PENN CENTRAL TRANSPORTATION COMPANY

OSHRC Docket No. 738

Occupational Safety and Health Review Commission

November 29, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is related to the Southern Pacific Transportation Co., n1 case wherein we determined that section 4(b)(1) of the Occupational Safety and Health Act of 1970 n2 (OSHA) exempts specific working conditions when an agency other than the Department of Labor (Labor) exercises its statutory authority to regulate occupational safety and health conditions.   As we said in Southern Pacific, the burden is upon one claiming an exemption to assert and establish its right thereto. n3 To the extent that this case is similar to Southern Pacific our decision therein controls.   Accordingly, Judge Osterman's decision in this case will be affirmed insofar as he imposed the burden on the Respondent (Penn Central) and reversed insofar as he found jurisdiction to dispose of uncontested matters.

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  This matter was consolidated with Southern Pacific for review purposes; as we indicated in Southern Pacific at note 1 we have severed the cases for decisional purposes.

n2 29 U.S.C. 651 et seq.

n3 Slip opinion, n. 5.

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The relevant facts are undisputed and are as follows.   Penn Central operates a railyard in Virginia Beach, Virginia.   Labor inspected the yard on February 6 and 7, 1972, and as a result issued citations for violations of OSHA on February 17.   One serious citation alleged a violation of the general duty clause n4 for unsafe track conditions in the yard.   The remaining citations alleged serious and non-serious violations of OSHA standards and recordkeeping regulations in Penn Central's offices and shop facilities located at the yard.

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n4 29 U.S.C. 654(a)(1).

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Penn Central did not timely file a notice of contest n5 to any of the aforementioned citations.   Accordingly, as to these citations,   it waived any defense it might have under section 4(b)(1) of OSHA.   Southern Pacific Transportation Co., supra at n. 5.   Judge Osterman, therefore, committed reversible error by striking the citation for serious violation of the general duty [*3]   clause and the penalty proposed therefor.   We need not specifically affirm the citation and proposed penalty because they became final orders pursuant to 29 U.S.C. 659(a) as a matter of law.   By way of an aside we would note that Penn Central might have prevailed on a 4(b)(1) defense had it timely filed a notice of contest to this citation and to certain recordkeeping allegations.   See 49 C.F.R. Parts 213 and 225.

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n5 29 U.S.C. 659(a).

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The yard was reinspected on March 6, 7 and 17, 1972.   As a result of the reinspection Labor notified Penn Central on March 22 that it had failed to abate the unsafe track conditions.   Daily penalties were proposed.   Labor also issued a citation alleging, among other things, a non-serious violation of OSHA electrical grounding requirements in Penn Central's machine and pipe shops.

Penn Central timely filed a notice of contest to the failure to abate notification and to the allegation that it violated electrical grounding requirements.   By its complaint filed herein Labor moved, among [*4]   other things, to strike its notification of failure to abate and its citation of March 22 to the extent that the citation alleged an electrical grounding violation.   Judge Osterman granted the motion, and error has not been assigned to his decision in that regard.   Accordingly, there is no controversy as to the issues that were contested.

For the reasons given the Judge's decision and order is modified to be consistent herewith, and as modified it is affirmed.   It is so ORDERED.  

CONCURBY: CLEARY

CONCUR:

  CLEARY, COMMISSIONER, concurring: I concur with the holding of the lead opinion.

Nevertheless, I disassociate myself from the lead opinion's speculation that if respondent had filed a timely notice of contest, it might have prevailed in its defense to the "citation" and recordkeeping violations based on section 4(b)(1) of the Act.   The Commission's decisions must be founded on record evidence and   not speculation.   See National Realty & Constr. Co., Inc., v. O.S.H.R.C., 489 F.2d 1257, 1267 (D.C. Cir. 1973).

My views concerning the applicability of section 4(b)(1) of the Act to the railroad industry are set out in my separate opinion that was filed in Southern Pacific    [*5]   Transportation Co., No. 1348 (November 15, 1974).  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: The problem presented in this case would be nonexistent if Congress had not enacted more than one statute which regulated working conditions of employees.   Nor would it have been present if Congress had provided in the Occupational Safety and Health Act of 1970 that this Act would regulate job safety and health conditions of all employees.

We are confronted with a jurisdictional question simply because Congress, over the span of many years, enacted a number of statutes which included provision for regulatory authority in order to improve safety conditions.   Then, with full knowledge that it had done so, and having no intention to repeal or modify any of them, the Congress enacted the 1970 Job Safety Law and made it clear therein that its provisions would not apply

. . . to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. n6

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n6 29 U.S.C. §   653(b)(1).

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Primacy was given to the existing laws.   The Job Safety Act's coverage was specifically subordinated to the others.   The Commission's decision placing upon respondent the burden of proof to show that it is excluded from the Job Safety Act's coverage is, therefore, in error.

