ILLINOIS CENTRAL GULF RAILROAD COMPANY

OSHRC Docket No. 3945

Occupational Safety and Health Review Commission

March 19, 1975

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

  MORAN, CHAIRMAN: A decision of Review Commission Judge James D. Burroughs, dated April 9, 1974, is before this Commission for review pursuant to 29 U.S.C. §   661(i).

Having examined the record in its entirety, we find no prejudicial error therein.   Accordingly, we affirm the Judge's disposition of this matter.  

CONCURBY: VAN NAMEE

CONCUR:

  VAN NAMEE, COMMISSIONER, concurring: The administrative law judge vacated for the reason that the citation was not issued with reasonable promptness. He relied on our decision in Chicago Bridge & Iron Co., 6 OSAHRC 224, BNA 1 OSHC 1485, CCH E.S.H.G. para. 17,187 (1974), petition for review docketed, No. 74-1214 (7th Cir., March 18, 1974).   I concur in accepting his report and I do so for the reasons he assigned.

I would add that I read our decisions in E.C. Ernst, Inc., Dkt. 1780, BNA 2 OSHC 1468, CCH E.S.H.G. para. 19,179 (1975) and Todd Shipyards Corp., Dkt. 1556, CCH E.S.H.G. para. 19,272 (January 31, 1975) quite differently than does my colleague in dissent.   As I read them they extend the rule announced in Chicago Bridge & Iron Co. Specifically, they stand [*2]   for the proposition that a citation will be vacated to the extent that an employer is prejudiced by delay in the issuance of a citation.   The rule is in the alternative to the rule announced in Chicago Bridge, and it would operate without regard to any extenuating circumstances that might cause delay in the issuance of a citation.  

DISSENTBY: CLEARY

DISSENT:

  CLEARY, COMMISSIONER, dissenting: I must dissent from this reversal of Commission precedent with regard to section 9(a) of the Act. n1

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n1 Respondent urged that it is not covered by the Act by virtue of the provisions of section 4(b)(1), but the Judge and the majority disposed of the case on the section 9(a) defense and my dissent will also be so limited.

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This case was initiated by an employee complaint.   A memorandum of understanding had been entered into on May 16, 1972, between the Federal Railroad Administration (FRA), Department of Transportation, and the Occupational Safety and Health Administration (OSHA), Department of Labor, for handling employee complaints in [*3]   the railroad industry. This memorandum, in pertinent part, is attached as Appendix A. OSHA Program Directive #200-2, is attached, in pertinent part, as Appendix B. The employee complaint was processed in accordance with the instructions contained in the directive and in the memorandum of understanding.

A joint inspection of respondent's premises by inspectors from OSHA and an inspector from FRA took place on March 28 and 29, 1973.   The Area Director was instructed not to issue a citation, but to send the completed form to the Regional Administrator.   This instruction stated: "We will advise you when to issue the citations to the employer." The Area Director followed these instructions; the Regional Administrator forwarded the citation to the national office, and on June 26, 1973, received notice to issue the citation.   The Area Director, on July 6, 1973, received authorization to issue the citation.   After inserting abatement dates, the citation was issued on July 12, 1973.   It is the total length of the time between the inspection and the issuance of the citation to which respondent objects and not the delay for which the citation is here vacated. n2

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n2 The employer is protected by section 9(c) of the Act from citations issued more than six months after the alleged violation.

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The Judge adopted the three-working day rule of Chicago Bridge & Iron Co., No. 744 (January 24, 1974), petition for review docketed, No. 74-1214, 7th Cir., March 18, 1974, but refused to hold that this period begins to run from the time of inspection. He held that this period cannot begin to run until the Area   Director, the person charged with the issuance of the citation is authorized to do so.   This, he reasoned, is so even though the "decisional process" has been completed earlier at a higher level, for the decision must be transmitted to the Area Director for action.   The citation was vacated because the Area Director received authorization on July 6, 1973, but did not issue the citation until July 12, 1973, four working days after receipt of this authorization. n3

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n3 Weekends and holidays are not counted in the computation of time under the Act, see rule 4(a) of the Commission's Rules of Procedure, 29 CFR §   2200.4(a).   The citation was issued on the fourth working day after receipt of authorization, only one day late under the rule of Chicago Bridge & Iron Co., No. 744 (January 24, 1974), petition for review docketed No. 74-1214, 7th Cir., March 18, 1974.

  [*5]  

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Based on these facts, Judge Burroughs vacated the citation, citing the majority opinion in Chicago Bridge & Iron Co., supra. The Judge held that if there are more than three working days between the Area Director's decision to issue a citation and the actual issuance of a citation, and an employer raises the reasonable promptness issue during the "issue formulation stage," then the citation must be vacated.

Although the majority so held in Chicago Bridge & Iron Co., subsequent decisions of the Commission have held that a citation will not be vacated on "reasonable promptness" grounds without a showing of prejudice to the employer.   Todd Shipyards Corp., No. 1556 (January 31, 1975); E.C. Ernst, Inc., No. 1780 (January 3, 1975).

The position taken by the Chairman here is not inconsistent with his dissents in Ernst and Todd. The concurrence in this case, however, creates a new majority and thus overrules, without adequate assignment of reasons, Commission precedent on the "reasonable promptness" issue.

[W]hile administrative agencies can change policies . . . and can fashion exceptions [*6]   and qualifications, they must explain departures from agency policies or rules apparently dispositive of a case.

