BURLINGTON NORTHERN, INC.

OSHRC Docket No. 11418

Occupational Safety and Health Review Commission

December 12, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

T. A. Housh, Jr., Regional Solicitor, USDOL

W. L. Peck, RegionalCounsel, Burlington Northern

OPINION:

DECISION

BY THE COMMISSION:

In this matter, n1 as in other railroad cases that have come before us, Respondent argues that it is entitled to an exemption from the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") under the provisions of section 4(b)(1) because the Secretary of Transportation has issued some regulations concerning railroad safety. It has not been shown that the working conditions involved herein are the subject of Department of Transportation regulations. n2

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n1 Docket No. 11325 was severed from the instant case in Belt Railway of Chicago, et al., (Docket No. 4616; October 17, 1975).

n2 Respondent contends 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 Respondent's argument. We do not believe the advance notice to be an exercise of authority. It is enough to note that it does not constitute "rulemaking" under the Administrative Procedure Act (5 U.S.C. 551(5)). We are not persuaded to a different result by the district court decision in Dunlop v. Burlington Northern, 395 F. Supp. 203 (D. Mont. 1975) cited to us by Respondent. Although that case represents respectable authority to which we may look, we are not bound by the decision therein. In any event, this case is factually distinguishable from Dunlop v. Burlington Northern inasmuch as the inspection was conducted and the citation issued prior to the publication of the notice of proposed rulemaking. Furthermore, the district court case dealt with the Secretary's request for an order permitting an inspection of Burlington's worksite rather than an enforcement proceeding under the Act.

Respondent further argues that a section of the Amtrak Improvement Act of 1973 (45 U.S.C. 641 (1973), formerly 84 Stat. 1339 (1970)) reaffirms the intent of Congress to vest exclusive jurisdiction over railroad safety in the Department of Transportation. We reject this argument since the question is not whether the Department of Transportation has authority, but rather whether that authority has been exercised.

[*2]

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The administrative law judge rejected Respondent's argument. His de is' in that respect is consistent with our decisions in Belt Railway of Chicago, et al., (Docket No. 4616; October 17, 1975) and Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), petitions for review docketed, Nos. 74-3981 and 75-1091 (5th Cir., November 29, 1974 and January 10, 1975). Since the issues presented in those cases are currently on review before several Courts of Appeals, n3 no purpose would be served in repeating what was said there.

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n3 Penn Central Transportation Company, 13 OSAHRC 604 (1974), petition for review docketed, No. 75-1102 (4th Cir., Jan. 28, 1975). Chesapeake and Ohio Railway Company, 15 OSAHRC 15 (1975), petition for review docketed, No. 75-1182 (4th Cir., Feb. 18, 1975); Southern Railway Company, 13 OSAHRC 498 (1974), petition for review docketed, No. 75-1055 (4th Cir., Jan. 15, 1975); Seaboard Coast Line Railroad Company, (Docket No. 2802, 1974), petition for review docketed, No. 74-3984 (5th Cir., Nov. 29, 1974); Union Pacific Railroad Company, 13 OSAHRC 539 (1974), petition for review docketed, No. 75-1065 (8th Cir., Jan. 27, 1975).

[*3]

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Inasmuch as Respondent admitted the violative conditions which were the subjects of the citation, the Judge properly affirmed the citation as amended, n4 Accordingly, we affirm the Judge's disposition. It is so ORDERED.

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n4 In his opinion the Judge said he would affirm a record keeping allegation described in the citation. He reasoned that Respondent had not established a section 4(b)(1) defense. Nevertheless, the Judge affirmed the citation as amended by the complaint. The record keeping allegation was not repeated in the complaint. Accordingly, it was withdrawn.

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DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons expressed in my opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC     (Docket No. 4616, October 17, 1975), I would vacate the the citations because the railroad industry, of which the respondent is a part, is not subject to the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue [*4] of 29 U.S.C. 653(b)(1).

Although it would ordinarily be unnecessary for me to say any more on this matter, I am constrained to register my disagreement with the dicta contained in footnote 2 of the Commission's decision. The reference therein to Administrative Procedure Act, 5 U.S.C. 551(5), and the rejection of Judge Battin's well-reasoned decision in Dunlop v. Burlington Northern Railroad, 395 F. Supp. 203 (D. Mont. 1975) is as incorrect as it is unnecessary.

In footnote 1 of Burlington Northern, Judge Battin correctly observed that:

". . . 29 U.S.C. 653(b)(1) by its own language triggers the exception to the chapter if a Federal agency 'exercises statutory authority' to prescribe or enforce standards or regulations affecting occupational safety or health. The section does not require that the regulations actually be adopted before the Occupational Safety and Health Act is inapplicable. If Congress had so intended, it could have drafted the section so as to make the Act inapplicable only when other Federal agencies 'have prescribed' safety or health regulations." (Emphasis added.)

Moreover, the legislative history of the Act supports his literal interpretation [*5] of section 653(b)(1). The following remarks of Congressman Steiger in House Report 91-1460 are instructive in this regard:

"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." n5

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n5 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) (emphasis added).

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