CHICAGO AND NORTH WESTERN TRANSPORTATION CO.

OSHRC Docket No. 13071

Occupational Safety and Health Review Commission

March 10, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Louis T. Duerinck, General Solicitor, Chicago & North Western Transportation Company, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

A decision of Administrative Law Judge Vernon Riehl is before us upon the granting of respondent employer's petition for discretionary review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter "the Act"). Respondent raises four issues in its petition: (1) whether respondent is subject to the jurisdiction of the Occupational Safety and Health Administration; (2) whether the absence of exit signs from a building owned by respondent constitutes noncompliance with the standard at 29 CFR 1910.37(q)(1); n1 (3) whether respondent properly contested item 7 of the citation that alleged a violation of the standard at 29 CFR 1910.212(a)(5); n2 and (4) if item 7 was properly contested, whether respondent failed to comply with the standard.

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n1 The standard states: Exit Marking

Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.

n2 The standard states: Exposure of Blades

When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one-half (1/2) inch.

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Respondent, Chicago and North Western Transportation Company, is a corporation engaged in the railroad transportation business as a carrier subject to Part 1 of the Interstate Commerce Act, 49 U.S.C. 1, et seq. As a result of a properly conducted investigation of respondent's establishment located at 903 Story Street, Boone, Iowa, a seven-item citation was issued to respondent in which it was alleged that respondent had violated section 5(a)(2) n3 of the Act by failing to comply with seven standards promulgated by the Secretary of Labor. Respondent contested these items n4 by filing a timely Notice [*3] in which respondent requested that the citation be "cancelled" because, it contended, jurisdiction was improperly asserted.

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n3 The section states:

Each employer shall comply with occupational safety and health standards promulgated under this Act.

n4 Although respondent initially contested both the alleged violations and the penalties assessed therefor, the Secretary ultimately proposed that no penalty be assessed and the Judge adopted this proposal.

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The Secretary filed a complaint in which the violations itemized in the citation were restated. In its answer, respondent admitted to the facts averred in the complaint, but denied that the existence of such facts proved the allegations. The case was presented to the Judge on stipulated facts. Judge Riehl vacated items one, three, and four, and affirmed items five and six of the citation. Respondent does not challenge the Judge's disposition of these items if it is held that respondent must comply with the Act. n5 Judge Riehl also affirmed items two and seven. [*4] Respondent, in its petition for discretionary review, challenges the disposition of these two items.

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n5 Actually the Judge concluded that respondent did not contest items five and six, thereby causing them to become final orders of the Commission. Our decision in this case makes it unnecessary to decide whether the Judge erred.

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I. The Railroad Exemption Issue

We first consider if respondent is exempt from complying with the Act. The arguments advanced by respondent in support of a railroad industry exemption have been considered and rejected previously both by the Commission and the Courts of Appeals. See, e.g., Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976); Seaboard Coast Lines, 3 BNA OSHC 1760, 1975-76 CCH OSHD para. 20,184 (No. 10,541, 1975). This precedent is dispositive of the arguments here; therefore, Judge Riehl's disposition of items one, three, four, five, and six is affirmed.

II. Exit Signs

The building referred to in item two, concerning exit signs, [*5] consists of one floor divided into three sections. At least one door services each section. Ground level escape also is available through at least two windows in each section. The doors and windows in each section are in clear view from any work station in the respective sections. Respondent does not deny that the exit doors in the building were not marked by signs. Rather, it urges that the item should be vacated because the clear visibility of the doors fulfills the purpose of the standard. Respondent's argument is rejected. The language of the standard is unequivocal. All exits must be marked by signs, not merely those that are not clearly visible. Compare the standard at 29 CFR 1910.36(b)(5). n6 Therefore we affirm the item. Nevertheless we find the violation to be de minimis in light of the highly visible means of egress that were available. See Van Raalte, 4 BNA OSHC 1151, 1975-76 CCH OSHD para. 20633 (No. 5007, 1976).

