UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 10732

SEABOARD COASTLINE RAILROAD CO.,

 

                                              Respondent.

 

 

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

The decision of Judge Joseph L. Chalk filed on December 23, 1974, has been directed for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter referred to as ‘the Act’]. Judge Chalk found that Seaboard Coast Line Railroad Co. [hereinafter referred to as ‘SCL’] had only raised the issue of whether the railroad was exempt from the Act’s requirements under section 4(b)(1).[1] In denying a motion to dismiss filed by SCL he held that, with the exception of recordkeeping requirements, the Act applies to railroads. He affirmed without a hearing two items of a citation for other than ‘serious’ violations, and assessed a $95 penalty.

            The issues before us are whether SCL is subject to the Act’s requirements, and if so whether a hearing on the merits of the alleged violations should have been held.

            A citation was issued to SCL on October 24, 1974, stating that SCL’s premises had been inspected on October 18, 1974. Item 1 of the citation alleged a failure to comply with 29 CFR § 1910.22(a)(1) for poor housekeeping; Item 2 alleged non-compliance with 29 CFR § 1903.2(a) for failure to post an Occupational Safety and Health Administration [OSHA] poster; and Items 3, 4, and 5 alleged non-compliance with the standards at 29 CFR §§ 1904.2(a), .4, and .6, for failure to comply with recordkeeping requirements. On October 31, 1974, SCL filed a notice contesting the citation, stating in part that under section 4(b)(1) of the Act ‘the Commission has no jurisdiction over the subject matter of this case’ and that the citation was ‘illegally, improvidently and untimely rendered.’

            Thereafter, the Secretary filed his Complaint, and SCL filed an Answer thereto along with a Motion to Dismiss. The Secretary responded to the Motion to Dismiss, and simultaneously filed a ‘Cross-Motion for Summary Judgment.’

            Judge Chalk concluded that the sole issue concerned SCL’s section 4(b)(1) claim, and stated that SCL’s ‘failure to deny the violations themselves is deemed an admission that they occurred (29 CFR 2200.33(b)(2)).’ In concluding that the Act applies to railroads, but that respondent is exempt from the Act’s recordkeeping requirements, he cited Union Pacific Railroad Co., No. 1697 (November 29, 1974), petition for review docketed, No. 75–1065, 8th Cir., January 27, 1975; Union Railroad Co., No. 4318 (November 22, 1974), petition for review dismissed, No. 75–1013, 3d Cir., May 16, 1975; and Southern Pacific Transportation Co., No. 1348 (November 15, 1974), petition for review docketed, No. 74–3981, 5th Cir. November 29, 1974. He granted SCL’s Motion to Dismiss Items 3, 4, and 5, the recordkeeping items; and affirmed Items 1 and 2 and the proposed penalties therefor of $45 and $50, respectively. He denied SCL’s motion for a stay, and by affirming Items 1 and 2 without a hearing he in effect granted the Secretary’s motion for summary judgment as to these items, although no express ruling was made in the decision.

After review before the full Commission was ordered, SCL moved to vacate the Judge’s decision. SCL continued to argue that the entire railroad industry is exempt from the Act’s requirements by virtue of section 4(b)(1). Incorporating its brief filed before Judge Chalk, it argues that the Act does not apply because of section 202(a) of the Federal Railroad Safety Act of 1970, 45 U.S.C. section 431 et seq., which states in part

(a) The Secretary of Transportation . . . shall (1) prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety....

 

            This section merely gives the Secretary of Transportation authority to prescribe safety rules. It does not create an industry exemption for railroads. See Southern Pacific, supra.[2]

 SCL additionally argues that section 405(d) of the Rail Passenger Service Act of 1970, 45 U.S.C. section 501 et seq., and the legislative history of the Occupational Safety and Health Act of 1970, among other things, warrant an industry-wide exemption. These arguments were rejected in Southern Pacific. SCL has added nothing that compels a different result. [3] With the exception of recordkeeping requirements, SCL is not exempt from the Act’s provisions. The Judge’s decision is affirmed, and SCL’s Motion to Vacate is denied.