Brennan v. Gilles & Cotting, Inc. & O.S.H.R.C., 504 F.2d 1255, 1264 (4th Cir. 1974) and well-settled precedent cited therein.

  The concurring opinion would affirm the Judge "for the reasons he assigns." This case was decided by the Judge before the Commission issued the decisions in Ernst and Todd. The Judge here stated:

The Area Director in this case received authority on July 6, 1973, a Friday, to issue the citation as submitted.   The citation was not issued until Thursday, July 12, 1973, which was the fourth work day following notification that the citation should be issued.   The citation was not issued within 72 hours from the time that the Area Director received notification to issue it.

The evidence does not reflect any exceptional circumstances which would abrogate the 72 hour period specified by the Commission.   Abatement dates had to be inserted in the citation for the alleged violations after notification to issue was received.   However, it took only a couple of hours to determine the abatement dates.   This can hardly be considered [*7]   as exceptional circumstances.

The citation must be vacated under the rational of the Commission's decision in Chicago Bridge and Iron Company.   This result must be reached even though respondent admits that it was not prejudiced by the delay and there is no evidence that the Area Director was dilatory in performing his duties (emphasis added).

The adoption of these reasons is not sufficient to meet the requirements for reasons announced in Gilles & Cotting, supra.

Even under the majority decision in Chicago Bridge & Iron Co., I am of the opinion that the rule was erroneously applied in this case.

Upon receipt, on July 6, 1973, of authorization to issue the citation, the abatement dates had to be inserted by the compliance officer.   The citation then again had to be reviewed by the Area Director.   There is no evidence of record from which it may be determined with exactitude when the Area Director completed his review and his discretionary duties, i.e., approval of the abatement dates.   Therefore, an inference must be drawn from the evidence of record.   To infer that all discretionary duties of the Area Director were performed on the same day that he received the [*8]   authorization to issue the citation, and on which the compliance officer took "about two hours" to insert the abatement dates, is unrealistic.   It is more reasonable to infer that the discretionary acts of the Area Director were completed no earlier than Monday, July 10.   In these circumstances, the citation would have been issued on the third working day, within the rule of Chicago Bridge & Iron Co. To apply the three-working   day rule of Chicago Bridge & Iron Co. so rigidly to the record here is error.

The record clearly shows that: (1) respondent has stipulated to the facts underlying the citation; (2) this case arose out of an employee complaint; (3) respondent admittedly suffered no prejudice from the delay between the inspection and the issuance of the citation -- it cannot assert prejudice as a result of the delay of one day as found by the Judge; (4) Commission precedent, as expressed in Ernst and Todd, requires a showing of prejudice; (5) the citation was issued almost six months before the Commission decision in Chicago Bridge & Iron Co.; and (6) certain discretionary functions relating to abatement requirements had to be performed after receipt [*9]   of authorization to issue the citation.

In Brennan v. O.S.H.R.C. & Bill Echols Trucking Co., 484 F.2d 230 (5th Cir. 1973), the Fifth Circuit said that vacating a citation or proposed penalty is the most extreme sanction available to the Commission and recognized Commission precedent that a citation should not be vacated for failure to comply with a procedural rule in the absence of prejudice to the employer.

In affirming the vacating of the citation, the majority elevates procedure over substance.   This Act is remedial legislation to be liberally construed.   See Brennan v. O.S.H.R.C. & Santa Fe Trail Trans. Co., 505 F.2d 869 (10th Cir. 1974); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974).

Vacating this citation where the record fails to show prejudice to the respondent, and fails to establish the time from which to count the "three working days," results in an unreasonable application of the "reasonable promptness" provision.   Therefore, the majority's action cannot be said to further the statutory purpose of furthering occupational safety and health.   Indeed, it is inconsistent with that purpose.

  APPENDIX A

This memorandum [*10]   provides, in pertinent part, as follows:

In order to expedite the handling of employee complaints of unsafe or unhealthy working conditions, or both, in the railroad industry, OSHA and FRA agree that the following procedures shall be followed:

(1) If an employee makes a complaint to OSHA regarding unsafe or unhealthy conditions in the railroad industry, the complaint will be forwarded to the national office of compliance, OSHA.   The complaint will then be transmitted to the office of the Associate Solicitor for OSHA.   The office of the Associate Solicitor will promptly contact the office of the Chief Counsel, FRA.

(2) The office of the Chief Counsel, FRA, will determine jointly (within 5 working days) with the Associate Solicitor for OSHA issues relating to FRA's exercising statutory authority to prescribe or enforce standards affecting occupational safety and health with respect to working conditions complained of.

(3) FRA will be responsible for inspecting and taking appropriate enforcement action respecting working conditions as to which a determination is made under paragraph (2) of this memorandum that FRA is exercising statutory authority as described in that paragraph.   [*11]   OSHA will be responsible for inspecting and taking appropriate enforcement action respecting working conditions as to which a determination is made under paragraph (2) of this memorandum that FRA is not exercising statutory authority as described in that paragraph.   If a complaint includes working conditions over which both FRA and OSHA exercise stationary authority as described in paragraph (2), representatives of OSHA and FRA will make arrangements for joint investigation of the complaint, where appropriate.   In cases of alleged imminent danger or emergency situations, the provisions of this agreement shall be implemented on a priority basis.

(4) Following joint inspection, any question as to appropriate disposition by either agency will be settled jointly.   If any disagreement exists at the staff level, the matter shall be referred to the Assistant Secretary of Labor for Occupational Safety and Health and the Administrator of the Federal Railroad Administration.

