many years which included provision for regulatory authority in order to improve safety conditions.

It is clear that the Department of Transportation has authority to regulate all areas of employee safety for the railroad industry. See Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258, 259 (1974). Furthermore, the Department of Transportation has prescribed numerous regulations governing many aspects of railroad safety (see 29 C.F.R. §§ 211-236), although those regulations do not extend to all working conditions that prevail in the railroad industry.

Congress intended to give primacy to existing laws and to subordinate OSHA’s coverage to those existing laws. This conclusion is dictated by the clear language of 29 U.S.C. § 653(b)(1) and (4), the legislative history of OSHA, and sound practical reasons. Accordingly, I find that an exemption is created for an entire industry under 29 C.F.R. § 653(b)(1) when another Federal agency, pursuant to statutory authority, prescribes or enforces any standard or regulation which affects occupational safety or health in that industry.

The expansive wording of section 653(b)(1) indicates that Congress intended no contraction of the coverage of the existing laws. If another Federal agency exercises authority to ‘prescribe or enforce,’ Congress said, then this Act does not apply. The prescribing or enforcing authority is for either ‘standards or regulations’ which may be ‘affecting’ job ‘safety or health.’

If Congress had intended the result imposed by the Commission, it most certainly would have drafted section 653(b)(1) in a different manner. If that had been its intent, it would have provided that OSHA would apply to all employees except where another Federal agency exercises its statutory authority to prescribe or enforce occupational safety or health regulations.

The legislative history of OSHA reflects congressional consideration of the question here in issue on several occasions during the enactment stages of the law. Study of that history clearly shows that Congress intended for section 653(b)(1) to provide industrywide exemptions.

House Report No. 91-1460 contains the following remarks of Congressman Steiger in regard to OSHA’s effect on other laws:

While this section does not foreclose the authority of the Secretary of Labor in instances where another agency or department has statutory authority in the area of occupational safety and health, but has taken no action, it is anticipated that these instances will be extremely rare. It is intended that the Secretary of Labor will not exercise his authority where another agency with appropriate jurisdiction has taken steps to exercise its authority, even though the action might be at the formative stage of regulations or enforcement.10

The assertion that ‘it is anticipated that these instances will be extremely rare’ would make little sense under the Commission’s nook-and-cranny theory. Following that theory to its logical conclusion, if the Secretary of Transportation did not consider it necessary to regulate a particular condition in the interest of railroad safety and the Secretary of Labor was of a contrary view, the latter’s judgment would prevail over the former’s. Surely, if Congress had intended such an unusual result, it would have been explicit in so stating. Moreover, the last sentence of the quotation belies the contention that OSHA jurisdiction is precluded only when another agency has promulgated a duplicative regulation.

During the debates which preceded the passage of OSHA, the following colloquy11 occurred in the House:

[MR. ERLENBORN.] I call to mind the coal mine safety bill which is not repealed by this bill. Yet, the rules and regulations under this act, as provided in the committee bill, could and should and would get into the area of coal mine health and safety and the metallic and nonmetallic mine safety act and the health and safety act—all three of these would continue to exist and there would be no reason why the health and safety rules promulgated under this act would not also apply to those industries?

MR. PERKINS. I would say to my distinguished colleague that he is incorrect in that statement because all these various legislative acts as railway safety and mine safety are specifically exempted under section 22(b).

MR. ERLENBORN. I stand corrected . . .. Is it your understanding that present Federal laws providing authority to the executive agency to prescribe health and safety standards that are being exercised will then exempt that industry from the coverage of this act?

MR. DANIELS of New Jersey. All Federal agencies which are covered by the health and safety laws will be exempt from this act—with just one exception. That is the construction industry . ..

MR. ERLENBORN. In other words, the mere existence of statutory authority does not exempt an industry? It is the exercise of that authority pursuant to the statute that does exempt it; is that correct?

MR. DANIELS of New Jersey. That is correct.

MR. ERLENBORN. I have one other question . . .. If presently existing statutory authority which is not presently being exercised at the time this bill goes into effect, but is then subsequently exercised; does that then at the time it is exercised exempt an industry?

MR. DANIELS of New Jersey. At the time that that authority is exercised, that industry will be exempt.

MR. ERLENBORN. So this does have a prospective effect. In other words, we are not going to interpret this language only as thought [sic] it were being interpreted as to conditions that exist on the day it becomes law, but it will have a prospective effect and the future exercise of authority will then exempt an industry from coverage under this law?

MR. DANIELS of New Jersey. The gentleman is absolutely correct.

Not only do these members of Congress refer again and again to an ‘industry’ exemption, Congressman Perkins, Chairman of the Committee which reported the occupational safety and health bill to the House floor, answers unequivocally that the ‘rules and regulations under this act’ will not affect existing legislation. In the same answer he declares that the various other safety acts are specifically exempted by Section 22(b) of H.R. 16785. Section 22(b),12 changed only slightly in wording, not meaning, became section 653(b)(1).

The following legislative colloquy is even more specific in indicating that an industrywide exemption was intended:

MR. PODELL. [A]s my distinguished colleague knows, the U.S. Bureau of Mines of the Department of the Interior now has jurisdiction over the health and safety conditions of many mining industries pursuant to the Federal Metal and Non-Metallic Mine Safety Act of 1966. Does section 22(b) provide for a transfer of this jurisdiction to the Secretary of Labor?

MR. DANIELS of New Jersey. [T]he answer is ‘No.’ Section 22(b) would only allow the Secretary of Labor to assert jurisdiction over health and safety conditions within the mining industries now subject to the Federal Metal and Non-Metallic Mine Safety Act when the Secretary of Interior has failed to exercise his statutory authority to set health and safety standards or otherwise declines to assert any jurisdiction over the mining industries under that act. In other words, only when the Secretary of Interior completely abrogates his responsibilities under the Federal Metal and Non-Metallic Mine Safety Act would the Secretary of Labor be allowed to invoke section 22(b) and set standards for the mining industries now subject to the Mine Safety Act.13

Of course, the same would be true where other Federal agencies have jurisdiction to regulate occupational safety or health in other industries.

The recent remarks of Senator Williams, one of the coauthors of OSHA, in introducing S. 1743 on May 14, 1975, makes it clear that the present OSHA jurisdiction does not extend to the railroad industry. In introducing that bill, which would transfer jurisdiction over railroad safety and health from the Department of Transportation to the Department of Labor, Senator Williams stated that:

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

121 Cong. Rec. S8093 (1975)

The ‘working conditions’ concept, as adopted by the Commission, is too elusive. The term ‘working conditions’ could include anything that might be classified as hazardous to employees. It is difficult to think of anything that could not be so classified at one time or the other, whether it be an employee’s hours of work, state of mind, age, or traits of personality.

Employers in the railroad industry must be familiar with all Department of Transportation railway safety regulations. The Commission’s position will place an intolerable burden on those employers who will also be responsible for determining whether gaps in the railway safety regulations are covered by the massive OSHA regulations. It has recently been reported that when the initial OSHA regulations were ‘stacked one on top of another, they created a pile 6 feet high.’14 The stack is even higher today. Those regulations cover every conceivable aspect of human endeavor, including the configuration of toilet seats,15 the disposal of used hand towels,16 the placement of fire extinguishers,17 the amount of noise18 and toxic chemicals19 to which an employee may be exposed, and the color of fire exit signs.20 To read all the regulations would take days. To understand their full meaning and applicability is probably an impossible task.

Furthermore, an additional dilemma is created for employers when OSHA regulations conflict with those promulgated by another agency. A congressional subcommittee has commented on that situation in the following manner:

The problem of competing jurisdictions and conflicting regulations was also raised by many of the witnesses. For example, the Bureau of Mines may have jurisdiction over certain excavations, and in somes [sic] instances, its regulations directly conflict with those of OSHA which apply to excavations. The Department of the Treasury has jurisdiction over explosives, and its requirements are, in some cases, not the same as OSHA’s. The Department of Agriculture and the Food and Drug Administration have standards applying to packing-houses which conflict with OSHA’s general regulations. In these cases, an employer is caught in the middle, in that he may be fined by OSHA for doing what he is required to do by another governmental agency.

One witness testified that he solved this problem by having a two-way radio which he would use to notify the foreman of which agency was coming and then instruct him to make the appropriate changes. But this is not a realistic solution for a problem as serious as this.21

I do not believe that Congress intended a result that could lead to such absurdities.

In my opinion, Congress envisioned a comprehensive program for employee safety under which the Department of Labor would have jurisdiction over those industries not under the regulatory authority of some other Federal agency. There is nothing in the legislative history which gives any reason why Congress would take jurisdiction from one agency with ling-standing expertise in a particular industry and give it to another agency which had none. Again, I believe that any such intention would have been clearly stated.

