OSHRC Docket No. 4318

Occupational Safety and Health Review Commission

November 22, 1974


Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners



  VAN NAMEE, COMMISSIONER: This matter presents the precise question we resolved in Southern Pacific Transportation Co.,   Following an inspection of Respondent's worksite at Duquesne, Pennsylvania, a citation issued for serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.; hereinafter "OSHA").   Respondent was charged with violating the safety standard published at 29 C.F.R. 1926.556(b)(2)(v) because its employees had failed to wear body belts with a lanyard attached to the boom or basket when working from an aerial lift while painting a bridge.

Respondent defended solely on the ground that the railway industry is exempted from compliance with OSHA by virtue of the provisions of section 4(b)(1).   It argues that the exemption applies because the Secretary of Transportation (DOT) has promulgated some safety regulations pursuant to the authority granted him by the Federal Railroad Safety Act of 1970 (45 U.S.C. 431 et seq., hereinafter "FRSA").   No other issues are presented.

The matter [*2]   was decided below by Judge Chalk.   He affirmed the citation, and assessed the proposed penalty because in his view the DOT was without authority under the FRSA to regulate the working conditions of Respondent's employees involved in this case.   It was stipulated that DOT has not promulgated regulations covering the said working conditions.

In Southern Pacific we said that DOT has authority under the FRSA to regulate employee safety matters.   We also rejected (as Judge Chalk indicated he could have herein) the industry exemption theory in favor of a specific working conditions theory.   Judge Chalk's disposition herein accords with our reasoning in Southern Pacific.

  Accordingly, for the reasons given in Southern Pacific, a copy of which is attached, we affirm the Judge's disposition, and it is so ORDERED.  



  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: Southern Pacific Transportation Company, 13 OSAHRC 258]   [*3]  

[The Judge's decision referred to herein follows]

CHALK, JUDGE: The parties to these proceedings are in agreement on the facts in the case, and, with my permission, have elected to proceed to final judgment without a hearing.   To this end, they have filed a stipulation of facts and briefs setting forth their views regarding the sole, controverted issue.   That issue is whether under Section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq. ), jurisdiction to enforce safety and health standards over Respondent's employees in this case resides in the Secretary of Transportation, rather than in the Secretary of Labor.

An inspection of Respondent's worksite, the Port Perry Bridge (B-Span) over the Monongahela River, at Duquesne, Pennsylvania, resulted in the issuance, on August 7, 1973, of both a Citation for Serious Violation and a Notification of Proposed Penalty against Respondent.   Respondent duly filed a Notice of Contest on August 24, 1973.   Alleging a violation of Section 5(a)(2) of the Act by not complying with the standard found at 29 CFR 1926.556(b)(2)(v), the Citation describes Respondent's delict as follows:

On June 26, 1973, an employee positioned [*4]   in the basket of a Hughes Kennan Aerial Lift truck, spray painting the Duquesne side of the Port Perry Bridge (B-Span), approximately thirty (30) feet above the Monongahela River, was not wearing a body belt and a lanyard attached to the boom or basket while working from the aerial lift.

A penalty of $600.00 was proposed by the Secretary of Labor for this charge.

  29 CFR 1926.556(b)(2)(v) reads as follows:

A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.


The stipulation establishes that Respondent is a Pennsylvania corporation with its main office in Pittsburgh, Pennsylvania, and that it transports a variety of goods and commodities which are regularly interchanged with interstate common carriers, including the Penn Central Railroad and "The Chessie System." Respondent owns and maintains the bridge, a part of its railway system, involved in the charge.

Regarding the operable facts in the case, the stipulation establishes that on June 26, 1973, eight of Respondent's employees were engaged in spray painting the underside of the bridge, some thirty feet above subjacent surfaces.   To accomplish this work, they   [*5]   were using an aerial lift truck.   During the course of this operation, one of these employees fell to his death from the basket of this truck.

The stipulation also establishes that none of the employees, including the deceased, was wearing a safety belt and lanyard attached to the boom or basket of the aerial lift. Moreover, Respondent did not require its employees to use such a safety device when going aloft in the lift.

