RIVER TERMINAL RAILWAY COMPANY
OSHRC Docket No. 4419
Occupational Safety and Health Review Commission
December 12, 1975
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
William S. Kloepfer, Associate Regional Solicitor, USDOL
Irving Berger, for the employer
William A. Richards, Richards, Grieser & Schafer Co., L.P.A.
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On September 17, 1974, Judge William E. Brennan rendered a decision affirming two citations for other than "serious" violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter "the Act") and imposing penalties totalling $105. On October 10, 1974, Chairman Moran ordered review before the full Commission of the Judge's rejection of the respondent employer's defenses that are based on sections 4(b)(1) and 9(a) of the Act. These involve the application of standards under the Act to working conditions of railroads and the duty of the Secretary of Labor to issue citations with "reasonable promptness." On October 15, 1974, the respondent filed an extensive petition for discretionary review. At respondent's request, we treat the petition as its brief before us. The review order, although inviting briefs on the above-described issues, invited the parties to raise additional points. Respondent [*2] has done this, and also argues that the Secretary did not prove a failure to comply with certain standards, that one standard is vague, and that the complaint is defective because of a failure to state the proposed penalties. A brief has also been filed by the United Transportation Union, authorized employee representative. This supplements the brief filed by the Secretary of Labor.
On June 21, 1973, a joint inspection of respondent's facilities in Cleveland, Ohio, was conducted by the Federal Railroad Administration (FRA) and the Occupational Safety and Health Administration (OSHA). On August 10, 1973, an OSHA citation alleging two other than "serious" violations was issued to respondent, and (as admitted in the pleadings and stipulations) duly served. A total penalty of $105 was proposed by the Secretary. After respondent filed a timely notice contesting both the citations and proposed penalty, the Secretary filed his complaint alleging in part that the respondent had failed to comply with 29 CFR § 1910.36(b)(8) (failure to provide two means of egress in one River Bridge Tower), and 29 CFR § § 1910.309(a) (failure to guard electrical equipment against contact and to post warning [*3] signs forbidding entrance to unqualified personnel). On October 15, 1973, respondent answered, and denied that violations had occurred on the ground that the Commission lacked jurisdiction.
The Judge then issued a pre-hearing order directing the parties to exchange their formulation of the issues and to be prepared to produce evidence as to any issues still in contention.
In accordance with the Judge's pre-hearing order, the Secretary, in a letter to the Judge and to the respondent, listed the witnesses that he had expected to call. At least three of them were to testify to the nature of the alleged violations. The Secretary declared his intention to prove the violations and the "jurisdiction" of the Commission. n1 Shortly thereafter, the respondent also replied by letter to the Judge's order and presented its formulation of the issues:
Respondent's position is that it denies that it has violated any otherwise applicable section of the Occupational Safety and Health Act of 1970 or any regulation promulgated pursuant thereto, on the ground that it is exempt from the same, pursuant to section 4(b)(1) of the Act, by reason of the exercise of statutory authority, in the [*4] industry in which Respondent is engaged, by one or more federal agencies with respect to the prescribing or enforcement of regulatios affecting occupational safety or health. As already indicated in paragraph 5 of respondent's Answer to the Complaint in this matter, respondent does not otherwise contest the citatios that are the subject of this proceeding. Accordingly, respondent's view is that the only issues in this matter are of law only and that an evidentiary hearing is unnecessary. [Emphasis added.]
Accordingly, the respondent suggested the hearing be postponed until briefs on section 4(b)(1) were submitted by the parties. This suggestion was rejected by Judge Brennan.
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n1 The Commission has characterized defenses raised under section 4(b)(1) as exemptory rather than jurisdictional. See, for example, Idaho Travertine Corp., No. 1134 (September 30, 1975).
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At the hearing, held on February 15, 1974, several illuminating exchanges occurred when the parties and the Judge engaged in efforts [*5] to limit the issues. The success of those efforts is a major question in this case.