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n6 The standard states in pertinent part:

Every exit shall be clearly visible or the route to reach it shall be conspicuously indicated in such a manner that every occupant of every building or structure who is physically or mentally capable will readily know the direction of escape from any point. . .

[*6]

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III. The Electric Fan

Before we address the merits of respondent's contest to item seven, concerning the electric fan, we must decide whether respondent filed a notice of contest to the item. Judge Riehl held without an assignment of reasons that respondent did not contest the item, and, therefore, the cited item became a final order of this Commission. The facts are not in dispute. In a timely, self-styled form entitled Notice Of Contest, respondent gave a general notice of contest of the citation. Thereafter the Secretary issued a complaint that included item seven. In its answer, respondent averred facts with respect to item seven that apparently it believed constituted an affirmative defense. Moreover, no party challenges jurisdiction on this issue. Accordingly, we shall consider respondent's objections to the merits of the Judge's decision on the item.

Respondent admits that a portable electric fan with blades not guarded in accordance with the standard was less than seven feet above the floor of the work area in respondent's building. Respondent contends, however, that because the fan [*7] was privately owned by an employee who used it for his own comfort, responsibility for the presence of the unguarded fan cannot be placed upon respondent. We reject this argument. An employer is responsible for ensuring the safety of equipment it owns and provides to its employees. An employer is equally responsible for ensuring the safety of equipment over which it has control, but not ownership, that is used by its employees. Cf. Clarkson Construction Co. v. OSAHRC, 531 F.2d 541 (10th Cir. 1976). Respondent could have either required the employee to remove the fan or install a proper guard.

Because the fan was less than seven feet above the floor of the work area, we infer that, even if there were no actual knowledge of the presence of the fan, its presence was readily discoverable by sight or sound. Accordingly, respondent could have prevented the hazard through the exercise of reasonable diligence.

Accordingly, it is ORDERED that the Judge's decision be affirmed with respect to items one, three, four, five, and six of the citation, and modified with respect to items two and seven as provided above.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

For the reasons expressed [*8] in my opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568 (1975), I would vacate the entire citation 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 of 29 U.S.C. 653(b)(1). Furthermore, item 7 of the citation should be vacated because the evidence is insufficient to establish that respondent knew or should have known of the unguarded portable fan.

The only evidence pertaining to item 7 is contained in a joint stipulation of facts which merely states that:

"On April 1, 1975, the periphery of the blades on the portable fan in the dispatcher's office was less than seven feet above the floor and no adequate guard was provided. This fan was not owned by respondent but was the private property of the one employee who used it for his own comfort."

There is no evidence as to who was the employee who owned the fan, how long it was in use, whether it was in a location where it could be readily noticed, or whether it made any noise. Nevertheless, on this meager evidence my colleagues conclude that its "presence was readily discoverable by sight or sound." [*9] This is pure conjecture as there is no evidence of record on which such as inference can reasonably be drawn.

In Secretary v. Scheel Construction, Inc., OSAHRC Docket No. 8687, November 8, 1976, the Commission held that:

"Knowledge of the existence of a violation, either actual or constructive, is an essential element of any violation of the Act. Therefore, complainant must establish employer knowledge by a preponderance of the evidence before a violation of the Act can be affirmed. See Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975."

The reasoning in Alsea Lumber has been adopted by the United States Court of Appeals for the Fifth Circuit in Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 569, 571 (5th Cir. 1976). It has also been favorably cited by two other Circuit Courts. n7 The majority holdings in the instant case emasculates the Commission's decision in Scheel Construction and the decisions of the Circuit Courts as well.

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n7 Dunlop v. Rockwell International, 540 F.2d 1283 (6th Cir. 1976); General Electric Co. v. OSAHRC, 540 F.2d 67 (2d Cir. 1976).

[*10]

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Since this decision does not discuss all of the matters covered in Judge Riehl's decision, his decision is attached hereto as Appendix A.

