UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 13771

BURLINGTON NORTHERN

INCORPORATED,

Respondent.

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

A decision of Review Commission Judge Paul E. Dixon, dated November 18, 1975, is

before this Commission for review pursuant to 29 U.S.C. § 661.

That decision is affirmed on the basis of the decisions by a divided Commission in

Secretary v. Seaboard Coast Line Railroad Co., OSAHRC Docket No. 11904, December 1, 1975,

and Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568 (1975). Those decisions

are dispositive of the instant case.

Respondent, by stipulation, admitted the alleged violations and that due consideration

was given to the statutory criteria in 29 U.S.C. § 666(i) in determining the penalty proposal.

Respondent also stipulated that the exemption question was the only issue in contest.

Accordingly, the entire citation is affirmed and a penalty of $450 is assessed therefor.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: OCT 19, 1976

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 13771

BURLINGTON NORTHERN

INCORPORATED,

Respondent.

FOR COMPLAINANT:

DANIEL J. MICK, Esquire, Office of the Solicitor,

U.S. Department of Labor,

911 Walnut Street, Kansas City, Missouri

FOR RESPONDENT:

J. L. PILON, Esquire, and W. L. PECK, Esquire,

1900 Executive Tower,

1405 Curtis Street, Denver, Colorado

Case submitted upon stipulation of facts and briefs of parties.

Paul E. Dixon, Judge, OSAHRC:

This case originated with the issuance of a citation by the Occupational Safety and Health

Administration, U.S. Department of Labor, on June 5, 1975, as a result of an inspection made of

respondent’s railroad facilities at the Waverly Depot, 1877 Depot Street, Waverly, Nebraska,

wherein respondent was charged with seven nonserious violations of standards under the

Occupational Safety and Health Act along with total proposed penalties in the amount of $550.

Respondent, on June 16, 1975, duly filed its notice of contest with complainant filing his

complaint on the 30th day of June 1975 wherein complainant elected to proceed on items 1, 3, 4,

5, 6 and 7 of the citation.

Thereafter respondent filed its answer and motion to dismiss on the 10th day of July 1975

denying it was an employer within the meaning of the Occupational Safety and Health Act of

1970 and denying that the Occupational Safety and Health Review Commission has jurisdiction

over the respondent and alleging that the complainant lacks jurisdiction over the subject matter

 

 

of the case on the grounds that the Department of Transportation has authority to promulgate all

rules, regulations, standards and orders necessary for the occupational safety and health of

railroad employees and has exercised this authority through the Federal Railroad Administration.

Thereupon complainant and respondent entered into a joint stipulation of fact on August

1, 1975, wherein the parties stipulated as follows:

“1. Respondent, Burlington Northern Inc., is a Class I common carrier by railroad,

and has employees, and is engaged in the business affecting interestate commerce.

2. Respondent admits that, at all times pertinent to this action, there were no duly

promulgated rules and 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 of 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 complaint filed with [sic] the Secretary

in this action.

4. Respondent further agrees that if the Secretary had jurisdiction to issue the

citation in controversy, the penalty proposed by the Commission in connection

therewith in the complaint is reasonable and no longer in contest.

5. The parties agree that this matter be submitted on briefs covering the

jurisdictional question . . ..”

Therefore, based upon the foregoing, the sole issues to be determined were whether or

not the Occupational Safety and Health Administration had jurisdiction involving the worksite

and work conditions cited which are conceded not to be covered by Department of

Transportation Regulations and whether or not section 4(b)(1) of the Occupational Safety and

Health Act creates industry-wide exemption for railroads by virtue of the fact that the Secretary

of Transportation has promulgated some safety regulations affecting the industry. (Respondent’s

brief)

These issues have been discussed and ruled on by the Commission in Secretary of Labor

v. Belt Railway Company of Chicago, et al., Consolidated OSAHRC Docket No. 4616, et al., 20

OSAHRC —— (RC 1975) (October 17, 1975) (dissenting), and are dispositive of the issues

raised in this case. The factual and jurisdictional allegations in the Belt Railway Company of

 

 

Chicago, et al., cases are with few exceptions the same as the issues raised in this case.

Review Commission Judges are bound to follow the holdings of the Review Commission

which therefore leads to the following:

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Administration has jurisdiction over those

facilities of respondent which are not covered by duly promulgated regulations of the

Department of Transportation.

2. Respondent is not an exempt industry under section 4(b)(1) of the Act.

DECISION

1. Citation number 1 for nonserious violations, item 1 with proposed penalty of $50; item

3 with proposed penalty of $100; item 4 with proposed penalty of $100; item 5 with proposed

penalty of $100; item 6 with proposed penalty of $100 and item 7 with no proposed penalty are

affirmed.

2. Item 2 of citation 1 having been abandoned by complainant, is vacated.

Paul E. Dixon,

Judge, OSAHRC

Date: Nov. 18, 1975