To the contrary, however, 29 U.S.C. § 653(b)(4) amplifies the meaning of section 653(b)(1) by providing in pertinent part that:

Nothing in this chapter shall be construed . . . to enlarge or diminish. . . the . . . statutory rights, duties, or liabilities of employers . . . under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. (Emphasis added.)

Thus, it is clear that Congress intended for section 653(b)(1) to exempt an entire industry where the safety or health of its employees is regulated by another Federal agency pursuant to statutory authority.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

OTTO, JUDGE:

The sole issue in the above case22 is jurisdictional, whether working conditions of respondent’s employees are subject to the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. This question has been resolved in favor of complainant in Review Commission decisions, Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) and Secretary v. Seaboard Coastline Railroad Company, —— OSAHRC —— (Docket No. 2802, November 18, 1974).

Although no stipulation of facts has been filed, the procedural documents and the informal record of the pre-hearing conference establish that there is no dispute between the parties as to material facts. The conditions involved have been abated by the respondent.

Following inspection on July 5, 1973, the Secretary of Labor issued a citation September 10, 1973 charging The Belt Railway Company of Chicago with eight items of non-serious violation, with a notification issued September 10, 1973 proposing a penalty of $55 each for item 3 and item 7. Timely notice of contest, complaint and answer were filed and the proceedings held in abeyance pending resolution of the jurisdictional question.

It is therefore found that the respondent at all times relevant has been and remains an employer engaged in a business affecting commerce with employees within the meaning of 29 USC 652(5), is an employer subject to the provisions of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. and failed to comply with the standard or standards set forth in each citation item.

It is Ordered that the citation and the notification of proposed penalty issued September 10, 1973 be and the same are confirmed in all respects.

OTTO, JUDGE:

The above two cases23 were consolidated due to common questions of law, with no factual dispute. The legal question has been resolved in favor of complainant in Review Commission decisions, Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) and Secretary v. Seaboard Coastline Railroad Company, —— OSAHRC —— (Docket No. 2802, November 18, 1974).

Complainant has filed a motion for summary judgment. There is no dispute between the parties as to material facts, the respondent admits the violations charged by the complainant and the respondent’s defense is insufficient as a matter of law. The motion for summary judgment is granted in each case.

Docket No. 5860

A citation was issued November 21, 1973 alleging 34 items of non-serious violation. Notice of contest, complaint and answer were duly filed. A stipulation of facts was filed September 10, 1974, the respondent preserving the sole issue before the Review Commission of whether the respondent is exempt under Section 4(b)(1) of the Occupational Safety and Health Act from the provisions of such Act. Complainant’s motion filed September 12, 1974 to withdraw certain items of the citation and complaint is granted and therefore citation item 14 and complaint paragraph IV(a)(14) is withdrawn, with withdrawal of citation item 9(b), (d) and (f) and complaint subparagraphs IV(a)(9)(b), (d) and (f). The parties stipulate that except as withdrawn, all citation items were in violation and contrary to the language of the specific standard cited.

It is therefore Ordered that citation items 9(b), 9(d) and 9(f) and citation item 14 be and the same are hereby deleted and that the citation is otherwise confirmed in all respects with regard to each item.1

Docket No. 7978

Following inspection on April 2, 1974, a citation was issued alleging two items of non-serious violation. Notice of contest and complaint were duly filed.

On September 10, 1974 the parties filed a stipulation of facts’, including stipulation that the respondent maintained working conditions contrary to the language in 29 CFR 1910.179(j)(2)(iii) and 29 CFR 1910.179(m)(1), respondent preserving the jurisdictional issue under Section 4(b)(1) of the Occupational Safety and Health Act of 1970.

It is therefore Ordered that the citation issued April 11, 1974 be and the same is hereby confirmed in all respects.

CHALK, JUDGE:

By letter dated February 4, 1975, I informed Respondent that the jurisdictional question appeared to be the sole issue raised in the case,24 that the Commission had resolved such issue adversely to Respondent (Secretary v. Union Railroad Company, Docket No. 4318, November 2i, 1974); Secretary v. Southern Pacific Transportation Company, Docket No. 1343, November 15, 1974), and that I proposed to issue a summary order after February 20, 1975 affirming the Citation and the penalty proposals unless Respondent, on or before that date, indicated in writing that it desired a hearing on other issues. Respondent has failed to respond thereto.

Citation number 1 for nineteen nonserious violations is affirmed. The following penalties are assessed:

Item 1—$100.00

Item 3—55.00

Item 14—30.00

So ORDERED.

STULLER, JUDGE:

On July 11, 1974, the Secretary of Labor issued a citation charging that on July 3, 1974, the respondent25 failed to comply with certain regulations in the violation of section 654(a)(2) of the Occupational Safety & Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as the Act). A Notification of Proposed Penalty was issued to the respondent simultaneously with the citation proposing total penalties of $110. A timely Notice of Contest was filed by the respondent and this Commission thereby acquired jurisdiction over the subject matter under section 659 of the Act. A hearing was held in Cleveland, Ohio on October 7, 1974.

The descriptions of the alleged violations as contained in the citation, the proposed penalties and the standards allegedly violated are as follows:

Item 1 Failed to post notice of the Occupational Safety and Health Act of 1970.

In violation of 29 C.F.R. 1903.2(a). Proposed Penalty: $50.

29 C.F.R. 1903.2(a).

Each employer shall post and keep posted a notice of notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced or covered by other material.

Item 2 Failed to utilize valve protection caps, where cylinder is designed to accept a cap, except when cylinders are in use or connected for use:

Outside west end of car shop.

In violation of 29 C.F.R. 1910.252(a)(2)(ii)(d). Proposed Penalty: $30.

29 C.F.R. 1910.252(a)(2)(ii)(d)

Valve protection caps, where cylinder is designed to accept a cap, shall always be in place, hand-tight, except when cylinders are in use or connected for use.

Item 3 Failed to store cylinders in a well protected, dry location at least twenty feet from highly combustible materials. Cylinders should be stored in definitely assigned places away from elevators, stairs, or gangways, and located where they will not be knocked over, damaged, or subject to tampering. Cylinder located at the east end of the locomotive repair and maintenance shop.

In violation of 29 C.F.R. 1910.252(a)(2)(ii)(b). Proposed Penalty: $30.

29 C.F.R. 1910.252(a)(2)(ii)(b)

Inside of buildings, cylinders shall be stored in a well-protected, well-ventilated, dry location, at least 20 feet from highly combustible materials such as oil or excelsior. Cylinders should be stored in definitely assigned places away from elevators, stairs, or gangways. Assigned storage spaces shall be located where cylinders will not be knocked over or damaged by passing or falling objects, or subject to tampering by unauthorized persons. Cylinders shall not be kept in unventilated enclosures such as lockers and cupboards.

At the hearing, the parties agreed that the only issue that they wish to be considered was whether the respondent railroad is exempted from compliance with the Act pursuant to section 4(b)(1) of the Act (29 U.S.C. 653(b)(1)). All other issues were conceded by the respondent including the commission of the violations as alleged and the appropriateness of the penalties.

After the filing of briefs in this case, the Commission issued their decision in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974). The Commission held in the Southern Pacific case that section 4(b)(1) of the Act does not provide industry exemption but rather it provides an exemption only for specific working conditions where another federal agency actually exercises its statutory authority to prescribe and enforce safety and health standards in regard to those working conditions. The respondent in the present case has failed to show that the Department of Transportation has exercised its authority in regard to any specific working condition concerned herein. It is, therefore, concluded that the Act does apply to the violations in the present case.

ORDER

As it has been concluded that the Act does apply to the violations alleged herein, and as the respondent has conceded the violations and the appropriateness of the proposed penalties, it is therefore ORDERED that the Citation and Notice of Proposed Penalty herein are AFFIRMED in all respects.

BRADY, JUDGE:

This consolidated proceeding26 is brought pursuant to section 10 of the section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., (hereinafter referred to as the Act) to contest three citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citations alleged that as the result of certain inspections at respondent’s workplaces located at Muncie, Tipton, and Peru, Indiana, respondent violated section 5(a) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary pursuant to section 6 thereof. Notice of proposed penalties were issued with the citations.

A stipulation by the parties hereto resolved the issues in this proceeding except those relating to whether the respondent being part of the railroad industry, is exempt under section 4(b)(1) of the Occupational Safety and Health Act, and whether the citations herein were issued with ‘reasonable promptness.’

The stipulation provided that the inspections which gave rise to the issuance of the citations were conducted jointly by representatives of the United States Departments of Labor and Transportation. Following each of the aforesaid inspections the compliance officer for the Department of Labor prepared a draft citation and proposed penalty which was reviewed by his area director. Subsequently, the draft citation and proposed penalty worksheet were forwarded to the Washington office of the Department of Labor. After each case was forwarded to Washington it was reviewed by the Office of the Associate Solicitor, and the Office of Compliance Programing for the Occupational Safety and Health Administration. This review was concerned with whether or not the conditions should be cited under the Occupational Safety and Health Administration or the Federal Railway Administration.