The expansive wording of §   653(b)(1) is a further indication that Congress intended no contraction of the coverage of the existing laws.   If the other Federal agency exercises authority to "prescribe or enforce," Congress said, then this Act does not apply.   The prescribing or enforcing authority is for either "standards or regulations" which may be "affecting" job "safety or health."

  Had Congress intended the result the Commission is imposing today, it would have provided that this Act would apply to all employees

Except where another Federal agency exercises its statutory authority to enforce occupational safety and health regulations.

We are told by the lead opinion's incorporation-by-reference of the decision in Secretary v. Southern Pacific Transportation Co., 13 OSAHRC 258 (1974) that the congressional [*7]   policy of assuring safe workplaces for all "can only be effectuated by interpreting. . . [the Job Safety Act] to include rather than exclude working conditions of employees."

This pronouncement should come as a surprise to those who believed that the Atomic Energy Commission was best qualified to protect employees from radiation dangers or that the Department of Interior had similar know-how for use in protecting coal miners or the Federal Aviation Administration was well-equipped to protect the crew of commercial airliners from the hazards connected with plane crashes.   Unfortunately, employees engaged in such endeavors and who have benefited from the protection of AEC, Interior and the FAA for many years are not told exactly why the congressional purpose of assuring their safety "can only be effectuated" (emphasis supplied) by now substituting the Secretary of Labor for the agencies with particular expertise in the very specialized employments in which they work.

It is clear to me that Congress, in its wisdom, has exercised its legislative policy-making authority to create certain agencies of the executive branch for the purpose of regulating certain broad areas of our economy.   [*8]   This includes the three agencies used as an example in the preceding paragraph as well as the Federal Railroad Administration.

Can you separate responsibility for the safety of a train roaring down the track from that of the crew operating that train?   Is it sensible to create an agency (the Federal Railroad Administration) and staff it with railroad experts in order to assure the public safety of those who use the trains but to then rule that responsibility for the safety of the employees of those   railroads will be given over to an agency (the Department of Labor) which had no railroad experience at all?

Because I believe it is both senseless and contrary to law to so hold, I dissent from the Commission's decision holding this respondent liable for violating the Occupational Safety and Health Act of 1970.

The Commission, with this decision, has adopted a nook-and-cranny theory of safety regulation, i.e., if any Federal agency (other than the Department of Labor) has not issued a regulation covering any particular aspect of conditions under which an employee works and the Department of Labor has done so, then the Department of Labor job safety standard on that [*9]   subject will apply. n7 I do not believe that Congress intended a result that could lead to such absurdities.   Congress recognized the railroad industry as a distinct segment of the economy and gave all regulatory power over the industry to the Department of Transportation and its Federal Railroad Administration.

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n7 For example, see 29 C.F.R. §   1910.141(c)(3)(ii), a Department of Labor safety standard specifying the configuration of toilet seats.   Since neither the Atomic Energy Commission, the Department of Interior, nor the Department of Transportation has seen fit to issue regulations on this subject, the rule of this case would extend the Labor Department's regulation on toilet seats into atomic energy plants, coal mines, railroads and air planes.

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The legislative history brings this out rather clearly.   During the debates which preceded the passage of the Act, the following colloquy occurred in the House:

MR. HATHAWAY. n8 I call to mind the coal mine safety bill which is not repealed by this bill.   Yet, the rules [*10]   and regulations under this act, as provided in the committee bill, could and should and would get into the area of coal mine health and safety and the metallic and nonmetallic mine safety act and the health and safety act -- all three of these would continue to exist and there would be no reason why the health and safety rules promulgated under this act would not also apply to those industries.

MR. PERKINS.   I would say to my distinguished colleague that he is incorrect in that statement because all these various legislative acts as railway safety and mine safety are specifically exempted under section 22(b). (emphasis supplied)

MR. ERLENBORN: I stand corrected. . .   Is it your understanding that present Federal laws providing authority to the executive agency to prescribe health   and safety standards that are being exercised will then exempt that industry from the coverage of this act? (emphasis supplied). . . .

MR. ERLENBORN.   In other words, the mere existence of statutory authority does not exempt an industry? It is the exercise of that authority pursuant to the statute that does exempt it; is that correct?

MR. DANIELS of New Jersey.   That is correct.

MR.   [*11]   ERLENBORN.   I have one other question.   This will certainly clear up any difficulty in interpreting this so far as the presently existing statutory authority presently being exercised.

Let me ask this question.

If presently existing statutory authority which is not presently being exercised at the time this bill goes into effect, but is then subsequently exercised; does that then at the time it is exercised exempt an industry? (emphasis supplied)

MR. DANIELS of New Jersey.   At the time that that authority is exercised, that industry will be exempt. (emphasis supplied)

MR. ERLENBORN.   So this does have a prospective effect.   In other words, we are not going to interpret this language only as thought [sic] it were being interpreted as to conditions that exist on the day it becomes law, but it will have a prospective effect and the future exercise of authority will then exempt an industry from coverage under this law? (emphasis supplied)

MR. DANIELS of New Jersey The gentleman is absolutely correct. (emphasis supplied)

116 CONG. REC. 38381 (November 23, 1970; Legislative History of the Occupational Safety and Health Act of 1970 (hereinafter Legislative History [*12]   ), Subcommittee of Labor, Committee on Labor & Public Welfare, United States Senate, 92nd Congress, 1st session, p. 1019-1020.

