GREYHOUND LINES, INC.

OSHRC Docket No. 12035

Occupational Safety and Health Review Commission

March 15, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Herman Grant Regional Solicitor

Richard M. Hannon, Greyhound Lines, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Sidney J. Goldstein is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). Judge Goldstein affirmed a citation that alleged a non-serious violation of 29 CFR 1910.22(c) n1 and assessed a penalty of $40. We affirm.

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n1 The standard provides that "covers and/or guardrails shall be provided to protect personnel from the hazard of open pits, tanks, vats, ditches, etc."

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Respondent was cited n2 for failure to guard 15 bus service pits measuring 42 feet long, four feet wide, and four feet six inches deep, each separated from the adjacent pit by 12 feet. It is undisputed n3 that when the pits were not in use servicing buses, they were unprotected by a cover or guardrail. Respondent employs [*2] approximately 37 employees at the workplace, many of whom work in and around the pits. While respondent has no record of reportable or lost time injuries to its employees as a result of the conditions described, respondent stipulated that an injury could result if an employee were to fall into the unguarded open pit. On these facts Judge Goldstein affirmed the citation.

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n2 Respondent was cited for 14 non-serious violations, but contested only the one item presently before us.

n3 The evidence consists of stipulations agreed upon by the parties.

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In its petition for review, respondent raises numerous arguments which reduce to two issues: whether the Review Commission has jurisdiction over respondent and whether the facts pertaining to respondent's employees' exposure to the open pits are sufficient to meet the Secretary's burden of proof.

Respondent's jurisdictional argument is simply stated. Congress intended the Interstate Commerce Commission to exercise exclusive control over the working conditions of common [*3] carrier employees. n4 Therefore, respondent argues, by enacting section 4(b)(1) of the Act, n5 Congress intended to prevent the Occupational Safety and Health Administration and the Review Commission from exercising any control over the same conditions, even concerning conditions over which the Interstate Commerce Commission has failed to exercise its authority. This "industry-wide exemption" concept has been rejected previously by the Review Commission. Belt Ry. Co. of Chicago, 3 BNA OSHC 1612, 1975-76 CCH OSHD para. 20,069 (No. 4616, 1975). Two circuit courts of appeals also have rejected this interpretation of section 4(b)(1). Southern Ry. v. O.S.H.R.C., 539 F.2d 335 (4th Cir. 1976), cert. denied, 45 U.S.L.W. 3410 (Dec. 6, 1976); Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976). These cases are dispositive of the section 4(b)(1) issue here.

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n4 Section 304(a)(1) of Part II of the Interstate Commerce Act states that the Interstate Commerce Commission has the duty

to regulate common carriers by motor vehicle . . . and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service . . . and safety and operation of equipment.

The Department of Transportation Act (Public Law 89-670) transferred all powers and functions under section 304(a)(1) to the Secretary of Transportation. See 49 U.S.C. 1655(e)(6)(C).

n5 Section (4)(b)(1) states that

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.

[*4]

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Moreover, we reject respondent's contention that the Secretary has failed to meet his burden of proof. Respondent stipulated that an employee could suffer an injury should he fall into a pit. We have previously held that the standard here in question presupposes that an open unguarded pit necessarily presents the hazard that someone may fall into it. Lee Way Motor Freight, Inc., 1 BNA OSHC 1689, 1973-74 CCH OSHD para. 17,693 (No. 1105, 1974), aff'd. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975). Respondent's employees would be required to pass no further than six feet from a pit when moving between adjacent pits. In Lee Way Motor Freight, Inc., supra, Greyhound Lines, Inc., 4 BNA OSHC 1792, 1976-77 CCH OSHD para. 21,183 (No. 8228, 1976), and Greyhound Lines - West, 4 BNA OSHC 1266, 1976-77 CCH OSHD para. 20,736 (No. 3120, 1976), appeal docketed, No 76-2608, 9th Cir., July 23, 1976, arguments identical to those presented by respondent were addressed and rejected. Because we are unable to distinguish between the evidence presented [*5] here and that presented in the three cited cases, we conclude that the Secretary has adduced preponderating evidence to support the finding that respondent's employees came within the zone of danger created by the unprotected open pit hazard. See Gilles & Cotting, Inc., 3 BNA OSHC 2002, 1975-76 CCH OSHD para. 20,448 (No. 504, 1976).

Accordingly, it is ORDERED that the Judge's decision be affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation in this case should be vacated because the cited standard does not apply either to the motor carrier industry in general or to vehicle maintenance pits in particular. First of all, the motor carrier industry, of which respondent is a part, is excluded from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. 653(b)(1). Secondly, neither the wording nor the history of 29 C.F.R. 1910.22(c) suggests that this standard applies to vehicle maintenance pits. For a full discussion of the reasons for my conclusions on these issues see my dissenting opinions in Secretary v. Greyhound Lines - West, OSAHRC Docket No. 3120, May 27, 1976, appeal docketed No. 76-2608, 9th Cir., July 23, 1976; [*6] Secretary v. Chief Freight Lines, Inc., OSAHRC Docket No. 6483, March 8, 1976; and Secretary v. Lee Way Motor Freight, Inc., OSAHRC Docket No. 7674, December 22, 1975.