At the hearing the Secretary was prepared to present evidence showing non-compliance with the cited standards. n2 Several witnesses were prepared to so testify for the Secretary.
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n2 29 CFR § 1910.36(b)(8) provides that:
Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of number of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.
29 CFR § § 1910.308 and 1910.309 require compliance with certain provisions of the National Electrical Code, but excepts, at § 1910.308(c)(2)(iii):
Installations of railways for generation, transformation, transmission, or distribution of power used exclusively for operation of rolling stock or installations used exclusively for signalling and communications purposes, . . . .
The applicable provision of the NEC is NFPA 70-1971, ANSI C1-1971, section 110-17. The citation alleged non-compliance with sub-sections (a) and (c). In full, the provision reads as follows:
110-17. Guarding of Live Parts. (Not more than 600 Volts)
(a) Except as elsewhere required or permitted by this Code, live parts of electrical equipment operating at 50 volts or more shall be guarded against accidental contact by approved cabinets or other forms of approved enclosures, or any of the following means:
(1) By location in a room, vault, or similar enclosure which is accessible only to qualified persons.
(2) By suitable permanent, substantial partitions or screens so arranged that only qualified persons will have access to the space within reach of the live parts. Any openings in such partitions or screens shall be so sized and located that persons are not likely to come into accidental contact with them.
(3) By location on a suitable balcony, gallery, or platform so elevated and arranged as to exclude unqualified persons.
(4) By elevation at least 8 feet above the floor or other working surface.
(b) In locations where electrical equipment would be exposed to physical damage, enclosures or guards shall be so arranged and of such strength as to prevent such damage.
(c) Entrances to rooms and other guarded locations containing exposed live parts shall be marked with conspicuous warning signs forbidding unqualified persons to enter.
[*6]
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Several of the colloquies at the hearing show why these witnesses were never called. Mr. Curfey, representing the Secretary, explained his view of the posture of the case:
My understanding of what the Respondent's position is, is that the River Terminal is exempt from jurisdiction, exempt from coverage under the Occupational Safety and Health Act by virtue of Four (b)(1). They don't wish to contest the violations if jurisdiction is probate [sic]. If jurisdiction does lie, then they would admit the violations and penalties in this case.
MR. BERGER [counsel for respondent]: I will just add to that, Your Honor, that we do not admit violations. I think that is a matter of law which the court will have to decide.
THE [JUDGE]: Do you admit the facts which may or may not constitute violations?
MR. BERGER: Yes.
THE [JUDGE]: Does that not eliminate a considerable amount of testimony today?
MR. CURFEY: Yes. Fine.
From the contest and the record to that date, it appears that respondent's statement that "we do not admit violations" was merely a reiteration of respondent's previously expressed position [*7] that no violations of the Act had occurred solely because of the alleged non-applicability of the Act to respondent's workplace.
Thereafter, both parties presented stipulations to Judge Brennan. At this point, the record becomes confusing. Contrary to the plain implications of his earlier representation, respondent hesitated to agree to certain stipulations offered for the purpose of satisfying the Secretary's burden of proof. Some of the proposed stipulations were offered concerning penalty issues. Others were offered for purposes that are unclear from the record. n3
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n3 Thus, for example, the following exchange occurred:
THE [JUDGE]: Essentially, we have just this legal argument, or this legal question to resolve?
MR. CURFEY: After we entered the stipulations, I believe that is all there is to resolve.
MR. BERGER: There may be testimony that is relevant to whether or not the specific regulations here have been violated as a matter of law.
THE [JUDGE]: Well, your first [de]fense is that your Respondent client is not subject to the OSHA regulations, is it not?
MR. BERGER: That's correct.
THE [JUDGE]: But you do want to present testimony by way of argument, in a way, that if it's determined that your client, Respondent, is subject to the regulations, that the facts as stipulated don's constitute violation?
MR. BERGER: That may be, Your Honor. I don't know what the testimony will be.
THE [JUDGE]: What testimony is needed?