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n8 Although the official record of this discussion identifies this speaker as Mr. Hathaway, the remaining portion of the dialog suggests that an error may have been made in the transcript and that the speaker was probably Mr. Erlenborn.

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Not only do these members of Congress refer again and again to an "industry" exemption, Congressman Perkins, Chairman of the Committee which reported the occupational safety and health bill to the House floor, answers unequivocally that the "rules and regulations under this Act" will not affect existing legislation.   In the same answer he declares that "railroad safety" specifically is exempted by Section 22(b) [of H.R. 16785].   Section 22(b), changed only slightly in wording, not meaning, became §   653(b)(1).

The Federal Railroad Safety Act grants the Department of Transportation authority to prescribe "as necessary, appropriate rules, regulations, orders,   [*13]   and standards for all areas of railroad safety. . . 45 U.S.C. §   431(a).

The authority to prescribe regulations "as necessary" would be meaningless if this Commission's nook-and-cranny theory applies, for the Secretary of Transportation is thereby deprived   of the authority to determine that it is not necessary for railroad safety to regulate the configuration of toilet seats, for example.   The power to regulate "as necessary" must include the authority to issue no regulations in such areas.   To follow this Commission's reasoning to its logical conclusion would require a ruling that if the Secretary of Transportation did not deem such requirements necessary in the interests of railroad safety and the Secretary of Labor did think them necessary for employee safety, then the latter's judgment would prevail over the former's.   Surely, if the Congress had intended such an unusual provision it would have been explicit in so stating. n9

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n9 A clear indication that Congress intended no changes in the existing laws by its adoption of the Job Safety Act comes from the remarks of Senator Williams, the Act's principal Senate sponsor.   During debate on November 16, 1970, just prior to a favorable Senate vote on the bill which was enacted, he stated:

"There has been no description here that I have heard of the failure of any of these programs, whether it is construction safety, railway safety, or coal mine safety." Legislative History at p. 429.

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Nevertheless, rather than consider the concrete evidence of congressional intent which the legislative history provides, the Commission finds that §   653(b)(1) must be narrowly interpreted in order to further the purposes of the Act. n10 Such reasoning presumes that Congress felt the Department of Labor alone was competent and could be trusted to effectively promote occupational safety and health.   I find such reasoning arrogant and patently unjustifiable.   Congress has consistently entrusted the Department of Transportation (and its predecessors) with full jurisdiction over the railroads. There is nothing in the legislative history which would supply any reason why Congress would take jurisdiction from one agency with long-standing expertise in a particular industry and give it to another, with none.   Indeed, that history is exactly to the contrary.

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n10 I do not see that the Department of Transportation's support of the Secretary of Labor's interpretation of §   653(b)(1) is relevant.   Jurisdiction of agencies is defined by statute, not by agreement between them.   It is therefore our duty to resolve the question on the basis of what was legislated by Congress, not by what two departments wish Congress had done and what arrangement might be more convenient for their own interests.

  [*15]  

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It is my opinion that Congress envisioned a comprehensive program for employee safety under which the Department of   Labor would have jurisdiction over those industries not under the regulatory authority of some other Federal agency.   In furtherance of this purpose Congress enacted the Federal Railroad Safety Act on October 16, 1970.   On October 30, 1970, it adopted the Rail Passenger Service Act and, less than 2 months thereafter, it adopted the Occupational Safety and Health Act of 1970.   It was signed into law on December 29, 1970.   Certainly Congress was aware of the interrelationships created by these statutes and intended them to work as a whole.   To justify a broad interpretation of §   653(b)(1) because the Act is "humanitarian" or "remedial" (as the Commission stated in the Southern Pacific case, supra ), implies that it is "more humanitarian" or "more remedial" than the other acts. n11

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n11 Query whether a law intended to achieve public safety is more or less "humanitarian" or "remedial" than one designed to accomplish worker safety.   The attempt to apply such a rule of construction in this situation is not only meaningless because of this problem but because §   653(b)(1) is not an "exemption" or "exception" of persons covered by other acts.   As indicated at an earlier point in this opinion, the coverage of the other acts is given primacy and the coverage under the Job Safety Act is subordinated thereto.

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In passing the laws referred to above (as well as others not referred to in this opinion), Congress enacted specific legislation for railroad safety (and for airplane safety, coal mine safety, nuclear energy safety, etc.).   It intended to treat railroad safety differently and by including §   653(b)(1) as part of the Job Safety Act it exempted that Act's coverage from the railroad safety arrangement it had already created.