            There remains the question of whether the Judge erred in denying SCL a hearing on the merits for Items 1 and 2 of the citation. As noted above, SCL’s notice of contest states that the citation was ‘illegally, improvidently and untimely rendered.’

            SCL maintains that the notice of contest thereby raised issues requiring a hearing for their determination.[4]On review the Secretary argues that the Judge properly considered the contest to be limited to the issue of the scope of section 4(b)(1) of the Act.

            The issue is not free from doubt, and the Commission has a consistent policy of construing notices of contest in this most favorable light. Eastern Knitting Mills, Inc., No. 2019 (April 23, 1974). Accordingly, this case is hereby remanded for hearing on the contentions of respondent that the citation was ‘illegally, improvidently and untimely rendered.’

 So ORDERED.

 FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: Nov. 26, 1975

 

MORAN, Commissioner, Dissenting:

            For the reasons expressed in my opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC —— (Docket No. 4616, October 17, 1975), I would vacate the entire citation because the railroad industry, of which the respondent is a part, is not subject to the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. § 653(b)(1).

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 10732

SEABOARD COASTLINE RAILROAD CO.,

 

                                              Respondent.

 

 

Chalk, Judge

On November 27, 1974, Respondent railroad filed an Answer to the Complaint, a motion to dismiss, with brief, and a motion for stay of proceedings. The thrust of all these submissions is that the safety and health of all railroad employees is the sole concern of the Secretary of Transportation and that Respondent, accordingly, is not subject to the Occupational Safety and Health Act of 1970 (29 USC 651 et seq.) by virtue of 29 USC 653(b)(1). As this is the sole issue raised by Respondent throughout these proceedings, its failure to deny the violations themselves is deemed an admission that they occurred (29 CFR 2200.33(b)(2)).

            The Commission has addressed itself to the same argument advanced by railroads in other cases and has resolved the issue adversely to Respondent with one exception (Secretary v. Southern Pacific Transportation Co., —— OSAHRC ——, Docket No. 1348, November 15, 1974; Secretary v. Union Railroad Co., —— OSAHRC ——, Docket No. 4318, November 22, 1974; Secretary v. Union Pacific Railroad Co., —— OSAHRC ——, Docket No. 1697, November 26, 1974). That exception is that the argument for exemption of railroads from the safety and health recordkeeping requirements of the Act is a valid one (Secretary v. Southern Pacific Transportation Co., supra). Accordingly, except for the recordkeeping charges in this case, the Citation must be affirmed.

            Respondent’s motion for stay of proceedings is denied, whereas its motion to dismiss is granted as to item numbers 3, 4, and 5 of Citation number 1 (nonserious violations) but denied as to item numbers 1 and 2 thereof. Item numbers 3, 4, and 5 of said Citation are vacated, whereas item numbers 1 and 2 are affirmed. Penalties in the amount of $45.00 and $50.00 respectively are assessed for item numbers 1 and 2.

 So ORDERED.

 

JOSEPH L. CHALK

Judge OSAHRC

Dated: DEC 23, 1974

 

Hyattsville, Maryland


[1] Section 4(b)(1) states in part:

Sec. 4 Applicability of this Act

(b)(1) 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.

[2]The purpose of the Federal Railroad Safety Act of 1970, as stated in section 101, 45 U.S.C. section 421, is to:

Promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous materials.

Whether this statutory purpose encompasses occupational safety and health is not an issue before us. See generally Gearhart-Owen Industries, Inc., No. 4263 (February 21, 1975), petition for review docketed, No. 75–1392, D.C. Cir., April 21, 1975.

[3] Section 4(b)(1) is in the nature of an exemption that must be proved as an affirmative defense. See Idaho Travertine Corp., No. 1134 (September 30, 1975) and cases cited therein.

[4] SCL has also sought a hearing on its section 4(b)(1) claim. That opportunity to be heard has been afforded.