APPENDIX B

OSHA Program Directive #200-2 provides, in pertinent part, as follows:

b.   Upon receipt of any other complaint or other correspondence concerning working conditions in industries which are apparently the   [*12]   subject of regulation by another Federal agency to some degree, the OSHA official who receives such correspondence shall transmit a copy of same to the Director, Office of Compliance.

  (1) The Office of Compliance will then transmit such correspondence to the Associate Solicitor for Occupational Safety and Health, who will discuss any jurisdictional questions with any other Federal agency which may be involved.

(2) The Associate Solicitor will then transmit his answer concerning jurisdictional questions to the Office of Compliance.

(3) The Office of Compliance will then inform the appropriate field office or other OSHA official of the action to be taken regarding the complaint or the manner in which the correspondence will be answered.

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1390 (hereinafter referred to as the Act).   Respondent seeks review of a citation issued to it on July 12, 1973.   Review is also sought by respondent of the penalties proposed, pursuant to section 10(a) of the Act, for certain of the violations.   [*13]  

The citation and notification of proposed penalty were issued as the result of an inspection on March 28 and 29, 1973, of a workplace under the operation or control of the respondent and located in Paducah, Kentucky.   The workplace is a repair facility for rebuilding, servicing, and maintenance of diesel and electric locomotives. The citation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with forty-six (46) standards promulgated by complainant pursuant to section 6 of the Act.

Respondent, by letter dated July 25, 1973, timely notified complainant that it wished to contest items 1 through 46 of the citation.   Respondent filed an amended notice of contest on August 16, 1973, n1 wherein it is contended that section 4(b)(1) of the Act exempts respondent from standards promulgated by the Secretary of Labor pursuant to the Act.   It is submitted that the Department of Transportation has authority to promulgate all rules, regulations, standards and orders necessary for the safety of railroad employees and that it has exercised this authority through the Federal Railroad Administration.   It is specifically alleged that the Department of Transportation   [*14]   has authority to   promulgate all rules and regulations relating to accident reporting by railroads and that this authority has been exercised.   For this reason, respondent contends items 43 through 46 of the citation are not applicable even if it is not exempt under section 4(b)(1).

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n1 The date the amended notice was received by the Occupational Safety and Health Administration.

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The answer filed by respondent on September 7, 1973, raised the defense that complainant failed to comply with section 9(a) of the Act by failing to issue the citation "with reasonable promptness." The answer alleges that no exceptional circumstances justified the delay and that respondent has been prejudiced by its failure to receive a citation with "reasonable promptness." However, respondent stated at the hearing that it had no evidence of prejudice.   The answer also restates respondent's position that it is exempt from OSHA standards under section 4(b)(1) of the Act.

On November 1, 1973, respondent filed a Motion To Dismiss on [*15]   the grounds that it is a railroad common carrier subject to the provisions of the Federal Railroad Safety Act of 1970, together with other railroad safety legislation as set out in 45 U.S.C. 1, et seq. and that the Occupational Safety and Health Act of 1970 is not applicable to it.   This motion was denied on November 5, 1973, for the reason that the Secretary of Transportation had not exercised his authority under the Federal Railroad Safety Act of 1970 or other railroad safety legislation to protect railroad employees against the alleged violations cited by complainant.   The denial of respondent's motion was not intended to foreclose any contention that items 43 through 46 of the citation are not applicable to respondent by virtue of the fact that certain accident reporting regulations have been adopted by the Department of Transportation as being applicable to railroads. n2

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n2 It is recognized that a limited exemption may be applicable in some instances where authority has been exercised even though the Secretary of Transportation has not exercised his authority in the "same manner or in an equally stringent manner." See Secretary of Labor v. Mushroom Transportation, Inc.,

  [*16]  

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In an effort to narrow the issues for hearing, the parties entered into and filed a stipulation which states:

On or about March 28-29, 1973, the conditions described in Items 1 through 46 of the Citation and alleged in paragraph V of the complaint, as amended,   existed at respondent's locomotive repair facility at Paducah, Kentucky, as described in the citation and complaint.

It was the intent of the parties that the facts as stated in the citation and complaint would be admitted.   If those facts support the violation alleged, then a violation is to be determined.   Respondent did not intend the stipulation as a concession of the items in the citation.

The citation as amended by the complaint n3 sets forth the following alleged violations and descriptions:

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n3 Items 8, 11, 13, 25, 30 and 37 of the citation were amended by paragraph V of the complaint.

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Item No. -- Standard Allegedly Violated -- Description of Alleged Violation [*17]  

1 -- 29 CFR 1910.157(b)(2) -- Portable fire extinguishers were not selected for the specific class or classes of hazards to be protected in their immediate location (class A water or soda acid type extinguishers were mounted where electrical or oil fires would be primarily expected and no Class B or C rated extinguishers were readily available in these areas: Bearing Box Repair area, Machine Shop near Track 26, and Blacksmith Shop, west wall, south end; also, pyrene, carbon tetrachloride filled extinguishers were located throughout the premises).

2 -- 29 CFR 1910.157(d)(3)(iv) -- A portable fire extinguisher did not have a durable tag securely attached to show the maintenance or recharge date and the initials or signature of the person performing the service (dry chemical type -- near Track 25, Machine Shop).

3 -- 29 CFR 1910.157(a)(5) -- A portable fire extinguisher was not mounted on the hangers or in the brackets supplied (Power Plant, basement, 15# Dry Chemical).

