PENNSYLVANIA TRUCK LINES, INC.
OSHRC Docket No. 77-3050
Occupational Safety and Health Review Commission
September 19, 1979
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
F. V. LaRuffa, Reg. Sol., USDOL
F. Murray Bryan, for the employer
John R. Jenchura, Consolidated Rail Corporation, for the employer
Paul J. Finley, Shop Steward & Safety Man, Local 641 -- Teamsters Union, for the employees
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Commissioner:
This matter is before us on interlocutory appeal on the issue whether Administrative Law Judge James P. O'Connell erred in failing to grant the request of petitioner Consolidated Rail Corporation (Conrail) that it be allowed to intervene in this proceeding pursuant to Commission Rule of Procedure 21 (29 C.F.R. 2200.21). n1 For the reasons that follow, we conclude that Conrail should be permitted to intervene.
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n1 This rule provides as follows:
(a) A petition for leave to intervene may be filed at any stage of a proceeding before commencement of the hearing before the Judge.
(b) The petition shall set forth the interest of the petitioner in the proceeding and show that the participation of the petitioner will assist in the determination of the issues in question, and that the intervention will not unnecessarily delay the proceeding.
(c) The Commission or the Judge may grant a petition for intervention to such an extent and upon such terms as the Commission or the Judge shall determine.
[*2]
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Respondent was issued two citations alleging that it had committed 12 serious and 2 "other" or nonserious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) (the Act) at its yard in South Kearny, New Jersey. In its answer to the complaint Respondent raised several defenses. As relevant to this appeal, Respondent argued that in accordance with 29 U.S.C. 653(b)(1) n2 the Secretary of Labor does not have jurisdiction because the Federal Railroad Administration (FRA) has exercised statutory authority to prescribe or enforce occupational safety and health regulations governing the working conditions and workplaces of Respondent's employees. Respondent also argued that it neither created, controlled, nor was contractually responsible for the alleged hazards for which it was cited. Conrail subsequently filed a petition for intervention, contending that abatement of the alleged violations could affect its operations and the safety of its employees.
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n2 29 U.S.C. 653(b)(1) provides:
Nothing in this Act 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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Judge O'Connell did not rule on the section 653(b)(1) or other defenses raised by Respondent, and he cancelled the scheduled hearing, because the parties had advised that the case was being settled. For this reason be declined to grant Conrail's petition for intervention. Thereafter, he rescheduled the hearing upon the failure of the parties to file a settlement agreement but did not act on Conrail's petition. We granted Conrail's request for permission to appeal and for a stay of proceedings before the Judge. 29 C.F.R. 2200.75.
Commission Rule of Procedure 21 governs intervention in Commission proceedings. That rule specifies that the petition for intervention shall set forth the interest of the petitioner and show: 1) that the participation of the petitioner will assist in the determination of the issues in question and 2) that the intervention will not unnecessarily delay the hearing. Conrail has met these requirements.
In its brief on interlocutory appeal n3 Conrail asserts its interest in the proceedings. Specifically, [*4] Conrail points out that one of the alleged violations is that Respondent did not protect its employees crossing railroad tracks with mechanical handling equipment from the danger of ongoing railroad operations. According to Conrail, operating rules which it must submit to FRA require that it undertake certain measures to protect workers crossing active railroad tracks, and it says that these measures would extend to the protection of Respondent's employees as well as its own. Therefore, Conrail reasons that if Respondent also is required to undertake such measures, the result would be duplication and confusion as to the implementation and enforcement of Conrail's operating rules and FPA regulations. Conrail further contends that it has an interest in this and other alleged violations insofar as the conditions on which these violations are based occurred on Conrail's property or involve activities which Conrail controls.
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n3 Neither Complainant nor Respondent filed an appeal brief.
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We agree that Conrail has an interest [*5] in this proceeding. Abatement of the cited conditions will be effectuated on its property and may affect its railroad operations and safety of its employees.
Conrail's participation will assist in the determination of at least two issues in the case: first, whether section 653(b)(1) exempts application of the Act to the cited working conditions and second, whether Respondent should be held liable if it did not create or control the cited conditions.
As to the section 653(b)(1) issue, it is well-settled that FRA has statutory authority to regulate employee safety in the railroad industry. To the extent that FRA regulates the same working conditions sought to be regulated by the Secretary of Labor, it preempts enforcement of this Act by the Secretary. Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977), aff'g 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD P19,054 (No. 1348, 1974); Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999 (1976). Indeed, we have said that the issue of exemption under section 653(b)(1) should be decided on a factual record prior to deciding the merits [*6] of the alleged violations. Chevron Oil Co., 77 OSAHRC 29/A2, 5 BNA OSHC 1118, 1977-78 CCH OSHD P21,606 (No. 10799 et al., 1977).
Because Conrail presumably is familiar with FRA regulations and with the conditions surrounding its tracks, it is reasonable to conclude that Conrail would be able to assist in the development of a record and in the presentation of arguments on the section 653(b)(1) issue raised by Respondent in its answer. In so doing, Conrail would aid in the adjudication of an issue that could be dispositive of the case.
As previously noted, Respondent raised in its answer as an affirmative defense that it neither created, controlled, not was contractually liable for certain of the alleged violations. Conrail also argues as a basis for intervention that it has control over the property and activities at issue in this case, and it contends that the relationship between it and Respondent is analogous to the relationship between different employers on a multi-employer construction worksite. We have in our decisions recognized situations where a subcontractor on a multi-employer construction worksite is unable to correct violative conditions to which its [*7] employees are exposed because it neither created nor controlled the hazards in question. In such circumstances, the subcontractor may defend by showing that it took appropriate alternative measures to protect its employees. J.H. MacKay Electric Co., 78 OSAHRC 77/B10, pp. 3-4, 6 BNA OSHC 1947, 1949, 1978 CCH OSHD P23,026 at 27,823 (No. 16110, 1978), and cases cited therein.