The lead opinion relies upon our ruling in the Southern Pacific case, supra. In that opinion there was reference to the provision of the Rail Passenger Service Act which excluded the application of certain Department of Labor safety standards to railroad employees, n12 but it ignored the significance of the inclusion of that exclusion.   Respondent raised this reference in its argument on this case, n13 not because it thought that the exclusion had any applicability here, but because it is further evidence of   congressional intent.   The reason Congress excluded railroad employees was because Congress had confidence in the Department of Transportation, and knew that all [*17]   railroad safety was already under the jurisdiction of that Department and it wanted to be sure it remained there.

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n12 It should be noted that there was a work safety law applicable to the construction industry which was administered by the Department of Labor and which pre-dated the enactment of the Job Safety Act. See 40 U.S.C. §   333. The exclusion in the Rail Passenger Act was from that law.

n13 This case and the Southern Pacific case were argued together.

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A further demonstration of congressional intent to leave all aspects of railroad safety under the jurisdiction of the Department of Transportation was included in the Conference Report on the Amtrak Improvement Act of 1973, 45 U.S.C. §   502, wherein it was stated that:

The Federal Railroad Safety Act of 1970, enacted only two weeks prior to the Rail Passenger Service Act, defined the Secretary of Transportation's jurisdiction over railroad safety to include "all areas of railroad safety." It is the intent of the Committee of conference to make clear [*18]   that the Secretary's jurisdiction over railroad safety is exclusive. 93rd Congress, 1st Session, H.R., Report No. 93-587.

Perhaps the most troublesome matter in this case results from the sheer volume of occupational safety and health standards which have been promulgated by the Secretary of Labor pursuant to the authority given him in the Job Safety Act. It is estimated that it would take 1,400 typewritten pages to copy them, plus an additional 2,000 pages to type out all the regulations which apply but were not printed in the Federal Register because of an incorporation-by-reference referral to other documents.   The regulations cover every conceivable aspects of human endeavor including the configuration of toilet seats, n14 the disposal of used hand towels, n15 the placement of fire extinguishers, n16 the amount of noise n17 and toxic chemicals to which an employee may be exposed, n18 and the color of fire exit signs. n19 Perhaps, in anticipation of the outcome of this case the regulations even specify what must be done during the loading and unloading of railroad cars. n20

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n14 29 C.F.R. §   1910.141(c)(3)(ii).

n15 29 C.F.R. §   1910.141(d)(3).

n16 29 C.F.R. §   1910.157.

n17 29 C.F.R. §   1910.95.

n18 29 C.F.R. §   1910.93.

n19 29 C.F.R. §   1910.144(a)(1)(i)(d).

n20 29 C.F.R. §   1910.178(k)(2).

  [*19]  

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  To read all the regulations would take days.   To understand their full meaning and applicability is probably an impossible task even if one takes the time to read all the decisions of this Commission (which now cover more than 10 volumes of published material).   Of course, no employer covered by this law needed to do all of this prior to the issuance of our decision in the Southern Pacific case, supra. He could locate those matters applicable to his particular business or industry through an index to the regulations and would not have to concern himself with the others.

However, because of the nook-and-cranny theory which was adopted in Southern Pacific and re-affirmed here, employers in the railroad industry must become familiar with all Department of Transportation railroad safety regulations, then they must figure out what has not been covered thereby.   They must then look to the Labor Department's occupational safety and health standards to discover how these gaps in the railroad safety regulations are filled.   Because of the flexible and obscure language employed in some [*20]   such standards, n21 few such employers will be able to ascertain the applicability of the various regulations with any preciseness. n22

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n21 See, for example, 29 U.S.C. §   1910.242(a) and 29 U.S.C. §   1910.132(a).

n22 The noise limitations (29 C.F.R. §   1910.95) promulgated under the Job Safety Act, as a result of the rule of the Southern Pacific case, will now apply to railroads and air planes.   Railroad and airline firms -- and others -- may well have difficulty in resolving just where and where it applies particularly in view of the Noise Control Act of 1972, 42 U.S.C. § §   4901 et seq., which is administered and enforced by the Environmental Protection Agency.

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Difficulties of this kind will also affect the various inspectors and others who are responsible for seeing that the safety requirements are observed.   Under such circumstances it is very unlikely that the intended purpose of the Job Safety Act can be fully realized or the intended beneficiaries of the law fully protected.

The concept of "working conditions"   [*21]   is elusive.   Complainant takes the position that it refers to any specific hazard to workers.   A reasonable application of that term, therefore, would include anything that could be classified as hazardous.   It is difficult to think of anything that could not -- at some time or other -- be so   classified whether it be an employee's hours of work, state of mind, age, or his personal feelings about how his employer and fellow employees treated him.

