SOUTHERN PACIFIC TRANSPORTATION COMPANY
OSHRC Docket No. 1348
Occupational Safety and Health Review Commission
November 15, 1974
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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter n1 presents an important question of statutory interpretation involving section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "OSHA"). It arose out of an inspection conducted by the Department of Labor (Labor) of Respondent's (Southern Pacific) shop facility located in Houston, Texas. As a result of the inspection Labor cited Southern Pacific for failure to comply with certain crane safety standards, n2 for failure to post an informational poster, n3 and for failure to maintain a log of injuries and illnesses n4 contrary to sections 5(a)(2) and 8(c) of OSHA. Southern Pacific duly contested and the matter came on for hearing before Judge John C. Castelli. At the hearing, Southern Pacific conceded that it had not complied with the standards and regulations alleged to have been violated. Rather, it argued that in view of the terms of section 4(b)(1) of OSHA it is excepted or exempted n5 from compliance because the Secretary of the Department of Transportation (DOT) has exercised his authority pursuant to [*2] the Federal Railway Safety Act of 1970, 45 U.S.C. 421 et seq. (FRSA) and other earlier railway safety acts to promulgate and enforce safety regulations affecting the working conditions of railway employees. Labor concedes that DOT has authority to regulate all areas of employee safety for the railway industry. It argues that Southern Pacific is not excepted or exempted from OSHA and the standards and regulations cited in this case because DOT has not exercised its authority in the areas covered by the said standards and regulations.
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n1 This case was consolidated with the case of Penn Central Transp., Co., Subsequently both cases were consolidated with Union Pacific R.R., Seaboard Coastline R.R., Pursuant to Commission Rule 10, we hereby sever the aforementioned cases so that separately written determinations may be made in each.
n2 29 C.F.R. 1910.179(b)(5) and 179(j)(2).
n3 29 C.F.R. 1903.2(a).
n4 29 C.F.R. 1094.2(a).
n5 Despite some confusion as to the appropriate designation for section 4(b)(1), the parties generally agree that it operates to exclude something (whether particular industries or, as shown infra, particular working conditions) from the general applicability of the Act. Thus, the provisions of section 4(b)(1) are in the nature of an "exception," the function of which is to exempt (or exclude) some portion from the operative effect of the Act. See Gatliff Coal Co. v. Cox, 142 F.2d 876 (6th Cir. 1944); United Furniture Workers v. Colonial Hardwood Flooring Co., 168 F.2d 33 (4th Cir. 1948); Electric Ry. Employees Local 1210 v. Pennsylvania Greyhound Lines, Inc., 192 F.2d 310 (3rd Cir. 1951). Accordingly, the party who claims the benefit of an exception has the burden of proving its entitlement thereto. United States v. First City National Bank of Houston, 386 U.S. 361 (1967); FTC v. Morton Salt Co., 334 U.S. 37 (1948).
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The adverse positions may be summarized as follows: Southern Pacific contends that section 4(b)(1) exempts all working conditions in the railway industry because DOT has exercised some of its authority; and Labor contends that section 4(b)(1) exempts only those areas of employee safety in which DOT has exercised its authority. Judge Castelli, in essence, adopted Labor's view. He concluded that DOT had not exercised its authority to regulate railway employees safety in shop and repair facilities, and he affirmed the alleged violations of the OSHA crane standards and the alleged informational poster violation. He vacated the recordkeeping violation for the reason that DOT has promulgated accident reporting requirements.
On review of his decision Southern Pacific asks for reversal for the reasons given by it below; Labor asks for affirmance where violations were found below and for reversal of the Judge's disposition of the recordkeeping allegation; and DOT, appearing as an amicus curiae at our invitation, seeks affirmance of Judge Castelli's disposition. We have reviewed the reocrd and have considered [*4] the arguments of all participants in this matter. For the reasons given hereinafter we affirm.
Section 4(b)(1) provides in pertinent part as follows:
Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . expercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. 29 U.S.C. 653(b)(1).
Obviously, the section is not self-defining for its terms can be construed to create the broad exemption Southern Pacific seeks or the narrow exemption for which Labor and DOT argue. Moreover, all parties point to the legislative history of the section as providing support for their respective views. And, indeed, the legislative history is as persuasive for one side as it is for the other. n6 Accordingly, it cannot be said to be dispositive of the issue.
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n6 See, e.g., Legislative History of the Occupational Safety and Health Act of 1970, Committee Print, pgs. 162, 997, 1019, 1020, 1037, 1223 (1971).
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Therefore we turn to the congressional findings and statements of purpose and policy for guidance. OSHA came about because workplace injuries and illnesses impose "a substantial burden upon, and are a hinderance to, interstate commerce," 29 U.S.C. 651. In order to alleviate this burden, Congress determined its purpose and policy was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. 651(b). This policy can only be effectuated by interpreting OSHA to include rather than exclude working conditions of employees. Otherwise it cannot be said that the Nation's human resources were preserved "so far as possible."
But the interpretation sought by Southern Pacific would operate to exclude any coverage of working conditions in railway offices, shops, and repair facilities because DOT says it does not now regulate safety and health in such areas and it does not contemplate regulating these areas in the future. In this regard, we deem it highly significant that DOT joins with Labor in requesting a narrow interpretation of section 4(b)(1) for as DOT says "[t]o interpret [*6] the exemption as an 'industry' exemption would leave wide gaps in coverage." n7 We too cannot believe Congress intended such gaps in coverage.
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n7 Brief of the DOT at pg. 8.
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Moreover, the interpretation sought by Labor and DOT accords with the rule that exemptions from humanitarian and remedial legislation are to be narrowly construed. A.H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945); Spokane & I.E.R. Co. v. United States, 241 U.S. 344 (1916); Sterns v. Hertz Corp., 326 F.2d 405 (8th Cir., 1964); Herren v. United States, 317 F. Supp. 1198 (D.C. Texas; 1970), aff'd 443 F.2d 1363 (5th Cir., 1971).
Finally, we are not persuaded to a different result by the fact that the 91st Congress enacted the FRSA and the Rail Passenger Service Act of 1970 (P.L. 91-518) during the same session as and prior to the enactment of OSHA. As to the FRSA the question is not whether DOT has authority but rather whether that authority has been exercised. We have already addressed this argument. [*7] As to the Rail Passenger Service Act the argument is that since section 405(d) thereof precludes application of safety standards promulgated pursuant to section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333) to railroad employees OSHA standards could not have been intended to apply to such employees. The short answer is that we are dealing with OSHA and not with the Contract Work Hours and Safety Standards Act. In any event construction safety standards are not involved in this case.
Accordingly, we conclude that section 4(b)(1) of OSHA does not provide an industry exemption. Rather, it provides an exemption for specific working conditions. Thus, as in this case, when a Federal agency or department has authority to regulate safety and health working conditions in, e.g., railroad shops, and does not exercise that authority the said working conditions are subject to OSHA regulations.
We turn now to the matter of recordkeeping for a different situation pertains. DOT has exercised its statutory authority in this area; it requires accident reporting by railroad employers. n8 Labor seeks reversal of Judge Castelli's decision to vacate on the basis that recordkeeping [*8] requirements are not "working conditions" within the meaning of the exmption. We cannot agree.
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n8 See 49 C.F.R. 225.
