UNION PACIFIC RAILROAD COMPANY

OSHRC Docket No. 1697

Occupational Safety and Health Review Commission

November 26, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE, and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter presents the precise question we decided in Southern Pacific Transportation Co.,   As a result of the inspection Labor issued a citation alleging three non-serious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).   Union Pacific timely filed a notice of contest and the matter went to a hearing before Judge Jerry W. Mitchell.

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n1 This case was consolidated with Southern Pacific for oral argument.   The order of consolidation was dissolved in Southern Pacific, slip opinion at n. 1, so that separate opinions could issue.

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At the hearing, Union Pacific presented no evidence in rebuttal to Labor's presentation in chief regarding the merits of the alleged violations, and it concedes [*2]   that the Department of Transportation (DOT) has not regulated safety and health matters in railway offices.   Rather, its defense was predicated on the industry examption theory advanced in the Southern Pacific case and on a theory that Labor's inspection was invalid for not having been made in accordance with a memorandum of understanding made between Labor and DOT.   The memorandum sets forth procedures for handling safety inspections.

Judge Mitchell rejected both defenses, and he affirmed the citations on their merits.   Penalties were not assessed.   On review, Union Pacific seeks reversal for the reasons advanced below.   We have reviewed the record, and we affirm.

As to the industry exemption theory our decision in Southern Pacific is controlling; a copy is attached hereto.   In addition, we note that the reasons assigned by Judge Mitchell herein are in   complete accord with those assigned by us in Southern Pacific. As for the invalid inspection theory we agree with Judge Mitchell's conclusion that the memorandum "does not create any new or additional rights for" Union Pacific.   Indeed, as he correctly points out it was made for the benefit of the two agencies [*3]   such that they might co-ordinate their safety enforcement responsibilities.

For the reasons given in Southern Pacific as well as those assigned by the Judge his decision and order is affirmed.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: I dissent for the reasons given in my dissenting opinions in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) and Secretary v. Seaboard Coastline Railroad Company, (Docket No. 2802, Order of Remand, November 18, 1974).

[Note: Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258]

[The Judge's decision referred to herein follows]

MITCHELL, JUDGE: This judge of the Occupational Safety and Health Review Commission (OSAHRC) presided at the trial of this case on March 8, 1973 at Pocatello, Idaho.

This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., the Act hereinafter) contesting a Citation issued by the Secretary of Labor (Complainant) against Union Pacific Railroad Company (Respondent) under the authority vested in Complainant by Section 9(a) of the Act.

A workplace described as "railroad yard operation" located at [*4]   Pocatello, Idaho, and allegedly under the ownership, operation or control of Respondent, was inspected on September 8, 1972 by a Compliance Safety and Health Officer (CSHO).   During the inspection certain alleged violations were noted.   A Citation was issued on October 20, 1972 alleging Respondent's failure to comply with the three specific occupational safety and health standards on September 18, 1972.   The standards allegedly violated were promulgated by the Secretary of Labor pursuant   to Section 6 of the Act by publication in the Federal Register.   They are now codified at Title 29, Code of Federal Regulations (CFR), Part 1910.

The alleged violations are described in the Citation in the following language.   (The specific standard allegedly violated is quoted immediately after the violation.):

Item 1 -- 29 CFR 1910.157(c)(5)(i)

The office a class "C" fire hazard area (energized electrical and electronic equipment) is being protected by Class "A" fire suppression equipment.

Abate -- 5 days

Standard 29 CFR Subpart L -- Fire Protection

1910.157 Portable fire extinguishers.

(c) Distribution of portable fire extinguishers --

(5) Fire extinguisher size and placement   [*5]   for Class C hazards. (i) Extinguishers with Class C ratings shall be required where energized electrical equipment may be encountered which would require a nonconducting extinguishing media.   This will include fire either directly involving or surrounding electrical equipment.   Since the fire itself is a Class A or Class B hazard the extinguishers are sized and located on the basis of the anticipated Class A or B hazard.

Item 2 -- 29 CFR 1910.36(b)(5)

Numerous doors in office but none marked as exit or access to exit to reduce the hazard of confusion to persons trying to escape in case of fire or other emergency.

Abate -- Nov. 20, 1972.