Finally, the stipulation establishes the parties' agreement that Respondent's failure to require the wearing of the safety equipment was likely to cause and did cause death or serious bodily harm to Respondent's employees, that in proposing a penalty for the charge Respondent was given the maximum credit for good faith and prior history but no credit for size, that the gravity of the violation, if found to be a violation, was extremely high, and that Respondent does not contest the appropriateness of the penalty proposed in the event the controverted issue is resolved against it.


The thrust of Respondent's argument in this case is that as the Federal Railroad Safety Act of 1970 (45 USC 431 et seq. ) gives the   Secretary of Transportation "unfettered"   [*6]   authority to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on [the date of its enactment]" (45 USC 431(a)), Respondent is exempt from the provisions of the Safety and Health Act by virtue of Section 4(b)(1) thereof.   In support of this argument, Respondent relies heavily upon the above-quoted phrase "all areas of railroad safety." Its argument then continues:

Otherwise the words "all areas of railroad safety" are meaningless.   It is not limited, for example, to "all areas of safety of railroad operations." The language must be read as empowering the DOT [sic] to regulate safety in railroad shops, terminals, and offices as well as out on the roads and in yards (Respondent's brief, p. 7).

Finally, Respondent claims that the Secretary of Transportation has exercised and continues to exercise his broad safety authority under existing statutes, as follows:

For example, a principal area of activity previously not subject to Federal authority was the condition of railroad track and roadway.   The Secretary issued track standards which became effective, in part, October [*7]   16, 1971, and the remainder scheduled for October 16, 1972.   (36 F.R. 20336; 49 CFR Part 213).   Proposed rulemaking to provide Federal safety standards for railroad freight cars was published on September 22, 1972.   (37 F.R. 198211). The Secretary is presently engaged in drafting amendments to its regulations issued under the Accident Reports Act (49 CFR; Part 225) so that Federal Railroad Administrator's record keeping and reporting requirements pertaining to occupational injuries and illnesses will be compatible with the DOL's record keeping and reporting requirements.   These record keeping requirements will not be identical to OSHA and will contain modifications made to accommodate the uniqueness of the railroad industry. (Emphasis added.) Safety standards related to employee [sic] qualifications are expected to be issued soon, and other safety standards are under study (Respondent's brief, pp. 6-7).

Complainant's response to Respondent's contentions is that Section 4(b)(1) of the Safety and Health Act does not provide an (1) of the Safety and Health Act does not provide an industry-wide exemption; rather, it provides only an exemption respecting specific working conditions [*8]   that are regulated and enforced by the other Federal Agency.   Hence, continues Complainant's argument, the exemption does not apply in this   case because the Secretary of Transportation has not exercised his prerogative of promulgating and enforcing regulations or standards over the particular working condition -- the painting of the bridge -- involved in the case.   In support of this argument, Complainant relies upon the Congress' use of the phrase "working conditions" which appears in the section in question, as follows:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health (Emphasis added).

Finally, Complainant invites my attention to the fact that several other judges of this Commission have applied the "working conditions" rationals in upholding violations of the Safety and Health Act ( Secretary of Labor v. Penn Central Transportation Co., Docket No. 738, January 26, 1973; Secretary   [*9]     of Labor v. Fineberg Packing Co., Inc., Docket No. 61, August 11, 1972; Secretary of Labor v. Sigman Meat Co., Inc. Docket No. 251, November 10, 1972; Secretary of Labor v. Lee Way Motor Freight, Inc., Docket No. 2696, September 10, 1973; Secretary of Labor v. Yellow Freight System, Inc., Docket No. 2524, September 18, 1973).


My first observation is my inability to reconcile Respondent's argument, directed to the phrase "all areas of railroad safety," with the Congress' declaration of purpose in enacting the Railroad Safety Act, as that section of the law provides:

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 USC 421) (Emphasis added).

In short, there is a limitation in the Act such as that disclaimed by Respondent, a limitation that Respondent either overlooks or ignores.   Accordingly, the phrase "all areas of railroad safety"   must be examined in light of the phrase "safety in all areas of railroad [*10]   operations." n1

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n1 Where the Congress declares the purpose for which a statute in enacted, such declaration is entitled to great weight ( Block v. Hirsh, 256 US 135, 41 S. Ct. 458 (1921); Allied Stores of Ohio, Inc., v. Bowers, 358 US 532, 79 S. Ct. 437 (1959)). In some instances, such stated purpose leaves no room to conceive of any other purpose for the statute's existence (Allied Stores of Ohio, Inc., supra).

