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