“\ufeff\t\tBelt Railway Co. of Chicago,Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Newburgh & South Shore Railway Company,Norfolk and Western Railway Company, Southern Pacific Transportation Company, Baltimore & Ohio Railway Company (The Chessie System), Penn Central Transportation Company, Burlington Northern, Inc., Illinois Central Gulf Railroad Company, Chicago Union Station Company, Richmond, Fredericksburg & Potomac Railroad Company, OSHRC DOCKET NOS. 4616, 5860, 7978, 11251, 9078, 9642, 10758, 10771, 10332, 10686, 10832, 10886, 11013, 11177, 11325, 11338, 10917 10836 and 10857, 10\/17\/75\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Calibri; font-size:11pt; text-align:center; color:WindowText; } p { font-family:Calibri; font-size:11pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } table.style_TableGrid { } p.style_FootnoteText { line-height:1; font-size:10pt; } .style_FootnoteText span { } span.style_FootnoteTextChar { font-size:10pt; } .style_FootnoteTextChar span { } span.style_FootnoteReference { position:relative;font-size:0.58em; bottom: 1ex;} .style_FootnoteReference span { position:relative;font-size:0.58em; bottom: 1ex;} p.style_Header { line-height:1; } span.style_HeaderChar { } p.style_Footer { line-height:1; } span.style_FooterChar { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:96px;margin-top:96px;margin-bottom:96px;margin-right:96px;} div.basic { width:16.51cm;height:22.86cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NOS.\t\t\t\t\t\t\t\t\t4616,\t\t\t\t\t\t\t\t\t5860, 7978, 11251, 9078,\t\t\t\t\t\t\t\t\t9642, 10758, 10771, 10332,\t\t\t\t\t\t\t\t\t10686, 10832,\t\t\t\t\t\t\t\t10886, 11013, 11177,\t\t\t\t\t\t\t\t\t11325,\t\t\t\t\t\t\t\t\t11338, 10917\t\t\t\t\t\t\t\t\t10836\t\t\t\t\t\t\t\t\tand\t\t\t\t\t\t\t\t\t10857\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBelt Railway Co. of Chicago,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tChicago, Milwaukee, St. Paul & Pacific Railroad Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNewburgh & South Shore Railway Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNorfolk and Western Railway Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSouthern Pacific Transportation Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBaltimore & Ohio Railway Company (The\t\t\t\t\t\t\t\t\tChessie\t\t\t\t\t\t\t\t\tSystem),\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPenn Central Transportation Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBurlington Northern, Inc.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIllinois Central Gulf Railroad Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tChicago Union Station Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRichmond, Fredericksburg & Potomac Railroad Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondents.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tOctober 17, 1975\t\t\t\t\t\t\t\t\t\tBefore BARNAKO, Chairman; MORAN and CLEARY, Commissioners\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tBY THE COMMISSION:\t\t\t\t\t\t\t\t\t\tThese matters present the precise questions of law1\t\t\t\t\t\twhich were decided in Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), petitions for review docketed, Nos. 74-3981 and 75-1091 (5th Cir., Nov. 29, 1974 and Jan. 10, 1975). Following inspections of their respective worksites, each Respondent was cited for allegedly violating the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter \u2018the Act\u2019). The existence of the violations is not in dispute.2\t\t\t\t\t\tRather, Respondents defended primarily on the theory that section 4(b)(1) of the Act creates an industry-wide exemption for railroads by virtue of the fact that the Secretary of Transportation has promulgated some safety regulations affecting the industry.3\t\t\t\t\t\tOther than the alleged recordkeeping violations,4\t\t\t\t\t\tthere was no showing that the working conditions involved\t\t\t\t\t\therein are the subject of Department of Transportation regulations.5\t\t\t\t\t\t\t\t\t\tThe Administrative Law Judges in conformity with our prior decisions uniformly rejected the argument of an industry-wide exemption for railroads. Except for one instance,6\t\t\t\t\t\tour decision in\t\t\t\t\t\tSouthern Pacific\t\t\t\t\t\twas properly applied by vacating the alleged recordkeeping violations and affirming the other violations.7\t\t\t\t\t\tAccordingly, the Judge\u2019s decisions are affirmed in\t\t\t\t\t\tBelt Railway Company of Chicago, Number 4616;8\t\t\t\t\t\tChicago, Milwaukee, St. Paul & Pacific Railroad Company, Numbers 7978 and 11251; Newburgh & South Shore Railway Company, Number 