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A requirement to compile and maintain accident records is not unlike a requirement to collect, compile, and maintain statistical data relating to occupational safety and health. However, according to section 24(a) of OSHA (29 U.S.C. 673(a)) n9 Labor cannot impose a statistical program upon "employments excluded by section 4" of OSHA. In our view, section 4(b)(1) constitutes the only exclusionary provisions to be found in section 4. n10 Since both "working conditions" and statistical programs as to "employments" are excludable by operation of section 4(b)(1) we think it would make for an inharmonious construction of OSHA to require recordkeeping as to excepted or exempted working conditions or employments. Moreover, by its own terms, section 4(b)(1) applies to the entire OSHA and thus necessarily provides for an exemption from the recordkeeping requirements of section 8 (29 U.S.C. 657). [*9] Finally, the terms of section 8(d) (29 U.S.C. 657(d)) require the avoidance of imposing unnecessary duplication of recordkeeping requirements on employers. DOT requires recordkeeping, and, as we see it, Labor's argument, if upheld herein, would result in unnecessary duplication. n11
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n9 Section 24(a) provides, in pertinent part: "In order to further the purposes of this Act, the Secretary . . . shall develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics. Such program may cover all employments whether or not subject to any other provisions of this Act, but shall not cover employments excluded by section 4 of the Act." 29 U.S.C. 673(a).
n10 Labor would have us adopt a conclusion that the exclusionary provision of section 24(a) refers to section 4(a) rather than 4(b)(1). The argument is misplaced. By its plain terms section 4(a) refers to where OSHA shall apply; 4(b) states where it shall not apply.
n11 Through its brief field herein DOT has offered to make its accident records available to Labor. We see no reason why the offer should not be accepted as a practical solution to the problem. Moreover, we believe the two departments are fully capable of resolving any differences they might have as to the kind of records that are required.
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Labor also argues for affirmance of its citation because its regulation involved herein (29 C.F.R.1904.2(a)) goes further or requires more than DOT's regulation. But as Commissioner Cleary said in speaking for the majority in Mushroom Transportation Company, Inc., S. & H. Guide, para. 16,881 at 21,591 (1973), "Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner." (emphasis added). We view Labor's argument herein to be directed to the sufficiency or adequacy of the DOT regulation. Accordingly, our decision in Mushroom Transportation is controlling and the citation must be vacated as to the recordkeeping allegation.
Therefore, the Judge's decision is affirmed, and it is so ORDERED.
CONCURBY: CLEARY (In Part); MORAN (In Part)
DISSENTBY: CLEARY (In Part); MORAN (In Part)
DISSENT:
CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur with the holding of the lead opinion that section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1), does not provide [*11] an industry exemption for the railroad industry. I dissent, however, from the holding that the recordkeeping requirements under the Act are inapplicable to respondent because it is already covered by the accident reporting provisions of the Federal Railway Safety Act of 1970, 45 U.S.C. § 421 et seq.
I.
On several other occasions the Commission has been called on to determine whether the language of section 4(b)(1) of the Act exempts various working conditions from the Act's coverage. In the Commission's first major decision on this point, Mushroom Transport Co., Inc., No. 1588 (November 7, 1973), petition for review dismissed, No. 74-1034 (3d Cir. 1974), the Commission held that a common carrier who was regulated by the Motor Carrier Safety Regulations of the Department of Transportation was exempted from compliance with specific OSHA standards related to wheel chocks. n12 The Commission's decision emphasized three considerations: Section 4(b)(1) is intended to avoid duplication in the enforcement of occupational safety and health regulations; once another federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations [*12] covering the same conditions: and section 4(b)(1) does not require that the other agency's regulations be similar or even equally stringent.
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n12 The Commission held that the OSHA standard at 29 CFR § 1910.178(k)(1) was pre-empted by the Motor Carrier Safety Regulations at 49 CFR § 392.20.
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In Fineberg Packing Co., No. 61 (February 22, 1974), the Commission held that a meat processor who was subject to the provisions of the Federal Meat Inspection Act as amended by the Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq., was not exempted from coverage under the Occupational Safety and Health Act. The Commission noted that the purpose of the Wholesome Meat Act is primarily to protect consumers, even though employees may receive incidental protection. n13
To be cognizable under section 4(b)(1), we conclude that a different statutory scheme and rules thereunder must have a policy or purpose that is consonant with that of the Occupational Safety and Health Act. That is, there must be a policy or purpose [*13] to include employees in the class of persons to be protected thereunder. Fineberg, supra (slip op. at 4).
The "policy or purpose" test expressed in Fineberg was again followed in Sigman Meat Co., Inc., No. 251 (May 6, 1974), another food processing case.
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n13 This case involved alleged unsanitary conditions in change rooms, toilets, and waste room facilities in contravention of the OSHA standard at 29 CFR § 1910.141(a).
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Finally, in Bettendorf Terminal Co., No. 837 (May 10, 1974), the Commission held that an employer located 10 miles from a quarry that only unloaded, dried, stored, and delivered sand was not engaged in "milling operations" and not exempted from coverage because of the Metal and Non-Metallic Mine Safety Act, 30 U.S.C. § 721 et seq. Thus, the Commission declined to extend an exemption under section 4(b)(1) to an employer who was only tangentially related to a business regulated by another safety act and who was never inspected by the Secretary of the Interior under the Mine Safety [*14] Act.
Three essential elements necessary for an exemption under section 4(b)(1) emerge from these cases. First, the policy or purpose of the other Act by virtue of which an exemption is claimed must be to assure safe and healthful working conditions for the benefit of employees. See Fineberg, supra. Such a finding is compelled by a reasonable reading to section 4(b)(1), the Commission's own precedent, and the legislative history of the Act. n14
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n14 In debate over the scope of exemption under section 4(b)(1) of the Act, Congress only referred to acts whose purpose was to assure safe and healthful working conditions for the benefit of employees. See Staff of Subcommittee on Labor, Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 at 1018-20, 1037 (Comm. Print 1971) (hereinafter cited as "Legislative History").
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The second requirement for an exemption under section 4(b)(1) is that the other federal agency actually [*15] exercises its authority to prescribe and enforce occupational safety and health standards. "[I]f an agency fails to promulgate or enforce regulations covering specific working conditions, the Act will apply to these conditions." n15 With respect to this possibility, Congressman Steiger, co-sponsor of the Act, remarked:
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. n16
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n15 Bettendorf Terminal Co., No. 837 (May 10, 1974) (Cleary, Commissioner, Concurring) (slip op. at 8-9).
n16 Legislative History at 997. See also the comments of Congressman Daniels, Legislative History at 1019-20.
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The final requirement for an exemption under section 4(b)(1) is that the conditions covered by the OSHA standard are also covered by the regulations of the other agency. Although we held in Mushroom that the other agency's regulations need not be similar or even equally stringent, the specific conditions regulated by OSHA must be included in the other regulations, or if there is a limited exclusion, the exclusion must be express and intentional. n17
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n17 The purpose of this requirement is so that the mere coverage by another agency's regulation of one item in an OSHA standard will not serve to exempt the other items covered only by OSHA.
Clearly, section 4(b)(1) is intended to avoid a duplication in the enforcement efforts of Federal agencies, the action of which provides job safety and health protection to employees. By the same token, there is perforce an intent to have no hiatus in the protection of employees.
Mushroom Transport. Co., supra at 2.
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II.
In analyzing the present case in light of the announced test, out starting point is a determination of the policy and purpose of the Federal Railway Safety Act of 1970 (FRSA), 45 U.S.C. § 421 et seq. Section 421 of FRSA contains the Congressional declaration of purpose.
The Congress declares that the purpose of this Act is to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous materials.
45 U.S.C. § 421.
The fact that the FRSA has a broad purpose and is not limited to providing solely for the occupational safety and health of employees is not fatal. There is nothing in the FRSA or its legislative history that suggests that reducing employee injuries is only an incidental aim of the legislation. n18
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n18 See 1970 U.S. Code Cong. & Adm. News 4104-32.