APPENDIX A

STATEMENT OF CASE

EUGENE F. DeSHAZO, U.S. Department of Labor, Office of the Solicitor, On Behalf Of Complainant

LOUIS T. DUERINCK, Chicago & North Western Transportation Co., On Behalf Of Respondent

Vernon Riehl, Judge, OSAHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 contesting citations issued by the complainant against respondent under the authority vested in the complainant by section 9(a) of the Act. The citations allege that an inspection of workplaces under the ownership, operation and control of the respondent revealed the existence of workplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The parties have agreed to submit the case for determination to this Judge by stipulated facts and conclusions of law in lieu [*11] of oral testimony.

The stipulated facts and conclusions of law are as follows:

"1. Respondent, Chicago and North Western Transportation Company, is a corporation with an establishment located at 903 Story Street, Boone, Iowa, where it is engaged in the railroad transportation business as a carrier subject to Part 1 of the Interstate Commerce Act (49 U.S.C. 1, et seq.).

2. Respondent is engaged in a business affecting commerce and employs approximately 400 employees in its activities at its aforesaid workplace in Boone, Iowa, not all of which employees use the individual workplaces specified in the individual citations.

3. As a result of an inspection by an authorized representative of the Secretary, respondent was issued a citation for other than serious violations on April 2, 1975, and a notification of proposed penalty on April 8, 1975, pursuant to section 9(a) of the Act. Such citation was received by respondent on April 2, 1975, and the notification of proposed penalty was received by respondent on April 9, 1975. On April 25, 1975, respondent filed with a representative of the Secretary a notice of intent to contest the citation for other than serious violations and [*12] the notification of proposed penalty, pursuant to section 10(c) of the Act. This notice was duly transmitted to the Occupational Safety and Health Review Commission.

4. On April 1, 1975, the second floor of the yardmaster's office and communications building was of the size and arrangement depicted on Exhibit No. 1 hereto, and did not have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions. At least two employees utilized these facilities.

5. On April 1, 1975, exits from the maintenance of way repair building, which was of the size and arrangement shown on Exhibit No. 2 hereto, were not marked by readily visible signs. At least five employees utilized these facilities.

6. On April 1, 1975, twenty-five 30-gallon containers containing combustible liquids were stored in the maintenance of way repair shop. All employees working in the maintenance of way repair shop utilized these facilities.

7. On April 1, 1975, no means was provided to conspicuously indicate the location of eight portable fire extinguishers in the maintenance of way repair shop. At least four [*13] employees utilized these facilities.

8. On April 1, 1975, the eight portable fire extinguishers in the maintenance of way repair shop were not installed on the hangers or in the brackets supplied, mounted in cabinets, or set on shelves. At least four employees utilized these facilities.

9. On April 1, 1975, none of the portable fire extinguishers in respondent's establishment had a durable tag attached to show the maintenance or recharge dates or the initials or signature of the person who performs this service. At least ten employees utilized these facilities.

10. On April 1, 1975, the periphery of the blades on the portable fan in the dispatcher's office was less than seven feet above the floor and no adequate guard was provided. This fan was not owned by respondent but was the private property of the one employee who used it for his own comfort.

11. Respondent states that it is now in compliance with the abatement requirements of the citation.

12. Based upon the size of respondent's business, the gravity of the violations, the good faith of respondent, and the history of previous violations, no penalty is appropriate for any of the above enumerated violations, and [*14] the citation and notification of proposed penalty are hereby amended accordingly.

13. The parties intend that, by entering into this stipulation, all factual issues raised by the pleadings filed to date are hereby resolved. It is further intended that the remaining issues -- the extent to which such facts constitute violations of the regulations, and the issue of whether or not respondent is subject to the regulations of the Occupational Safety and Health Administration -- should be determined by administrative and judicial determination in conformity with the provisions of the Act, the regulations, and the rules of procedure of the Occupational Safety and Health Review Commission.

14. The above 13 numbered paragraphs include the whole stipulation between the parties and nothing else is to be implied hereby.