9078;\t\t\t\t\t\tNorfolk & Western Railway Company, Numbers 9642, 10758 and 10771;\t\t\t\t\t\tSouthern Pacific Transportation Company, Number 10332;\t\t\t\t\t\tBaltimore & Ohio Railway Company, Numbers 10686 and 10832; Penn\t\t\t\t\t\tCentral Transportation Company, Numbers 10886, 11013 and 11177;\t\t\t\t\t\tBurlington Northern, Inc., Number 11325;\t\t\t\t\t\tIllinois Central Gulf Railroad Company, Number 11338;\t\t\t\t\t\tChicago Union Station\t\t\t\t\t\tCompany, Docket 10917; and\t\t\t\t\t\tRichmond, Fredericksburg & Potomac Railroad Company, Dockets 10836 & 10857. In Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Docket Number 5860, we vacate item 34, alleging a recordkeeping violation for the reasons given in\t\t\t\t\t\tSouthern Pacific, and we otherwise affirm the Judge\u2019s decision and assess a penalty of $635.9\t\t\t\t\t\t\t\t\t\tFor the reasons given in his separate opinion in\t\t\t\t\t\tSouthern Pacific, Commissioner Cleary would affirm the alleged recordkeeping violations in Docket Numbers 5860, 10832 and 11338.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMORAN, COMMISSIONER, concurring in part, dissenting in part:\t\t\t\t\t\t\t\t\t\tAll citations in these cases should be vacated because the respondents are not subject to the jurisdiction of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. \u00a7\u00a7 651 et seq., by virtue of 29 U.S.C. \u00a7 653(b)(1) which provides in pertinent part:\t\t\t\t\t\t\t\t\t\tNothing 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.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis provision reflects the intent of Congress not to place regulation of job safety and health conditions of all employees under OSHA and not to repeal or modify a number of other laws enacted over a span of many years which included provision for regulatory authority in order to improve safety conditions.\t\t\t\t\t\t\t\t\t\tIt is clear that the\t\t\t\t\t\tDepartment of Transportation has authority to regulate all areas of employee safety for the railroad industry. See\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, 13 OSAHRC 258, 259 (1974). Furthermore, the Department of Transportation has prescribed numerous regulations governing many aspects of railroad safety (see 29 C.F.R. \u00a7\u00a7 211-236), although those regulations do not extend to all working conditions that prevail in the railroad industry.\t\t\t\t\t\t\t\t\t\tCongress intended to give primacy to existing laws and to subordinate OSHA\u2019s coverage to those existing laws. This conclusion is dictated by the clear language of 29 U.S.C. \u00a7 653(b)(1) and (4), the legislative history of OSHA, and sound practical reasons. Accordingly, I find that an\t\t\t\t\t\texemption is created for an entire industry under 29 C.F.R. \u00a7 653(b)(1) when another Federal agency, pursuant to statutory authority, prescribes or enforces any standard or regulation which affects occupational safety or health in that industry.\t\t\t\t\t\t\t\t\t\tThe expansive wording of section 653(b)(1) indicates that Congress intended no contraction of the coverage of the existing laws. If another Federal agency exercises authority to \u2018prescribe or enforce,\u2019 Congress said, then this Act does not apply. The prescribing or enforcing authority is for either \u2018standards or regulations\u2019 which may be \u2018affecting\u2019 job \u2018safety or health.\u2019\t\t\t\t\t\t\t\t\t\tIf Congress had intended the result imposed by the Commission, it most certainly would have drafted section 653(b)(1) in a different manner. If that had been its intent, it would have\t\t\t\t\t\tprovided that\t\t\t\t\t\tOSHA would apply to all employees except where another Federal agency exercises its statutory authority to prescribe or enforce occupational safety or health regulations.\t\t\t\t\t\t\t\t\t\tThe legislative history of OSHA reflects congressional consideration of the question here in issue on several occasions during the enactment stages of the law. Study of that history clearly shows that Congress intended for section 653(b)(1) to provide industrywide exemptions.