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The next factor to consider is whether the Department [*18] of Transportation (DOT) exercised its authority to prescribe and enforce job safety regulations under the FRSA. With respect to the crane safety standards, conceded by respondent to be contravened in its shop facility, the evidence is uncontroverted that DOT has neither exercised its grant of authority in this area nor is in the process of implementing such regulations. As DOT itself points out in its amicus curiae brief:
Even though DOT has broad authority to regulate railroad safety, it does not regulate all aspects of railroad safety. In general, DOT has not regulated offices and shop and repair facilities. . . .
Brief for DOT as Amicus Curiae at 6.
Inasmuch as no regulations have been promulgated by DOT, and none are in the formative stage, that would provide coverage for the working conditions in the shop facility of respondent, it must be concluded that respondent is not exempt from coverage under the Occupational Safety and Health Act. To adopt respondent's suggestion and hold that the enactment of the FRSA constitutes an industry-wide exemption would result in "wide gaps in coverage." n19 Such a consequence would be antithetical to the Act's express purpose of assuring [*19] "so far as possible every working man and woman in the Nation safe and healthful working conditions." Section 2(b) of the Act, 29 U.S.C. § 651(b). As the Fourth Circuit stated in reference to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.: "Remedial social legislation of this nature is to be construed liberally in favor of the workers whom it was designed to protect, and any exemption from its terms must be narrowly construed." Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 212 (4th Cir. 1967), cert denied, 389 U.S. 834 (1967).
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n19 This view is shared by DOT. See Brief for DOT as Amicus Curiae at 8.
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I therefore concur with the lead opinion's finding of a violation of section 5(a)(2) of the Act, 29 U.S.C. § 654(2), as to the specific standards in respondent's shops.
III.
In turning to the recordkeeping issue, it is apparent that DOT has exercised its Congressional grant of authority in this area to require the filing of various accident reports. n20 Thus, the only other element [*20] to consider in exempting respondent from compliance with the recordkeeping requirements of OSHA is whether the conditions covered by OSHA regulations are covered by the FRSA regulations.
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n20 See 49 CFR § 225, discussed in detail infra.
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Part 225 of Title 49 of the Code of Federal Regulations contains all of the accident reporting provisions promulgated by the Federal Railroad Administration (FRA) under the Accident Reports Act, 45 U.S.C. § 40 and other statutes. The purpose of these accident reporting provisions is the disclosure of hazards in railroad transportation. n21
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n21 49 CFR § 225.10. The accident reporting provisions cover injuries to employees, passengers, third parties, and damage to equipment.
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Although at first glance these reporting provisions seem to duplicate the recordkeeping requirements of section 8(c)(1), 29 U.S.C. § 657(c)(1), [*21] and the regulations promulgated by the Secretary of Labor pursuant to that section of the Act, a closer look at the railroad reporting provisions indicates that vast numbers of accidents are excluded. n22
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n22 It may also be concluded that because recordkeeping requirements of OSHA are not substantive rules prescribing courses of conduct related to occupational safety and health, that these provisions are not subject to an exemption under section 4(b)(1). See Bettendorf Terminal Co., No. 837 (May 10, 1974) (Clearly, Commissioner, Concurring) (slip op. at 9).
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Subpart (b) of 49 CFR § 225.14 excludes from the reporting provisions any injury to an employee that does not incapacitate the employee for more than 24 hours in a 10-day period. Under OSHA, however, injuries without lost workdays, must be reported if a job transfer or termination results, if medical treatment other than first aid is required, or if there is a loss of consciousness, restriction of work or motion, or the diagnosis of occupational [*22] illness. n23
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n23 See 29 CFR § 1904.12(c). With respect to occupational illness, see infra.
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Subpart (e) of 49 CFR § 225.15 also excludes from the reporting provisions any accident that results from "horseplay." These types of injuries are includable under OSHA.
Finally, and most importantly, 49 CFR § 225.15(c) excludes from reporting any disability resulting from illness. The reporting of occupational illnesses was specifically intended by Congress to be an important part of the recordkeeping requirements of the Act. n24 Congress was well-aware of and much-concerned about the 390,000 new occurrences of occupational disease each year. n25
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n24 See S. Rep. No. 91-1282, 91st Cong., 2d Sess., (October 6, 1970) at 16.
n25 Id. at 3.
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Despite the much-quoted language in Mushroom that the other agency's regulations need not be similar [*23] or even equally stringent, nothing that we stated in that decision should be construed as favoring exemptions under section 4(b)(1) of an entire field of occupational safety and health regulations when another agency's regulations only offer limited coverage. Such a construction clearly frustrates Congressional objectives and must be rejected. n26
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n26 Cf. Brennan v. O.S.H.R.C. & Gerosa, Inc. 491 F.2d 1340, 1343 (2d Cir. 1974); Brennan v. O.S.H.R.C. & Santa Fe Trail Transport. Co., No. 74-1049 (10th Cir., October 23, 1974).
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A close reading of the Act itself indicates that exact recordkeeping of occupational injuries and illnesses was one of the major aims of the Act. Recordkeeping procedures are specifically mentioned in sections 2(b)(12); n27 8(c)(1), (2), and (3); n28 19(a)(3), (4), and (5); n29 and 24(a) and (b)(1) and (2). n30
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n27 29 U.S.C. § 651(b)(12).
n28 29 U.S.C. § 657(c)(1), (2), and (3).
n29 29 U.S.C. § 668(a)(3), (4), and (5).
n30 29 U.S.C. § 673(a), (b)(1) and (2).
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Although requiring the railroads to maintain OSHA records in addition to FRSA records would involve some duplication, this is a small price to pay for assuring that accurate records of all workplace injuries and illnesses are maintained. The recordkeeping requirements under the Act present neither an excessive burden nor a conflict with any FRSA procedures. Furthermore, Congress recognized that some duplication in compiling these records is inevitable.
Section 8(d) of the Act, 29 U.S.C. § 657(d) specifically states: "Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible." Similarly, section 4(b)(3), 29 U.S.C. § 653(b)(3) reads: "The Secretary shall, within three years after the effective date of this Act, report to the Congress his recommendations for legislation between this Act and other Federal laws." With respect to this problem, the Senate Committee on Labor and Public Welfare stated the following:
The committee recognizes the need to assure employers that they will not be subject to unnecessary or duplicative record-keeping requests and [*25] has specifically stated this intent in section 8(d). To that end the committee intends that, wherever possible, reporting requirements should be satisfied by having an employer report relevant data only to one Governmental agency and that other Governmental agencies, if any, should then acquire their information from the original agency. n31
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n31 S. Rep. No. 91-1282, 91st Cong., 2d Sess., (October 6, 1974) at 17.
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It should be apparent that the long-range answer to the problem of duplication lies in inter-agency cooperation. Indeed, this was suggested by DOT in its brief. n32 In the meantime, however, the health and safety of all workers and the express purposes of the Act dictate that the railroad industry must comply with the recordkeeping requirements of the Occupational Safety and Health Act.
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n32 See Brief for DOT as Amicus Curiae at 12.
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For these reasons I dissent from that portion of the lead opinion that would exclude respondent from its recordkeeping responsibilities under the Act.
MORAN, CHAIRMAN, concurring in part, dissenting in part: The problem presented in this case would be nonexistent if Congress had not exacted more than one statute which regulated working conditions of employees. Nor would it have been present if Congress had provided in the Occupational Safety and Health Act of 1970 that this Act would regulate job safety and health conditions of all employees.
We are confronted with a jurisdictional question simply because Congress, over the span of many years, enacted a number of statutes which included provision for regulatory authority in order to improve safty conditions. Then, with full knowledge that it had done so, and having no intention to repeal or modify any of them, the Congress enacted the 1970 Job Safety Law and made it clear therein that its provisions would not 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 [*27] OR HEALTH. n33
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n33 29 U.S.C. § 653(b)(1).
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Primacy was given to the existing laws. The Job Safety Act's coverage was specifically subordinated to the others.