I meantion the foregoing merely to indicate the Pandora's box which the Commission has opened.   The decision also leads one to the inescapable conclusion that -- in the opinion of two members of this Commission -- Congress had no sense of order and intended to create confusion of the sort described.   I don't share such a view.   I am of the opinion that Congress intended to create a workable system to improve occupational safety and health and that they were wise enough to leave all aspects of safety in the railroad industry in the hands of the railroad experts in the Department of Transportation.

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

[The Judge's decision referred to herein follows]

OSTERMAN,   [*22]   JUDGE: This is a proceeding initiated by the Penn Central Transportation Company, Respondent herein, pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereafter called the Act).   The history of the case follows.   On February 17, 1972, Citations and a Notice of Proposed Penalties was issued by the Secretary of Labor against the Respondent pursuant to Section 9(a) of the Act.   Said Citations were based upon an inspection of Respondent's premises made on February 6 and 7, 1972.

The pertinent portions of the regulations allegedly violated, the abatement dates, and the penalties proposed by the Secretary are as follows:

Serious Violations -- Abatement Date -- Proposed Penalty

1.   Section 5(a)(1) of the Act [Unsafe cross-ties on railroad track] -- 15 days -- $650.00.

2.   29 CFR 1910.157 [Improper maintenance of portable fire extinguishers] -- Immediate -- $650.00.

3.   29 CFR 1910.314 [Ungrounded wiring in work shops] -- 6 days -- $650.00.

Non-Serious Violations -- Abatement Date -- Proposed Penalty

1.   29 CFR 1910.37(k)(2) [worn treads at yard entrance] -- 2 days -- 00.

  2.   29 CFR 1910.106(d)(5)(iii) [flammable liquids [*23]   kept in records storage room] -- Immediate -- 00.

3.   29 CFR 1910.23(a)(6) [Unguarded manholes on deck of car float] -- Immediate -- $45.00.

4.   29 CFR 1910.22(a)(1) [Poor housekeeping] -- Immediate -- $45.00.

5.   29 CFR 1910.23(a)(8) [Missing and loose planks on apron to car bridge] -- Immediate -- 00.

6.   29 CFR 1910.23(d)(1) [Stairway railings rotted] -- 2 days -- 00.

7.   29 CFR 1903.2(a) [Failure to display poster "Safety & Health Protection on the job"] -- Immediate -- $50.00

8.   29 CFR 1904.5 [Failure to comply with record keeping requirements] -- Immediate -- $100.00.

9.   29 CFR 1904.5(d)(1) [Failure to keep annual summary of occupational illnesses and injuries] -- Immediate -- $100.00

On March 22, 1972, as a result of a reinspection made of Respondent's premises on February 17, 1972 a Notification of Failure to Correct Violation and of Proposed Additional Penalty was issued to Respondent.   This Notification proposed an added penalty of $1000.00 per day for a total of $3000.00 for Respondent's failure to abate Serious Violation No. 1 [Section 5(a)(1) of the Act i.e. failure to correct unsafe condition of cross-ties on railroad track].   Also on March 22, 1972, another [*24]   Citation for non-serious violations was issued charging violations of 29 CFR 1910.242(b) [Compressed air used for cleaning in excess of 30 P.S.I.] and 29 CFR 1910.314 [ungrounded wiring in work shops].   This latter violation is identical to serious violation No. 3 referred to above.   Abatement dates for the foregoing two violations were stated to be April 17, 1972.   No penalties were proposed for these last two alleged violations.

On April 6, 1972, more than 15 working days after the issuance of the Citations on February 17, 1972, but less than 15 days after issuance of the Citation on March 22, 1972, Respondent filed a protest with respect to Item 2, of the Citation dated March 22, 1972, [ungrounded electrical wiring] and the Notification of Additional Penalty for Respondent's failure to eliminate defective cross-ties on railroad tracks. Respondent's protest filed April 6th may be considered a Notice of Contest.

By a second letter filed on April 6, 1972, Respondent transmitted to the Complainant a check in the amount of $649.00 in payment of proposed penalty of $650.00 for violation of Serious Violation number 2 [29 CFR 1910.157, failure to   properly maintain portable [*25]   fire extinguishers].   This letter of April 6th also raised the issue of the jurisdiction of the Department of Labor to impose safty standards and reporting requirements on the Respondent.

The Complaint was filed on June 16, 1972, and restated with greater particularity the violations charged in the Citations.   The Complaint also withdrew Serious Violation number 1 [unsafe condition of cross ties on railroad track] and all proposed penalties relating thereto.   In addition the Secretary sought to strike violation number 2 in his Citation issued March 22, 1972 [ungrounded wiring] and amend his Notification of Failure to Correct Violations dated March 22, 1972.

Respondent's Answer states inter alia (1) that the Complainant lacks jurisdiction over the Respondent except insofar as the conditions of its portable fire extinguishers are concerned (2) that Non-Serious Violation number 3 [29 CFR 1910.23(a)(6)] is invalid since the car float in question had earlier been sold and was no longer Respondent's responsibility.   Respondent also conceded that it failed to file a Notice of Contest within 15 working days after the issuance of the Citations on February 17, 1972.