MR. CURFEY: Well, I will present testimony on the exemption. The Secretary is prepared to present testimony through the presumption that the respondent is stipulating. There will be no testimony introduced at this time, based on the existence of the violation or the alleged violation.
The respondent introduced no evidence on the merits of the citation.
[*8]
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After the hearing, both the Secretary and respondent filed proposed findings of facts and conclusios of law. The Secretary submitted a lengthy supporting memorandum of law covering exclusively the applicability of section 4(b)(1). The Secretary also submitted that the "facts that allegedly existed on [the date of the inspection] were stipulated and not refuted by respondent and accordingly are deemed admitted. . . ."
The respondent's submission, however, proposed that with reference to 29 CFR § 1910.308(c)(2)(iii) the River Bridge Tower is used exclusively in railroading, "to wit, for the raising and lowering of a bridge in connection with the operation of rolling stock, and for communication and signalling purposes." The respondent also contended that the Secretary had failed to present evidence that 29 CFR § 1910.36(b)(8) applied to the River Bridge Tower, that that standard was invalid for vagueness, and that the complaint failed to set forth the proposed penalties, contrary to Rule 33(a)(2)(iii) of the Commission's Rules of Procedure (29 CFR § 1910.33(a)(2)(iii). The latter two contentions were [*9] not raised previously.
The Secretary responded vigorously in a reply brief:
. . . The stipulation of facts in this case speak for themselves and based on the stipulation, complainant did not present evidence on the factual allegations in this case and takes the position that the facts are not in dispute in this matter.
The Secretary protested that he had not presented any evidence because:
Respondent chose to limit the issue to the question of its exemption (if any) and not contest the facts. Respondent did not deny the facts at the hearing and cannot now attack that which was admitted as being true.
The respondent's reply memorandum of law denied that any stipulation had been reached:
. . . [A] review of the record reveals that no such stipulations were made. If complainant failed to make a record on any element of its claim, its misapprehension as to the state of the record cannot excuse it from that obligation.
In addition, the respondent raised for the first time the "reasonable promptness" issue. Section 9(a) of the Act and 29 CFR § 19103.14(a). In response to this latter issue, the Secretary moved to strike the "reasonable promptness" matter, to which the respondent [*10] answered in a statement in opposition. Judge Brennan ordered the Secretary to explain the delay in issuing the citation, and ordered the respondent to show prejudice. The response of both parties followed.
Thereafter, Judge Brennan rendered his decision. He held that:
(1) "at the hearing, all essential, operative facts underlying the alleged violations were either stipulated by the parties, or evidence was received thereon (Tr. 5-36)" and that the basic issue left for resolution was the applicability of section 4(b)(1); (2) the "reasonable promptness" issue was not timely raised; (3) that respondent had not proved a section 4(b)(1) exemption; (4) that the record does reveal violations of the Act.
Judge Brennan's understanding of the exchanges at the hearing is entitled to much deference. Cf. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 492-497 (1951) (Frankfurter, J.). Judge Brennan was in a position to have gauged the significance of tone and expression, and we accept his understanding of the parties' oral agreement.
Respondent claimed for the first time, in his reply brief to the Judge that the citation was not issued with "reasonable promptness." Section 9(a). [*11] While we may adopt the Judge's position and hold that the issue was untimely raised, E.C. Ernst, Inc., No. 1780 (January 3, 1975) (raised post-hearing), we need not rest our decision on this narrow ground. The Judge expressly found (Judge's Decision at 4) that the respondent had not been responsive to his order to set forth "any prejudice it believes it has suffered because of the delay in issuing the Citation herein." In light of the late date at which the issue was raised, and the fact that respondent proferred neither evidence or allegations of prejudice, and none appears from the record, the claim is rejected. Coughlan Constr. Co., Nos. 5303 & 5304 (October 28, 1975).
The respondent claims that 29 CFR § 1910.36(b)(8) is void for vagueness and that the complaint failed to set forth the proposed penalties contrary to Rule 33(a)(2)(iii). These issues were raised for the first time in its proposed findings of fact and conclusions of law. The Judge's decision did not address the merits of these points, nor the timeliness with which they were raised. We note that the delineation of the issues noted above did not preserve this question for our consideration. In any event, [*12] the question was not raised in a timely manner.