Standard 29 CFR Subpart E -- Means of Egress

1910.36 General requirements.

(b) Fundamental requirements.

(5) 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 and mentally capable will readily know the direction of escape from any point, and each path of escape, in its entirety, shall be so arranged or marked that the way to a place of safety outside is unmistakeable.   Any doorway or passageway not constituting an [*6]   exit or way to reach an exit, but of such a character as to be subject to being mistaken for an exit, shall be so arranged or marked as to minimize its possible confusion with an exit and the resultant danger of persons endeavoring to escape from fire finding themselves trapped in a dead-end space, such as a cellar or storeroom, from which there is no other way out.

Item 3 -- 29 CFR 1910.157(a)(3)

A CO<2> fire extinguisher located behind a room divider near south-west door of office, is obscured from view and no means provided for identification as to location and its intended use.

  Abate -- 5 days

Standard 29 CFR Subpart L -- Fire Protection

1910.157 Portable fire extinguishers

(a) General requirements --

(3) 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.

Pursuant to the enforcement procedure provided in Section 10(a) of the Act, Respondent was duly advised by a "Notification of Proposed Penalty" dated October 20, 1972 of a proposal to   [*7]   assess a penalty of $0 in connection with the violations.

In a timely manner Respondent contested the Citation.   Included in the letter of contest is the assertion that Complainant has no jurisdiction or authority to issue the Citation because the Act is inapplicable to Respondent's workplace. Section 4(b)(1) of the Act is given as the authority for this assertion.   Respondent also urges that the provisions of a "Memorandum of Understanding between the Federal Railroad Administration" invalidates the inspection herein since those provisions were not followed.

Complainant filed a complaint in due course.   Respondent filed its answer raising the two pionts mentioned in the preceding paragraph as Affirmative Defenses.   On February 15, 1973 Respondent filed a "Request for Admissions" listing nine (9) facts for admission by Complainant.   On March 2nd Complainant admitted all the facts as requested by Respondent.

PROCEEDINGS AND EVIDENCE

When the hearing convened on March 8th Complainant and Respondent were represented by legal counsel.   A union representative was present on behalf of all of Respondent's affected employees.   He was not an attorney.   As a preliminary matter it was agreed [*8]   that Respondent's Request for Admissions, admitted by Complainant, was a part of the record.   Respondent made a short opening statement essentially reiterating the points raised in the letter of contest and as affirmative defenses in the answer.

Complainant called the CSHO as its only witness.   He described the inspection of Respondent's workplace which was   made by the witness and another CSHO who was an industrial hygienist.   They met with a man who identified himself as being in charge at Respondent's workplace. The workplace inspected was a communications center for dispatching trains located in a large office in a building.   As far as the witness knew the large office comprised the entire building.   It was entered through a small vestibule and a second door giving access to the room.   There was a large room with desks and electronic equipment.   Several doors opened off the large room into offices and rooms along one side and end of the large room.   Six (6) of Respondent's employees were working in the room but the office was also accessible to employees not regularly working there.   Combustibles in the form of paper were present.

The witness observed a fire hose with [*9]   nozzle and standpipe as well as a water-soda fire extinguisher in the room.   He identified those as equipment to use in fighting Class A fires.   A CO<2> fire extinguisher was also present.   It is for use in fighting electrical (class C) fires.   The CO<2> extinguisher was in back of a partition so that it was not visible from part of the office.

None of the several doors were marked with signs to indicate exits or access to exits. Some of the doors led into dead-end rooms.

The witness testified that the inspection was made in response to a complaint concerning excessive noise and heat in Respondent's workplace. The witness admits and the three items covered by the Citation were not raised by the complaint which caused initiation of the inspection.

At the conclusion of Complainant's case, the employee representative was queried as to whether he wanted to become a party to the proceedings.   He stated that he did not think it would be advantageous for him to become a party.

Respondent called its Terminal Superintendent at Pocatello as its only witness.   He testified that his office is in the building inspected by the CSHO on September 18th.   The building is known as the "Yard Office."   [*10]   The office inspected by the CSHO occupies the main floor with a storeroom above it and a tower containing the yard-master's office above the storeroom. There are other rooms in the building on the ground level.   They are not accessible from the office inspected nor are they used by the employees working in the office.   They are reached by separate   doors and are used by transient train crews. These other rooms were not inspected by the CSHO.