Preliminary briefs [*26]   were requested and received dealing with the question of the Secretary's and this Commissions' jurisdiction over the Respondent railroad. The Association of American Railroads filed an amicus brief dealing with this issue.   Hearing was held on October 31, 1972, in Washington, D.C. No employee representatives participated in the hearing.

At the hearing the Complainant offered no testimony.   The Respondent's sole witness testified that the car float or barge on which the compliance officers had observed unguarded manholes [Violation of 29 CFR 1910.23(a)(6)] had been sold on February 8, 1972, to one Charles Spencer who was responsible for its proper maintenance thereafter.

STATUTES INVOLVED

Section 4(b)(1) of the Occupational Safety and Health Act of 1970 provides:

Nothing in the 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.

The Federal Railroad Safety Act of 1970, 45 USC §   421 et seq., provides:   [*27]  

Section 421.   The Congress declares that the purpose of this Act is to promote safety in all areas of railroad operations and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving carriers of hazardous material.

Section 431.   The Secretary of Transportation . . . shall (1) prescribe as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on October 10, 1970 and (2) conduct as necessary research, development, testing, evaluation, and training for all areas of railroad safety.

THE ISSUES

It is clear that Respondent failed, within 15 working days as required by Section 10(a) of the Act, to challenge the violations alleged in the Citations and the Notification of Proposed Penalties issued on February 17th and ordinarily would be foreclosed from further contesting these matters.   However, Respondent's letter filed on April 6th constitutes a valid Notice of Contest with respect to the allegation of defective wiring charged in the Citation issued March 22d.   Also at issue is the basic question of the Secretary's and this Commission's [*28]   jurisdiction over the working conditions of railroad employees as well as the Secretary's jurisdiction to impose recordkeeping requirements on the Respondent.   Although this jurisdictional issue was not timely raised in a Notice of Contest, it has been raised by Respondent's Answer.   It is a generally accepted rule of law that jurisdiction is always an issue and may be raised at any stage in a judicial proceeding.   Birmingham Post Co. v. Brown, 217 F2d. 127, 130 (5th Cir. 1954).

This question of jurisdiction over the working conditions of Respondent's employees overshadows the single challenge raised by Respondent's Notice of Contest [i.e., the alleged violation of 29 CFR 1910.314].   This basic issue is given substance by the fact that the language of Sections 421 and 431 of the Federal Railroad Safety Act of 1970 vests in the Department of   Transportation the authority to regulate "all areas of railroad safety." Because no evidence was submitted by either party to show whether or not the Department of Transportation does in fact exercise this authority in order to promote the occupational safety and health of its employees a subsidiary issue is whether the burden of [*29]   proving the affirmative of this question rests upon the Respondent, or whether the negative proposition is a jurisdictional fact to be established by the Secretary.

One other issue is presented.   The Respondent asserted that non-serious violation number 3 [unguarded manholes on deck of car-float 605] should be dismissed because Respondent was not the owner of the car-float when the Citation was issued.   Since this issue also goes to jurisdiction evidence was taken on the question at the hearing.

DISCUSSION

The language of Section 4(b)(1) of the Act excludes from the coverage of the Occupational Safety and Health Act of 1970 those working conditions of employees over which other Federal agencies exercise statutory authority (italics ours).   The legislative debates which preceeded the passage of the Act make it clear that the mere grant of authority to a Federal agency to oversee the working conditions of employees is insufficient to exempt those employers and employees from the operation of the Act.

For example, Congressman William Steiger commented on the purpose of this provision which later became Section 4(b) of the Act.

Both the substitute and H.R. 16785 provide that   [*30]   the act shall not apply where another Federal agency is exercising authority to prescribe or enforce occupational safety and health standards . . .

While this section does not foreclose the authority of the Secretary of Labor in instances where another agency or department has statutory authority in the area of occupational safety and health, but has taken no action, it is anticipated that these instances will be extremely rare.   It is intended that the Secretary of Labor will not exercise his authority where another agency with appropriate jurisdiction has taken steps to exercise its authority, even though the action might be at the formative stage of regulations or enforcement.   (Legislative History of the Act, page 997)

Mr. Daniels one of the sponsors of the HR 16785 confirmed Mr. Steiger's interpretation of Section 4(b)(1):

  Mr. Erlenborn.   May I question the chairman of the subcommittee a little more closely on that question because I think the interpretation of this language might be a little bit tricky.   I know the reason it is worded this way.

It says that:

Nothing in section 5 of this act shall apply to working conditions of employees with respect to whom any [*31]   Federal agency exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.

Now let me pose a couple of alternative questions.

If there is authority under the Federal law, but it has yet been put into effect and it is not being exercised by the executive agency because they have no rules or regulations, then until they do adopt rules and regulations and exercise that authority then this does apply; is that correct?