The expansive wording of § 653(b)(1) is a further indication that Congress intended no contraction of the coverage of the existing laws. If the other Federal agency exercises authority to "prescribe or enforce," Congress said, then this Act does not apply. The prescribing or enforcing authority is for either "standards or regulations" which may be "affecting" job "safety or health."
Had Congress intended the result the Commission is imposing today, it would have provided that this Act would apply to all employees
EXCEPT WHERE ANOTHER FEDERAL AGENCY EXERCISES ITS STATUTORY AUTHORITY TO ENFORCE OCCUPATIONAL SAFETY AND HEALTH REGULATIONS.
We are told in the lead opinion that the congressional policy of assuring safe workplaces for all "can only be effectuated by interpreting . . . [the Job Safety Act] to include rather than exclude working [*28] conditions of employees."
This pronouncement should come as a surprise to those who believed that the Atomic Energy Commission was best qualified to protect employees from radiation dangers or that the Department of Interior had similar know-how for use in protecting coal miners or the Federal Aviation Administration was well-equipped to protect the crew of commercial airliners from the hazards connected with plane crashes. Unfortunately, employees engaged in such endeavors and who have benefited from the protection of AEC, Interior and the FAA for many years are not told exactly why the congressional purpose of assuring their safety "can only be effectuated" (emphasis supplied) by now substituting the Secretary of Labor for the agencies with particular expertise in the very specialized employments in which they work.
It is clear to me that Congress, in its wisdom, has exercised its legislative policy-making authority to create certain agencies of the executive branch for the purpose of regulating certain broad areas of our economy. This includes the three agencies used as an example in the preceding paragraph as well as the Federal Railroad Administration.
Can you separate [*29] responsibility for the safety of a train roaring down the track from that of the crew operating that train? Is it sensible to create an agency (the Federal Railroad Administration) and staff it with railroad experts in order to assure the public safety of those who use the trains but to then rule that responsibility for the safety of the employees of those railroads will be given over to an agency (the Department of Labor) which has no railroad experience at all?
Becase I believe it is both senseless and contrary to law to so hold, I dissent from the Commission's decision holding this respondent liable for violating the Occupational Safety and Health Act of 1970. For the same reasons I concur with the view taken in the lead opinion on the recordkeeping charge.
The Commission, with this decision, has adopted a nook-and-cranny theory of safety regulation, i.e., if any Federal agency has not issued a regulation covering the configuration of toilet seats which are provided for employee use, for example, then the Department of Labor job safety standard on that subject will apply. n34 I do not believe that Congress intended a result that could lead to such absurdities. Congress [*30] recognized the railroad industry as a distinct segment of the economy and gave all regulatory power over that industry to the Department of Transportation and its Federal Railroad Administration.
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n34 29 C.F.R. 1910.141(c)(3)(ii).
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The legislative history brings this out rather clearly. During the debates which preceded the passage of the Act, the following colloquy occured in the House:
MR. HATHAWAY. I call to mind the coal mine safety bill which is not repealed by this bill. Yet, the rules and regulations under this act, as provided in the committee bill, could and should and would get into the area of coal mine health and safety and the metallic and nonmetallic mine safety act and the health and safety act -- all three of these would continue to exist and there would be no reason why the health and safety rules promulgated under this act would not also apply to those industries.
MR. PERKINS. I would say to my distinguished colleague that he is incorrect in that statement because all these various legislative [*31] acts as railway safety and mine safety are specifically exempted under section 22(b). (emphasis supplied)
MR. ERLENBORN. I stand corrected . . . Is it your understanding that present Federal laws providing authority to the executive agency to prescribe health and safety standards that are being exercised will then exempt that industry from the coverage of this act? (emphasis supplied). . . .
MR. ERLENBORN. In other words, the mere existence of statutory authority does not exempt an industry? It is the exercise of that authority pursuant to the statute that does exempt it; is that correct?
MR. DANIELS of New Jersey. That is correct.
MR. ERLENBORN. I have one other question. This will certainly clear up any difficulty in interpreting this so far as the presently existing statutory authority presently being exercised.
Let me ask this question.
If presently existing statutory authority which is not presently being exercised at the time this bill goes into effect, but is then subsequently exercised; does that then at the time it is exercised exempt an industry? (emphasis supplied)
MR. DANIELS of New Jersey. At the time that that authority is exercised, [*32] that industry will be exempt. (emphasis supplied)
MR. ERLENBORN. So this does have a prospective effect. In other words, we are not going to interpret this language only as thought [sic] it were being interpreted as to conditions that exist on the day it becomes law, but it will have a prospective effect and the future exercise of authority will then exempt an industry from coverage under this law? (emphasis supplied)
MR. DANIELS of New Jersey. The gentleman is absolutely correct. (emphasis supplied)
116 CONG. REC. 38381 (November 23, 1970); Legislative History of the Occupational Safety and Health Act of 1970 (hereinafter Legislative History ), Subcommittee on Labor, Committee on Labor & Public Welfare, United States Senate, 92nd Congress, 1st session, p. 1019-1020.
Not only do these members of Congress refer again and again to an "industry" exemption, Congressman Perkins, Chairman of the Committee which reported the occupational safety and health bill to the House floor, answers unequivocally that the "rules and regulations under this Act" will not affect existing legislation. In the same answer he declares that "railroad safety" specifically is exempted [*33] by Section 22(b) [of H.R. 16785]. Section 22(b), changed only slightly in wording, not meaning, became § 653(b)(1).
The Federal Railroad Safety Act grants the Department of Transportation authority to prescribe "as necessary, approprite rules, regulations, orders, and standards for all areas of railroad safety . . . 45 U.S.C. § 431(a).
The authority to prescribe regulations "as necessary" would be meaningless if this Commission's nook-and-cranny theory applies, for the Secretary of Transportation is thereby deprived of the authority to determine that it is not necessary for railroad safety to regulate the configuration of toilet seats, for example. The power to regulate "as necessary" must include the authority to issue no regulations in such areas. To follow this Commission's reasoning to its logical conclusion would require a ruling that if the Secretary of Transportation did not deem such requirements necessary in the interests of railroad safety and the Secretary of Labor did think them necessary for employee safety, then the latter's judgment would prevail over the former's. Surely, if the Congress had intended such an unusual provision it would have been [*34] explicit in so stating.
Nevertheless, rather than consider the concrete evidence of congressional intent which the legislative history provides, the Commission finds that § 653(b)(1) must be narrowly interpreted in order to further the purposes of the Act. n35 Such reasoning presumes that Congress felt the Department of Labor alone was competent and could be trusted to effectively promote occupational safety and health. I find such reasoning arrogant and patently unjustifiable. Congress has consistently entrusted the Department of Transportation (and its predecessors) with full jurisdiction over the railroads. There is nothing in the legislative history which would supply any reason why Congress would tke jurisdiction from one agency with long-standing expertise in a particular industry and give it to another, with none. Indeed, that history is exactly to the contrary.
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n35 I do not see that the Department of Transportation's support of the Secretary of Labor's interpretation of § 653(b)(1) is relevant. Jurisdiction of agencies is defined by statute, not by agreement between them. It is therefore our duty to resolve the question on the basis of what was legislated by Congress, not by what two departments with Congress had done and what arrangement might be more convenient for the own interests.