The stipulation reveals that the area director could not issue the citation until after authorization was granted from Washington. The parties agreed that at the time the area director reviewed the compliance officer’s report he formed a belief as to whether the conditions found to exist were contrary to the language contained in OSHA standards. Also, he formed a belief as to whether the conditions cited were violations of the Act after Washington informed him that the Occupational Safety and Health Administration rather than Federal Railway Administration had jurisdiction of each violation.

The record indicates that the citations were issued approximately 83 days following the review by the area director in docket 9642, 25 days in docket 10758 and 52 days in docket 10771.

Respondent contends that the citations were not issued in accordance with section 9(a) of the Act (29 USC 658(a)) which provides in part:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act or of any standard, rule or order promulgated pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.

The Commission reviewed the legislative history in defining ‘reasonable promptness’ and stated in the case of Secretary of Labor v. Chicago Bridge and Iron Co. OSAHRC Docket No. 744 that:

The question before us was also before and answered by the House and Senate conferees. They said:

If the Secretary ‘believes’ that an employer has violated (mandatory requirements under the Act), he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. H. Rep. No. 91-1765 91st Cong. 2nd Sess. 38 (1970).

In view of this history, we conclude that absent exceptional circumstances complainant or his authorized representative must perform the ministerial task involved in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred. We assume that Congress did not intend weekends or holidays to be included within the 72 hour period so the period prescribed here is three working days.

The respondent therefore maintains that the extended period of time following the inspections and before issuance of the citations herein disregarded the reasonable promptness criteria established in Chicago Bridge and Iron Co., supra.

The complainant assets that the citations were issued in a manner which satisfied the terms of section 9(a) as interpreted by the Commission in the Chicago Bridge and Iron case. It is pointed out that as soon as the jurisdictional decision was made and communicated to the area director he completed the decisional process by combining the jurisdictional decision with his previous decision as to the existence of conditions contrary to the particular standard. Therefore, the combination of decisions resulted in the area director forming his belief as to the violations under the Act, and all ministerial tasks were completed and the citations issued within the prescribed 72 hours. In addition complainant maintains that the 72 hour limitation was waived as ‘exceptional circumstances’ existed in this case as the coordinated action with the Federal Railway Administration on the question of legal jurisdiction constituted ‘exceptional circumstances’ within the purview of the Chicago bridge and Iron case.

In Chicago Bridge the Commission stated that the fundamental purpose of the Act is best served by prompt abatement of safety and health violations, thus ‘prompt abatement can be achieved only when an employer receives prompt notification of the conditions which are believed to be in violation of the Act’s requirements.’ It is therefore clear that Congress intended that all hazardous working conditions found to exist are to be corrected without undue delay and the prompt issuance of a citation is the first step toward accomplishing this purpose. The extended periods of time in question relate to action taken by the Washington office. On the basis of the facts presented, it would seem incumbent upon complainant to more specifically show that action occasioned the delays, in conformance with the reasonable promptness requirement. This view appears consistent with the Commission ruling that various actions by the Secretary’s representatives during a period of time did not constitute exceptional circumstances which would warrant a delay in the issuance of the citation. Secretary of Labor v. Julius Nasso Concrete Corporation, Contractors Layout Company, Inc. and Grossman Steel and Aluminum Corporation 7 OSAHRC 355.

However, the recent Commission decision in Secretary of Labor v. Louisville and Nashville Railroad Company OSAHRC Docket No. 5521 is controlling in this case on the question of reasonable promptness. Based on a similar factual situation the Commission held that:

The delay occasioned by the necessity for clearing of the citation by the national office was an ‘exceptional circumstance’ encompassed by the majority opinion in Chicago Bridge and Iron Company, No. 744 (January 29, 1974).

On the basis of the foregoing it therefore is held that the citations herein were issued with ‘reasonable promptness’ within the meaning of section 9(a) of the Act.

The remaining issue before the Commission relates to whether the respondent being part of the railroad industry is exempt under section 4(b)(1) of the Occupational Safety and Health Act. It is respondent’s contention that exclusive jurisdiction of matters relating to the health and safety of railroad employees resides with the Department of Transportation and, therefore, it is exempt from the provisions of section 4(b)(1). This issue of jurisdiction has been considered and resolved by the Commission in Secretary of Labor v. Southern Pacific Transportation Co., OSAHRC Docket No. 1348. The Commission ruled that the exemption provided under section 4(b)(1) of the act extends only to specific working conditions over which the Department of Transportation has actually exercised its authority. In that case it was stated that:

When a federal agency or department has authority to regulate safety and health working conditions in e.g., railroad shops, and does not exercise that authority, the working conditions are subject to OSHA regulations . . .

There is no evidence that the Department of Transportation has exercised authority to prescribe or enforce safety regulations with reference to the working conditions found to exist in this case. Thus, the working conditions which are alleged in the complaint, as amended, are of the type which are subject to regulation under the Occupational Safety and Health Act; and, therefore, this consolidated proceeding is correctly before the Commission.

FINDINGS OF FACT

1. Norfolk and Western Railway Company, is a corporation operating facilities among other places at Muncie, Peru, and Tipton, Indiana.

2. A compliance officer of the Occupational Safety and Health Administration conducted a joint inspection of the aforesaid facilities with a representative of the Federal Railroad Administration.

3. The joint inspections were conducted pursuant to agreement and in accordance with procedures to resolve any possible jurisdictional conflicts.

4. Following the aforesaid inspections the compliance officer’s reports were reviewed by his area director who formed a belief as to whether the conditions reported were contrary to the language of OSHA standards.

5. Upon review by the area director in each case, draft citations were forwarded to the Washington office for review. Subsequently, the citations herein were issued approximately 83 days, 25 days, and 52 days, respectively, following review by the area director.

6. The Department of Transportation has not prescribed or enforced safety regulations applicable to the areas of safety covered in the complaint, as amended.

CONCLUSIONS OF LAW

1. Norfolk and Western Railway Company at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein.

2. Respondent is, and at all times pertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. Review of the citations herein by the national office constituted an exceptional circumstance within the meaning of section 9(a) of the Act.

4. On May 15, 1974, respondent was in violation of the standards as alleged in paragraphs IV(a) and IV(b)(4) of the complaint as amended in docket No. 9642.

5. On August 28, 1974, respondent was in violation of the standards as alleged in paragraph IV(a) of the complaint as amended in docket No. 10758.

6. On September 26, 1974, respondent was in violation of the standards as alleged in paragraph IV(a) of the complaint as amended in docket No. 10771.

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

ORDERED:

1. Respondent’s Motion For Summary Judgment is hereby denied.

2. The citation and proposed penalties filed in docket No. 9642 alleging violation of the following standards are hereby affirmed.

29 CFR 1910.22(a)(1)

29 CFR 1910.141(g)(3)

29 CFR 1910.25(d)(1)(x)

29 CFR 1910.252(a)(2)(iv)(c)

29 CFR 1910.219(d)(1)

29 CFR 1910.252(b)(4)(ix)(c)

29 CFR 1910.157(d)(3)(i)

29 CFR 1910.157(a)(5)

29 CFR 1910.106(g)(8)

29 CFR 1903.2(a)

3. The citation and proposed penalties filed in docket No. 10758 alleging violation of the following standards are hereby affirmed.

29 CFR 1903.2(a)

29 CFR 1910.25(d)(1)(x)

29 CFR 1910.22(a)(1)

4. The citation and proposed penalties filed in docket No. 10771 alleging violation of the following standards are hereby affirmed.

29 CFR 1903.2(a)

29 CFR 1910.141(a)(3)(i)

29 CFR 1910.141(a)(4)(i)

29 CFR 1910.141(a)(5)

29 CFR 1910.141(c)(1)(iv)

29 CFR 1910.141(c)(2)(i)

MARTIN, JUDGE:

This is a proceeding27 brought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq), hereinafter referred to as the Act, regarding a nonserious citation issued by the Secretary of Labor, hereinafter referred to as complainant, pursuant to section 9(a) of the Act and the proposed assessment of penalties in the total amount of $355.00, pursuant to section 10(a) of the Act.

The citation, alleging certain nonserious violations, was issued on September 6, 1974, and alleges that an inspection of the work place (repair shop for signal equipment) under the ownership, operation, and control of respondent at 1400 Fulton Street, Houston, Texas, was conducted on or about May 29, 1974.

The citation describes the five alleged violations as follows:

The standards upon which the alleged violations are based provide as follows:

29 CFR 1903.2

Posting of Notice; availability of the Act, regulations and applicable standards.

(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U. S. Department of Labor, informing employees of the protection and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

29 CFR 1904.2

Log of Occupational injuries and illnesses

(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but not later than 6 working days after receiving information that a recordable case has occurred.