We adopt the stipulated facts as our own for the purpose of this decision. We note the parties have stipulated that considering the size of respondent's business, the gravity of the violations, the good faith of respondent and the history of previous violations, that no penalties are appropriate for the enumerated violations set forth by the citation, and the citation and [*15] notification of proposed penalty are amended accordingly. This amendment is granted.

A complaint and answer have been filed and the case is at issue.

Respondent has admitted that it is a common carrier by railroad subject to part 1 of the Interstate Commerce Act; that respondent is also subject to the rules and regulations promulgated by the Secretary of Transportation pursuant to the authority contained in the Federal Railway Safety Act of 1970, 45 U.S.C Section 431 et seq., and is subject to other statutes vested in the Secretary of Transportation responsible for railway safety. Respondent contends that the Secretary of Transportation has exercised and is exercising statutory authority under the above statutes to prescribe standards for the safety of railroad employees.

In support of this contention, respondent has stated that on March 7, 1975, FRA announced its intention to prescribe railroad occupational safety and health standards by adding a new Part 219, to Title 49 CFR (40 Fed.Reg. 10693). It also announced that those standards would apply to occupational safety and health conditions of railroad employees whose workplaces or activities are related to [*16] the operation of the rail system, and, that these regulations would apply to railroad yards and terminals including all devices, structures and facilities, and to railroad support facilities for construction, assembling, servicing, maintaining, repairing, and storing railroad rolling stock and equipment.

Respondent further states that these new regulations, together with those published in Parts 213, 230 and 231 of Title 49, Code of Federal Regulations leads to the inescapable conclusion that the FRA both has the authority and has exercised statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health of railroad workers in such working places.

We feel the respondent is in error in this contention. We must construe the Act as of the situation prevailing on the day of the citation.

On the day of the citation, the railroads in such cases as the instant one were under the regulation of occupational safety and and health standards. We note that FRA does not have a program, it has an "intention" to prescribe standards. Respondent states that these regulations "would" apply to railroad yards, etc. Respondent says such [*17] action leads to the conclusion that it "has exercised" statutory authority to prescribe and enforce standards and regulations. Respondent finally states that this "exercise of authority" by FRA brings into play the express terms of 29 U.S.C. Section 653(b)(1).

We must point out that all of these words and phrases such as "would", "has exercised", etc., are something that will be done in the future but are not in effect at the present time.

We cannot be sure of the point in time that this will all come about, if ever. It maybe a month, a year or never.

We are confronted with applying the laws that exist today. As it exists today, the respondent is under the jurisdiction of the Occupational Safety and Health Act insofar as enforcing safety conditions are concerned. The facts in the instant case are very similar to that of Secretary v. Southern Pacific Transportation Co., 13 OSAHRC 258 (1974). This case does not recognize the exclusive jurisdiction of the Department of Transportation over railroad health and safety. Up until the time of this decision, the FRA has not "exercised statutory authority" to regulate health and safety matters in the railroad industry, [*18] and, accordingly the Department of Labor retains jurisdiction until it has done so. We feel this decision still controls the situation as it presently exists.

See Secretary v. Illinois Terminal Railroad Co., 13 OSAHRC 476 (R.C. 1974); Secretary v. Union Pacific Railroad Co., 13 OSAHRC 539 (R.C. 1974) and Secretary v. Burlington Northern, Inc., OSAHRC Docket 11324/11418 (filed June 9, 1975, review directed June 10, 1975). In all of these cases, the holding under very similar facts has been that Section 4(b)(1) of the Act does not provide an industry exemption and accordingly in the absence of other Federal agencies exercising their authority to regulate safety and health working conditions, such working conditions are subject to the Occupational Safety and Health Administration regulations.

We see no reason to vary from these holdings at this point in time and feel that the aforesaid cases state the matter correctly insofar as OSHA coverage in certain cases of those industries regulated by the Department of Transportation are concerned.