Mr. Daniels of New Jersey.   Yes; that would be correct.   The gentleman has placed his finger on the key word -- and the key word is "exercise."

If an agency fails to pursue the law and exercise the authority that has been given to it, then this law will step in.

Mr. Erlenborn.   In other words, the mere existence of statutory authority does not exempt an industry?   It is the exercise of that authority pursuant to the statue that does exempt it; is that correct?

Mr. Daniels of New Jersey.   That is correct.

(Legislative History, page 1019)

I believe it is clear without further laboring the point that the mere grant of authority to an agency to enforce occupational safety and health standards within an industry [*32]   is insufficient to exempt the industry under Section 4(b) of the Act.   An exemption is not effective until the agency by rules or regulations actually takes affirmative steps to exert its authority in this field.

The argument of the Respondent (Resp. Br. 9/15-page 10, 14, et seq ), and the Intervenor (Interv. Brief 10/6, page 15-16) that every aspect of the railroad industry is exempted from the Act by virtue of the Federal Railroad Safety Act of 1970 is without merit.   To hold that Section 4(b)(1) excludes an industry from the coverage of the Act simply because some aspects of the industry operations are regulated by a Federal agency, would be tantamount to excluding many major industries from the coverage of the Act, a result not intended by the Congress.   It seems relatively clear from a reading of the Railroad Safety Act that this statute is concerned principally with the operation of railroads from the point of view passenger safety and the avoidance of accidents resulting from faulty equipment. n1   Although it is reasonably clear from a reading of Sections 421 and 431 of 45 U.S.C. that the Department of Transportation does have the authority to issue regulations [*33]   dealing specifically with working conditions which affect, in a broad sense, the health and safety of railroad employees, the Respondent railroad can only be exempted from the operation of the Occupational Safety and Health Act of 1970 if it is shown that the Department of Transportation or some other Federal agency by regulation has in fact exercised its authority in this area.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Pursuant to 45 U.S.C. §   421 et seq. the Department of Transportation has promulgated certain track safety standards, See 49 C.F.R. Part 213.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the hearing the parties stipulated, in effect, that the electrical wiring in Respondent's machine shop and pipe shop referred to in the Citation issued on March 22d was not grounded as required by 29 CFR 1910.314 at the time the inspection was made on March 6-7, 1972 (Tr. 4-5).   Evidence was also taken with respect to Respondent's ownership and control of car-float No. 605 (Item 3, Citation dated February 17, 1972).   That evidence showed that on the date of inspection, February 6-7, 1972, the [*34]   Respondent was still the owner of the car float in question (Tr. 24-25).   However, no evidence has been submitted by either party to establish whether or not the Department of Transportation, or some other Federal agency, does in fact exercise its authority for the specific purpose of promoting the safety and health of Respondent's employees.

I hold that the Secretary's construction of Section 4(b)(1) (Secretary's brief of 1/5/73) is correct and that the exclusion provided by this section is in the nature of a proviso or exemption, and further that the burden of showing that it comes within the exemption rests upon the Respondent, Walling v. General Industries, 330 U.S. 545, 548 (1947); Idaho Sheet Metal Works Inc. v. U.S. 383 U.S. 190, 209 (1966) Sherman Investment Co. v. US, 199 F2d. 504 (8th Cir., 1952); Rheem Mfg. Co. v. Rheem, 295 F2d. 473 (9th Cir. 1961); SEC v. Ralston Purina Co., 346 US 119, 126 (1953). The Respondent, having failed to show that some other Federal agency exercises statutory authority to prescribe or enforce standards or regulations affecting the occupational safety or health of its employees, its position, that it   [*35]   is exempted from the coverage of the Act, cannot be sustained.

The Respondent's assertion that it is not subject to the reporting requirements of Section 8(c) of the Act and the regulations issued thereunder is also without merit.   The   language of Section 24(a) of the Act clearly states that the Secretary's authority to compile statistical material relating to occupational safety and health covers all fields of employment except those excluded by Section 4 of the Act.   (See also Legislative History, page 1197).   As indicated above I hold that Respondent's employees are within the coverage of the Act and Respondent is thus subject to the recordkeeping requirements promulgated by the Secretary of Labor.

FINDINGS OF FACT

1.   The Penn Central Transportation Company, the Respondent herein, is a corporation engaged in railroading and operates a place of business, at 2429 Ferry Road, Virginia Beach, Virginia.   Respondent operates a railroad yard at that location.

2.   Judicial notice is taken of the facts that Respondent at all material times operated across state lines and employed a large number of personnel in its operations.

3.   At all material times Respondent owned, controlled,   [*36]   and operated the machinery, equipment, and real property referred to in the Citations issued by Complainant on February 17, 1972, and March 22, 1972.

4.   An inspection of Respondent's property in Virginia Beach, Virginia, was made on February 6-7, 1972, by a compliance officer employed by Complainant following which a Citation alleging three (3) separate serious violations of the Occupational Safety and Health Act of 1970 was issued to Respondent on February 17, 1972.   On the same date another Citation was issued alleging nine (9) separate non-serious violations of the Act and the regulations issued thereunder.