The "Yard Office" is important in Respondent's operations because it is the heart of the information used in receiving trains, breaking them up and then making up new trains. This witness thoroughly described the functions performed by the Yard Office as well as the purpose and use of the other rooms in the building which were not inspected. His testimony is that the number of transient train crews and other men using the other rooms varies but that as many as 90 men from train crews may use the uninspected rooms at various times during a heavy days work.

Following the conclusion of Respondent's case, the employee representative sought opportunity to make a statement concerning the conditions existing at the office which originally [*11]   brought about the complaint.   Respondent's objection on the basis of irrelevance was sustained.   The employee representative stated that he did not have anything to offer with respect to the three items in the Citation.

Complainant and Respondent each submitted Briefs and proposed findings of fact and conclusions of law.   Respondent also submitted a reply brief.   No documents were filed by or on behalf of any of the affected employees.

DISCUSSION

The basic question of jurisdiction is the key issue in this proceeding.   Respondent argues that the standards relied on by Complainant are not applicable to Respondent's business or workplace and that therefore the Citation issued herein is invalid. As an obvious corollary, Respondent argues that the Commission does not have jurisdiction to hear this matter.

Respondent's attack on jurisdiction involves two separate theories --

1.   The alleged inapplicability of the standards cited and relied on by Complainant; and

2.   The alleged failure of Complainant to comply with a certain interdepartmental memorandum of understanding while making the inspection.

Respondent initiated this theory of defense in its letter of contest   and [*12]   repeated it in its Answer; Respondent's Request for Admissions further develops the theory; the theory was succinctly stated by Respondent's counsel in the form of an opening statement at the trial; it is again repeated and most fully developed in Respondent's brief; and finally further elucidation occurs in Respondent's reply brief.   In short -- this theory occupies Respondent's full attention to the exclusion of any discussion of the alleged violations on their merits.

Section 4(b)(1)

Respondent's major theory is that the cited standards are inapplicable by reason of the provisions of Section 4(b)(1) of the Act.   This section provides:

(b)(1) 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 (Emphasis added).

The conflict here arises from the diverse manner in which Complainant and Respondent interpret the quoted language of Section 4(b)(1).   Respondent argues that since the Federal Railroad Administration (FRA) has issued some regulations governing safety in railroad operations, the   [*13]   entire industry and all the employees in it are exempt from the provisions of the Occupational Safety and Health Act of 1970.   On the other hand, Complainant argues that the FRA must "exercise" its granted authority with regard to the working conditions of the specific employees involved in order for the Section 4(b)(1) exemption to become effective.   Respondent would have the language of Section 4(b)(1) applied in the broadest possible sense -- while Complainant would give it a narrow and precise application.

Looking first at the legislative history of the Act, it is apparent that the provision presently found in Section 4(b)(1) was the subject of considerable discussion in Congress.   The major concern of the legislative body was to avoid burdening an employer with the need to comply with two separate sets of safety regulations. As the Act was refined by legislative discussion and compromise the present language evolved to the point where the legislative participants were satisfied.   The result of their colloguy   seems to be agreement that this Act takes precedence in every case where the other agency having statutory authority has not exercised that authority (Emphasis [*14]   added).   See Legislative History of the Occupational Safety and Health Act of 1970, pages 1018-1020.

The issue here is more refined and precise than can be answered by the general conclusion stated above.   The question is -- Does 4(b)(1) apply to exempt the entire industry when another government agency has statutory authority and exercises it with respect to a portion of the employees in an industry but not as to all of them?   The legislative history does not answer this specific point.   In fact, there was considerable conflict in the views and statements of those who spoke on the point.   See pages 1018-1020 cited above.

After thorough review of the entire legislative history of the Act and careful evaluation of the various discussions on this point it is concluded that the narrow interpretation proposed by Complainant is the only appropriate and realistic application possible if the purpose of this Act is to be accomplished.   Congress states that its purpose and policy is "to assure so far as possible every working man and woman in the nation safe and healthful working conditions. . . ." This language certainly includes Respondent's office employees working in the workplace inspected [*15]   on September 18, 1972.   They are entitled to the protection which will be provided to them through Respondent's compliance with the safety standards cited.