4 -- 29 CFR 1910.22(a)(1) -- Work areas, floors, and other places of employment were not kept clean and orderly and in a sanitary condition (Power Plant in entire basement area; Blacksmith Shop; Machine Shop at 1C-80 [*18]   location; between Tracks 6 and 7, Boiler Shop; Truck Department at Track 22, 1C-1583, and east end of building, caustic cleaning area, High Bay).

5 -- 29 CFR 1910.23(a)(8) -- Floor-groove, opening in Truck Department was not repaired to prevent employees from stumbling or tripping while working in area.

6 -- 29 CFR 1910.22(b)(1) -- Aisles and passageways were not kept clear, having obstructions across or in aisles that could create a hazard (Truck Department, east end of building).

  7 -- 29 CFR 1910.252(a)(4)(iv)(c) -- Station outlets of oxygen and acetylene manifold system were not marked to indicate the name of the gas (throughout the entire work area facility).

8 -- 29 CFR 1910.252(a)(5)(iv)(g) -- Detachable outlet seal cap was not secured in place at station outlet of oxygen-fuel gas manifold (acetylene connection not capped at Track 26, Machine Shop).

9 -- 29 CFR 1910.252(a)(1)(ii) -- Acetylene was being utilized in excess of 15 p.s.i. gage pressure (at power plant, portable oxygen fuel-gas equipment was being used with acetylene at 22 p.s.i. gage pressure).

10 -- 29 CFR 1910.252(a)(2)(iv)(c) -- Oxygen and fuel-gas cylinders were not separated by a minimum distance [*19]   of 20 feet, or by a noncombustible barrier at least (5) feet high, having a fire resistance rating of at least one-half (1/2) hour (Boiler Shop -- Track 13, and near Heater #27).

11 -- 29 CFR 1910.252(a)(2)(ii)(b) -- Several oxygen and fuel-gas (acetylene) cylinders were not secured or located to prevent their being knocked over or damaged by passing or falling objects (Boiler Shop near Heater #27, and Track 10, Tank Shop).

12 -- 29 CFR 1910.252(a)(2)(ii)(d) -- Valve protection caps on oxygen and acetylene cylinders in storage, or not being used, were not kept in place (Boiler Shop, Frame Shop, Track #10, in Tank Shop).

13 -- 29 CFR 1910.252(b)(4)(vii) -- Electrodes were not removed from holders and the holders not carefully located so that they could not make accidental contact with employees or conductive surfaces (Near Track #7 -- Boiler Shop, Pipe Shop and Machine Shop -- west end, middle bay).

14 -- 29 CFR 1910.252(b)(4)(ix)(a) -- Welding equipment defects were not reported or the equipment removed from service until its safety had been assured (Insulation on tip or end of holder was burned away, exposing current-carrying parts of holder to contact with conductive objects [*20]   or surfaces) (Bearing Box Repair Department and Tank Shop).

15 -- 29 CFR 1910.252(b)(4)(ix)(c) -- Work and electrode lead cables with damaged insulation or exposed bare conductors were not replaced, and joining lengths of work and electrode cables were not connected by means specifically intended for the purpose (Truck Dept., Hobart Welder and 400-43 portable welder; Wheel Shop, Bearing Box repair area; and Tank Shop).

16 -- 29 CFR 1910.252(e)(2)(iii) -- Workers or other persons adjacent to the welding areas were not protected from the rays by noncombustible or flameproof screens or shields, nor were required to wear appropriate goggles (Pipe and Tin Shop -- employee was "Mig Welding" without protection from flash to nearby employees).

17 -- 29 CFR 1910.252(f)(11)(ii) -- Degreasing operations involving chlorinated hydrocarbons were not so located that vapors from these operations   would be drawn into the atmosphere surrounding the welding operation (Pipe and Tin Shop, vapors from AJA Dip Tank were not individually exhausted and were subject to being drawn into the atmosphere by the general ventilation overhead exhaust fans to nearby area where "Mig Welding" was being conducted).   [*21]  

18 -- 29 CFR 1910.242(b) -- Compressed air used for cleaning purposes was not reduced to less than 30 p.s.i., and effective chip guarding was not provided to prevent chips or particles from being blown into the eyes or unbroken skin of the operator or other workers (Electric Shop and Blower Dept).   Locomotive motors and other parts were being "air-cleaned", with dirt and dust particles being blown into other working areas.

19 -- 29 CFR 1910.94(c)(2) -- Spray room for spray finishing operations on locomotives did not conform to location requirements provided in the Standard.

20 -- 29 CFR 1910.94(c)(3) -- Spray booth/spray room was not designed in accordance with 29 CFR 1910.107(b) (1)-(4) and (6)-(10) and NFPA No. 33-1969 Standard for Spray Finishing using Flammable and Combustible Materials.

21 -- 29 CFR 1910.134(a)(2) -- The employer did not provide for the establishment and maintenance of a respiratory program in accordance with the requirements of 29 CFR 1910.134, paragraph (b).   (Employee at degreasing tank -- Welders in Blacksmith Shop; Employees in paint shop where floor coating was applied; employees working unvented (AJA) dip tank in Pipe Shop; employees exposed to dust [*22]   being blown off of blowers in the Blower Dept. were not wearing respirators in accordance to the requirements for the work being performed).

22 -- 29 CFR 1910.215(b)(9) -- Bench grinders (in Pipe Shop -- north wall area; Tank Shop -- at Tank 3; Craftsman grinder at Track 3; Carpenter Shop) were not equipped with tongue guards provided with the machines.