[*35]
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It is my opinion that Congress envisioned a comprehensive program for employee safety under which the Department of Labor would have jurisdiction over those industries not under the regulatory authority of some other Federal agency. In furtherance of this purpose Congress enacted the Federal Railroad Safety act on October 16, 1970. On October 30, 1970, it adopted the Rail Passenger Service Act and, less than 2 months thereafter, it adopted the Occupational Safety and Health Act of 1970. It was signed into law on December 29, 1970. Certainly Congress was aware of the interrelationships created by these statutes and intended them to work as a whole. To justify a broad interpretation of § 653(b)(1) because the Act is "humanitarian" or "remedial" implies that it is "more humanitarian" or "more remedial" than the other acts. n36
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n36 Query whether a law intended to achieve public safety is more or less "humanitarian" or "remedial" than one designed to accomplish worker safety. The attept to apply such a rule of construction in this situation is not only meaningless because of this problem but because § 653(b)(1) is not an "exemption" or "exception" of persons covered by other acts. As indicated at an earlier point in this opinion, the coverage of the other acts is given primacy and the coverage under the Job Safety Act is subordinated thereto.
[*36]
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In passing the laws referred to above (as well as others not referred to in this opinion), Congress enacted specific legislation for railroad safety (and for airplane safety, coal mine safety, nuclear energy safety, etc.). It intended to treat railroad safety differently and by including § 653(b)(1) as part of the Job Safety Act it exempted that Act's coverage from the railroad safety arrangement it had already created.
The lead opinion makes reference to the provision of the Rail Passenger Service Act which excluded the application of certain Department of Labor safety standards to railroad employees, n37 but it ignored the significance of the inclusion of that exclusion. Respondent raised this reference in its argument on this case, not because it thought that the exclusion had any applicability here, but because it is further evidence of congressional intent. The reason Congress excluded railroad employees was because Congress had confidence in the Department of Transportation, and knew that all railroad safety was already under the jurisdiction of that Department and it wanted to be [*37] sure it remained there.
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n37 It should be noted that there was a work safety law applicable to the construction industry which was administered by the Department of Labor and which pre-dated the enactmentof the Job Safety Act. See 40 U.S.C. § 333. The exclusion in the Rail Passenger Act was from that law.
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A further demonstration of congressional intent to leave all aspects of railroad safety under the jurisdiction of the Department of Transportation was included in the Conference Report on the Amtrak Improvement Act of 1973, 45 U.S.C. § 502, wherein it was stated that:
The Federal Railroad Safety Act of 1970, enacted only two weeks prior to the Rail Passenger Service Act, defined the Secretary of Transportation's jurisdiction over railroad safety to include "all areas of railroad safety." It is the intent of the Committee of conference to make clear that the Secretary's jurisdiction over railroad safety is exclusive. 93rd Congress, 1st Session, H.R., Report No. 93-587.
Perhaps the most troublesome matter [*38] in this case results from the sheer volume of occupational safety and health standards which have been promulgated by the Secretary of Labor pursuant to the authority given him in the Job Safety act. It is estimated that it would take 1,400 typewritten pages to copy them, plus an additional 2,000 pages to type out all the regulations which apply but were not printed in the Federal Register because of an incorporation-by-reference referral to other documents. The regulations cover every conceivable aspect of human endeavor including the configuration of toilet seats, n38 the disposal of used hand towels, n39 the placement of fire extinguishers, n40 the amount of noise n41 and toxic chemicals to which an employee may be exposed, n42 and the color of fire exit signs. n43 Perhaps, in anticipation of the outcome of this case the regulations even specify what must be done during the loading and unloading of railroad cars. n44
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n38 29 C.F.R. § 1910.141(c)(3)(ii).
n39 29 C.F.R. § 1910.141(d)(3).
n40 29 C.F.R. § 1910.157.
n41 29 C.F.R. § 1910.95.
n42 29 C.F.R. § 1910.93.
n43 29 C.F.R. § 1910.144(a)(1)(i)(d).
n44 29 C.F.R. § 1910.178(k)(2).
[*39]
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To read all the regulations would take days. To understand their full meaning and applicability is probably an impossible task even if one takes the time to read all the decisions of this Commission (which now cover more than 10 volumes of published material). Of course, no employer covered by this law needed to do all of this prior to the issuance of this decision. He could locate those matters applicable to his particular business or industry through an index to the regulations and would not have to concern himself with the others.
However, because of the nook-and-cranny theory which is announced in this decision employers in the railroad industry must become familiar with all Department of Transportation railroad safety regulations, then they must figure out what has not been covered thereby. They must then look to the Labor Department's occupational safety and health standards to discover how these gaps in the railroad safety regulations are filled. Because of the flexible and obscure language employed in some such standards, n45 few such employers will be able to ascertain the [*40] applicability of the various regulations with any preciseness.
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n45 See, for example, 29 U.S.C. § 1910.242(a) and 29 U.S.C. § 1910.132(a).
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Difficulties of this kind will also affect the various inspectors and others who are responsible for seeing that the safety requirements are observed. Under such circumstances it is very unlikely that the intended purpose of the Job Safety Act can be fully realized or the intended beneficiaries of the law fully protected.
The concept of "working conditions" is elusive. Complainant takes the position that it refers to any specific hazard to workers. A reasonable application of that term, therefore, would include anything that could be classified as hazardous. It is difficult to think of anything that could not -- at sometime or other -- be so classified whether it be an employee's hours of work, state of mind, age, or his personal feelings about how his employer and fellow employees treated him.
I mention the foregoing merely to indicate the pandora's box which the Commission [*41] has opened today. The decision also leads one to the inescapable conclusion that -- in the opinion of two members of this Commission -- Congress had no sense of order and intended to create confusion of the sort described. I don't share such a view. I am of the opinion that Congress intended to create a workable system to improve occupational safety and health and that they were wise enough to leave all aspects of safety in the railroad industry in the hands of the railroad experts in the Department of Transportation. n46
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n46 A clear indication that Congress intended no changes in the existing laws by its adoption of the Job Safety Act comes from the remarks of Senator Williams, the Act's principal Senate sponsor. During debate on November 16, 1970, just prior to a favorable Senate vote on the bill which was enacted, he stated:
"There has been no description here that I have heard of the failure of any of these programs, whether it is construction safety, railway safety, or coal mine safety."
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[The Judge's decision [*42] referred to herein follows]
CASTELLI, JUDGE: This is a proceeding under Section 10 of the Occupational Safety and Health Act of 1970 [29 USC 651 et seq., hereafter called the Act] contesting a citation issued by the Complainant against the Respondent under the authority vested in the Complainant by Section 9(a) of the Act. The citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent located at the Southern Pacific Transportation Company's Houston General Shops, Houston, Texas, and described as the Diesel Service Shop, Drop Pit Area, the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.
The citation which was issued on August 2, 1972, alleges four nonserious violations resulting from a failure to comply with standards promulgated by the Secretary pursuant to Section 6, and codified in 29 CFR Parts 1903, 1904 and 1910. The Respondent filed with the Secretary a notice of contest on August 25, 1972, contesting the items contained in the citation and the proposed [*43] penalties issued therefrom. The basis of the company's appeal, according to the notice of contest filed on that date, was their contention that the Respondent is exempt from coverage by the Occupational Safety and Health Act and the standards issued under the Act of Section 4(b)(1) of the Act.
The standards and description of the alleged violations contained in said citation read as follows:
Item 1. 29 CFR 1903.2(a). Poster informing employees of protection and obligation provided for in the Act was not displayed. Proposed penalty $50.00.
Item 2. 29 CFR 1904.2(a). The Log of Occupational Injuries and Illnesses was not maintained. Proposed penalty $100.00.
Item 3. 29 CFR 1910.179(j)(2)(iii). A monthly signed inspection report on crane hoist attachments, including hooks, was not maintained. No penalty.
Item 4. 29 CFR 1910.179(b)(5). Each hoist of the overhead crane did not have its rated load marked on it. No penalty.
Pursuant to the enforcement procedure set forth in Section 19(a) of the Act, the Respondent was notified by letter dated August 2, 1972, from Thomas T. Curry, Area Director of the Houston, Texas Area, Occupational Safety and Health Administration, [*44] U.S. Department of Labor, proposing to assess penalties for the violations as alleged in the citation in the total amount of $150.00. After Respondent contested this enforcement action and a complaint and an answer had been filed by the parties, the case came on for hearing at Houston, Texas on November 8, 1972.
