UNION RAILROAD COMPANY
OSHRC Docket No. 78-2739
Occupational Safety and Health Review Commission
July 21, 1981
[*1]
Before: CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Marshall H. Harris, Reg. Sol., USDOL
Michael T. Reilly and Robert N. Gentile, for the employer
George Prenatt, Staff Rep., Safety & Health Department-USWA, for the employees
Harry Osborn, Staff Rep., District 15 - USWA, for the employees
OPINION:
DECISION
BY THE COMMISSION:
A decision of Administrative Law Judge Henry F. McQuade is before the Commission for review pursuant to section 12(j), 29 U.S.C. § 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"). In his decision, Judge McQuade (1) denied a motion by Respondent, Union Railroad Company, to suppress the evidence obtained by the Secretary of Labor ("the Secretary") during an inspection of Respondent's workplace on April 19, 1978; (2) rejected Respondent's affirmative defense that the Secretary's citations are precluded as a result of the exemption created by section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1); and (3) affirmed a citation alleging a serious violation of the Act based on failure to comply with 29 C.F.R. § 1910.22(c), which mandates that "[c]overs and/or guardrails shall be provided to protect personnel [*2] from the hazards of open pits, tanks, vats, ditches, etc." n1
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n1 This requirement "applies to all permanent places of employment, except where domestic, mining, or agricultural work only is performed." 29 C.F.R. § 1910.22, preamble.
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Respondent petitioned for review of those parts of the judge's decision relating to the three determinations described above, and former Commissioner Barnako directed review on the issues raised by Respondent. For the reasons discussed below, we affirm the judge's disposition of each of the issues before us.
I
On February 9, 1978, industrial hygienist John Morris, an employee of the Occupational Safety and Health Administration ("OSHA"), attempted to conduct an inspection of Respondent's workplace in response to a complaint of unsafe working conditions filed by a bargaining unit representative of Respondent's employees. The complaint asserted that a health hazard was present in the workplace. Morris was refused entry because he did not have a search warrant. On April 14, 1978, Morris [*3] again sought entry into Respondent's workplace. After Morris presented a search warrant issued by a U.S. magistrate on April 13, Respondent permitted him to inspect the conditions described in the union complaint and other related conditions. Morris subsequently reported possible safety violations he had observed at the worksite to his supervisor, an OSHA area director, who then instructed OSHA compliance officer Louis Cvetnich to return to the worksite to conduct a safety inspection. On April 19, 1978, Cvetnich was allowed to conduct this additional inspection of Respondent's workplace. He was not requested to present a search warrant, although he had the April 13 warrant with him. The citations at issue in this case are all based on conditions observed by Cvetnich on April 19, 1978.
Ten days before the hearing in this case, Respondent filed a motion to suppress the evidence discovered by the Secretary during the inspection on April 19, on the ground that it was obtained in violation of the fourth amendment to the United States Constitution. After hearing evidence on this motion, Judge McQuade found that Respondent had consented to the April 19 inspection. For this reason, [*4] he denied Respondent's motion. On review, Respondent argues that the judge erred and that the inspection was not authorized either under the April 13 warrant or by consent. The Secretary argues that the inspection was conducted pursuant to and authorized by the valid warrant issued on April 13.
We conclude that we need not decide whether the inspection at issue was conducted under the April 13 warrant or pursuant to Respondent's consent. Nor is it necessary for us to decide whether either the warrant or the consent was a valid and sufficient authorization for the inspection conducted. In Triangle Tanning Co., 81 OSAHRC , 9 BNA OSHC , 1981 CCH OSHD P25,468 at p. 31,759 (No. 78-1529, 1981), we recently stated the following:
[The Commission's authority to consider a constitutional challenge to an inspection] will only be exercised in cases involving inspections which took place after May 23, 1978, when the Supreme Court issued it's Barlow's decision. [Marshall v. Barlow's Inc., 436 U.S. 307 (1978), holding that the Act's inspection provision is unconstitutional to the extent it authorizes warrantless inspections without consent.] See Meadows Industries, [*5] Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979). Whether a search was conducted with a warrant, as here, or without a warrant, as in Meadows, has no bearing on the Commission's decision not to retroactively afford a remedy for constitutional violations that may have occurred during inspections which predated Barlow's.