29 CFR 1904.5

Annual summary

(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on information contained in the log of occupational injuries and illnesses for the particular establishment.

29 CFR 1910.94

Ventilation.

(c)(2) Spray booths or spray rooms are to be used to enclose or confine all operations. Spray-finishing operations shall be located as provided in sections 201 through 206 of the Standard for Spray Finishing Using Flammable and Combustible Materials, NFPA No. 33-1969.

29 CFR 1910.133

Eye and face protection

(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.

A notification of proposed penalty was issued by complainant’s area director on September 6, 1974. Respondent, through its counsel, filed a timely notice of contest relative to the aforesaid charges. Following the filing of a formal complaint and answer this matter was scheduled for hearing in Houston, Texas, on January 10, 1975. However, the undersigned Judge was advised just prior to the hearing date that the parties were in agreement as to a settlement of this matter without a formal hearing. Accordingly, the hearing was cancelled.

A settlement agreement has been submitted by the parties pursuant to Rule 100 of the Review Commission’s Rules of Procedure whereby the Commission has been requested to enter a final order affirming the citation and the penalties proposed relative to items four and five of the citation (failure to confine spraying operations to a spray booth and failure of an employee to wear eye protection while spraying thinner). Items two and three (dealing with respondent’s failure to maintain and compile certain Accident or injury records) were withdrawn by complainant as well as the penalties proposed in connection therewith.

The settlement in this matter was consented to by respondent for the purpose of disposing of this matter without further litigation and without admitting that it violated the Act (except as may be pertinent in any proceeding subsequently brought by the Secretary pursuant to sections 10(a) and 10(b) of the Act) and without admitting that its operations are subject to said Act. Respondent has certified that the aforementioned settlement agreement was posted where its employees would have notice thereof.

Item one of the citation, dealing with the failure of respondent to post the OSHA poster, was reserved for disposition by the undersigned Judge and Review Commission.28 Complainant did not submit a brief; however, he did call attention to the Review Commission’s decision in the case of the Secretary of Labor v. Southern Pacific Transportation Co. (Docket 1348), decided on November 15, 1974, 13 OSAHRC 258, wherein the Review Commission determined that section 4(b)(1) of the Act did not provide for an industry-wide exemption. The aforementioned case is now pending before the U.S. Court of Appeals for the Fifth Circuit.

The Review Commission in the earlier Southern Pacific case also decided that it would be an unnecessary duplication for OSHA to impose record keeping requirements on an employer since the Department of Transportation had exercised its statutory authority in the area of record keeping. The citation was therefore vacated as to the items dealing with accident reports, logs, and summaries of injuries. The Commission, without discussion, affirmed the informational poster violation.29

In respondent’s brief it is contended that the railroad industry is exempt from the Act. Respondent relies upon its brief in the Southern Pacific case now on appeal in the Fifth Circuit. With respect to item 1 of the citation respondent states that the ‘notice-posting’ requirements is in reality a ‘record keeping’ requirement from which respondent is exempt because the Federal Railroad Administration has exercised its statutory authority to prescribe record keeping requirements concerning the safety of railroad operations.

In support of its view respondent has submitted a copy of a U.S. Department of Labor (OSHA) booklet, revised 1975, entitled ‘Record Keeping Requirements Under the Occupational Safety and Health Act of 1970,’ which contains a paragraph entitled ‘Poster,’ which states in part:

Each employer must display in each establishment a poster which explains the protections and obligations of employees under the Occupational Safety and Health Act.

It is, therefore, respondent’s position that the insertion of the aforementioned paragraph in the booklet is an indication that the Secretary considers the poster requirement to be an integral part of the record keeping requirements.

The undersigned Judge cannot agree with this contention. The publishing of a policy statement, informational bulletin, or pamphlet as a guide to employers or to the public in general cannot be elevated to a level above the Secretary’s regulations or standards which were adopted pursuant to section 6 of the Act. Part 1903 of the standards deal generally with inspections, citations, and proposed penalties and give employers vital information as to the procedural steps to be followed subsequent to an inspection. Section 1903.2(a) makes it mandatory that employers ‘post and keep posted’ a notice (sometimes referred to as the OSHA poster) informing the employees of the protections and obligations provided for in the Act.

On the other hand, Part 1904 sets out regulations requiring employees to maintain records of occupational injuries and illnesses, specifying the types of reports, logs, summaries, and forms (Form 100, 101, and 102) to be utilized for such purpose. This part, 1904, and the sections thereunder were promulgated pursuant to section 8(c)(1) of the Act with the cooperation of the Secretary of Health Education, and Welfare. The purpose of this part is to develop information and statistics regarding the causes of occupational accidents and illnesses and hopefully looking toward a prevention of the same. Clearly, the display of a poster informing employees of their protection and obligations under the Act has no relation to the announced purpose and scope of Part 1904. It is, therefore, concluded that respondent is in violation of 29 CFR 1903.2(a) for its failure to post the notice to employees as required by the Act.

ORDER

Accordingly, it is ORDERED that:

1. The aforementioned settlement agreement be and the same is hereby approved and respondent’s motion to withdraw its notice of contest with reference to items 4 and 5 of the citation is hereby granted.

2. The penalties proposed in connection with the aforementioned items be and the same are hereby affirmed.

3. Item 1 of the citation as issued herein and the proposed penalty therefore be and the same are hereby affirmed.

4. Complainant’s motion to withdraw items 2 and 3 from the citation and complaint and the notification of proposed penalty related thereto as granted and the same are hereby dismissed.

5. This proceeding be and the same is hereby terminated.

BRENTON, JUDGE:

These causes30 having been consolidated on December 20, 1974, for hearing, now come on for disposition pursuant to the stipulation of facts, submitted by the parties and intervenors, the record made of the hearing on the merits of the issue of whether each citation was issued by complainant with reasonable promptness, and the briefs and supplemental memorandums of the parties and intervenors as submitted on motion for summary judgment.

The stipulation as filed by the parties herein shows that the real party in interest as the respondent in all three cases is The Baltimore and Ohio Railroad Company. Pursuant thereto, it is herein and hereby found that The Baltimore and Ohio Railroad Company is in fact the respondent in these causes and is the only real party respondent subject to the proceedings therein and herein and the order hereinafter set forth, regardless of the reference, in any of the proceedings in these causes, to respondent or employer by any other name.

These causes arise from citations issued by complainant following inspections, conducted by him, of workplaces, under the control and management of respondent, located in Cincinnati, Ohio. Each citation alleges respondent violated section 5(a)2 of the Occupational Safety and Health Act of 1970, hereinafter called the Act, by failing to comply with certain safety regulations promulgated by complainant pursuant to the Act.

The hearing was held in Cincinnati, Ohio, pursuant to assignment on February 27, 1975. The intervenors chose not to appear but reserved the right to present briefs on the law questions.

Although complainant has filed a reply memorandum of law alleged to be in response to respondent’s cross motion for summary judgment, this tribunal has no record of the filing or submission of such motion.

The stipulation eliminates as an issue any and all material issues of fact and presents for determination two issues:

1. Is complainant invested with jurisdiction to enforce job safety and health standards over railroads or his preclusion thereof by virtue of section 4(b)(1) of the Act.

2. If jurisdiction obtains were the citations issued with reasonable promptness.

I

Secretary v. Southern Pacific Transportation Co. 13 OSAHRC 258, is relied upon by complainant as dispositive of the jurisdictional dispute in these cases. These the Commission held that so long as another Agency has not exercised its statutory authority to promulgate and enforce safety regulations affecting the working conditions of railway employees a railroad company is neither excepted nor exempted from the Act.31

Respondent contends, as was contended by the employer in Southern Pacific supra, that the Department of Transportation and its Federal Railroad Administration has, by virtue of 45 U.S.C. Section 431, been given all regulatory power for job safety in the railroad industry. Further, that this power is preemptive, to the exclusion of the Department of Labor under the Act, even though the Secretary of Transportation may not have exercised his statutory authority to prescribe safety standards regulating certain railroad working conditions and places.

Respondent bottoms his case against jurisdiction hereof and herein on two propositions. First, that the FRA, by publication in the Federal Register on March 7, 1975, announced its intention to prescribe railroad occupational safety and health standards. Second, that the decision of the United States District Court for the District of Montana, Billings Division, in Dunlop v. Burlington Northern, Misc. CV-75-3-BLG, clearly demonstrates the fallacy of the majority holding of the Review Commission in Southern Pacific, supra, and is in accord with the dissent of the Commission’s Chairman therein.32

Respondent also argues in view of the Burlington Northern pronouncement that this tribunal should ignore the holdings by Judges Rubin and Osterman in Secretary v. Penn Central Transportation Co., OSAHRC Docket 10886 and Secretary v. The Chesapeake and Ohio Railway Co., OSAHRC Docket 10334, respectively, where each Judge held that advanced notice of proposed rule-making was not tantamount to an exercise of jurisdiction within the meaning of section 4(b)(1) of the Act. It is apparent that each Judge was of the opinion that he was bound by the majority decision of the Review Commission in Southern Pacific, supra.