The Secretary of Labor was represented by Mrs. Joan T. Winn, Regional Solicitor's Office, and the Respondent was represented by Mr. Richard R. Brann of the firm of Baker and Botts, Houston, Texas. At the hearing, the Railway Employees' Department, AFL-CIO was granted leave to intervene on behalf of employees affected by violations of the Act, and was therein represented by Mr. William J. Hickey of the firm of Mulholland, Hickey and Lyman, Washington, D.C. No other affected unrepresented employee sought to participate in the hearing although given an opportunity to do so.
In the course of said hearing, the parties including counsel representing the Intervenor, the Railway Employees' Department, AFL-CIO, entered into a written stipulation setting forth the issue involved and relevant facts relating thereto and requested this cause be submitted to the Occupational Safety [*45] and Health Review Commission for decision on the pleading of the parties, the stipulation entered into by the parties and the briefs submitted by said parties. The stipulation and requests contained therein were approved by the undersigned Judge and made part of the record.
Subsequent to receipt of the aforementioned stipulation, the undersigned Judge to whom the cause was assigned by an Order of the Commission dated October 27, 1972, reviewed the pleadings and other documents filed in the case including the citation and notification of proposed penalty; notice of contest; complaint; answer; the stipulation of fact; the Secretary's brief and reply brief; the Respondent's brief and reply brief; and the Intervenor's brief. The aforesaid documents were considered as the record in this case and this decision is based thereon.
FINDINGS OF FACT
The undersigned Judge finds and determines that the following provisions of the written stipulation entered into by the parties on November 8, 1972, properly state the issue, fully recite relevant facts relating thereto, and agree to the disposition of issues concerning violations of standards contained in the citation together with [*46] the proposed penalties relating thereto:
STIPULATION
Now come the parties hereto and stipulate that the issue before the Commission is as follows:
Whether the Southern Pacific Transportation Company is subject to regulation under the provisions of the Occupational Safety and Health Act as concerns any of the working conditions of its employees, and in connection therewith further stipulate the following:
1. Southern Pacific Transportation Company is a Delaware Corporation, having its main office and headquarters in San Francisco, California.
2. Southern Pacific Transportation Company, and its subsidiaries, own and operate, as a public carrier, railroad facilities in the states of Oregon, California, Nevada, Utah, Arizona, New Mexico, Texas, Louisiana, Arkansas, Tennessee, Missouri and Illinois. On tracks running through the foregoing states, Southern Pacific Transportation Company and its subsidiaries transport a variety of commodities as a public carrier by rail.
3. In Houston, Texas, Southern Pacific Transportation Company maintains an office facility, the Englewood Freight Yards and the Houston General Shops. The Houston General Shops are used to repair and service Respondent's [*47] locomotives, freight cars and related equipment. Located at the Houston General Shops is an area known as the Houston Diesel Service Shop which contains an area known as the Drop Pit. The purpose of the Drop Pit and its equipment is the removal of traction motors from locomotives in order to service and repair such motors.
4. On June 9, 1972, Mr. Verne Bechtel, Compliance Officer for the U.S. Department of Labor, Occupational Safety and Health Administration, served a Complaint on Respondent and conducted an investigation of the Houston Drop Pit area. By citation dated August 2, 1972, Respondent was served with a Citation citing Respondent as having violated the provisions of the Occupational Safety and Health Act of 1970 with respect to the following:
(a) Poster informing employees of protection and obligation provided for in the Act was not displayed. 29 CFR 1903.2(a).
(b) The log of occupational injuries and illnesses was not maintained. 29 CFR 1904.2(a).
(c) A monthly signed inspection report of crane hoist attachments, including hooks, was not maintained. 29 CFR 1910.179(j)(2)(iii).
(d) Each hoist of the overhead crane did not have its rated load mark on [*48] it. 29 CFR 1910.179(b)(5).
5. If the Commission finds that Respondent is subject to regulation under the provisions of the Act as concerns the standards or regulations alleged in the Secretary's complaint, then Respondent admits violation of said standards and regulations and the propriety of the penalties proposed.
6. The following classifications of railroad employees are affected by the violations alleged in the Secretary's Complaint herein:
(1) machinists
(2) electricians
(3) sheetmetal workers
(4) carmen
(5) boilermakers
(6) laborers
(7) clerks
7. The foregoing classifications of employees are represented by the following labor organizations:
(1) International Association of Machinists and Aerospace Workers.
(2) International Brotherhood of Boilermakers, Iron Ships Builders, Blacksmiths, Forgers and Helpers.
(3) Sheetmetal Workers International Association.
(4) International Brotherhood of Electrical Workers.
(5) Brotherhood of Railway Carmen of America.
(6) Brotherhood Railway Clerks & Steamship Clerks, Freight Handlers, Express & Station Handlers.
8. This stipulation is for purposes of the captioned proceeding only.
In addition thereto, if the [*49] issues on the merits of the case are reached, it will be necessary to decide that, if Respondent violated standards prescribed by 29 CFR 1903.2(a), 29 CFR 1904.2(a), 29 CFR 1910.179(j)(2)(iii), and 29 CFR 1910.179(b)(5), as set forth by the four items of the citation, whether the proposed penalties relating thereto were reasonable and appropriate, considering the gravity of the violations, the size of the employer's business, his past history and good faith.
LAW AND OPINION
The jurisdictional question raised by and agreed upon by the parties is whether the Southern Pacific Transportation Company is subject to regulation under the provisions of the Occupational Safety and Health Act of 1970, as concerns any of the working conditions of its employees.
Section 4(b)(1) of the Act [29 USC 653(b)(1)] states in pertinent part:
Nothing in this Act 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.
Obviously, Section 4(b)(1) was designed to exclude from the Act's coverage employees' working conditions when another Federal [*50] agency had statutory authority to prescribe safety and health standards and regulations governing such working conditions and had actually exercised this authority by prescribing such regulations or standards. This issue raises for determination the ancillary question of whether by virtue of Section 4(b)(1) of the Act, "employments" or "industries" are outside the scope of the Act or whether by virtue of Section 4(b)(1) of the Act it is "particular working conditions of employees" of Respondent regarding which another Federal agency has exercised its statutory authority to prescribe or enforce standards that are excluded.
The Respondent submits that under the section cited supra the Act provides for exclusion of "employments" or "industries" and not part of industries or individuals from coverage under the Act when another Federal agency exercises its authority to regulate the working conditions of employees in such industry with respect to safety and health. It is a broad exclusion which turns on the pivotal consideration -- the exercise of statutory authority to prescribe or enforce safety and health standards or regulations by another agency. It is argued that [*51] the exclusion of "working conditions of employees" in Section 4(b)(1) is an exclusion of "employments" or "industries" where another agency exercises regulatory authority with respect to safety over the employees' working conditions. The Respondent thus contends that since the Department of Transportation through the Federal Railroad Administration has exercised considerable authority in regulating and prescribing safety standards with respect to the working conditions of railroad employees, then nothing in the Occupational Safety and Health Act of 1970 applies to the railroad industry.
