THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY

OSHRC Docket No. 12783

Occupational Safety and Health Review Commission

November 26, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

Joseph T. Kosek, Jr., The Pittsburgh & Lake Erie Railroad Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In this matter, 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. n1

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n1 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 Departmentment 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 is a preliminary step which does not constitute "rulemaking" under the Administrative Procedure Act. (5 U.S.C. 551(5)). Furthermore, the inspection in this case occurred prior to the publication of the advance notice of proposed rulemaking.

[*2]

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The administrative law judge rejected Respondent's argument. His decision 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, n2 no purpose would be served in repeating what was said there.

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n2 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 existence of the cited violative conditions and agreed that the proposed penalties are reasonable, the Judge properly affirmed the citation and assessed the proposed penalties. n3 Accordingly, we affirm the Judge's disposition. It is so ORDERED.

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n3 We conclude that the Judge's characterization of the matter as a settlement between the parties was harmless error. The parties did not attempt to settle the case. Rather, they stipulated the facts and indicated that their dispute was limited to an issue of law. The matter is properly characterized as one for summary judgment.

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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 citations because the railroad industry, of which the respondent is a part, is not subject to the jurisdiction of the Occupational [*4] Safety and Health Act of 1970 by virtue 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 1 of the Commission's decision. Reliance therein on the Administrative Procedure Act, 5 U.S.C. 551(5), to reject the respondent's contention that the Secretary of Transportation's advance notice of proposed rulemaking does not constitute an exercise of authority under section 653(b)(1) is misplaced as the respondent's contention is supported by the clear and unambiguous language of the statute and by the Act's legislative history.

As the district court correctly observed in Dunlop v. Burlington Northern Railroad, 395 F. Supp. 203, 205 n. 1 (D. Mont. 1975):

". . . 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, [*5] 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 this literal interpretation 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." n4

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n4 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).

[*6]

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