In the case now before us, the inspection was conducted prior to the issuance of the Supreme Court's decision in Barlow's. Therefore, regardless of whether the inspection was pursuant to a warrant or warrantless, under Triangle Tanning Co., supra, Respondent is not entitled to exclusion of the evidence. For this reason, we affirm the judge's denial of Respondent's motion to suppress evidence.
II
Item 1 of citation 1 alleges a serious violation of the Act, based on noncompliance with section 1910.22(c), supra, in that covers and/or guardrails were not provided to protect employees from the hazards of open pits in the locomotive inspection and truck repair shop. Before the judge, Respondent contended that all of the contested citation items, but particularly item 1 of citation 1, should be vacated because [*6] the working conditions at issue were exempted from the Act's requirements by operation of section 4(b)(1). n2 Respondent presented three alternative arguments in support of its defense. First, it argued that the Federal Railroad Administration, U.S. Department of Transportation ("the FRA"), has "exclusive jurisdiction for the exercise of authority over inspection and enforcement of safety regulations for the railroad industry" and accordingly that all working conditions in the industry are exempted from regulation under the Act. Second, it argued that the FRA exercised its statutory authority and thus preempted OSHA in "certain areas of railroad safety" by publishing an advance notice of proposed rulemaking at 40 Fed. Reg. 10693 (1975). Finally, Respondent argued that the FRA exercised its statutory authority and thus preempted OSHA, particularly with regard to the safety of open pits in railroad repair shops, by publishing a notice terminating its proposed rulemaking and setting forth an agency statement of policy at 43 Fed. Reg. 10583, 10587 (1978).
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n2 Section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1), provides, in pertinent part, as follows:
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.
[*7]
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In his decision, Judge McQuade summarily rejected Respondent's section 4(b)(1) defense, citing the Commission's decision in Union Railroad Co., 74 OSAHRC 84/F10, 2 BNA OSHC 1390, 1974-75 CCH OSHD P19,111 (No. 4318, 1974), appeal dismissed, No. 75-1013 (3d Cir. May 16, 1975). On review, Respondent does not take exception to the Commission's decision in Union Railroad Co. or to the judge's reliance on that decision. It correctly notes, however, that Union Railroad Co. is only dispositive of its industry exemption argument. In addition, Respondent apparently accedes on review to the appellate court decision in Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. den., 434 U.S. 874 (1977), which rejected its argument based on the FRA's proposed rulemaking. Nevertheless, Respondent reasserts before us its argument that the March 14, 1978 FRA policy statement triggered an exemption under section 4(b)(1) applicable to the open pits in its locomotive inspection and truck repair shop.
This same argument was considered and rejected by the Commission [*8] in Consolidated Rail Corp., 81 OSAHRC , 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (Nos. 78-3100 et al., 1981), appeal dismissed, No. 81-1210 (1st Cir. June 17, 1981). In that case, the Commission held that the FRA's policy statement was not a "standard or regulation" under section 4(b)(1) of the Act and specifically that it did not result in an exemption of railroads from their obligation to comply with section 1910.22(c). Based on this precedent, we reject Respondent's contention in the case now before us and affirm the judge's rejection of Respondent's section 4(b)(1) defense. n3
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n3 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 in this case. See Sun Petroleum Products Co., 79 OSAHRC 26/C1, 7 BNA OSHC 1306, 1979 CCH OSHD P23,502 (No. 76-3749, 1979), remanded, 622 F.2d 1176 (3d Cir. 1980). Accordingly, Commissioner Cleary acquiesces in the Commission's precedcent under the circumstances created by the absence of a third Commission member.
[*9]
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III
A
The open pits at issue in item 1 of citation 1 are pit no. 6 and pit no. 7 in Respondent's locomotive inspection and truck repair shop. n4 Both pits are 90 feet long, 57 inches wide and 57 inches deep. Access to the pits is by steps or sloped ramps at one or both ends of the pits. Inclusion of the access area extends the length of the opening at the surface by an additional five feet. At the time of the April 19 inspection, both pits had single locomotives on them, leaving approximately half of each pit uncovered. Compliance officer Cvetnich observed employees working adjacent to the unguarded edges of the open sections of the pits and further observed an employee walk over a 12-inch wide plank that extended across pit no. 7 near one end of the locomotive. At the hearing, he testified that the employees were exposed to the hazard of falling into the open pits, that there were no protective devices to prevent such a fall, and that a fall could result in a broken arm or leg or even death due to head injury.