Although we said in Central of Georgia Railroad, 77 OSAHRC 42/A2, 5 BNA OSHC 1209, 1977-78 CCH OSHD P21,688 (No. 11742, 1977), aff'd, 576 F.2d 620 (5th Cir. 1978), that this defense is available only in the case of a multi-employer worksite in the construction industry, more recently we reconsidered the question of whether multi-employer worksites in the construction industry should be distinguished from such worksites in other industries. We concluded that employee safety can best be achieved if each employer at every multi-employer worksite, whether or not in the construction industry, is required to abate hazardous conditions under its control and to prevent its employees from creating hazards. Accordingly, we overruled Central of Georgia, supra, to the extent it is inconsistent with this principle. [*8] However, because the employer in Harvey Workover was responsible for the creation of the hazardous conditions at issue, that case did not present, and we did not consider the question of whether an employer at a worksite not in the construction industry should be permitted the same defense that we have allowed to a subcontractor at a construction worksite; that is, the opportunity to establish that it took alternative measures to protect its employees from hazards that it did not create nor control.
Similarly, we need not at this time consider whether the defense we have fashioned for application in the construction industry should be permitted in cases, like the one now before us, that arise in industries other than the construction industry. Thus, we do not now express an opinion as to whether, in the event violations of the Act are found, Respondent should nevertheless be held liable even if it is determined that Conrail has exclusive control over the violative conditions. It is sufficient to note for purposes of deciding the limited question of intervention that the issue of control or responsibility [*9] has been raised by a party in the case. Because Conrail presumably is in a position to contribute to the record on that issue it should have the opportunity to do so in order to assist the Commission's determination of the issue.
Finally, Conrail has averred, and there is no dispute, that intervention will not unduly delay the proceedings. We agree. Conrail's assistance in the determination of issues in the case will likely aid their prompt resolution.
Therefore, this matter is remanded for further proceedings with instructions that Conrail be permitted to intervene for the purposes stated herein. The stay previously entered is hereby dissolved.
So ORDERED.
CONCURBY: COTTINE
CONCUR:
COTTINE, Commissioner, concurring:
The majority concludes that the petitioner, Consolidated Rail Corporation ("Conrail"), should be permitted to intervene in this proceeding because the prerequisites of Commission Rule of Procedure 21, 29 C.F.R. § 2200.21, have been satisfied. However, on the basis of Conrail's specific interest in this proceeding, and the prospect that neither party will adequately protect that interest, Conrail is entitled to intervention of right under Fed. R. Civ. P. 24(a). n1
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n1 Rule 24. Intervention.
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
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The language of Rule 21 reserves the decision to grant or deny a petition to intervene to the Commission's discretion. Thus, my colleagues fail to recognize that Rule 21 governs permissive intervention exclusively. However, when the facts establish that a petitioner has a right to intervene under the provisions of Fed. R. Civ. P. 24(a), it is inappropriate to consider permissive intervention [*11] under Commission Rule 21. Federal Rule 24(a) is a mandatory provision requiring intervention to be granted when a party's interest in the proceeding meets the requirements of the rule. n2 Furthermore, intervention of right necessarily secures for the intervenor the opportunity to fully participate in the adjudication of the substantive issues in a case. Under intervention of right, the intervenor must also be afforded the opportunity to represent its interest during the formulation of an appropriate remedy because the "disposition of the action may as a practical matter impair or impede his [the intervenor's] ability to protect that interest." Fed. R. Civ. P. 24(a)(2). Thus, it makes "good sense" in terms of the complete and accurate adjudication of a case "to allow persons having a common interest with the formal parties to enforce the common interest with their individual emphasis." Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 506 (1941) (Frankfurter, J.) quoted in Ford Motor Co. v. Bisanz Bros., 249 F.2d 22, 26 (8th Cir. 1957).
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n2 Intervention is intimately connected with the integrity of the adjudicatory process because it involves the fair and complete resolution of factual and legal controversies. Moreover, intervention permits the intervenor to focus the factual controversies and the legal issues in the context of its specific private interest. As a result of increasingly limited staff resources of agencies, the participation of intervenors becomes more important to the effective performance of adjudicatory functions. Shapiro, Some Thoughts on Intervention Before Courts, Agencies and Arbitrators, 81 Harv. L. Rev. 721, 765 & n. 111 (1968). Nonetheless, there remains a fundamental distinction between permissive intervention and intervention of right -- it is the difference between those interests that must be considered and those interests that may be considered. Brown & Root, Inc., supra (concurring opinion).
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The majority acknowledges that Conrail has an interest in this proceeding because "[a]batement of the cited conditions will be effectuated on its property and may affect its railroad operations and safety of its employees." It is evident that Conrail's ability to protect that interest may be jeopardized unless the Commission correctly determines abatement requirements and compliance responsibilities in the context of the specific relations between Conrail and Pennsylvania Truck Lines, Inc. and all relevant statutes and regulations. See Ford Motor Co. v. Bisanz Bros., supra. Therefore, Conrail satisfies the requirements for intervention of right under Fed. R. Civ. P. 24(a)(2), and the majority errs in granting permissive intervention under Commission Rule 21.