CONSOLIDATED RAIL CORPORATION

OSHRC Docket No. 78-2119

Occupational Safety and Health Review Commission

May 28, 1981

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Before: CLEARY and COTTINE, Commissioners.  

COUNSEL:

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

John R. Jenchura, Consolidated Rail Corporation, for the employer

Fred Souk, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerome Ditore is before the Commission pursuant to section 12cj), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Ditore found that Respondent, Consolidated Rail Corporation ("Conrail"), violated the Act by failing to provide its workers with appropriate protective equipment.   We affirm.

I

In March 1978, a compliance officer of the Occupational Safety and Health Administration ("OSHA") inspected a Conrail workplace in Nutley, New Jersey.   At the workplace, Conrail employees were removing and replacing damaged railroad ties from a railroad bridge. The bridge was thirty-four feet above a well-travelled roadway and had no guardrails on its sides.   The compliance officer observed that the workers removed the damaged railroad ties in groups of four or five, leaving large holes along the bridge. No means was provided to protect the employees from falling from the bridge to the ground [*2]   below.

Following the inspection, Conrail removed its employees from the bridge and stopped all repairs on the bridge. After consultation with Conrail officials, the compliance officer suggested a lifeline be strung along the center of the bridge. The employees then could wear safety belts with lanyards from the belts clipped to the lifeline. Conrail agreed to this arrangement, and work on the bridge was resumed.   The work was completed without incident.

Because the workers were exposed to a fall hazard -- working near the opening in the bridge without safety equipment -- the Secretary of Labor ("the Secretary") cited Conrail for failing to comply with the standard at 29 C.F.R. §   1926.28(a). n1

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n1 Section 1926.28(a) provides:

§   1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

In the same citation, Conrail was also cited for allegedly failing to comply with 29 CFR §   1926.500(d)(1) and section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1), for failing to equip the sides of the bridge with guardrails. Judge Ditore vacated this aspect of the citation, and it is not on review.

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Conrail argued before the judge that, pursuant to section 4(b)(1) of the Act, n2 a March 14, 1978 policy statement by the Federal Railroad Administration ("FRA") n3 preempted OSHA authority over the cited working condition. Conrail also argued that the use of safety belts tied-off to a lifeline was not feasible because it would have exposed the workers to the greater hazards of slipping, tripping and falling. According to Conrail, any lifelines would have to be strung above the workers in order to reduce the possibility of becoming entangled in the lines, but there was no way to attach the lifeline in this manner.   Conrail also argued that it not the custom or pactice in the railroad industry to use safety belts and lifelines.

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

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.

n3 43 Fed. Reg. 10583 (1978).

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II

Judge Ditore concluded that the FRA policy statement did not preempt OSHA jurisdiction.   Judge Ditore stated:

FRA's policy statement (Exh. R-2) is not a sufficiently concrete exercise of authority to displace OSHA coverage of the working condition here.   Assuming, that FRA's policy statement is an articulation of its jurisdiction over the safety of railroad operations, it fails to articulate whether the "working condition" hazard here is covered by its regulations or whether the condition should be unregulated.   Respondent has failed to carry its burden of proof and its burden of persuasion on this issue.

Judge Ditore further concluded Conrail had violated section 1926.28(a).   He stated: "The use of the safety belts and lines by Respondent's employees during the completion of their work did not create any greater hazards nor make the work impossible to perform."

Commissioner Cottine directed review on the following questions:

(1) Whether the administrative law judge erred in finding that the Federal Railroad Administration has not exercised its statutory authority to prescribe standards or regulations [*5]   affecting occupational safety and health within the meaning of §   4(b)(1) of the Act, 28 U.S.C. §   653(b)(1), by its policy statement of March 14, 1978, 43 Fed. Reg. 10584.

(2) If the policy statement constitutes an exercise of statutory authority by the Federal Railroad Administration, whether the particular working condition involved in this case is covered by the policy statement.

(3) Whether the administrative law judge erred in finding the Respondent in noncompliance with 29 C.F.R. §   1926.28(a).

(4) If the Federal Railroad Administration has addressed the particular working condition involved in this case, whether its determination not to require the wearing of safety belts constitutes an exercise of statutory authority to prescribe standards or regulations affecting occupational safety or health within the meaning of §   4(b)(1) of the Act, 29 U.S.C. §   653(b)(1).

III

The parties present the same arguments to the Commission on review as they did to Judge Ditore.   Concerning the section 4(b)(1) exemption urged by Conrail, in Consolidated Rail Corp., 81 OSAHRC    , 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (No. 78-3100, 1981), pet. for review filed, No. 81-1210 [*6]   (1st Cir. Apr. 2, 1981), the Commission held that the Federal Railroad Administration's policy statement was not a "standard or regulation" under section 4(b)(1) of the Act.   Therefore, the judge correctly determined that the policy statement does not preempt OSHA's authority over the working condition in this case. n4

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n4 Commissioner Cleary dissented in Consolidated Rail Corp., supra, saying that he considered the FRA's policy statement sufficient to preempt OSHA jurisdiction.   Commissioner Cleary continues to hold that position.   To maintain that position in this case, however, would result in a split vote.   A split vote would only serve to affirm the administrative law judge's decision -- in other words, precisely the same outcome as this case.   See Sun Petroleum Products Co., 79 OSAHRC 26/C1, 7 BNA OSHC 1306, CCH OSHD P23,502 (76-3749, 1979).   Accordingly, Commissioner Cleary acquiesces in the Commission's precedent under the circumstances created by the absence of a third Commission member.

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We [*7]   have reviewed the record concerning the alleged 1926.28(a) violation.   We affirm the judge's conclusion that Conrail failed to comply with section 1926.28(a). n5 See Gulf Oil Co. 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).   We agree with the judge that $300 is an appropriate penalty in view of Conrail's immediate abatement of the violation.

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n5 Judge Ditore's resolution of the §   1926.28(a) issues is consistent with the Commission's decision in S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir. June 7, 1979).   We reject Conrail's argument that the Secretary failed to prove a violation because he did not establish that it was the railroad industry's custom or practice to use safety belts and lifelines in these circumstances.   While industry custom or practice is relevant to whether a hazard exists within the meaning of §   1926.28(a), it is not controlling.   Id. See also Voegele Co., 79 OSHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,960 (No. 76-2199, 1979), aff'd, 625 F.2d 1075 (3d Cir. 1980).

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Accordingly, Judge Ditore's decision is affirmed.   SO ORDERED.