UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 12215 & 12216

NORFOLK AND WESTERN RAILWAY (Consolidated)

COMPANY,

Respondent.

DECISION

Before Barnako, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION: A decision of Review Commission Judge Paul L. Brady,

dated November 25, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661.

That decision is affirmed on the basis of the decisions by a divided Commission in Secretary v.

Seaboard Coast Line Railroad Co., OSAHRC Docket No. 11904, December 1, 1975, and

Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568 (1975). Those decisions are

dispositive of the instant case.

Respondent, in its answer to the complaint, admitted the alleged violations and that due

consideration was given to the statutory criteria in 29 U.S.C. § 666(i) in determining the penalty

proposal. Respondent also stipulated that the exemption question was the only issue in contest.

Accordingly, the entire citation is affirmed and a penalty of $400.00 is assessed therefor.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: OCT 29, 1976

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 12215 & 12216

NORFOLK AND WESTERN RAILWAY (Consolidated)

COMPANY,

Respondent.

DECISION AND ORDER

BRADY, JUDGE: This consolidated proceeding is brought pursuant to section 10 of the

Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter

referred to as the Act), to contest two citations issued by the Secretary of Labor (hereinafter

referred to as the Secretary) pursuant to section 9(a) of the Act. The citations allege that as a

result of certain inspections of respondent’s workplaces located at Chicago, Illinois, respondent

violated section 5(a) of the Act by failing to comply with 31 Occupational Safety and Health

standards promulgated by the Secretary pursuant to section 6 thereof. Notice of proposed

penalties were issued with the citations.

The parties have stipulated that the matters in issue relate to:

(a) Whether the citations were issued with reasonable promptness, pursuant to

section 9(a) of the Act;

(b) Whether the Commission has jurisdiction over the subject matter of the

proceeding under section 4(b)(1) of the Act; and

(c) Whether the standards cited in Items 6 and 18 of the citation in Docket No.

12215, and Item 8 of the citation in Docket No. 12216, are reasonable.

The Commission has ruled that a delay in issuing a citation as in this case, which is

attributed to its review by the Secretary’s National Office, constituted an ‘exceptional

circumstance’ which would justify such delay. Secretary v. Louisville and Nashville Railroad

Company, Docket No. 5521 (May 1, 1975), —— OSAHRC ——. Recent decisions of the

Commission have also held that in the absence of respondent showing prejudice, a delay in the

issuance of a citation will be upheld. Secretary v. Southern Railroad Company, Docket No. 5960

(October 28, 1975), 20 OSAHRC ——; Secretary v. Coughlan Construction Company, Inc.,

Docket No. 5303 (October 28, 1975), 20 OSAHRC ——; and Secretary v. Dic-Underhill, A

Joint Venture, Docket No. 3725 (October 16, 1975), 20 OSAHRC ——.

In this proceeding the respondent failed to show that it had been prejudiced by the delay

in the issuance of the citations and, therefore, it must be held that they were issued in compliance

with section 9(a) of the Act.

The question of jurisdiction as presented in this case has also been resolved by the

Commission. In Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258

(1974), petitions for review docketed, 74–3981 and 75–1091 (5th Cir.), the Commission ruled

that railroads are not entitled to an industry-wide exemption under section 4(b)(1) of the Act, as

contended. This ruling was recently upheld and extended in Secretary v. Belt Railway Co. of

Chicago, et. al., Docket No 4616 (October 17, 1975), 20 OSAHRC —. The foregoing decisions

are binding in this case; and, accordingly, it is held that respondent is subject to the jurisdiction

of the Commission.

In view of the Commission’s jurisdiction, and without any evidence to the contrary, it is

held that the standards cited are reasonable and have application to the facts in this case.

All other matters pertaining to this proceeding having been stipulated, it is therefore

ORDERED that:

(1) The citations and notice of proposed penalties are affirmed.

(2) The proposed penalty in the amount of $400 is hereby assessed.

Dated this 25th day of November, 1975.

PAUL L. BRADY