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n4 The trucks referred to in the record and this decision are swiveling wheel units attached to locomotives.
[*10]
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Calvin E. Mock, Respondent's general foreman, testified that pit no. 6 is normally used for inspection and repair of locomotives and that the pit is covered approximately 95% of the time by two locomotives coupled together. According to Charles R. McDonald, Respondent's safety administrator, most of the locomotives are 44 to 45 feet long. Accordingly, he continued, two typical locomotives cover the entire length of the pit except for the access area on each end. Approximately half of the length of the pit (45 feet) is open when only one locomotive is on the pit. General foreman Mock further testified that pit no. 7 is normally used for changing trucks on locomotives. Usually a truck change can be made only when a single locomotive is on the pit because the removed truck also covers part of the pit. Therefore, during a truck-changing operation, up to 50% of the pit is uncovered. Pit no. 7 is also used for regular repair operations and at times there are three locomotives in that section, two on the pit and one on the track. Mock further testified that pit no. 7 is occupied approximately 95% of [*11] the time as either a truck-changer or repair station.
Respondent introduced daily reports for an assertedly typical month (August 1978), showing the location of locomotives on yard tracks and on pit tracks in the shops. Exhibit R-9. These records indicate, with respect to both pit no. 6 and pit no. 7, that there are times when only one locomotive is on the pit, thereby leaving half of the pit open. This conclusion is supported by the testimony of each of the witnesses who were examined on the subject. Moreover, there was no rebuttal to the testimony of Robert Frost, a mechanical repairman employed by Respondent, who stated that there are occasions when the pits are completely open because "[s]ometimes it may take them a couple hours (sic) to put one [locomotive] in after they have taken one out." Frost further testified that he had observed other employees coming near the pits, walking across pit boards laid over the pits in front of locomotives, and sweeping debris right up to the edges of the pits. The record indicates that there have been no injuries due to falls into the pits.
B
With respect to this alleged violation, Judge McQuade determined, on the basis of photographs [*12] taken at the time of the inspection showing the two pits with a single locomotive on each pit and also on the basis of Respondent's daily records, that there were times when the pits were not completely covered by locomotives and they were not otherwise covered or guarded. Accordingly, he entered a finding that "Respondent kept Pits Nos. 6 and 7 covered by locomotives much of the time, but did not provide cover or guards for the periods when they were not occupied." The judge further found that an employee used a 12-inch wide plank to cross over a pit and that employees "could incur serious bodily injury from a fall into a pit." Based on these findings, Judge McQuade concluded that the Secretary had established Respondent's noncompliance with section 1910.22(c) and that this noncompliance constituted a serious violation of the Act. He assessed a penalty of $100 for the violation.
C
On review, Respondent contends that the judge's holding that it failed to comply with section 1910.22(c) is contrary to Commission precedent and therefore that the judge should be reversed. Specifically, it relies upon the Commission's decision in Consolidated Freightways Corp., 77 OSAHRC 84/A2, [*13] 5 BNA OSHC 1481, 1977-78 CCH OSHD {21,846} (No. 10889, 1977), appeal dismissed, No. 77-2515 (9th Cir. Jan. 19, 1979). Respondent cites that case for the proposition that an employer is excused from compliance with section 1910.22(c) when the time span in which the pit is unoccupied (in this case, by locomotives) is so short as to negate the utility of a guardrail. Emphasizing the testimony of general foreman Mock that both pit no. 6 and pit no. 7 were occupied approximately 95% of the time, Respondent argues that the record established that its pits were used continuously. Accordingly, Respondent continues, the Commission's decision in Consolidated Freightways is controlling and dispositive and it compels the conclusion that the citation at issue must be vacated.
In response, the Secretary argues that Consolidated Freightways supports his position in this case rather than Respondent's. The Secretary notes that the Commission found a violation in Consolidated Freightways with respect to six of the maintenance pits at issue. The Secretary argues in effect that Respondent failed to establish continual use of its pits, noting the testimony of employee Frost [*14] that the pits he worked around could be open for "a couple hours" between the time a locomotive was taken off of the pit and another placed over it. In particular, the Secretary continues, a violation was established with respect to pit no. 7, which was used for truck-changing operations that left half of the pit uncovered.