It is true that the FRA has issued certain regulations governing safety in connection with railroad operations.   Respondent has established this fact in the instant proceeding.   Complainant concedes the same by admitting Respondent's Request for Admissions.   Delegation of authority from the Secretary of Transportation to the Federal Railroad Administrator appears in Title 49, Code of Federal Regulations at Section 1.49.   This delegation is specific with regard to safety --

(c) Carry out the following laws relating generally to safety appliances and equipment on railroad engines and cars, and protection of employees and travelers: . . .

The regulation then cites 11 specific laws under paragraph (c).   In addition additional laws are also cited in the other   subparagraphs of Section 1.49.   Many regulatinos have been issued by the FRA pursuant to this authority.   They appear in Title 49 of the Code of Federal Regulations at Parts 213, 225, 228, 230, 231, 232, 233, 235 and 236.   Most of these regulations concern safety [*16]   and safety appliances.   They all concern and regulate some aspect of railroading, mainly from a safety standpoint.   However, these safety provisions cover actual railroad operations as opposed to office workers who do not come into direct contact with the locomotives, trains and rolling stock.   There is no provision in the regulations issued by the FRA which concerns the occupational safety and health of Respondent's employees working in the workplace inspected on September 18, 1972.   This is particularly true with regard to the absence of exit signs and the improper fire extinguishers which are the subject of the Citation.

The evidence establishes that 6 of Respondent's employees worked in the office inspected. None of them were part of any train crew. The rooms used by the transient train crews, although located in the same building, were not directly connected to the workplace inspected. Thus none of the employees protected by the FRA regulations use the inspected area.   Conversely, the FRA regulations do not protect the 6 employees involved here from the conditions for which Respondent has been cited.

The working conditions at Respondent's workpalce and the 6 employees working [*17]   therein at the time of the inspection do not come within the exemption of Section 4(b)(1).   No other government agency, particularly the FRA, has exercised any authority affecting occupational safety or health with regard to these employees and their working conditions as concerns exit signs and fire extinguishers. It is concluded, therefore, that Respondent's workplace is subject to inspection by Complainant and that the cited standards apply to Respondent's business carried on at the workplace. Any conclusion short of this will effectively leave Respondent's 6 employees unprotected and vulnerable, completely contrary to the purpose of the Act as set forth in Section 2(b).

This conclusion is not a matter of divesting the FRA of any jurisdiction for that does not occur.   It simply carries out the predominating emphasis of the Act's legislative history -- to   provide comprehensive occupational safety and health coverage for all employees.   As a corollary, this conclusion avoids duplication of effort while at the same time guaranteeing protection of Respondent's office employees.   At such time as the FRA issues safety regulations covering the class of employees and workplace [*18]   involved here, the Section 4(b)(1) exemption will take effect.   Until that time Respondent's workplace inspected on September 18, 1972 is subject to the Act.

The Memorandum of Understanding

As another theory in support of the asserted lack of jurisdiction, Respondent argues that since the inspection was made by a CSHO without any participation by the FRA, the inspection is invalid. This argument is based solely on a Memorandum of Understanding dated May 16, 1972 and entered into by the FRA and OSHA.   The memorandum establishes procedures to be followed by the two agencies when an employee in the railroad industry makes a complaint to OSHA concerning unsafe or unhealthy conditions.

The memorandum is an interim inter-agency agreement and is obviously for the benefit of the two agencies, the FRA and OSHA.   It appears to help achieve the coordination between this Act and other federal laws desired by Congress and expressed in Section 4(b)(3) of the Act.   It is clearly for the purpose of expediting the handling of such complaints with avoidance of duplication of effort.   Its wording demonstrates the desire of the two agencies to coordinate their safety enforcement responsibilities.   [*19]   Nothing in the memorandum changes the statutory responsibilities of either agency.   In fact, it recognizes that the FRA is not exercising its statutory authority in connection with some working conditions.   If such be found to be the case, then the memorandum places full responsibility on OSHA to make the inspection.