23 -- 29 CFR 1910.106(e)(6) -- Adequate precautions were not taken to prevent the ignition of flammable vapors (insufficient number and placement of "NO SMOKING" signs in Gasoline Pump Area for refueling material handling equipment)

24 -- 29 CFR 1910.141(c)(2)(i) -- Each toilet facility compartment (in Boiler Shop) was not equipped with a door, latch, and clothes hanger.

25 -- 29 CFR 1910.178(n)(7)(iii) -- A forklift truck was being operated with the forks raised higher than necessary to clear the road surface (Tank Shop).

26 -- 29 CFR 1910.145(c)(2) -- A caution sign was not used to warn employees against being burned by hot wheels removed from degreaser tank (in wheel shop).

  27 -- 29 CFR 1910.37(1)(1) -- An open casement window near doorway of Tank Shop obstructed the exit (entrance and exit of washroom).

28 -- 29 [*23]   CFR 1910.218(b)(2) -- The (2) two-foot operating treadles of the Drop Hammer in the Blacksmith Shop were not substantially and effectively protected from unintended operation.

29 -- 29 CFR 1910.213(d)(1) -- Hand fed table saws were not equipped with hoods provided for the saws (B & B Dept. saw at west end of bldg.; No. 1C -- 14892 saw and No. 1C -- 14879 saws in the Carpenter Shop).

30 -- 29 CFR 1910.213(r)(4) -- The upper portion of the blade of a jig saw was not protected with a guard (near Heater 27, Carpenter Shop).

31 -- 29 CFR 1910.219(e)(1) -- Pulley-belt drives on the following machines, with locations indicated, were improperly guarded or not guarded: (a) 1C-2988 Saw Sharpener -- Electric Shop; (b) 1C-2886 Horizontal grinder -- Electric Shop; (c) 1C-2885 Grinder, Electric Shop; (d) 1C-29 Collet lathe -- Electric Shop; (e) Groove grinder -- Electric Shop; (f) 1C-11036 Forging Machine, Blacksmith Shop.

32 -- 29 CFR 1910.179(h)(2)(v) -- Rope clips did not have the U-bolts on the dead end or short end of the rope and spacing and number of clips were not in accordance with the clip manufacturer's recommendation (on 15-ton overhead crane, crane in Electric Shop; overhead crane [*24]   in Tank Shop and slings in Machine Shop).

33 -- 29 CFR 1910.179(n)(2)(i) -- The hoist rope on a 1-ton crane in the Electric Shop was not free from kinks or twists.

34 -- 29 CFR 1910.179(h)(1)(ii) -- A crane was not provided with a close-fitting guard to guide the wire rope cable back into the sheave groove when the load was applied (1-ton crane No. 11).

35 -- 29 CFR 1910.179(g)(5)(iv) -- The over-travel limit switch on the crane hoist (for the Boring Machines in the wheel shop) was defective, permitting load chains to retrack too far when the switch was closed.

36 -- 29 CFR 1910.179(j)(3)(iii) -- The 3-ton hoist crane used to lift wheels into and out of degreasing tank in the wheel shop was being used in a manner to constitute a safety hazard (a 2-ton rated sheave with an outer case that had cracks and splits welded, also had a sheave with broken groove sides, braze welded, was attached to the 3-ton hoist crane).

37 -- 29 CFR 1910.179(j)(3)(ix) -- Crane hooks on overhead traveling cranes had not been tested by magnetic particle testing or other suitable crack-detecting methods.

  38 -- 29 CFR 1910.179(j)(3)(x) -- Electrical apparatus had not been inspected for signs   [*25]   of deterioration of controller contacters (overhead hoist controller switch in Electric Shop near Track 25, was not properly grounded).

39 -- "National Electrical Code" -- Article 250-51 (as adopted by 29 CFR Section 1910.309(a)) -- A permanent and continuous path to ground from circuits and equipment was not provided at two electrical outlets (the ground wire of a 2-wire adapter plug was attached by alligator clip to the insulated surface of a 3-wire receptacle -- Track 24, Truck Dept., and a refrigerator in the Boiler Shop was connected by a frayed 2-wire extension cord to a 3-wire receptacle and had an open ground).

40 -- "National Electrical Code" -- Article 400-5 (as adopted by 29 CFR Section 1910.309(a)) -- Flexible electrical cord was being used with an unapproved splice (near Heater 27, Carpenter Shop, or refrigerator in Truck Shop, and on crane hoist near Track 17).

41 -- "National Electrical Code" -- Article 110-17(a) (as adopted by 29 CFR Section 1910.309(a)) -- Live parts of electrical equipment operating at 50 volts or more were not adequately guarded or covered (open outlet boxes in Tank Shop near Track 10, open panel boxes 220v and 440v -- Power Plant -- 110v Tank [*26]   Shop, Fuse Box, Track 3, Boiler Shop, 440v junction box at Track 2882 (Electric Grinder) 110v Terminal box covers off of lathe #1C 3287 and 1C 1432, Milling Machine).

42 -- 29 CFR 1910.212(a)(1) -- A sewing machine in the uphostering shop was not provided with a finger guard to protect the operator from the hazards of an unguarded needle.

43 -- 29 CFR 1904.2 -- The log of occupational injuries and illnesses was not being maintained (i.e., Form OSHA No. 100).

44 -- 29 CFR 1904.4 -- The supplementary record of injury and illnesses was not being maintained (i.e., Form OSHA 101).