When a party litigates the vagueness of a standard, concrete facts are crucial. See e.g., Georgia-Pacific Corp., No. 676 (August 20, 1973); Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). Indeed, the Tenth Circuit has admonished us not to consider the vagueness of a standard in the abstract, i.e. divorced from the factual underpinnings of the case. Brennan v. O.S.H.R.C. & Santa Fe Trail Transport Co., 505 F.2d 869, 872-873 (10th Cir. 1974). Thus, respondent's claim of vagueness must be raised in a manner that is calculated to afford an opportunity for the development of a full record. n4 The first notice of the vagueness issue was given in respondent's post-hearing submission to the Judge. That is too late. Cf. Puterbaugh Enterprises, Inc., No. 1097 (July 1, 1974) (vagueness raised in direction for review untimely.)
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n4 Respondent must of course raise any objection it has before the Commission if it is to be preserved for possible judicial scrutiny. Section 11(a) of the Act. For my part, such a requirement does not necessarily empower us to consider every issue. Cf. Todd v. S.E.C., 137 F.2d 475 (6th Cir. 1943). The gist of the Commission's authority is the review of employer contests of citations, proposed penalties and abatement dates. In my view, we lack broad authority to entertain an attack upon the validity of a standard. United States Steel Corp., Nos. 2975 & 4349 (November 14, 1974) (concurring opinion); Santa Fe Trail Transport Co., No. 331 (December 18, 1973) (dissenting opinion), rev'd 505 F.2d 869 (10th Cir. 1974).
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We also reject respondent's claim that the complaint did not comply with Commission Rule 33(a)(2)(iii). This claim was also raised in a tardy fashion. Additionally, the respondent waived any objections to the penalty at the hearing, the penalties were set out in the notification of proposed penalties (and known to respondent) and no prejudice to the respondent could have resulted from this rather technical defect in the pleadings.
Concerning the section 4(b)(1) issue, the Judge correctly anticipated our holding in Southern Pacific Transport. Co., No. 1348 (November 15, 1974). We there determined that section 4(b)(1) exempts specific working conditions, and not entire industries, when an agency other than the Department of Labor exercises statutory authority to regulate occupational safety and health conditions. Union Pacific Railrod Co., No. 3638 (November 26, 1974). After a careful review of the record, we are satisfied that Judge Brennan's determination is correct.
Accordingly, the Judge's decision is affirmed.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
The Commission's opinion is jam-packed [*14] with fragments taken from Judge Brennan's decision - many of which appear to be internally inconsistent. It is also necessary in this dissenting opinion to refer to selected passages from the Judge's decision. Yet the decision itself is not to be published. n5 How will any interested person be able to learn what this decision was all about if he doesn't have the full text thereof? Is it wise to rely upon a synopsis or upon excerpts carefully chosen by someone else for subjective reasons known only to the digester? The answer, of course, is "no." This case is a perfect example of the folly of relying upon excerpts or a synopsis. It is contrary to every precept of good scholarship and every principle of jurisprudence.
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n5 Pursuant to an administrative decision made by Chairman Barnako which he announced on November 6, 1975, decisions which become final after October 30, 1975, will not be published by the U.S. Government Printing Office as had been done prior to that date. Henceforth, the only published source of Commission decisions will be two commercial publishers who will decide for themselves what they will print. They do not ordinarily print Judge's decisions (although they will print a one or two paragraph synopsis) even when such decisions have become "the final order of the Commission" pursuant to 29 U.S.C. § 661(i).
[*15]
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If a synopsis of Judge Brennan's decision in this case will be sufficient for an understanding thereof, then we will have happened upon what ought to be regarded as one of the great discoveries of human intelligence: the art of understanding judicial decisions without reading them.