There is little room for argument that starting with the Boiler Inspection Act in 1911 Congress began delegating administrative authority in the area of railroad safety to certain Federal agencies. This Act was later amended to become the Locomotive Inspection Act which authorizes the Department of Transportation to adopt all rules, standards and instructions necessary for the safety of locomotives. Comparable regulatory authority over other aspects of railroading was given to the Department of Transportation by the Signal Inspection Act and the Power or Train Brakes Safety Appliance Act of 1958. [*52] It is admitted that these statutes extend only to specified areas of railroading. It is noted that prior to 1970, only the Accident Reports Act of 1910 related to all aspects of a railroad operation. This Act and its regulations promulgated thereunder require railroads to prepare and submit monthly reports on all accidents resulting in death, injury or property damage arising from the operation of all phases of railroading. In October 1970, the Congress passed the Federal Railroad Safety Act of 1970, which while retaining in effect all preceding railroad safety legislation, granted to the Secretary of Transportation complete authority to prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety. With this considerable statutory authority and the exercising of such authority to regulate the working conditions of railroad employees, it is the Respondent's contention that the Secretary of Labor under the Occupational Safety and Health Administration is expressly barred from asserting jurisdiction under the Act.
It is the position of the Complainant that the limited effect of Section 4(b)(1) is to remove specific working [*53] conditions of employees from jurisdiction of the Department of Labor where another Federal agency has exercised its statutory authority respecting occupational safety and health with regard to those specific working conditions. As to other working conditions with respect to which another Federal agency has not exercised its authority; i.e., has not promulgated standards, authority of the Department of Labor under Occupational Safety and Health Administration would continue to apply. This position is supported by Judge's decisions in Fineberg Packing Company, Inc., Sigman Meat Company, Inc., Elevating Boats, Inc.,
It is further contended that it was not the intent of Congress in Section 4(b)(1) to provide any general exemptions for any industry, business, or category of employers or employees from the Act. It is Complainant's position that this narrow and strict construction of Section 4(b)(1) of the Act comports with the general purpose of the Occupational Safety and Health Act of 1970 requiring every employer to provide safe and healthful working conditions for his employees.
Section 4(b)(1) in [*54] its literal text and as explained in the course of the legislative history demonstrated some ambiguities in interpretation when the various other sections or provisions of the Act and regulations were construed in conjunction with determining its significance or intended meaning.
The Congressional debates or discussion gleaned from the legislative history appeared consistent at times in supporting the interpretation that it was the intent of the Congress by Section 4(b)(1) to remove from coverage by the Act only specific employment conditions or subjects upon which another Federal agency has already promulgated a safety regulation or standard, allowing the Department of Labor to exercise jurisdiction over any other particular subject or condition as long as another Federal agency with authority in the field had not prescribed standards thereon. The contents of Senate Report No. 91-1282 explaining coverage, applicability and relationship to other laws stated:
The Bill does not authorize the Secretary of Labor to assert authority under this Bill over particular working conditions (emphsis added) regarding which another Federal agency exercises statutory authority to [*55] prescribe or enforce standards affecting occupational safety and health.
(Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Committee on Labor and Public Welfare, 92nd Congress, 1st Session, p. 162.)
Additionally, Congressman William Steiger's comments interpret Section 4(b)(1):
. . . the Act shall not apply where another Federal agency is exercising authority to prescribe or enforce occupational safety and health standards . . . 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.
(Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Committee on Labor and Public Welfare, 92nd Cong., 1st Session, p. 997.)
During the House debate, however, the following colloquy took place wherein two members of the House Labor Committee repeatedly refer to the exclusion as an "industry" exemption:
MR. ERLENBORN. May I question the Chairman of the subcommittee a little [*56] more closely on that question because I think the interpretation of this language [Section 4(b)(1)] might be a little bit tricky. I know the reason it is worded this way.
It says that:
Nothing in section 5 of this Act shall apply to working conditions of employees with respect to whom any Federal agency exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.
Now let me pose a couple of alternative questions.
If there is authority under the Federal law, but it has [not] yet been put into effect and it is not being exercised by the executive agency because they have no rules and regulations, and [do not] exercise that authority -- then this does apply; is that correct?
MR. DANIELS of Virginia. [sic] Yes; that would be correct. The gentleman has placed his finger on the key word -- and that word is "exercise."
If an agency fails to pursue the law and exercise the authority that has been given to it, then this law will step in.
MR. ERLENBORN. In other words, the mere existence of statutory authority does not exempt an industry? It is the exercise of that authority pursuant to the statute that does [*57] exempt it; is that correct?
MR. DANIELS of New Jersey. That is correct.
MR. ERLENBORN. I have one other question. This will certainly clear up any difficulty in interpreting this so far as the presently existing statutory authority presently being exercised.
Let me ask this question.
If presently existing statutory authority which is not presently being exercised at the time this bill goes into effect, but is then subsequently exercised; does that then at the time it is exercised exempt an industry?
MR. DANIELS of New Jersey. At the time that that authority is exercised, that industry will be exempt.
MR. ERLENBORN. So this does have a prospective effect. In other words, we are not going to interpret this language only as though it were being interpreted as to conditions that exist on the day it becomes law, but it will have a prospective effect and the future exercise of authority will then exempt an industry from coverage under this law?
MR. DANIELS of New Jersey. The gentlemen [sic] is absolutely correct. (emphasis added)
(Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Committee on Labor and Public [*58] Welfare, 92nd Cong., 1st Session, pp. 1019-1020.)
Moreover, when reading Section 24(a) of the Occupational Safety and Health Act of 1970 in conjunction with Section 4(b)(1) the wording of Section 24(a) suggests that it is "employment" which Section 4(b)(1) excludes.
Since diametrically opposite interpretations are suggested in the above discussion, this review of the Act and legislative history does little to give a definite answer as to the legislative intent concerning the actual meaning of Section 4(b)(1) as it related to the issue before the Commission.
It is apparent that mere reference to the legislative history or to the Act itself will not resolve the issue and it will be necessary to look to additional sources for full resolution.
As aptly noted by Chief Justice Marshall in United States v. Fisher, 2 Cranch 358, 386 (1805), "Where the mind labours to discover the design of the legislature, it siezes everything from which aid can be derived. . ." (Respondent's brief, p. 4).
A statute should always be carefully construed in conjunction with its other provisions to the end that they may be harmonious, consistent, and result ultimately in accomplishing [*59] its stated purpose (emphasis added).
The declared purpose enunciated by the Congress in Occupational Safety and Health Act of 1970 was. . .
. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. . .
The one point which the legislative history demonstrated conclusively and agreed on by all members of the Subcommittee on Labor was the clearly manifested Congressional intent to provide comprehensive occupational safety and health coverage for all employees. Ancillary thereto was the expressed hope to reduce the number and severity of work-related injuries and illnesses which . . . are resulting in every-increasing human misery and economic loss. It appears necessary that to resolve the questions herein raised that we begin at a point where there is consensus and where Congressional intent is clear and positively manifest. It is imperative that a meaning be attached to Section 4(b)(1) which reflects ultimately the fulfillment of the intended purpose of the Act.
The Respondent argues that the Secretary of Labor's position -- that particular working conditions of railroad employees [*60] are not excluded from the Occupational Safety and Health Act by reason of Section 4(b)(1), but rather are only "partially" excluded from the Act to the extent that another Federal agency has regulated the exact subject matter which the Secretary of Labor seeks to regulate under the Act -- would lead to absurd and illogical consequences and would greatly undermine the legislative effort to establish a unified, consistent body of safety legislation. The undersigned Judge is not persuaded that this interpretation is reflected by Congressional support nor does it comport with the purpose declared by the Occupational Safety and Health Act.
In applying an exemption created by the Act, it must be remembered, since the overriding emphasis of its legislative history is first -- provide comprehensive occupational safety and health coverage for all employees, and, second -- avoid duplication and impractical or unreasonable consequences, that broad construction of the exemption in this instant would be contrary to the express purpose of the Act. It appears to the undersigned Judge that the Respondent's position on this question would unquestionably exclude from coverage employees [*61] working in the area of railroading where no statutory authority has been exercised to protect against known risks to safety and health. These employees should have the same protection as those employees so covered under the Occupational Safety and Health Act. They deserve no less.