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My next observation is that I agree with the "working conditions" concept applied in the cases cited to me by Complainant and realize that I could dispose of the present controversy on that basis.   However, I believe the question presented is greater in depth and requires a determination whether the Congress, in enacting the Railroad Safety Act, intended to confer authority in the Secretary of Transportation to exercise broad safety and health jurisdiction over railroad employees wherever found working, including such places as offices, terminals, bridges, and like places of work not directly involved [*11]   in the operation of the rolling stock of the railroad. For the reasons that follow, I conclude that the answer to this question must be in the negative.

Unlike the Safety and Health Act, or the Federal Metal and Non-metallic Mine Safety Act (30 USC 721 et seq. ), both of which are concerned exclusively with the safety and health of employees, the objectives of the Railroad Safety Act are directed primarily to the safety of the public and the reduction of damage to property in the narrow area of the operation of the rolling stock of railroads (45 USC 421). These objectives, although clearly within the official and exclusive concern of the Secretary of Transportation, do not really relate, in a direct sense, to employee safety and health.   While the Secretary of Transportation's exercise of his authority derived from that Act might well operate to invoke the exemption of Section 4(b)(1) of the Safety and Health Act with respect to some employees, such as train personnel, directly involved in such rolling stock operation (see Secretary of Labor v. Mushroom Transportation Co., Docket No. 1588, November 7, 1973), it is inconceivable to me that the Congress intended that official [*12]   to enter carte blanche into the safety and health field concerning literally thousands of railroad employees whose duties in no way bear directly upon   the objectives of that Act.   In reality, such an exercise of his jurisdiction would amount to a duplication of effort with respect to the Secretary of Labor's enforcement authority under the Safety and Health Act, rather than the converse, as urged by Respondent.

Finally, I find support for my views throughout the whole of the legislative history of the Railroad Safety Act (1970 U.S. Code Cong. and Adm. News, starting at p. 4104), and particularly the following excerpt from the summary of the reported bill (p. 4114):

The Secretary's authority to regulate extends to all areas of railroad safety.   This legislation is intended to encompass all those means of rail transportation as are commonly included within the term.   Thus, "railroad" is not limited to the confines of "common carrier by railroad" as that language is defined in the Interstate Commerce Act.   The Secretary will have jurisdiction under the bill to regulate all areas of railroad safety in addition to those areas currently regulated. It should be noted that [*13]   this new grant of authority will enable the Secretary, if necessary, to regulate intrastate carriers in such areas as safety appliances, power brakes and the like, in the same manner as interstate carriers are now regulated under existing statutes.   In addition, the Secretary's jurisdiction would extend to rail operations in areas presently governed by compacts and by other municipal authorities such as the Metropolitan Transit Authority in New York.

As will be noted, the above excerpt explains the meaning of the phrase "all areas of railroad safety, a meaning not at all in harmony with that suggested by Respondent.

In light of the foregoing, I conclude that the Congress, in enacting the Railroad Safety Act, did not grant authority to the Secretary of Transportation to promulgate and enforce safety and health standards relating to the class of employees involved in this case. n2 Accordingly, Respondent's argument to the contrary is rejected ( Idaho Sheet Metal Works v. Wirtz et al, 383 US 936, 86 S. Ct. 737 (1965); Walling v. General Industries Co., 330 US 545, 67 S. Ct. 883 (1947); A.H. Phillips, Inc. v. Walling, 324 US 490, 65 S. Ct. 807 (1945)).

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n2 I note that pursuant to the Railroad Safety Act, the Secretary of Transportation has published numerous regulations intended to promote safety in the operation of railroads. These regulations cover such subjects as transporting hazardous materials, preparation of articles for shipment, loading and unloading procedures, tank and other railroad cars, roadbeds, tracks, signal systems, power brakes, rail crossings, inspections, and many others of the same calibre.   He has not, to my knowledge, promulgated any standards of the type Respondent claims he has the authority to promulgate and enforce, notwithstanding the fact that the Railroad Safety Act was enacted more than three years ago.

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Based upon the entire record, including the excellent briefs filed by the parties, I conclude as a matter of law that Respondent is not entitled to the exemption afforded by Section 4(b)(1) of the Act.

The Citation is affirmed.   A penalty of $600.00 is assessed for the violation.