What T. S. Eliot once said about literary criticism is, in my opinion, equally applicable to synopsis:
"The method is to take a well-known poem . . . analyze it stanza by stanza and line by line, and extract, squeeze, tease, press every drop of meaning out of it. In might be called the lemon-squeezer school of criticism."
Since no lemon-squeezing of Judge Brennan's decision (or that of any other Judge) could possibly do it justice or permit understanding thereof by any interested person, I shall attach its full text hereto as Appendix A.
Nevertheless, despite my high regard for every word of the decision below, I disagree with the conclusion of law reached therein and the affirmance thereof by the Commission.
In my opinion the citation in this case should be vacated for three reasons.
First, the railroad industry is [*16] excluded from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. § 653(b)(1). See my separate opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC (Docket No. 4614, October 17, 1975).
Second, the issuance of the citation did not conform with the mandatory requirement of the Act that each citation shall be issued "with reasonable promptness" in that the delay between the complainant's inspection and his issuance of the citation was 47 days longer than Congress intended. I have expressed my views at some length on this matter in a number of other cases. n6 I will not repeat them here except to again point out that Congress did not place the burden on the employer to establish that he was prejudiced by an excessive delay or require him to raise the issue at any particular stage of the proceedings.
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n6 See, e.g., Secretary v. Southern Railway Company, 20 OSAHRC (Docket No. 5960, October 28, 1975); Secretary v. Underhill Construction Corp., 20 OSAHRC (Docket No. 3725, October 16, 1975); Secretary v. Plastering, Inc., 8 OSAHRC 150 (1974); Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).
[*17]
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Finally, the evidence is insufficient to establish that the respondent failed to comply with 29 C.F.R. § 1910.36(b)(8) and failed to guard electrical equipment against accidental contact in contravention of Section 110-17(a) of the National Electrical Code which is incorporated into 29 C.F.R. § § 1910.308 and 1910.309(a) by reference.
Section 1910.36(b)(8) applies to facilities "of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke." n7 Section 110-17(a) of the pertinent National Electrical Code requires guarding of "live parts of electrical equipment operating at 50 volts or more." n8
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n7 See note 2, supra, for the complete text of this standard.
n8 Id.
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The record in the instant case indicates that respondent only stipulated to certain facts. n9 Complainant claims, in effect, that since respondent has chosen [*18] not to contest the facts, there is therefore a violation of the cited standards. This would be true if the facts established every element necessary to show a violation - but in this case they fall short.
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n9 "Mr. Curfey [Counsel for the Secretary]: . . . If jurisdiction does lie, then they would admit the violation and penalties in this case.
Mr. Berger [Counsel for Respondent]: . . . Your Honor, we do not admit violations. I think that is a matter of law which the court will have to decide."
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The standard codified at § 1910.36(b)(8) limits its application to buildings of a certain size, occupancy, and arrangement in which a single means of egress would endanger the occupants. Nowhere in the record does respondent stipulate that the subject building is of such a nature. Furthermore, the standard's above-quoted condition precedent is not established by other evidence.
Complainant has made the same fatal error concerning the second alleged violation. Section 110-17(a) of the National Electrical Code only applies [*19] to unguarded live parts of electrical equipment operating between 50 and 600 volts. There is no stipulation or evidence in the record showing that respondent's equipment was operating between those voltages. n10
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n10 "Mr. Curfey: . . . On June 21, 1973, the electrical equipment on the first and second floors of the River Bridge Tower were unguarded against accidental contact.
Mr. Berger: The Respondent will stipulate that there were no guards . . . .
Mr. Curfey: Would you stipulate that there was unguarded electrical equipment that was more than 50 volts, but less than 600 volts, and it was unguarded?
Mr. Berger: I'm advised that the first floor equipment had less than 10 volts. We don't have that information.
Mr. Curfey: All right. Then, the stipulation is that there was unguarded electrical equipment?
Mr. Berger: There was electrical equipment that wasn't covered with any kind of guard . . . ."
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Absent a showing of every essential element of these standards, a violation is not established.
Accordingly, the [*20] Judge's decision should be reversed.