It is granted that over a period of several years, Congress has carefully developed a statutory pattern for the regulation of safety in the railroad industry. Nothing in the Occupational Safety and Health Act undermines this purpose, it merely supplements it and only until such time as the Federal agency so charged promulgates safety standards to afford protection to those railroad employees not now falling within the umbrage of the various railroad safety legislation previously alluded to. When that Federal agency provides the protection as provided for by the Occupational Safety and Health Act, then the provisions of the Occupational Safety and Health Act no longer apply to those working conditions. The Respondent's argument that the Complainant's refined, narrow interpretation of Section 4(b)(1) inevitably would lead to countless, vexing jurisdictional issues with respect to the development of enforcement [*62] of safety standards or regulations does not necessarily follow and has not thus far been apparent.
Concurrent jurisdiction in application of safety and health standards was readily recognized by the Congress as well as the Federal Railroad Administration and the Occupational Safety and Health Administration, and statutory provision by the Congress as well as procedures by each agency were adopted and observed to avoid duplication, inconsistency and unreasonable consequences. The Memorandum of Understanding executed by officials of the Department of Labor and the Department of Transportation on May 2, 1972, show that the Departments were aware that questions concerning the enforcement of regulations and standards of each agency would arise and procedures were devised for insuring against such problems.
Moreover, pursuant to Section 4(b)(3) of the Occupational Safety and Health Act, adequate authority is afforded Federal agencies to work together and to cooperate with the Congress in the area of safety legislation so that wasteful duplication, inconsistency and overlapping jurisdiction can be avoided and at the same time assure so far as possible every working man and [*63] woman in the Nation safe and healthful working conditions (emphasis provided).
The undersigned Judge agrees with a position that in applying an exemption created by the Act it should be strictly construed to the end that the exemption will not be enlarged beyond its necessary extent and in order that the Act will accomplish as fully as possible the remedial purpose for which it was designed. This stated purpose cannot be accomplished through the Respondent's stated construction of Section 4(b)(1).
It is thus concluded that the Respondent is subject to regulation under the provisions of the Occupational Safety and Health Act of 1970 as concerns the working conditions of the Respondent's employees that are the subject of the Secretary's complaint, except for the allegation contained in paragraph VIII of said complaint.
Having reached the issues on its merits, reference is made to paragraphs 4 and 5 of the joint stipulation set forth supra.
Paragraph 4 of the stipulation stated that Respondent, on August 2, 1972, was served with a citation for the violations of standards promulgated pursuant to the provisions of the Occupational Safety and Health Act of 1970 as follows:
(a) [*64] Poster informing employees of protection and obligation provided for in the Act was not displayed, 29 CFR 1903.2(a).
(b) The log of occupational injuries and illnesses was not maintained, 29 CFR 1904.2(a).
(c) A monthly signed inspection report of crane hoist attachments, including hooks, was not maintained, 29 CFR 1910.179(j)(2)(iii).
(d) Each hoist of the overhead crane did not have its rated load mark on it, 29 CFR 1910.179(b)(5).
Paragraph 5 reads:
If the Commission finds that Respondent is subject to regulation under the provisions of the Act as concerns the standards or regulations alleged in the Secretary's Complaint, then Respondent admits violation of said standards and regulations and the propriety of the penalties proposed.
Thus, all violations of standards as charged by the above-stated citation dated August 2, 1972, and the respective proposed penalties therein having been admitted by the Respondent, are deemed final orders of this Commission except for item 2 of the citation and further alleged in paragraph VIII of the complaint.
Under the provisions of the Accident Reports Act of 1910, c. 208, § 1, 36 Stat. 350, it is stated that. . . "It shall be [*65] the duty of the general manager, superintendent, or other proper officer of every common carrier engaged in interstate or foreign commerce by railroad to make the Interstate Commerce Commission, at its office in Washington, District of Columbia, a monthly report, under oath, of all collisions, derailments, or other accidents resulting in injury to persons, equipment, or roadbed arising from the operation of such railroad under such rules and regulations as may be prescribed by the said commission, which report shall state the nature and causes thereof and the circumstances connected therewith: Provided, That hereafter all said carriers shall be relieved from the duty of reporting accidents in their annual financial and operating reports made to the commission."
Pursuant to this authority, regulations were promulgated and codified at 49 CFR 225 concerning the railroads' obligation to report monthly all accidents and illnesses occurring in connection with its operation.
It appears that the Department of Transportation did in fact exercise statutory authority to prescribe and enforce the aforementioned regulations in that the regulations prescribed the making and submitting of [*66] monthly reports of all accidents and illnesses occurring in connection with all phases of Respondent's operation, which reports are also prescribed under the occupational safety and health standards [29 CFR 1904.2(a)] promulgated by the Secretary of Labor and cited against this Respondent.
Therefore, pursuant to Section 4(b)(1) of the Act, since another agency is actually exercising its authority in this area, it is concluded that the Secretary's authority under the cited occupational safety and health standards promulgated under the Act [item 2 of the citation and paragraph VIII of the complaint] may not legally be asserted against this Respondent in so far as maintaining a log of occupational injuries and illnesses.
CONCLUSIONS OF LAW
1. As hereinafter excepted, Southern Pacific Transportation Company, Respondent, is subject to regulation under the provisions of the Occupational Safety and Health Act of 1970, as concerns the working conditions of the Respondent that are subject of the Secretary's complaint and, as hereinafter excepted, Section 4(b)(1) does not prohibit the Secretary from asserting his authority in matters made subject of the complaint in this proceedings. [*67]
2. Section 4(b)(1) of the Occupational Safety and Health Act of 1970 does not provide for an overall general exemption of the railroad industry in matters made subject of the complaint in this proceedings.
3. On June 9, 1972, Southern Pacific Transportation Company, Respondent, 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. As hereinafter excepted, the Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.
4. As hereinafter excepted, Section 5(a)(2) of the Act [29 USC 654(a)(2)] imposed a duty on Respondent to comply with safety and health regulations promulgated by the Secretary pursuant to Section 6(a)(2) of the Act.
5. All standards in violation of Section 5(a)(2) of the Act on June 9, 1972, by its noncompliance with certain occupational safety and health regulations as charged by a citation issued Respondent on August 2, 1972, and further alleged in the complaint filed September 8, 1972, having been admitted by Respondent, are deemed final orders of this Commission, except as noted below. [*68]
6. The Department of Transportation exercised statutory authority and prescribed and enforced standards regarding preparing and submitting monthly reports of all accidents and illnesses occurring in connection with Respondent's operation, and pursuant to Section 4(b)(1) of the Act and 29 CFR 1910.5 of Occupational Safety and Health Administration standards, the Secretary's cited occupational safety and health standars promulgated under the Act and codified at 29 CFR 1904.2(a) [item 2 of the citation and paragraph VIII of the complaint] may not be legally asserted against this Respondent in so far as maintaining a log of occupational injuries and illnesses.
7. The total proposed penalty for the aforesaid violations set forth in conclusion number 5 in the amount of $50.00 is appropriate, giving due consideration to the size of the business of the employer, the gravity of the violation, good faith of the employer, the employer's previous history and its action to abate the conditions.
ORDER
Based on the above findings of fact and conclusions of law, it is ORDERED that:
1. Item 2 of the citation issued Respondent August 2, 1972, and further alleged in paragraph VIII [*69] of the complaint filed September 8, 1972, alleging violation of 29 CFR 1904.2(a), and the proposed penalty thereon of $100.00 be and is VACATED.
2. All other violations of standards contained in the citation issued Respondent August 2, 1972, and further alleged in the complaint filed September 8, 1972, having been admitted by the Respondent and deemed final orders of this Commission, together with the respective proposed penalty thereon in the total amount of $50.00, are AFFIRMED in all respects.