There is nothing in the memorandum which affects Respondent's position.   It does not create any new or additional rights for Respondent.   Indeed it could not.   Respondent's rights are established and controlled by the Act.   It is elementary that the agencies cannot change Respondent's rights created by the Act.   Any change is in the prerogative of Congress.   Accordingly,   it is concluded that Complainant's failure to adhere to the memorandum does not invalidate the inspection.

It is to be noted here that the conditions for which the Citation was issued are clearly not covered by any regulations issued by the FRA.   Likewise, the conditions complained of by Respondent's employee (excessive heat and noise) are not covered by any regulations issued by the FRA.   Thus, under the memorandum OSHA would have been responsible for conducting the inspection. If the provisions [*20]   of the memorandum had been followed, Respondent's workplace would have been inspected by OSHA in the same manner as it was.   Respondent cannot successfully complain because the inter-agency routine was not followed, especially when there would have been no change in end result.

The Violations

The violations do not pose any problem.   Respondent has not offered anything to counteract the evidence of the existence of the three violations.   Each of the three conditions are found to have existed and are violations of the cited standards.

Consequently, based upon the evidence adduced and after consideration of the briefs and other submissions by each party, I make the following:

FINDINGS OF FACT

1.   Respondent, Union Pacific Railroad Company, is a corporation engaged in the transportation of freight in interstate commerce.   Respondent maintains a place of business and employment at the outbound yard office located at the Union Pacific railroad yards in Pocatello, Idaho.   Respondent is engaged in a business affecting commerce within the meaning of Section 3 of the Act (Complaint, Articles I and II and Answer, Articles I and II).

2.   Respondent's workplace at Pocatello, Idaho was inspected [*21]   by Complainant's Compliance Safety and Health Officer on September 18, 1972.   The inspection was made in response to a complaint made by one of Respondent's employees concerning   excessive noise and heat (Record pages 38-41).   As a result of the inspection, Respondent was issued a Citation dated October 20, 1972 alleging violation of three safety and health standards promulgated pursuant to the Act and presently codified at 29 CFR 1910.157(c)(5)(i), 1910.36(b)(5) and 1910.157(a)(3) respectively.   The violations are in the manner set forth hereinabove at pages 2-4 (File, Complaint, Article IV).

3.   Respondent was also issued a Notification of Proposed Penalty dated October 20, 1972 proposing assessment of a penalty of $0 in connection with each of the three violations (File, Complaint, Article VI).

4.   On November 8, 1972, a representative of the Secretary of Labor received a timely notice from Respondent contesting the "issuance and validity of the Citation" (File).

5.   On September 18, 1972 Respondent violated the three safety standards listed in Finding 2 in the manner set forth at pages 2-4 of this decision.

6.   The Federal Railroad Administration has issued certain [*22]   regulations concerning safety which are found in Title 49, Code of Federal Regulations at Parts 213, 225, 228, 230, 231, 232, 233, 235 and 236.   None of these regulations apply to the employees and work situation involved here.

7.   The employees and work situation at Respondent's workplace are covered by the standards found in Title 29, Code of Federal Regulations, Part 1910 as cited in Finding 2.

8.   The abatement dates and proposed penalties are reasonable (Complaint, Articles VII and VIII and Answer, Articles VII and VIII).

CONCLUSIONS OF LAW

1.   Respondent, Union Pacific Railroad Company, is an employer engaged in a business affecting interstate commerce within the meaning of Section 3 of the Act.

2.   Respondent is subject to regulation under the provisions of the Occupational Safety and Health Act of 1970 with respect to the office workplace and working conditions of Respondent which are the subject of the Citation and complaint herein.   Section 4(b)(1) of the Act does not preclude Complainant from asserting his statutory authority in the matters at issue here.

  3.   Section 4(b)(1) of the Act does not provide an overall general exemption of the railroad industry [*23]   from coverage by the Act.   It does exempt those portions of the railroad industry which are covered by regulations regarding safety issued by the Federal Railroad Administration.

4.   The violations found in Finding 5 are of a nonserious nature.   They are affirmed.

5.   The proposed abatement times and the proposed penalty of $0 is reasonable.   They are affirmed.

ORDER

Based upon the foregoing Findings and Conclusions and for good cause shown, it is hereby

ORDERED that the Citation with three items, together with the proposed penalty of $0 be, and the same is hereby, AFFIRMED.