5.   Also on February 17, 1972, a Notification of Proposed Penalty was issued to Respondent proposing the following penalties:

Serious Violation No. 1	$650.00
Serious Violation No. 2	$650.00
Serious Violation No. 3	$650.00
Non-Serious Violation No. 1	00
Non-Serious Violation No. 2	00
Non-Serious Violation No. 3	$45.00
Non-Serious Violation No. 4	00
Non-Serious Violation No. 5	00
Non-Serious Violation No. 6	00
Non-Serious Violation No. 7	$50.00
Non-Serious Violation No. 8	$100.00
Non-Serious Violation No. 9	$100.00

 

  6.   A reinspection of Respondent's [*37]   premises was made by the Secretary on February 17, 1972, and thereafter on March 22nd a Notification of Proposed Additional Penalty totalling $3000.00 was issued to Respondent for failure to abate serious violation number 1.   On the same date by a new Citation two additional non-serious violations were alleged [violation of 29 CFR 1910.242(b) and 29 CFR 1910.314].   The latter alleged violation is identical with Serious Violation number 3.   No penalties were proposed for these two new alleged violations.

7.   Notice of Contest was filed by Respondent on April 6, 1972, more than fifteen working days after the issuance of the Citations dated February 17, 1972, but within fifteen days after the issuance of the Citation on March 22, 1972.

The said Notice of Contest was directed against (1) the alleged non-serious violation of 29 CFR 1910.314 and (2) the Notification of Additional Penalties for failure to correct defective cross-ties on certain railroad tracks [Serious Violation No. 1].   Respondent did not contest the alleged violation of 29 CFR 1910.242(b) charged in the Citation issued March 22, 1972.

8.   On April 6, 1972, Respondent forwarded to the Secretary its check in the amount [*38]   of $649.00 in payment of the penalty proposed for the alleged Serious Violation no. 2 (29 CFR 1910.157).

9.   The Complaint filed by the Secretary on June 16, 1972, amended the Citation for Serious Violation No. 1 issued on February 17, 1972, by striking this item [defective cross-ties on certain railroad tracks].   All proposed penalties for this alleged violation were withdrawn.

In addition the Complaint sought to strike Item number 2 of the Citation issued March 22, 1972 (29 CFR 1910.314) and to amend its Notification of Failure to Correct Violation issued March 22d and to move for an additional penalty for failure to abate this violation.   However, the Complainant did not at the hearing move for the assessment of additional penalties for failure to abate this alleged violation of 29 CFR 1910.314.

  CONCLUSIONS OF LAW

1.   Respondent at all material times was an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Occupational Safety and Health Act of 1970 and was subject to the jurisdiction of the Secretary of Labor and the established standards relating to the occupational safety and health of its employees promulgated by the Secretary of Labor [*39]   pursuant to Section 6 of the Act.   Section 4 of the Act does not exempt Respondent from the coverage of the Act.

2.   Because Respondent is not exempted from the coverage of the Act, the recordkeeping requirements of 29 CFR 1904.2, 1904.4 and 1904.5 are applicable to Respondent.

3.   Because Respondent did not timely file a Notice of Contest within 15 working days after the issuance of the Citations and the Notice of Proposed Penalties on February 17, 1972 as required by Section 10(a) of the Act, the Citations issued on that date and the penalties proposed by the Secretary of Labor became the final determination of this Commission and are not thereafter subject to review.   The violations charged and the penalties assessed by the Secretary, as amended by his Complaint, must stand.

4.   Because Respondent did not timely contest the violation of 29 CFR 1910.242(b) charged in the Citation issued March 22, 1972, this charge is also a final determination by the Commission.

5.   On February 6-7, 1972, Respondent was the owner, and in control, of car float no. 605 and on those dates was in violation of 29 CFR 1910.23(a)(6).   The penalty proposed for this violation is not inconsistent with [*40]   the criteria established for the assessment of penalties by Section 17 of the Act.

ORDER

Pursuant to Section 10(c) of the Occupational Safety and Heath Act of 1970 and 29 CFR 2200.66 it is ORDERED:

1.   That Items 2 and 3 of the Citation for Serious Violation issued February 17, 1972, and the penalties proposed for these violations be, and they are, AFFIRMED.

2.   That the Secretary's application to strike Citation for   Serious Violations number 1, issued February 17, 1972, be, and it hereby is, GRANTED and all penalties proposed for this violation are VACATED.

3.   That the nine (9) non-serious violations charged in the Citation dated February 17, 1972, and the penalties proposed for those violations be, and they hereby are, AFFIRMED.

4.   That Item 1 of the Citation issued March 22, 1972, be, and the same hereby is, AFFIRMED.

5.   That the Secretary's application to strike Item 2 of the Citation issued March 22, 1972, be, and the same hereby is, GRANTED.