45 -- 29 CFR 1904.5 -- The annual summary of occupational injuries and illnesses had not been completed and posted (i.e., Form OSHA No. 102)

46 -- 29 CFR 1903.2(a) -- The notice informing employees of the protections and obligations provided for in the Occupational Safety and Health Act of 1970 had not been posted.

  The notification of proposed penalty issued on July 12, 1973, proposed penalties as follows for the alleged violations:

ITEM NO.

PROPOSED PENALTY

ITEM NO.

PROPOSED PENALTY

 1

$50.00

24

None

 2

None

25

None

 3

None

26

None

 4

35.00

27

None

 5

None

28

$45.00

 6

35.00

29

105.00

 7

45.00

30

45.00

 8

None

31

45.00

 9

45.00

32

None

10

None

33

None

11

50.00

34

None

12

50.00

35

45.00

13

45.00

36

35.00

14

45.00

37

None

15

None

38

45.00

16

None

39

50.00

17

None

40

None

18

50.00

41

105.00

19

50.00

42

None

20

50.00

43

None

21

45.00

44

None

22

None

45

None

23

None

46

None

  [*27]  

The hearing was held in Paducah, Kentucky, on December 13, 1973, primarily to receive evidence on the issue of "reasonable promptness." The Railway Employees' Department, AFL-CIO n4 was granted permission to intervene in the proceedings.   No additional parties desired to intervene.

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n4 The Railway Employees' Department, AFL-CIO represent employees who are members of the following railway organizations which collectively constitute the membership of the Department: (1) International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmith, Forgers and Helpers, (2) International Brotherhood of Electrical Workers, and (3) Brotherhood of Railway Carmen of America.

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  JURISDICTION AND ISSUES

Respondent concedes that it is an interstate rail carrier engaged in a business affecting commerce (Par. III, Complaint and Answer).   However, it denies that it is subject to the provisions of the Act.   This denial is premised on its belief that it is exempt from the Act by virtue of the provisions of section 4(b)(1) of   [*28]   the Act.   It is not necessary to reach this issue, or other issues presented by the proceeding, since the case must be resolved on the "reasonable promptness" issue.

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety.   The facts thereinafter set forth are specifically determined in resolving the issues in this case.

1.   The respondent, Illinois Central Gulf Railroad Company, is a Delaware corporation, having a locomotive repair facility at 1500 Kentucky Avenue, Paducah, Kentucky, where it has been and is engaged in the repair, rebuilding, servicing, and maintenance of diesel and electric locomotives (Par. II, Complaint and Answer).   Respondent is an interstate rail carrier engaged in a business affecting commerce (Par. III, Complaint and Answer).

2.   At all times material to this proceeding, respondent employed approximately 676 employees at its repair facility in Paducah.   These employees engaged in the repair, rebuilding, servicing and maintenance of diesel and electric railroad locomotives and related occupations (Par. III, Complaint and Answer).

3.   On November 20, 1972, the Area Director of the Louisville, Kentucky, office   [*29]   received an employee complaint concerning eleven (11) working conditions alleged to be unsafe at respondent's Paducah repair facility (Ex. 4).

4.   OSHA Program Directive #200-2 provides, in pertinent part, as follows: (Ex. 3)

b.   Upon receipt of any other complaint or other correspondence concerning working conditions in industries which are apparently the subject of regulation by another Federal agency to some degree, the OSHA official who receives such correspondence shall transmit a copy of same to the Director, Office of Compliance.

  (1) The Office of Compliance will then transmit such correspondence to the Associate Solicitor for Occupational Safety and Health, who will discuss any jurisdictional questions with any other Federal agency which may be involved.

(2) The Associate Solicitor will then transmit his answer concerning jurisdictional questions to the Office of Compliance.

(3) The Office of Compliance will then inform the appropriate field office or other OSHA official of the action to be taken regarding the complaint or the manner in which the correspondence will be answered.

5.   On May 16, 1972, a memorandum of understanding was entered into by, and between,   [*30]   the Federal Railroad Administration, the Department of Transportation and the Occupational Safety and Health Administration for handling of employee complaints in the railroad industry. (Par. 6 and Exhibit A of Stipulation) This memorandum provides, in pertinent part, as follows: (Ex. A to stipulation)

In order to expedite the handling of employee complaints of unsafe or unhealthy working conditions, or both, in the railroad industry, OSHA and FRA agree that the following procedures shall be followed:

(1) If an employee makes a complaint to OSHA regarding unsafe or unhealthy conditions in the railroad industry, the complaint will be forwarded to the national office of compliance, OSHA.   The complaint will then be transmitted to the office of the Associate Solicitor for OSHA.   The office of the Associate Solicitor will promptly contact the office of the Chief Counsel, FRA.

(2) The office of the Chief Counsel, FRA, will determine jointly (within 5 working days) with the Associate Solicitor for OSHA issues relating to FRA's exercising statutory authority to prescribe or enforce standards affecting occupational safety and health with respect to working conditions complained of.

(3)   [*31]   FRA will be responsible for inspecting and taking appropriate enforcement action respecting working conditions as to which a determination is made under paragraph (2) of this memorandum that FRA is exercising statutory authority as described in that paragraph.   OSHA will be responsible for inspecting and taking appropriate enforcement action respecting working conditions as to which a determination is made under paragraph (2) of this memorandum that FRA is not exercising statutory authority as described in that paragraph.   If a complaint includes working conditions over which both FRA and OSHA exercise stationary authority as described in paragraph (2), representatives of OSHA and FRA will make arrangements for joint investigation of the complaint, where appropriate.   In cases of alleged imminent danger or emergency situations, the provisions of this agreement shall be implemented on a priority basis.

