NORFOLK AND WESTERN RAILWAY COMPANY

OSHRC Docket No. 5936

Occupational Safety and Health Review Commission

January 8, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: A decision of Review Commission Judge Ben D. Worcester, dated October 15, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). The citation for failure to post the Occupational Safety and Health Administration poster as required by 29 C.F.R. 1903.2(a) and the $50.00 penalty assessed therefor are affirmed; the three citations for failing to maintain records as required by 29 C.F.R. 1904.2(a), 1904,4, and 1904.5(a) and the penalties assessed therefor are vacated for lack of jurisdiction. Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974).

For the reasons given in their separate opinions in Secretary v. Southern Pacific Transportation Company, supra, Chairman Moran would vacate the citation for failure to comply with 29 C.F.R. 1903.2(a), and Commissioner Cleary would affirm the citations for failure to comply with 29 C.F.R. 1904.2(a), 1904.4, and 1904.5(a).

[The Judge's decision referred to herein follows]

WORCESTER, JUDGE: This proceeding arises pursuant to a notice of contest filed by the Respondent, Norfolk and Western Railway [*2] Company, under the provisions of Section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq. ) hereinafter called the Act. On December 11, 1973, a citation was issued alleging that the Respondent had violated Section 5(a)(2) of the Act. The parties have stipulated the facts and have submitted the case on motions for summary judgment. The United Transportation Union, having exercised an election to become a party, has filed a brief in support of the Complainant's motion.

The Complaint described the alleged violation in the following manner:

ITEM -- STANDARD -- ALLEGED VIOLATION

1 -- 29 CFR section 1904.2(a) -- The Occupational Injury and Illness Log OSHA-100 Form was not maintained at the place of business.

2 -- 29 CFR Section 1904.4 -- The Supplemental Record OSHA-101 Form was not maintained.

3 -- 29 CFR Section 1904.5(a) -- The Annual Summary OSHA-102 Form of Occupational Injuries and Illness was not maintained.

4 -- 29 CFR Section 1903.2(a) -- The OSHA poster that informs employees of their rights and obligations under the Act was not posted in a conspicuous place or places where notices to employees are [*3] customarily posted.

The Respondent admits that it is engaged in the operation of a railroad yard for switching and maintenance of railroad cars at Bellevue, Ohio, but contends that the Review Commission has no jurisdiction over the subject matter of the instant case. This is the only issue to be adjudicated.

The Respondent argues that Congress has vested the authority to prescribe and enforce occupational safety and health standards in the railroad industry in the Department of Transportation through the enactment of the Federal Railroad Safety Act of 1970, 45 U.S.C. Section 421 et seq., and that 29 U.S.C. 653(b)(1) exempts the Respondent from coverage under the Occupational Safety and Health Act because this section (Section 4(b)(1) of the Act)) provides:

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 USC 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

The Respondent relies upon the case of Secretary of Labor v. Seaboard Coast Line Railroad, [*4] Docket No. 2802 -- OSAHRC -- (July 18, 1973). The Act, as enacted, expressed no intention of exempting industries by classification. Instead, it excluded from the jurisdiction of the Secretary only those industries which had exercised statutory authority with respect to the working conditions of its employees. The Federal Railroad Administration has not promulgated any such standards. Regulations which are made effective for the purpose of preventing damage to merchandise in transit or passengers being carried for hire which may incidentally have some constructive effect on the health and safety of employees do not preempt the Secretary of Labor's power to exercise the authority given him under the provisions of Section 6(a) of the Act.

The Congress was aware that the new act would overlap existing safety laws and require compliance with each law; see Legislative History 1204, 1223; Secretary of Labor v. Yellow Freight System, Inc., (Docket No. 2658, October 16, 1973); but the purpose of the Act is consistent only with an interpretation of Section 4(b)(1) which limits the exemption granted to those particular working conditions over which authority has in fact been [*5] exercised. Secretary of Labor v. Lee Way Motor Freight, (Docket No. 2896, December 5, 1972; Secretary of Labor v. Penn Central Transportation Company 13 OSAHRC 603 (1973).

In the case of Secretary of Labor v. Union Railroad Company 10 OSAHRC 204, Judge Chalk held that the objectives of the Railroad Safety Act are directed primarily to the safety of the public and the prevention of damage to property in the narrow area of operation of the rolling stock of railroads. He concluded that the Railroad Safety Act did not confer authority upon the Secretary of Transportation to exercise broad safety and health jurisdiction over railroad employees. I concur in this conclusion. Remedial legislation must be construed so as to fulfill its purpose. For that reason it must be concluded that the Congress intended that Section 4(b) be effective only where another agency already had employee health and safety regulations promulgated for the sole purpose of providing a safe and healthful workplace for its employees so as to prevent duplication of effort.

It can be conceded that regulations whose purpose is to prevent train accidents in order to avoid damage to cargo or [*6] injury to passengers will have some beneficial effect on the health and safety of employees, but it doesn't follow that the Congress intended to prevent the Secretary of Labor from prescribing standards of safety for the same industry in order to diminish the possibility of injury to railroad employees not arising out of train accidents. When considered along with the provisions of Section (2) of the Act such a contention is ludicrous. The reporting of statistical data, even if it duplicates identical information required by other agencies such as the Federal Railroad Administration can be required by the Secretary of Labor. It is plain that, in order to comply with the Congressional mandate of providing a safe and healthful work place for every working man and woman, that the Secretary must have statistical data showing where and in what circumstances illness or injury is likely to occur. If that were not true, it would be possible for unscrupulous employers to suppress data which would show that their work procedures were creating a hazard to their employees. There is no evidence or even an inference that the Respondent herein is such an employer, but there are employers of [*7] that kind. For that, reason, the necessity for statistical reporting is clear.

CONCLUSIONS OF LAW

1. The Respondent Norfolk and Western Railway Company is an employer subject to the provisions of the Occupational Safety and Health Act of 1970.

2. A railroad company subject to regulation by the Department of Transportation under the provisions of the Federal Railroad Act of 1970, 45 U.S.C. Section 421 et seq. and the Interstate Commerce Commission under the Accident Reports Act of 1910 (45 U.S.C. 38-43) is not exempt from compliance with the Occupational Safety and Health Act of 1970 and standards promulgated by the Secretary of Labor.

ORDER

It is hereby ORDERED that the Citation be affirmed and that a penalty of $350.00 be assessed.