UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

October 12, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BY THE COMMISSION:

A decision of Review Commission Judge Paul L. Brady, dated November 5, 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., OSHRC 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.

Accordingly, the entire citation is affirmed and a penalty of $105.00 is assessed therefor.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: OCT 12, 1976

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

November 25, 1975

DECISION AND ORDER

BRADY, JUDGE:

This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (hereinafter referred to as the Act) to contest a citation issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citation alleges that as a result of an inspection of respondent’s workplace located at Avondale, Louisiana, respondent violated section 5(a) of the Act by failing to comply with 12 occupational safety and health standards promulgated by the Secretary pursuant to section 6 thereof. Notice of proposed penalty was issued with the citation.

Pursuant to Commission rule 33(b)(2), the sole issue presented by the pleadings in this case relates to whether respondent is subject to the jurisdiction of the Act, or is it exempt by reason of section 4(b)(1) thereof. In Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) petitions for review docketed, numbers 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 Company of Chicago, et al, docket number 4616, et al, (October, 1975) 20 OSAHRC ——. These decisions are binding in this case and accordingly it is held that respondent is subject to the jurisdiction of the Commission.

Therefore, it is ORDERED that:

(1) The notice of contest is hereby dismissed.

(2) The citation is hereby affirmed, and the proposed penalty in the sum of $105 is assessed.

Dated this 25th day of November, 1975.

PAUL L. BRADY Judge

Copies mailed certified to:

Ronald M. Gaswirth, Esquire

Regional Solicitor

U.S. Department of Labor

555 Griffin Square Bldg, Rm 707

Griffin & Young Streets

Dallas, Texas 75202

Richard R. Brann, Esquire

Southern Pacific Transportation Company

Baker and Botts, General Attorneys

3000 One Shell Plaza

Houston, Texas 77002