D
In Consolidated Freightways, the Commission reviewed a judge's decision affirming a citation for noncompliance with section 1910.22(c) in that covers and/or guardrails were not provided for seven open pits. These pits were used for the maintenance and servicing of roadway vehicles. As the Secretary correctly notes, the Commission affirmed the citation with respect to six of the seven maintenance pits involved in that case. Accordingly, Respondent's reliance is upon that part of the decision in which the Commission vacated the citation with respect to the seventh pit, referred to as pit no. 4.
The Commission stated the controlling facts of its decision in Consolidated Freightways as follows:
The ALJ held that respondent violated the standard as to all seven pits. Specifically, he found that the "long pits", numbers four through seven, are used [*15] in sequence with pit number four receiving the most use and pit number seven the least. Under normal circumstances, pit number four will only be empty for the time needed for a serviceman to take a unit out, park it, and bring in the next one. Pits numbers five, six, and seven are open for longer periods of time, which can extend up to 30 minutes for pit number seven. On occasion, pit number seven will remain open for as long as an hour.
5 BNA OSHC at 1483, 1977-78 CCH OSHD at p. 26,310. (Emphasis added.)
Based on these facts, the Commission vacated the citation's allegation relating to pit no. 4 for the following reasons:
It is our opinion that the time span that pit number four is unoccupied by a unit is too short to require the guarding contemplated by the standard. By the time such guarding was erected, its utility would be negated by the arrival of another unit. Thus, as to pit number 4, we hold that the continual presence of a unit that covered the entire length and width of the pit constituted compliance with 29 CFR § 1910.22(c).
Id. (Emphasis added.)
However, the Commission also affirmed the remainder of the citation, as follows:
We find respondent's [*16] contention that all seven pits were in "constant use" unpersuasive. Although the record is not clear as to the time lapse between the servicing of units, the record supports a finding that employees were exposed to the hazard of falling into the pits during this time interval and that the erection of covers or guardrails would have an effect of minizing this hazard. These factors trigger the mandates of the standard.
Id.
Similarly, Respondent's "constant use" argument in the case now before us also is not convicing. The presence of the continuous cover can only be interrupted for the period of time necessary to replace one unit or set of units with another unit or set of units. Cf. Marinas of the Future, 77 OSAHRC 201/B1, 6 BNA OSHC 1120, 1977-78 CCH OSHD P22,406 (No. 13507, 1977) (housekeeping standard not violated where work materials on floor were not in excess of those required to accomplish job). The record in this case does not establish continuous use of the pits within the meaning of Consolidated Freightways, nor does it establish that when occupied the length and width of the pits were completely covered.
Although Respondent raises the specter of employees [*17] continually erecting and tearing down guardrails if the citation is affirmed, we find this reasoning unpersuasive. The standard's requirement that "[c]overs and/or guardrails" be provided generally allows each employer sufficient flexibility to devise a means of protection that is suitable for its particular working conditions. In the unusual case where a cover or guardrail may be inappropriate, an employer can seek a variance from the Secretary under section 6(d) of the Act, 29 U.S.C. § 655(d), or, if cited, assert the recognized defenses of impossibility of compliance and/or impossibility of performance before the Commission. In the case now before us, there is no evidence that Respondent sought a variance and it has not asserted an impossibility defense.
Applying the holdings of Consolidated Freightways to the facts of this case, we agree with the Secretary that Consolidated Freightways compels affirmance of the citation at issue. The only specific testimony as to the time intervals during which one locomotive or set of locomotives is replaced by another or others is the testimony of employee Frost. That testimony is to the effect that the pits remain open for as [*18] long as two hours. In our view, this specific testimony is not rebutted by the more general testimony that the pits are occupied approximately 95% of the time. Moreover, it is uncontroverted with respect to both pits that there are occasions when half of the pit is uncovered because only one locomotive is on the pit. Indeed, with respect to pit no. 7, the record established that this situation is a frequent and regular occurrence. Accordingly, we conclude that the pits at issue in this case are clearly distinguishable from pit no. 4 in Consolidated Freightways. We reject Respondent's exception to Judge McQuade's decision and affirm the judge's conclusion that Respondent failed to comply with section 1910.22(c).
IV
Accordingly, we affirm the judge's denial of Respondent's motion to suppress, his rejection of Respondent's section 4(b)(1) defense, and his conclusion that Respondent failed to comply with 29 C.F.R. § 1910.22(c). We also affirm the judge's penalty assessments, which we deem appropriate in light of the criteria set forth in section 17(j) of the Act, 29 U.S.C. § 666(i).
SO ORDERED.