CONSOLIDATED RAIL CORPORATION
OSHRC Docket No. 80-3495
Occupational Safety and Health Review Commission
May 27, 1982
[*1]
Before ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
COUNSEL:
Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Lorraine Staples, Associate Labor Counsel, Consolidated Rail Corporation, for the employer
Joseph A. Stigner, General Chairman, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, for the employees
OPINION:
DECISION
BY THE COMMISSION:
This case involves two items of citations received by Consolidated Rail Corporation ("Conrail") following an Occupational Safety and Health Administration ("OSHA") inspection of Conrail's diesel shop in Buffalo, New York. One item alleged that Conrail violated 29 C.F.R. § 1910.22(c) n1 by failing to cover or guard two locomotive repair pits. The pits were within tracks on the floor of the engine house. This alleged violation was characterized as serious. The other item alleged that Conrail violated 29 C.F.R. § 1904.2(a) n2 by failing to maintain a record of occupational injuries and illnesses at the shop.
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n1 The standard provides in pertinent part as follows:
§ 1910.22 General Requirements.
* * *
(c) Covers and guardrails. Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.
n2 This standard provides:
§ 1904.2 Log and summary of occupational injuries and illnesses.
(a) Each employer shall, except as provided in paragraph (b) of this section, (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred. For this purpose form OSHA No. 200 or an equivalent which is as readable and comprehensible to a person not familiar with it shall be used. The log and summary shall be completed in the detail provided in the form and instructiions on form OSHA No. 200.
[*2]
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The case was tried before Administrative Law Judge Foster Furcolo. Conrail argued that the working conditions cited in this case are exempt from the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 651-678 ("the Act"), under section 4(b)(1) of the Act, 29 U.S.C. § 653(b)(1). n3 Judge Furcolo rejected Conrail's arguments and affirmed the two items.
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n3 Section 4(b)(1) states, 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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Conrail petitioned for review of the judge's decision, continuing to argue preemption under section 4(b)(1). Conrail also argued that the repair pits item was not a serious violation. Former Commissioner Barnako directed review of the judge's decision but limited the issues to whether OSHA recordkeeping [*3] requirements were preempted under section 4(b)(1) and whether the repair pits violation was serious. At the time review of this case was directed, the question of preemption of OSHA pit guarding requirements was controlled by the Commission's decision in Consolidated Rail Corp., 81 OSAHRC 8/A2, 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (Nos. 78-3100 et al, 1981), appeal filed, No. 81-1210 (1st Cir. Apr. 2, 1981), transferred, No. 81-4192 (2nd Cir. Oct. 2, 1981) (OSHRC No. 78-3100) and No. 81-2639 (3d Cir. Oct. 2, 1981) (OSHRC No. 78-4881) ("Conrail I"). It was this decision upon which Judge Furcolo based his opinion rejecting Conrail's section 4(b)(1) arguments.
However, in the time since Judge Furcolo issued his decision and order, the Commission has reconsidered Conrail I. In Consolidated Rail Corp., No. 79-1277 (Apr. 30, 1982) ("Conrail II"), a divided Commission decided that a policy statement by the Federal Railroad Administration ("FRA"), published at 43 Fed. Reg. 10,583-90 (March 14, 1978), was a sufficient exercise of statutory authority over the hazard of open pits associated with moving railroad equipment in railroad repair facilities [*4] to preempt OSHA standards requiring guarding for these repair pits. The pits involved in this case come within this category. n4 Accordingly, applying Conrail II in this case, the repair pits item is preempted by the policy statement. n5 We therefore reverse this portion of the judge's decision and vacate the item.
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n4 Although we ordinarily will not decide issues which were not directed for review, see 29 C.F.R. § 2200.92(d), evenhanded administration of the Act requires that the scope of review be broadened in light of Commission precedent. See John T. Brady & Co., 82 OSAHRC 9/D10, 10 BNA OSHC 1385, 1982 CCH OSHD P25,941 (No. 76-2894, 1982).
n5 Commissioner Cottine would follow the precedent extablished in Conrail I that the FRA policy statement is not a standard or regulation within the meaning of § 4(b)(1) of the Act and therefore cannot operate to preempt the applicability of OSHA standards to railroad operations. See also Conrail II (Cottine, Commissioner, dissenting). Accordingly, he would affirm the § 1910.22(c) item for the reasons stated by the judge.
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We turn now to the recordkeeping item. In Southern Pacific Transportation Co., 74 OSAHRC 82/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), a Commission majority held that the Department of Transportation's ("DOT") promulgation of regulations requiring the reporting of accidents was a sufficient exercise of statutory authority to exempt the railroad industry from compliance with OSHA regulations covering the same subject matter. Commissioner Cleary dissented. He reasoned that "exact recordkeeping of occupational injuries and illnesses was one of the major aims of the Act" and that "[a]though requiring the railroads to maintain OSHA records in addition to [DOT] records would involve some duplication, this is a small price to pay for assuring that accurate records of all workplace injuries and illnesses are maintained." 4 BNA OSHC at 1318, 1974-75 CCH OSHD at p. 22,789.