  (4) Following joint inspection, any question as to appropriate disposition by either agency will be settled jointly.   If any disagreement exists at the staff level, the matter shall be referred to the Assistant Secretary of Labor for Occupational Safety and Health and the   [*32]   Administrator of the Federal Railroad Administration.

6.   The employee complaint received on November 20, 1972, was processed in accordance with OSHA Program Directive #200-2 and the May 16, 1972, memorandum of understanding between the Department of Transportation, Federal Railroad Administration and the Occupational Safety and Health Administration.

7.   The Area Director transmitted a copy of the employee complaint on November 21, 1972, to the Regional Administrator, Atlanta, for transmitting to the national office.   The copy of the employee complaint was received in Atlanta and was forwarded on November 28, 1972, to the national office in accordance with Program Directive 200-2 on November 28, 1972.

8.   On February 15, 1973, the Assistant Regional Administrator received a call from the national office that a joint inspection would be made with the Federal Railroad Administration.   On February 20, 1973, a memorandum was received confirming the telephone call of February 15, 1973.

9.   On February 28, 1973, the Assistant Regional Administrator wrote a memorandum to the Area Director, Louisville, Kentucky, informing him that a joint inspection of the repair facility was to be conducted [*33]   with the Federal Railroad Administration.   The Area Director received the memorandum on March 2, 1973 (Ex. 4).   The memorandum of February 28, 1973, also stated: (Ex. 4)

Do not issue any citations to the employer.   Fill out the proper citation forms and send to this office with the above information [xerox copy of complete case file and narrative report of inspection].   We will advise you when to issue the citations to the employer.

10.   On March 28 and 29, 1973, the complainant, through a duly authorized compliance officer and industrial hygienist, conducted a joint inspection of respondent's repair facilities in Paducah, Kentucky, with the Federal Railroad Administration.   Complainant's authorized personnel were accompanied on the inspection by James R. Gates, a locomotive inspector for the Federal Railroad Administration.

11.   A joint inspection was authorized so that any dispute as to who had jurisdiction as to any specific area of safety could be resolved on the spot.

12.   The compliance officer, Ralph Guffey, and Mr. Gates conferred in regard to the alleged violations at the time of the inspection and at the completion of the inspection to ascertain which agency's [*34]   standards were applicable to the alleged violations observed during the inspection. Gates and the compliance officer agreed as to the jurisdiction of the two agencies to the alleged violations.

13.   During the inspection, the compliance officer noted 135 items involving unsafe practices which were apparent violations of the published standards (Exs. 1, 2).

14.   After the inspection, the compliance officer had to review his notes, group the violations, determine the applicable standards and have the citation typed.   It took the compliance officer approximately three weeks to complete his draft of the alleged violations noted during the inspection. He was involved in making other inspections and writing other citations during this period.   After completion of his work, he gave the citation to the Area Director so that it could be reviewed.

15.   The Area Director forwarded the draft of the citation to the Regional Administrator in Atlanta on April 19, 1974.   The citation was forwarded in substantially the same form as it was issued.   The draft of the citation was received in Atlanta and forwarded to the national office on May 3, 1973.

16.   On June 26, 1973, the Regional Administrator [*35]   received notice from the national office to issue the citation as submitted.

17.   The Area Director received clearance on July 6, 1973, from the Assistant Regional Administrator to issue the citation.

18.   Normally citations are issued by the Area Director without review by the Regional Administrator.

19.   The draft prepared by the compliance officer and delivered to the Area Director for review did not contain any abatement dates.   Abatement dates were deemed inappropriate   for the draft since no one knew how many days would be consumed by the review procedure.   The abatement dates were inserted after the issuance of the citation was authorized.   It took only a couple of hours to determine the abatement dates after issuance of the citation was authorized.

20.   On July 12, 1973, respondent was issued, pursuant to section 9(a) of the Act, a citation alleging forty-six (46) non-serious violations of standards promulgated pursuant to section 6 of the Act.   (Par. IV, Complaint and Answer).   The alleged violations were included in the citation because of the belief that standards published by the Federal Railroad Administration were not applicable to the areas of safety covered [*36]   in the citation.

LAW AND OPINION

The answer filed by respondent raised the issue of "reasonable promptness" in issuing the citation on which this proceeding is based.   This defense must be considered separate and apart from the merits of the case.

Reasonable Promptness

Section 9(a) of the Act provides, in pertinent part, as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. (emphasis added)

Respondent submits that "reasonable promptness" requires that the citation be issued within 72 hours after the inspection.

This issue is controlled by the Commission's decision in Secretary of Labor v. Chicago Bridge & Iron Company,   This case sets forth guidelines and limits as to the applicability of the "reasonable promptness" requirement.   In the absence of exceptional circumstances, the Commission adopts [*37]   the 72 hour requirement for reasonable promptness which appears in the legislative history. n5 The 72   hour period is deemed to commence when the decisional process ends, i.e., after it is determined that a violation exists, and applies to the ministerial tasks remaining to be performed, e.g., the tasks of typing, signing, and mailing the citation.   This necessarily implies that evidence must reflect when the decision to issue a citation was made, i.e., when the decisional process ended.   The citation in this case was issued by the Area Director and the pertinent point for disposition of the issue is when the decision that a citation should be issued was made.

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n5 See H. Rep. No. 91-1765, 91st Cong. 2d Sess. 38(1970).

