CONSOLIDATED RAIL CORPORATION

OSHRC Docket No. 77-2911

Occupational Safety and Health Review Commission

July 29, 1982

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Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.

COUNSEL:

Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Robert M. Peet, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Edward V. Alfieri is before the Commission under section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 ("the Act"). Judge Alfieri found that Consolidated Rail Corporation ("Conrail") was exempt from the recording and reporting requirements of 29 C.F.R. 1904.2, 1904.4, and 1904.5 and therefore was not required to give a compliance officer of the Occupational Safety and Health Administration ("OSHA") access to any records pursuant to 29 C.F.R. 1904.7, n1 including the safety and health records Conrail kept for the Federal Railway Administration ("FRA").

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n1 29 C.F.R. 1904.7 provides, in pertinent part:

Each employer shall provide, upon request, records provided for in 1904.2, 1904.4, and 1904.5, for inspection and copying by any representative of the Secretary of Labor. . . .

Conrail was cited under the 1977 version of this standard, which was substantially the same as the current version set forth here. Section 1904.2 requires employers to maintain a log and summary of all recordable occupational injuries and illnesses. An employer may use OSHA form No. 200 or an equivalent. Section 1904.4 requires employers to maintain a supplementary record for each injury or illness, in the detail prescribed in OSHA form No. 101. Again, an employer may use an equivalent form, such as a workmen's compensation form. Section 1904.5 requires employers to post an annual summary of injuries and illnesses using OSHA form No. 200.

[*2]

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The Secretary petitioned for review of Judge Alfieri's decision and Commissioners Cleary and Cottine granted the Secretary's petition. We affirm Judge Alfieri's decision to vacate the citation in this case but hold that railroad industry employers must comply with the OSHA recording and reporting requirements and must make their records available to OSHA compliance officers.

In Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974), aff'd, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977) ("Southern Pacific"), the Commission held that the Department of Transportation's (FRA's) regulations requiring the reporting of accidents exempted railroad employers from all OSHA recordkeeping regulations under section 4(b)(1) of the Act. n2 However, in Consolidated Rail Corp., 82 OSAHRC 10 BNA OSHC 1706, 1982 CCH OSHD P26,082 (No. 80-3495, 1982), the Commission specifically overruled this aspect of Southern Pacific. The Commission held that employers in the railroad industry must comply with OSHA recordkeeping requirements [*3] and must afford the Secretary's representatives access to the records they are required to maintain. Thus, by failing to do this, Conrail failed to adhere to section 1904.7.

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n2 Section 4(b)(1), 29 U.S.C. 653(b)(1), provides in pertinent part,

Nothing in this chapter shall 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.

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However, it would be unfair to hold Conrail in violation of the cited regulation in this case since Southern Pacific was the relevant Commission precedent at the time of the alleged violation. See Consolidated Rail Corp., supra. We therefore affirm Judge Alfieri's vacation of the citation but reemphasize that Conrail and other railroad industry employers must maintain suitable records and make them available to OSHA representatives. n4 SO ORDERED.

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n4 Chairman Rowland would adhere to the holding of Southern Pacific that railroad employers are not required to comply with OSHA recordkeeping requirements. Consolidated Rail Corp., 10 BNA OSHC at 1708 n. 7, 1982 CCH OSHD at p. 32,828 n. 7. The remaining issue presented by this case is whether a railroad employer must afford the Secretary access to the records it maintains for the FRA. In Consolidated Rail Corp., the majority addressed this issue, holding that 29 C.F.R. 1904.7 requires that railroad employers make available to the Secretary either OSHA records or the equivalent of OSHA records. Thus, the issue has already been decided by the Commission majority. Regardless of how he would decide the issue, Chairman Rowland believes it would be unfair to find Conrail in violation of 1904.7 in this case, and therefore concurs in the vacation of the citation. Because the Commission majority has already decided the issue and the outcome of the case would not be affected, Chairman Rowland does not decide whether 4(b)(1) precludes the Secretary from obtaining access to the FRA accident and illness records maintained by a railroad employer.

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