Although the FRA has the statutory authority to regulate the safety of railroad industry employees, see 45 U.S.C. § § 421, 431, [*6] the entire railroad industry is not exempt from OSHA enforcement. See Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999 (1976). Moreover, the FRA policy statement acknowledges that OSHA standards apply to certain working conditions in the railroad industry. See Conrail II, supra. Accordingly, OSHA continues to have an interest in information about occupational illnesses and injuries occurring in the railroad industry. OSHA's recordkeeping requirements are vital to increasing knowledge about occupational illnesses and injuries. See General Motors Corp., Inland Division, 80 OSAHRC 89/D2, 8 BNA OSHC 2036, 1980 CCH OSHD P24,807 (No. 76-5033, 1980). They allow OSHA to determine the need for future standards and pinpoint those workplace activities that warrant either increased or diminished enforcement efforts. See Puget Sound Tug & Barge, 81 OSAHRC 50/A2, 9 BNA OSHC 1764, 1778, 1981 CCH OSHD P25,373 at pp. 31,597-98 (No. 76-4905, 1981) (separate views of Conmissioner Cottine). n6 For [*7] these reasons, we believe that the railroad industry must comply with the OSHA recordkeeping requirements. Accordingly, we overrule the Commission's decision in Southern Pacific Transportation Co., supra, to the extent that it relieves the railroad industry of OSHA recordkeeping requirements. n7
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n6 In Puget Sound, Commissioner Cleary concluded that the employer was not required to comply with OSHA recordkeeping requirements. However, he did so because in his view the working conditions of the seamen involved in Puget Sound were entirely exempt from OSHA enforcement and "it would be unnecessarily duplicative to require respondent to keep records for an area over which there exists a section 4(b)(1) exemption." 9 BNA OSHC at 1783, 1981 CCH OSHD at p. 31,602. As we have stated, the railroad industry is not entirely exempt from the Act.
Chairman Rowland did not participate in Puget Sound and does not adopt its holding.
n7 Chairman Rowland would not overrule Southern Pacific Transportation Co. on this issue. He agrees with the reasoning of the Commission majority in that case that OSHA lacks authority to enforce its recordkeeping requirements because the DOT (FRA) recordkeeping requirements at 49 C.F.R. Part 225 preempt OSHA recordkeeping standards under § 4(b)(1) of the Act. Chairman Rowland also notes that in its policy statement, the FRA said "the railroad industry is subject to the FRA accident/ incident reporting requirements and is, therefore, not subject to equivalent OSHA rules." 43 Fed. Reg. at 10,585, citing the Commission's decision in Southern Pacific Transportation Co. See Conrail II, supra. Therefore Chairman Rowland concludes that Contail was not required to comply with the OSHA recordkeeping requirements. Thus he joins with Commissioners Cleary and Cottine who vacate the item in this case, as they discuss infra. In light of his decision to vacate the recordkeeping item, Chairman Rowland does not address Conrail's argument that it was not "required to prove to the [OSHA] compliance officer that it was reporting to the FRA."
[*8]
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This does not mean that railroad industry employers must use the OSHA form, No. 200, mentioned in section 1904.2(a). Section 1904.2(a) allows an employer to maintain "an equivalent which is as readable and comprehensible to a person not familiar with it [as the OSHA 200 form]." See B. C. Crocker Cedar Products, 76 OSAHRC 132/B6, 4 BNA OSHC 1775, 1976-77 CCH OSHD P21,179 (No. 4387, 1976); Puterbaugh Enterprises, Inc., 74 OSAHRC 44/B11, 2 BNA OSHC 1030, 1973-74 CCH OSHD P18,158 (No. 1097, 1974). However, it is incumbent on the employer to insure that its forms contain information equivalent to OSHA form No. 200. In addition, the employer must afford the Secretary's representatives access to these records. See 29 C.F.R. § 1904.7.
Although we hold that railroad industry employers must comply with OSHA recordkeeping requirements, it would be unfair for us to hold Conrail in violation of the cited standard. Until Now, Southern Pacific was the Commission precedent and under it railroad employers were not required to comply with OSHA recordkeeping requirements. We therefore vacate [*9] the recordkeeping item in this case. By this decision, Conrail and other railroad industry employees are now on notice that suitable records must be maintained and made available upon request to OSHA representatives. n8
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n8 Commissioner Cottine prospectively applies the new rule of law in this case because Conrail reasonably relied on published Commission precedent in determining its course of conduct. See also Auto Sun Products Co., 81 OSAHRC 71/E14, 9 BNA OSHC 2008, 2012 n. 9, 1981 CCH OSHD P 25,808 at p. 32,260 n. 9 (No. 77-2616, 1981), appeal dismissed, No. 81-3503 (6th Cir. Aug. 28, 1981) (Federal Register publication of a standard with a typographical error); Pennsuco Cement and Aggregates, Inc., 8 BNA OSHC 1378, 1980 CCH OSHD P24,478 (No. 15462, 1980) (Cottine, Commissioner, concurring) (Federal Register publication of a memorandum of understanding regarding OSHA-MESA enforcement authority).
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