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The Commission in Chicago Bridge & Iron Company, supra, implicitly recognizes that the issue of "reasonable promptness" is an affirmative defense since the issue is required to be raised by the respondent early in the proceedings.   Where affirmative defenses are raised, the party raising   [*38]   the defense has the burden of proof thereof.   As the court stated in Reliance Life Insurance Co. v. Burgess, 112 F.2d 234, 237-238 (8th Cir. 1940) cert. denied 311 U.S. 699:

The question as to whether the burden of proof in its primary sense rests upon the plaintiff or defendant is ordinarily to be determined by ascertaining from the pleadings which of the parties without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence.   It is a fundamental rule that the burden of proof in its primary sense rests upon the party who, as determined by the pleadings, asserts the affirmative of an issue and it remains there until the termination of the action.   It is generally upon the party who will be defeated if no evidence relating to the issue is given on either side.

Accordingly, it is concluded that the respondent has the burden of proof on this issue.

The Area Director involved in this case did not have the final authority to issue the citation because of the coordination between the Occupational Safety and Health Administration, Federal Railroad Administration and the Department of Transportation.   The decision to issue the citation [*39]   was made by the national office of the Occupational Safety and Health Administration.   The evidence does not indicate when the national office made the decision to issue the citation.   It is clear, however, that the decision was made no later than June 26, 1973, since the national office advised the Regional Administrator in Atlanta on that date that the citation should be issued as submitted.

  Although the Regional Administrator received notice on June 26, 1973, to issue the citation, the Area Director did not receive notice to issue the citation until July 6, 1973, which was on a Friday.   The citation was issued by the Area Director on July 12, 1973, a Thursday.

The Commission stated in Chicago Bridge & Iron Company, supra, that, absent exceptional circumstances, the "[C]omplainant or his authorized representative must perform the ministerial tasks involved in issuing a citation within 72 hours from the time he has formed his belief that a violation has occurred." Unless exceptional circumstances are deemed to exist, this means that the citation should have been issued no later than June 29, 1973. n6

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n6 The decision was made to issue the citation no later than June 26, 1973, which was a Tuesday.   Since the 72 hour period applies to working days only, the citation should have been issued June 29, 1973, (a Friday), absent any exceptional circumstances.

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Neither the Commission nor the House and Senate conferees have defined what is intended by the use of the phrase "in the absence of exceptional circumstances." There is no indication in Chicago Bridge & Iron Company that the delay was caused by a coordinated review of the citation.   Thus the Commission did not specifically consider the affect of a review by the national office of a citation prior to its issuance. It is concluded that the review by a regional office or the national office constitutes exceptional circumstances up to the point of time that the Area Director or any other person who might be authorized to issue the citation is officially notified to issue the citation. n7

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n7 This does not infer that exceptional circumstances could not exist after the Area Director was notified to issue the citation.   If exceptional circumstances exist at the Area Director level the 72 hour time period would not be absolute.

  [*41]  

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There are genuine and valid instances in some cases where coordination or review is desirable prior to the citation being issued.   The complainant has a duty to uniformly enforce the law.   In many instances coordination or review is essential to achieving this objective.   The complainant should not be impeded in carrying out his duties under the Act.   The imposition   of the 72 hour time period at a level higher than the Area Director would be detrimental to the objectives of the Act.   Coordination or review should be allowed to proceed within normal administrative channels.   Once a decision to issue a citation is made at a higher level than the Area Director, the decision must be disseminated through the proper channels.   The right hand, so to speak, must know what the left hand is doing.

The Area Director in this case received authority on July 6, 1973, a Friday, to issue the citation as submitted.   The citation was not issued until Thursday, July 12, 1973, which was the fourth work day following notification that the citation should be issued.   The citation was not issued within 72 hours   [*42]   from the time that the Area Director received notification to issue it.

The evidence does not reflect any exceptional circumstances which would abrogate the 72 hour period specified by the Commission.   Abatement dates had to be inserted in the citation for the alleged violations after notification to issue was received.   However, it took only a couple of hours to determine the abatement dates.   This can hardly be considered as exceptional circumstances.

The citation must be vacated under the rationale of the Commission's decision in Chicago Bridge and Iron Company. This result must be reached even though respondent admits that it was not prejudiced by the delay and there is no evidence that the Area Director was dilatory in performing his duties. Since the 72-hour rule was not imposed until the Commission's decision on January 24, 1974, the Area Director could hardly know on July 12, 1973, that the Commission would impose such a mandatory dictate.

CONCLUSIONS OF LAW

1.   The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2.   The respondent was at all times material hereto subject to the requirements [*43]   of the Act and the standards promulgated thereunder.   The Commission has jurisdiction of the parties and of the subject matter herein.

  3.   Absent exceptional circumstances, a citation must be issued within 72 hours from the time the complainant or his authorized representative has formed a belief that a citation has occurred.   Weekends and holidays are excepted from the 72 hour period. Secretary of Labor v. Chicago Bridge and Iron Company,

4.   A review or coordination undertaken by the Regional Administrator or national office of the Occupational Safety and Health Administration constitutes exceptional circumstances. In such cases, the 72 hour period does not commence until the Area Director, or other person authorized to issue the citation, is notified to issue it.

5.   The Area Director was notified on July 6, 1973, to issue the citation to the respondent.   The citation was issued on July 12, 1973, which was more than 72 hours from the time the Area Director was notified. Accordingly, the citation must be vacated. Chicago Bridge and Iron Company, supra.

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law,   [*44]   it is

ORDERED: That the citation and notification of proposed penalty issued on July 12, 1973, are vacated.