Although this tribunal has the added attraction of Burlington Northern, which is persuasive, it is not compelling. The Review Commission’s decision in Southern Pacific is not invalidated by the District Court’s decision in Burlington Northern. It would appear that Burlington Northern would have little or no impact upon the majority of the Review Commission as it was composed at the time of Southern Pacific. Moreover, this tribunal is not permitted to speculate as to what the future course of the Review Commission may be on this jurisdictional issue. Southern Pacific, supra, stands unreversed by any Appellate Court and the Review Commission has not demonstrated that it is prepared to modify or overturn its ruling in Southern Pacific, Secretary v. Union Railroad Co., 13 OSAHRC 434; and Secretary v. Penn Central Transportation Co., 13 OSAHRC 604.

Therefore, being bound by the Review Commission’s decision in Secretary v. Southern Pacific Transportation Co., supra, and subsequent affirmations thereof, respondent’s jurisdictional defense must be rejected, except with respect to items 23, 24, and 25 of the citation in Docket 10832. These items have to do with record keeping which according to the conclusions reached in Southern Pacific are exempt under section 4(b)(1) of the Act, where the Department of Transportation has taken over that area by requiring the maintenance of similar or same records of occupational safety and health statistics.

II

At the hearing respondent based its affirmative defense to the citations, urging the vacation thereof, on the Review Commission decision in Secretary v. Chicago Bridge and Iron Co., 6 OSAHRC 244, where it was held that a citation issued more than 72 hours after the Area Director formed his belief that the regulation had been violated, without an explanation of some exceptional circumstance which accounted for the delay, was not reasonable promptness.

Subsequent to the hearing the Seventh Circuit Court of Appeals, on April 22, 1975, upon reviewing Secretary v. Chicago Bridge and Iron Co., supra, reversed.33 In so doing it did not preclude the Commission from fashioning a rule giving the ‘reasonable promptness’ language some effect. It simply held the 72 hour test, as ruled by the Review Commission, was improper and must be invalidated. The approximate one-month delay in Chicago Bridge, evaluated by Administrative Law Judge Goldstein as reasonable, was recognized by the Court of Appeals in its review, but without approval or disapproval.

This Circuit Court of Appeals’ decision suggests, where the defense of reasonable promptness is made an issue, that it should be adjudged on a case by case basis. Establishing a period any place between inspection or investigation and six months, the latter being the Act’s sole absolute limitation at section 9(c), would be arbitrary. It appears, however, that any delay, unexplained, beyond thirty days may be unreasonable. Also a delay which works to the prejudice of an employer’s case may in all common probability be unreasonable.

Whether the time lag between an inspection or an investigation and the issuance of a citation is reasonable or unreasonable, however, is not the sole criteria in determining the issue. The word promptness cannot be disregarded. Congress could have chosen the age old expression ‘within a reasonable time.’ But it chose to exact promptness in the issuance of citations. Promptness is a noun and in section 9(a) of the Act it functions as the main element of the subject of the mandate of Congress. Action done, performed, or delivered with promptness is at once or without delay. Here Congress in its wisdom qualified the promptness of the action by stating that it must be reasonable. The delay, then, cannot be excessive as opposed to the limit prescribed by reason.

Also, the showing, by hard evidence, that a delay has created an inequitable, unfair, or unjust situation, viewed in the light of the pragmatic idea of simple common sense, which in the world of today is the essence of reasonableness, then the citation has not been issued with reasonable promptness. Moreover, the Congress did not intend that the Secretary could be dilatory, grossly negligent, or arbitrary in the performance of the duty prescribed because this kind of action is irreconcilable with action with promptness.

III

Examination of the facts pursuant to the foregoing discussion reveals, in Docket No. 10687, that the total time elapsed from inspection to the issuance of the citation was 104 days. It would appear logical to conclude, upon the evidence of 104 days time lag, without more, that such a delay is ridiculous and fails to meet the mandate of section 9(a) of the Act. In the instant case the inspection was conducted on June 20, 1974, after which the inspector on June 21, 1974, completed his analysis and write up of the alleged violations observed. Thereafter there was Area Director adjustments, Special Area Officer review and jurisdictional conflicts debate, the latter being the subject of the other issue herein and which was unsettled at that time. By reason of the jurisdictional conflict the complainant’s file was forwarded to the OSHA National Office on July 3, 1974, for review and advice. It was returned and received by the Area Director on September 12, 1974, permitting issuance of citation, however, the citation was subject to review and reorganization, pursuant to national’s suggested changes, by the inspector; special review as before, and then to the Acting Area Director for review and signature effectuating the issuance of the citation, which was accomplished on October 2, 1974.

Respondent suggests the decisional process ended on September 12, 1974, when the Area Director received approval to proceed with the issuance of a citation. Based on this suggestion there is a time lag of 19 days. But Chicago Bridge, supra, rejected the 72 hour limitation adopted by the Review Commission and at the same time left the issue of ‘reasonable promptness’ in limbo.

Now, therefore, is the phrase merely directive. This is apparently complainant’s position. He urges that section 9(c) of the Act is jurisdictional rather than section 9(a) and with this interpretation this tribunal is in agreement. This tribunal, however, does not condone the proposition that the phrase is merely directive. The legislative history, which appears in Chicago Bridge, supra, shows that Congress expected prompt action but was reluctant to create an absolute limit less than six months. Does it then necessarily follow that in any given case the Secretary is privileged to sit back and issue the citation the day before the expiration of the six month period.

It is apparent that Congress has been aware for many years that law enforcement by administrative agencies becomes mired down with protracted procedures and their own rules and regulations together with outright neglect in some cases, all of which renders law enforcement ineffective. To be effective each procedural step in the enforcement process must be administered with dispatch, which of course is synonymous with prompt and speed. It is inconceivable that Congress intended to give the Secretary a wide birth, that is, from one to 182 days within which to issue a citation in all cases. Otherwise the phrase ‘reasonable promptness,’ mandated by ‘shall,’ is simply an exercise in rhetoric. Moreover, to expedite the enforcement of the Act, Congress chose to completely lock out the employer, with no place to go, upon his failure to file a notice of contest within 15 working days of receipt of a citation.

More recently, and after 200 years, Congress finally expressed in real terms its concern with federal criminal law enforcement by enacting the ‘Speedy Trial Act,’ 18 U.C.A. 3161, et seq. There, for example, indictment or information must follow an arrest within 30 days and if trial is not commenced within the time prescribed the case is subject to dismissal on motion of the accused.

The ‘reasonable promptness’ phrase, as it appears in section 9(a) of the Act, is an elastic term and can only be appraised in light of the particular facts and circumstances of each case, ever mindful of the mandate ‘shall’ which precedes the phrase. In determining what time span is ‘reasonable promptness’ for performance, consideration should be given to such factors as relationship between the parties, subject matter of the inspection or investigation, and time that a person of ordinary diligence and prudence would have or should have used under similar circumstances. At this point in time, the Secretary now having in excess of four years experience, and painting with a broad brush, the elasticity of the term may well be ripe for significant curtailment.

Accordingly, this tribunal, without specifically ruling, suggests that generally ‘reasonable promptness,’ in the sense in which it is employed in Section 9(a) of the Act, requires the issuance of a citation after an on-site inspection or investigation within a time period that is free of all the elements of an unreasonable delay. Any portion of the time period which has been furthered by either overt arbitrariness dilatoriness or plain gross neglect of duty is conduct which should be adjudged unreasonable delay, and thus the citation has not been issued with reasonable promptness.

In the instant case, Docket 10687, this tribunal is of the opinion that the evidence adduced reflects procrastination within the gamut of complainant’s department. The sole purpose for the file resting in the National Office was to resolve the alleged jurisdictional conflicts. 71 days elapsed in accomplishing this alleged monumental task. Obviously some of those days were consumed by the file being in the mail. The Postal Department is sometimes slow, however, here there is no evidence of any unusual movement, loss, or standstill of this file in the mail. Moreover, the National Office, prior to the inspection in this case, had resolved the very same jurisdictional conflicts in more railroad cases than are necessary to mention. Secretary v. Louisville and Nashville and Nashville Railroad Co., OSAHRC Docket 5521, CCH, ¶ 19,598, however, is worthy of note inasmuch as in that case there were 10 violations for jurisdictional conflict considerations, whereas here there were only four. Moreover, three of the four here were considered there, thus, only a housekeeping violation remained for clearance. Without examining all the cases, it is probably a safe guess that this violation had been previously earmarked. It is observed the Review Commission in reversing the Judge’s decision in Louisville and Nashville, supra, held 71 days appropriate for clearance of any jurisdictional conflicts. But the determination was concluded on or about November 2, 1973, which is at least seven months prior to the commencement of the examination, by the National Office in the instant case, of the same ground as before. Regardless of whether the housekeeping violation was a first impression conflict examination the holding of the proposed citation for nearly 71 days is, absent any other explanation, conduct which is dilatory as well as gross neglect of duty in their respective purest forms.