Item 1, 29 CFR 1910.36(b)(8). The Secretary has not carried the burden of proof and we are compelled to vacate this item of [*19] the citation. The standard states as follows:

Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions. (emphasis added)

An examination of the area, shown in exhibit number 1, establishes that the only means of exit (the stairs) is situated fairly near to the center of a room 24 X 52 feet in size. There are a number of windows on both sides of this building. We feel that the key word of the standard is "reasonable safety" of numbers of occupants. None of the employees in this part of the building would have to walk more than a very few feet to get to the stairs. There are windows available to reach out of or drop from in each of the rooms including the toilet. It is very difficult for us to see where the addition of another exit in such an area should be required. Accordingly, we will vacate this citation.

Item 2, [*20] 29 CFR 1910.37(q)(1). The standard states as follows:

Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants. (emphasis added)

Respondent contends that the floor plan of the building (exhibit number 2) is so constructed that, with the possible exception of someone who is occupying the toilet in the assistant foreman's office, there is no point in any one in the subsections of that floor having a sign. We do not agree with this. It is conceivable that some temporary employee or other people in the building might be in the back office and possibly temporarily confused.

The standard used the word "shall" and for that reason only we are bound to find that this is a violation. It is a close question in our mind as to the real necessity of such a sign but we will follow the standard. Accordingly we will affirm item 2.

Item 3, 29 CFR 1910.106(d)(5)(i). The standard states:

Egress. Flammable or combustible liquids, including stock for sale, shall not be stored so as to limit use of exits, stairways, or areas normally used for [*21] the safe egress of people. (emphasis added)

We agree with respondent's contention in his brief when he states: "Proscribed in only that storage which limits the use of exits, stairways or areas normally used for the safe egress of people. The record here is devoid of any testimony concerning the place within the maintenance of way repair building where the containers were stored." The complainant has accordingly failed in his proof of item 3 and we will vacate the citation for this item.

Item 4, 29 CFR 1910.157(a)(3). The standard states:

Marking of location. Extinguishers shall not be obstructed or obscured from view. In large rooms, and in certain locations where visual obstruction cannot be completely avoided, means shall be provided to indicate the location and intended use of extinguishers conspicuously.

The complainant has not carried the burden of proof on item 4. This rather small building is divided by four distinct sections, the largest of which is less than 15 feet wide and 27 feet long (locker room). We do not think the standard is made to apply to rooms of this small size and accordingly there is no violation.

Item 5, 6 and 7. Respondent does not contest [*22] these items and accordingly they will be affirmed.

CONCLUSIONS OF LAW

1. Respondent, Chicago and North Western Transportation Company, a corporation, is subject to regulations under provisions of the Occupational Safety and Health Act of 1970 as concerns the working conditions of its employees subject to the Secretary's complaint.

2. Section 4(b)(1) does not prohibit the Secretary from asserting his authority in matters made subject to the complaint in this proceeding.

3. Section 4(b)(1) of the Occupational Safety and Health Act of 1970 does not provide for an overall general exception of the railroad industry in matters made subject to the complaint in this proceeding.

4. FRA at the time of the inspection by the authorized representative of the Occupational Safety and Health Administration had not "exercised its regulatory authority" over the working conditions of respondent's employees at their workplaces.

5. During the period in question, Chicago and North Western Transportation Company was an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970. The Occupational Safety and Health [*23] Review Commission has jurisdiction over the parties and subject matter herein pursuant to section 10(c) of the Act. Section 5(a)(2) of the Act, 29 U.S.C 654(a)(2) proposes a duty on respondent to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(b)(2) of the Act.

6. The amended penalty of zero dollars is appropriate.

DECISION

Based upon the foregoing facts and conclusions of law, it is ORDERED:

1. Items 2, 5, 6 and 7 of the citation for nonserious violation are affirmed.

2. Items 1, 3 and 4 of the citation for nonserious violation are affirmed.

Vernon Riehl, Judge, OSAHRC

Date: November 13, 1975