SOUTHERN PACIFIC TRANSPORTATION CO.
OSHRC Docket No. 12755
Occupational Safety and Health Review Commission
September 29, 1976
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Ronald M. Gaswirth, Reg Sol., USDOL
Lloyd Cardwell, for the employer
Richard R. Brann, for the employer
OPINION:
DECISION
BY THE COMMISSION: A decision of Review Commission Judge J. Paul Brenton, dated October 9, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661. That decision, which is attached hereto as Appendix A, n1 vacated a citation consisting of 10 items and the $30.00 penalty proposed therefor on the ground that the railroad industry is exempt from the applicability of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. § 653(b)(1).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Chairman Barnako does not agree to this attachment.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Review was directed on whether the Judge erred in this determination. 568 (1975). Those decisions are dispositive of the instant case. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Commissioner Moran would affirm the Judge's decision for the reasons stated in his dissenting opinions in those cases.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent, in its answer to the complaint, 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 at the hearing that the exemption question was the only issue in contest.
Accordingly, the entire citation is affirmed and a penalty of $30.00 is assessed therefor. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 No objection to the penalty proposal has been entered by any authorized employee representative or affected employee and the amount proposed by complainant is not repugnant to the purposes and policies of the Act. See Secretary v. Thorleif Larsen and Son, Inc., 12 OSAHRC 313, 317 (1974).
- - - - - - - - - - - - - - - - -End Footnotes- - - - [*3] - - - - - - - - - - - - -
Appendix A
DECISION AND ORDER
Brenton, J.
This cause arises from a citation issued on February 27, 1975, by complainant to respondent charging respondent with violating section 5(a)(2) of the Occupational Safety and Health Act of 1970 in that it allegedly had violated 10 regulations on February 11 through February 25, 1975, at one of its facilities in Houston, Texas, where it performed certain work in its business as a common carrier. The regulations had been promulgated pursuant to section 6 of this Act.
Respondent's answer to the complaint admits that it is an interstate railroad and as such is engaged in a business affecting commerce. The answer admits the violations as alleged, however, respondent specifically avers that it is exempt from the Act's applicability by section 4(b)(1) of the Act because the Federal Railroad Administration had exercised statutory authority to prescribe or enforce standards affecting occupational safety or health with respect to working conditions of its employees.
The cause came on for hearing in Houston, Texas, on July 22, 1975, at which time respondent stipulated that it had violated the standards as alleged in the [*4] citation, thus eliminating all material issues of fact. This left for determination the sole issue of whether complainant, at the times the violations occurred, was invested with jurisdiction to enforce job safety and health standards over respondent railroad or his preclusion thereof by virtue of section 4(b)(1) of the Act. Whereupon the parties agreed to submit the determination of this law question upon their respective briefs.
Now, therefore, upon consideration of the propositions of law and authorities it hereby is, determined that at the time, February 11, 1975, through February 25, 1975, nothing in the Act applied to the working conditions of the employers of respondent railroad company because:
(a) At the time of the alleged violations herein facts and circumstances have come to light which materially distinguish the reasoning of the Review Commission's majority opinion in Secretary v. Southern Pacific Transportation Co. 13 OSAHRC 258 (11/15/74).
(b) At the time of the occurrence of the violations in Southern Pacific, supra, the Federal Railroad Administration had not exercised its authority to prescribe and enforce safety and health standards except in the [*5] sole area of monthly reporting accidents and illnesses under the provisions of the Accident Reports Act of 1910. These regulations then appeared at 49 CFR 225.
(c) On January 1, 1975, by virtue of the Federal Railroad Safety Act of 1970, whereby the Secretary of Transportation was given complete authority to prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety, the Federal Railroad Administration extensively revised 49 CFR 225 enabling it to acquire data and information from which necessary appropriate rules and regulations could be ascertained, formulated, and proposed.
(d) On March 7, 1975, at 40 CFR 10693 the Federal Railroad Administration, following its previous action at 49 CFR 225, proposed to adopt railroad occupational safety standards including OSHA standards promulgated in 29 CFR 1910, which incorporates items two through 10 of the citation in the instant case.
(e) Therefore, at the time and place respondent violated the Act the Secretary of Transportation had exercised, was then exercising and still is exercising his statutory authority under 45 U.S.C. § 431 to prescribe standards for the safety of railroad [*6] employees, all of which excepts respondent under the facts and circumstances then and there existing from the application of the Occupational Safety and Health Act of 1970.
It is this tribunal's opinion that his disposition of the instant case in no way conflicts with the Review Commission majority opinion in Southern Pacific, supra. The instant case is distinguished in that here the Federal Railroad Administration clearly demonstrated its intent to regulate the working conditions of railroad employees when it published on July 15, 1974, Vol. 29, F.R. No. 14, the extensive revision of 49 CFR 225 which became effective on January 1, 1975, and therefor was applicable at the time of the events herein complained of.
Moreover, there is addiitonal authority for the position taken here today albeit a decision of an Administrative Law Judge. Also the case of Dunlop v. Burlington Northern, MISC. CV-75-3-BLG. lends credence to the rationale of the determination [*7] of this cause.
It has always been this tribunal's opinion that upon the promulgation by the Secretary of Transportation of the first rules at 49 CFR 225, having to do with accident reporting, this Federal Agency's statutory authority was then triggered rendering OSHA inapplicable. The Review Commission, however, at that point in time, adopted the contrary view which has been consistently followed by the Judges hearing these cases until this point in time. Surely, the revision of 49 CFR 225 by the Secretary of Transportation is tantamount to an exercise of its authority to prescribe standards or regulations affecting working conditions of employees which is the action required by section 4(b)(1) of the Act which in turn makes the provisions of this Act inapplicable to working conditions of railroad employees. This conclusion also comports with the discussion in the House of Representatives concerning the exemption provision which appears in Southern Pacific, supra, and Indiana Harber Railroad Co., supra, and will not be repeated here. (See Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Committees on Labor and Public [*8] Welfare, 92nd Congress 1st session: Senate Report No. 91-1282, p. 162; see also p. 997, and pp. 1019-1020)
CONCLUSIONS OF LAW
1. The Review Commission has jurisdiction to hear and decide this case.
2. On February 11, 1975, through February 25, 1975, nothing in the Occupational Safety and Health Act of 1970 applied to the working conditions of respondent's employees at its railroad facility at 1400 Fulton Street, Houston, Texas.
ORDER
Wherefore it is Ordered that:
The citation and notification of proposed penalty to be assessed be and each hereby is, vacated.
It is so ordered at Dallas, Texas.
Date: October 9, 1975
J. Paul Brenton, Judge