Also there was additional abuse of the command of Congress by the Acting Area Director, whereby, upon receipt of the proposed citation, he held it an additional 19 days for so called additional reviews, whereas, in fact, the only matter standing in the way of its issuance upon receipt was retyping. The complainant’s attempt to purify this additional delay is simply ridiculous and unacceptable.

There is just no way to rationalize the procedural conduct of the complainant, in issuing the citation in this case, whereby it spells in certain terms ‘reasonable promptness’ in accordance with the meaning of the employment of this phase in section 9(a) of the Act as hereinabove delineated. Therefore, the complainant having failed to issue the citation in Docket 10687 with reasonable promptness it, together with the proposed penalty to be assessed therefor, should be vacated.

IV

The elapsed time from inspection to issuance of the citation in each of the other cases, Dockets 10686 and 10832, was 12 days. This time lag, of course, does not compare with the expectation (the hope) of Congress. Governmental agency bureaucratic law enforcement procedural processes were not unknown to Congress. Thus, there is a strange notion this time lag of 12 days would be, by the Congress, although not within the range of its expectation, considered speedy. Certainly, 12 days should not be considered per se dilatory, arbitrary, or gross neglect of duty. Taking bureaucracy for what it is and allowed to be the circumstances in these two cases fail to show any element of an unreasonable delay. And finally, there being no evidence of any injustice, inequity, or unfairness prejudicial to respondent in either of these cases because of the 12 day time lag, it cannot be adjudged that either citation was not issued with reasonable promptness.

Accordingly, having found jurisdiction persisted in these cases, the citations and proposed penalties to be assessed in Dockets 10686 and 10832 should be affirmed, saving and excepting from Docket 10832 items 23, 24, and 25 as herein above delineated.

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction to hear and decide these cases.

2. Whether a citation has been issued with reasonable promptness can only be determined by an examination of the facts and circumstances surrounding the conduct of the Secretary and his authorized representatives appertaining to an individual case.

3. The citation in Docket No. 10687 was not issued with reasonable promptness.

4. Upon the determination that a citation has not been issued with reasonable promptness it has not been issued in accordance with law and should be vacated.

5. The citations in Dockets 10686 and 10832 were issued with reasonable promptness.

6. Whereas here another Federal Agency with statutory authority has promulgated regulations requiring the recording of occupational safety and health data the requirements under OSHA in the same area are inapplicable.

7. Where the material facts of a citation and proposed penalty to be assessed are conceded by stipulation, and the issues of jurisdiction and reasonable promptness are resolved against the respondent on motion for summary judgment, the citation and proposed penalty must be affirmed.

8. The Baltimore and Ohio Railroad Company is the real party respondent herein, and as such is the only employer to which all proceedings had in these causes and which may hereafter be had apply, including this Decision and Order.

ORDER

Wherefore, it is ordered that:

Complainant’s motion for summary judgment on the jurisdictional issue be and it is hereby granted in Docket 10686, 10687, and 10832, excepting from the latter items 23, 24, and 25 of the citation therein.

Complainant’s motion for summary judgment on the reasonable promptness issue be and it is hereby denied in Docket 10687 and granted in Dockets 10686 and 10832.

The citation in Docket 10686 and proposed penalty to be assessed therein be and each is hereby affirmed.

The citation in Docket 10687 and proposed penalty to be assessed therein be and each is hereby vacated.

The citation in Docket 10832 and the proposed penalty to be assessed therein be and each is hereby affirmed, saving and excepting therefrom items 23, 24, and 25 of this citation and the aggregate proposed penalty of $300 to be assessed for these three alleged violations of 29 CFR 1904.2(a), 4, and 5(a) each of which is hereby vacated.

It is so ordered.

RUBIN, JUDGE:

The parties have stipulated that the sole matter to be determined is whether respondent34 is subject to the jurisdiction of the Occupational Safety and Health Act of 1970 (the Act) or is exempt therefrom by reason of Section 4(b)(1) of the Act. The parties agreed to submit this question on cross motions for summary judgment and memorandum of law.

A citation was issued on November 4, 1974 alleging five non-serious violations of the Act. Penalties were proposed for item 1 ($30) and item 5 ($45). Complainant has moved to vacate the proposed penalties. Respondent advised in its answer that items 1, 2, 4 and 5 were abated prior to the abatement dates set forth in the citation and that the abatement status of item 3 would be reported at a later date.

Respondent argues that the Federal Railroad Administration (FRA) has exclusive jurisdiction on an industry basis as a matter of statutory law. The Commission has resolved the industry-wide exemption argument adversely to respondent (Secretary v. Southern Pacific Transportation Company, 3 OSAHRC 258, November 15, 1974; Secretary v. Union Pacific Railroad Company, 13 OSAHRC 539, November 26, 1974).

Respondent argues in the alternative that by Docket No. ROS-1, Notice 1, Federal Register Volume 40, pages 10693 et seq., dated March 3, 1975, FRA preempted this area of jurisdiction by publication of its proposal to adopt Occupational Safety and Health Administration standards 29 CFR 1910. Respondent asserts, in effect, that the publication of this notice is an ‘exercise of statutory authority’ under Section 4(b)(1) of the Act.

The publication is headed ‘Advance Notice of Proposed Rule Making.’ The purpose is clearly expressed in the document itself:

Public advice and participation requested.

The purpose of this advance notice is to request public advice on the priorities for and content of railroad occupational safety and health standards. FRA solicits public participation in the development of the most effective approach for adoption of specific standards. FRA intends to expedite consideration of all comments received in response to this notice. Notices of Proposed Rule Making will be developed and issued separately as each subpart is completed relating to specific railroad employee working conditions and work places.

Specific advice and recommendations are requested to identify:. . ..

It is clear that the publication is merely a preliminary step to obtain public reaction to proposed rule making. The proposal may never be adopted. In view thereof, it is held that the ‘Advance Notice of Proposed Rule Making’ is not an ‘exercise of statutory authority’ within the meaning of Section 4(b)(1) and does not exempt respondent from jurisdiction of the Act.

No evidence was submitted by either party to establish whether or not the Department of Transportation or some other Federal agency has exercised its authority with respect to the standards allegedly violated. The Review Commission has held that the provisions of Section 4(b)(1) are in the nature of an exception to the general applicability of the Act and that the party claiming the exception has the burden of proving its entitlement thereto. Respondent has not met this burden. (Secretary v. Southern Pacific Transportation Company, supra.; Secretary v. Penn Central Transportation Company, 13 OSAHRC 604, November 29, 1974).

Respondent’s motion to dismiss is denied. Complainant’s motion for summary judgment is granted. The citation is affirmed. The proposed penalties for items 1 and 5 are vacated.

CHALK, JUDGE:

All parties have stipulated that the only matter in issue is whether Respondent35 is entitled to the exemption accorded by 29 U.S.C. 653(b)(1), as asserted by Respondent. Complainant and the employees’ representative oppose Respondent’s assertion and pray for summary judgment.

Additionally, Complainant moves for leave to ‘vacate’ its proposed penalties in the case. There appears to be no objection to this motion.

In Secretary v. Union Railroad Company, 13 OSAHRC 434 (1974), and Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), the Commission ruled that 29 U.S.C. 653(b)(1) does not provide an industry-wide exemption for railroads from the provisions of the Act. Rather, according to these rulings, it provides only for an exemption for specific working conditions regulated by the Department of Transportation. Accordingly, despite the new matter argued by Respondent to the effect that the Department of Transportation (Federal Railroad Administration) has served notice of its intention to regulate in future employee safety and health in areas of railroad operations not now regulated, the exemption question has been decided adversely to Respondent’s claim.

Citation number 1 for four nonserious violations is affirmed. So ORDERED.

CHALK, JUDGE:

The primary issue in this case** is whether Respondent railroad is entitled to the exemption accorded by 29 U.S.C. 653(b)(1), as urged by Respondent. Additionally, Respondent has contested the appropriateness of the $70.00 penalty proposed by Complainant. In connection with both issues, the parties have indicated the desire for me to dispense with a hearing and to resolve these issues on a stipulation of facts and the briefs they have heretofore filed in the proceedings.

The primary issue has already been decided by the Commission adversely to Respondent’s claim in Secretary v. Union Railroad Company, 13 OSAHRC 434 (1974), and in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974). Specifically, the Commission, in those cases, ruled that 29 U.S.C. 653(b)(1) does not provide railroads with an industry-wide exemption from the provisions of 29 U.S.C. 651 et seq. Rather, according to those rulings, it provides only for an exemption for specific working conditions regulated by the Department of Transportation. Accordingly, the Commission’s stand on this issue forecloses a ruling in favor of Respondent in this instance. Moreover, I am not persuaded that a different result should be reached because the Department of Transportation (Federal Railroad Administration) has recently announced its intention of regulating employee safety and health in areas of railroading not now regulated (40 FR 10693, March 7, 1975).

Apart from the exemption issue, I have carefully reviewed all the facts furnished me by the stipulation and otherwise relating to the appropriateness of a penalty in this instance. In this regard, the Act enjoins me to give due consideration to Respondent railroad’s size, the gravity of the violation, and Respondent’s good faith and past history of violations (29 U.S.C. 666(j)). Specifically, the charge in this case involves a failure of Respondent to have adequately trained first did personnel in various areas of one of its maintenance and repair yards and approved first aid supplies available for their use (29 C.F.R. 1910.151(b)). I have been assured in these proceedings that these conditions have long since been abated.

After due consideration of all the foregoing factors, especially those indicating Respondent’s bankrupt condition and its good faith, particularly in pursuing an important, controverted issue that will only be laid to rest after present judicial appeals in other cases are concluded, I find that a penalty assessment is not appropriate in this case.

Citation number 1 for nonserious violation is affirmed.

So ORDERED.

RIEHL, JUDGE:

This is a proceeding36 pursuant to section 10 of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq., hereinafter called the Act) contesting citations issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of that Act. The citations allege that an inspection of workplaces 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 fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The parties have agreed to submit case for determination to this Judge by stipulated facts and conclusions of law in lieu of oral testimony.

The stipulated facts and conclusions of law are as follows:

Counsel for the parties named above hereby stipulate as follows:

1. Respondent Burlington Northern, Inc. is a Class I common carrier by railroad, has employees, and is engaged in a business affecting interstate commerce.

2. Respondent admits that, at all times pertinent to these actions, there were no duly promulgated rules, regulations, standards or orders of the Department of Transportation affecting the occupational safety and health of the particular working conditions for which it was cited.

3. Without waiving any defense based on lack of jurisdiction under the Occupational Safety and Health Act of 1970, respondent admits that, if the Secretary of Labor does have jurisdiction to prescribe regulations for the working conditions involved, it violated sections 5(a)(2) and 8(c) of the Act and the standards promulgated thereunder as charged in the complaints filed by the Secretary in these causes.

4. Respondent further agrees that if the Secretary had jurisdiction to issue the citations in controversy, the penalties proposed in connection therewith, as herein adjusted, are reasonable and are no longer in contest.

5. The Secretary, on the basis of all information available, considers that the penalty proposed in conjunction with the citation for willful violation should be reduced to $3,500.00.

We adopt the stipulated facts and conclusions of law as our own. We note, in particular, that the Secretary considers the penalty proposed in conjunction with the citation for willful violation should be reduced to $3,500; that this proposal is joined into by the respondent.

Examination of the citations issued to respondent reveals that the citation for docket number 11325 was issued to respondent November 26, 1974, for alleged violations at respondent’s Havelock shop facility in Lincoln, Nebraska.

Docket 11418 pertains to a citation issued to respondent on November 27, 1974, for alleged violations at respondent’s branch office establishment in Omaha, Nebraska.

Complaints were filed by the Secretary in both causes, and answers were filed by respondent. The stipulation of facts was filed by the parties and dated April 18, 1975.

Respondent in its brief argues that the Review Commission erred in its decision of November 15, 1974, Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258, in not recognizing the exclusive jurisdiction of the Department of Transportation (DOT) over railroad health and safety. Respondent bases its conclusion on a number of factors, including the existence of numerous railroad safety acts, especially the Federal Railroad Safety Act of 1970 (45 U.S.C. § 431 et seq.), and the legislative history of that Act, the language of OSHA, the legislative history of that Act, the relationship of section 24(a) of OSHA (29 U.S.C. § 673(a)) to section 4(b)(1) (29 U.S.C. § 653(b)(1)), the language of the Rail Passenger Service Act of 1970 (P.L. 91-518), and the legislative history of the Amtrack Improvement Act of 1973 (P.L. 93-146).

Respondent further argues that the Review Commission erred in refusing to recognize that DOT has and exercises statutory authority to regulate health and safety matters in the railroad industry, and that the Department of Labor therefore has no such jurisdiction. Respondent contends that the Department of Transportation regulates health and safety in the railroad industry very extensively, and, the fact that a particular working condition has not yet been specifically addressed by DOT or that DOT has rejected proposed regulation of the particular working condition, or that DOT has not as yet seen fit to regulate every ‘nook and cranny’ of safety and health in the railroad industry, can in no way vest the Department of Labor with authority to regulate those areas in the railroad industry.

Respondent’s position is not well taken.

There is only one difference of any substance between the present case and Southern Pacific Transportation Company, 13 OSAHRC 258 (RC 1974). That difference is that the inspection of November 26, 1974, found the respondent had failed to post and keep posted the notice or notices informing employees of the protections and obligations provided by the Act. The employer failed to maintain the OSHA 100 series log of occupational injuries and illnesses.

In the Illinois Terminal Railroad Company case, which this Judge decided, 13 OSAHRC 476 (RC 1974), it was held that there was substantial compliance because evidence was submitted of the type of record kept for the railroad industry.

Otherwise, the instant cases are on all fours with the case involving Secretary v. Southern Pacific Transportation Company and the Illinois Terminal Railroad Company case which we have previously decided. (See also Secretary v. Union Pacific Railroad Company, 13 OSAHRC 539 (RC 1974), and Secretary v. Southern Railway Company, 13 OSAHRC 498 (RC 1974)).

There has been no evidence stipulated to by the parties as to whether or not the respondent has kept records, if so, how they compare with OSHA records. For that reason, we will affirm the citation insofar as record keeping is concerned.

In all of these cases the holding under almost identical facts has been that section 4(b)(1) of the Act does not provide an industry exemption and accordingly in the absence of other Federal agencies exercising their authority to regulate safety and health working conditions, such working conditions are subject to OSHA regulations.

We see no reason to vary from these holdings at this point in time and feel that they all state the matter correctly insofar as OSHA coverage in certain cases of those industries regulated by DOT.

Inasmuch as both complainant and respondent have joined in the stipulation recommending that the citation for willful violations should be reduced to $3,500, we will accordingly so order.

DECISION

Based upon the above stipulation of facts which we adopt and our conclusions of law as herein stated, it is ORDERED that:

1. The citations and proposed penalties, as amended, for docket numbers 11325 and 11418, are affirmed.

CHALK, JUDGE:

By letter dated February 5, 1975, I informed Respondent that the jurisdictional question appeared to be the sole issue raised in the case,37 that the Commission had resolved such issue adversely to Respondent, except for the recordkeeping charges (Secretary v. Union Railroad Company, Docket No. 4318, November 22, 1974; Secretary v. Southern Pacific Transportation Company, Docket No. 1348, November 15, 1974), and that I proposed to issue a summary order after February 20, 1975 affirming the Citation and the penalty proposals, except for the recordkeeping charges, unless Respondent, on or before that date, indicated in writing that it desired a hearing on other issues. Respondent has failed to respond thereto.

Item numbers 1 and 2 of Citation number 1 for nonserious violations are vacated. Item numbers 3 through 30 of said Citation are affirmed. The following penalties are assessed:

Item 3—$50.00

Item 8—40.00

Item 13—60.00

Item 15—45.00

Item 17—35.00

Item 28—40.00

Item 30—45.00

CHALK, JUDGE:

By letter dated January 29, 1975, I informed Respondent that the jurisdictional question appeared to be the sole issue raised in the case,38 that the Commission had resolved such issue adversely to Respondent (Secretary v. Union Railroad Company, Docket No. 4318, November 22, 1974; Secretary v. Southern Pacific Transportation Company, Docket No. 1348, November 15, 1974), and that I proposed to issue a summary order after February 12, 1975 affirming the Citation and the penalty proposals unless Respondent, on or before that date, indicated in writing that it desired a hearing on other issues. Respondent has failed to respond thereto.

Citation number 1 for nonserious violations is affirmed. The following penalties in the total amount of $190.00 are assessed:

Item 1—$100.00

Item 13—30.00

Item 17—30.00

Item 18—30.00

So ORDERED.

CHALK, JUDGE:

The sole issue in this case** is the railroad jurisdictional question raised by and resolved adversely to Respondent in Secretary v. Southern Pacific Transportation Company, Docket Number 1348 (November 15, 1974), except for the recordkeeping charge. Respondent does not desire a hearing on any other issue.

Item number 2 of Citation number 1 for nonserious violations is affirmed. A penalty of $30.00 is assessed therefor. Item Number 1 of said Citation is vacated for lack of jurisdiction (29 USC 653(b)(1)).1

So ORDERED.

CHALK, JUDGE:

The sole issue in this case39 is the railroad jurisdictional question raised in and resolved adversely to Respondent in Secretary v. Southern Pacific Transportation Company, Docket Number 1348 (November 15, 1974), except for the recordkeeping charge. Respondent does not desire a hearing on any other issue.

Item number 1 through 15 of Citation number 1 for nonserious violations are affirmed. The following penalties are assessed:

Item 4—$30.00

Item 5—30.00

Item 6—40.00

Item 8—30.00

Item 10—30.00

Item 11—45.00

Item 13—30.00

Item 14—30.00

Item 15—50.00

Item number 16 of said Citation is vacated for lack of jurisdiction (29 USC 653(b)(1)).1

So ORDERED.

1 Since the controlling question is common to all cases listed in the caption, we hereby consolidate them pursuant to 29 C.F.R. 2200.9 for decisional purposes. Docket Nos. 10686 and 10832 (Baltimore & Ohio Railway Company) were previously consolidated with Docket No. 10687, and that consolidation is severed pursuant to 29 C.F.R. 2200. 10 for decisional purposes since Docket 10687 presents a different issue. Similarly, Docket No. 11325 (Burlington Northern, Inc.) was previously consolidated with Docket No. 11418, and it too is severed because it presents a different issue for decisional purposes.

2 Respondent in Docket Nos. 11251 and 11338 did not stipulate to the violative conditions. However, their failure to raise any issue as to the merits before the Administrative Law Judge or in briefs before the Commission supports the Judge’s determination that the existence of the violative conditions is not in dispute.

3 In Docket Nos. 9642, 10771, 10758, 10686 and 10832 Respondents did raise the issue of whether the citation had been issued with reasonable promptness consistent with the requirements of section 9(a) of the Act. Respondents did not pursue the issue on review, and we deem it to have been abandoned. Bouma Post Yards, 12 OSAHRC 550 (1974).

And Respondent in Docket No. 10886 contends that it is for the Secretary to establish that Respondent is not exempt from the coverage of the Act pursuant to Section 4(b)(1). We have previously rejected a similar contention in Crescent Wharf and Warehouse Co., 15 OSAHRC 674 (Feb. 21, 1975), where we stated that Section 4(b)(1) is exemptory and must be raised and shown by those seeking the exemption.

4 Respondent Southern Pacific Transportation Company, Docket No. 10332, contends that the requirement of 29 C.F.R. 1903.2(a) that it post a notice informing employees of their rights and obligations under the Act is a recordkeeping requirement which it does not have to comply with. We note that in our prior decision involving this Respondent we did affirm a citation alleging a violation of the posting requirement; the issue now presented was not raised in that case. We find no merit in the argument. Section 8(c) of the Act imposes a number of different obligations. It requires that records of various types be made, kept, preserved, and made available to Labor and HEW in order to assist the Departments in discharging their responsibilities under the Act. It also requires posting. But such posting is for the purpose of informing employees ‘of their protections and obligations under’ the Act. Clearly, the purpose of the posting requirement is different than the purposes for the recordkeeping requirements. Finally, we note that Respondent has failed to show that the Department of Transportation has exercised authority respecting the poster issue.

5 Respondents in Docket Nos. 9078, 10886, 11013, 11177, 11325 and 11338 contend that the Advance Notice of Proposed Rulemaking by the Secretary of Transportation published in 40 Fed. Reg. 10693 (March 7, 1975; No. 46) constitutes an exercise of statutory authority by the Department of Transportation which exempts the railroads from compliance with the Act pursuant to section 4(b)(1). We reject Respondents’ argument. It is enough here to note that the inspections were conducted and citations issued in each case prior to publication of the advance notice of proposed rulemaking.

6 In Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Docket No. 5860, Judge Otto affirmed an alleged recordkeeping violation (29 C.F.R. 1904.5) contrary to our decision in Southern Pacific.

7 We note that the issues in Southern Pacific are now on review before several Courts of Appeal. Penn Central Transportation Company, 13 OSAHRC 604 (1974), appeal docketed, No. 75-1102 (4th Cir., Jan. 28, 1975); Chesapeake and Ohio Railway Company, 15 OSAHRC 15 (1975), appeal docketed, No. 75-1182 (4th Cir., Feb. 18, 1975); Southern Railway Company, 13 OSAHRC 498 (1974), appeal docketed, No. 75-1055 4th Cir., Jan. 15, 1975); Seaboard Coast Line Railroad Company, —— OSAHRC —— (Docket No. 2802, 1974), appeal docketed, No. 74-3984 (5th Cir., Nov. 29, 1974); Union Pacific Railroad Company, 13 OSAHRC 539 (1974), appeal docketed, No. 75-1065 (8th Cir., Jan. 27, 1975). The results of the litigation may, of course, have an impact upon any subsequent adjudication of the issues before OSHRECOM.

8 In Docket No. 4616, review was directed inter alia, on the issue of whether ‘there was adequate evidence before the Judge to justify the disposition.’ Subsequent to the direction for review, Respondent indicated it had no intent to take exceptions to the Judge’s decision and that it had paid the penalty assessed by the Judge. Accordingly, it is not necessary to decide the issue mentioned above.

9 The Respondent stipulated to the appropriateness of the proposed penalty of $635. The Judge, however, failed to discuss the issue of a penalty in his decision. We assess the stipulated penalty since no party or employee has objected to it and the amount is not clearly repugnant to the objectives of the Act. Thorleif Larsen & Son, Inc., 12 OSAHRC 313 (1974).

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

11 Id. at 1018-1020 (emphasis added).

12 Id. at 975.

13 Id. at 1037 (emphasis added).

14 Subcommittee on Environmental Problems Affecting Small Business of the Permanent Select Committee on Small Business, The Effects of the Administration of the Occupational Safety and Health Act on Small Business, H.R. Rep. No. 93-1608, 93d Cong., 2d Sess. at 3 (1974).

15 29 C.F.R. § 1910.141(c)(3)(ii).

16 29 C.F.R. § 1910.141(d)(2)(v).

17 29 C.F.R. § 1910.157.

18 29 C.F.R. § 1910.95.

19 29 C.F.R. § 1910.93.

20 29 C.F.R. § 1910.144(a)(1)(i)(d).

21 H.R. Rep. No. 93-1608, supra note 14, at 20.

22 Beltway Railway of Chicago #4616.

23 Chicago, Milwaukee, St. Paul & Pacific Railroad Company, #5860, 7978.

24 Chicago, Milwaukee, St. Paul & Pacific Railroad Company #11251.

25 Newburgh & South Shore Railway #9078.

26 Norfolk & Western Railway Company #9642, 10758, 10771.

27 Southern Pacific Transportation Company #10332

28 Respondent, in its answer, admitted its failure to post the aforementioned poster but contended that it is exempt from the Act’s applicability by section 4(b)(1) of the Act.

29 See also Secretary of Labor v. Norfolk and Western Railway Co.,(docket 5936) decided January 8, 1975, 14 OSAHRC 777, where the Review Commission affirmed a violation of 29 CFR 1903.2(a)(failure to display OSHA poster) and assessed a $50 penalty.

30 Baltimore & Ohio Railway Company (The Chessie System) #10686 & 10832. Docket No. 10687 called for review 7/22/75 and is still pending.

31 See also Secretary v. Union Pacific Railroad Co., 13 OSAHRC 539; Secretary v. Seaboard Coastline Railroad Co., OSAHRC Docket 2802; and Secretary v. Penn Central Transportation Co., 13 OSAHRC 604.

32 In Burlington Northern the Secretary of Labor petitioned the Court for an order allowing an inspection of the railroad’s workplaces. Without ruling that the entire railroad industry is exempt from the Occupational Safety and Health Act of 1970, the Court denied the petition stating the Secretary of Transportation has exercised and is exercising his statutory authority under 45 U.S.C. § 431 to prescribe Standards for the safety of railroad employees. In a footnote the Court observed that although the FRA standards are in the stage of proposed rule making section 4(b)(1) of the Act triggers the exception and does not require actual adoption of the regulations before the Act is inapplicable.

33 Per Curiam, (4/22/74) No. 74-1214; CCH ¶ 19569.

34 Penn Central Transportation Company #10886.

35 Penn Central Transportation Company ,11013.

** Penn Central Transportation Company #11177.

36 Burlington Northern, Inc. #11325. Docket No. 11418 called for review 6/11/75 and is still pending.

37 Illinois Central Gulf Railroad Company #11338.

38 Chicago Union Station Company #10917.

** Richmond, Fredericksburg & Potomac Railroad Company #10836.

39 Complainant’s motion for leave to vacate this item for lack of evidence is mooted.