\t\t\t\t\t\t\t\t\t\tHouse Report No. 91-1460 contains the following remarks of Congressman\t\t\t\t\t\tSteiger\t\t\t\t\t\tin regard to\t\t\t\t\t\tOSHA\u2019s effect on other laws:\t\t\t\t\t\t\t\t\t\tWhile this section does not foreclose the authority of the Secretary of Labor in instances where another agency or department has statutory authority in the area of occupational safety and health, but has taken no action, it is anticipated that these instances will be extremely rare. It is intended that the Secretary of Labor will not exercise his authority where another agency with appropriate jurisdiction has taken steps to exercise its authority, even though the action might be at the formative stage of regulations or enforcement.10\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe assertion that \u2018it is anticipated that these instances will be extremely rare\u2019 would make little sense under the Commission\u2019s nook-and-cranny theory. Following that theory to its logical conclusion, if the Secretary of Transportation did not consider it necessary to regulate a\t\t\t\t\t\tparticular condition\t\t\t\t\t\tin the interest of railroad safety and the Secretary of Labor was of a contrary view, the latter\u2019s judgment would prevail over the former\u2019s. Surely, if Congress had intended such an unusual result, it would have been explicit in so stating. Moreover, the last sentence of the quotation belies the contention that OSHA jurisdiction is precluded only when another agency has\t\t\t\t\t\tpromulgated a duplicative regulation.\t\t\t\t\t\t\t\t\t\tDuring the debates which preceded the passage of OSHA, the following colloquy11\t\t\t\t\t\toccurred in the House:\t\t\t\t\t\t\t\t\t\t[MR. ERLENBORN.] I call to mind the coal mine safety bill which is not repealed by this bill. Yet, the rules and regulations under this act, as provided in the committee bill, could and should and would get into the area of coal mine health and safety and the metallic and nonmetallic mine safety act and the health and safety act\u2014all three of these would continue to exist and there would be no reason why the health and safety rules promulgated under this act would not also apply to those industries?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. PERKINS. I would say to my distinguished colleague that he is incorrect in that statement because\t\t\t\t\t\tall these various legislative acts as railway safety and mine safety are specifically exempted under section 22(b).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. ERLENBORN. I stand corrected . . .. Is it your understanding that present Federal laws providing authority to the executive agency to prescribe health and safety standards that are being exercised will then exempt that industry from the coverage of this act?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. DANIELS of New Jersey. All Federal agencies which are covered by the health and safety laws will be exempt from this act\u2014with just one exception. That is the construction\t\t\t\t\t\tindustry .\t\t\t\t\t\t..\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. ERLENBORN. In other words, the mere existence of statutory authority does not exempt an\t\t\t\t\t\tindustry?\t\t\t\t\t\tIt is the exercise of that authority pursuant to the statute that does exempt it; is that correct?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. DANIELS of New Jersey. That is correct.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. ERLENBORN. I have one other question . . .. If presently existing statutory authority which is not presently being exercised at the time this bill goes into effect, but is then subsequently exercised; does that then at the time it is exercised exempt an industry?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. DANIELS of New Jersey. At the time that that authority is exercised, that industry will be exempt.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. ERLENBORN.\t\t\t\t\t\tSo\t\t\t\t\t\tthis does have a prospective effect. In other words, we are not going to interpret this language only as thought [sic] it were being interpreted as to conditions that exist on the day it becomes law, but it will have a prospective effect and the future exercise of authority will then exempt an industry from coverage under this law?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. DANIELS of New Jersey. The gentleman is\t\t\t\t\t\tabsolutely correct.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNot only do these members of Congress refer again and again to an \u2018industry\u2019 exemption, Congressman Perkins, Chairman of the Committee which reported the occupational safety and health bill to the House floor, answers unequivocally that the \u2018rules and regulations under this act\u2019 will not affect existing legislation. In the same answer he declares that the various other safety acts are specifically exempted by Section 22(b) of H.R. 16785. Section 22(b),12\t\t\t\t\t\tchanged only slightly in wording, not meaning, became section 653(b)(1).\t\t\t\t\t\t\t\t\t\tThe following legislative colloquy is even more specific in indicating that an industrywide exemption was intended:\t\t\t\t\t\t\t\t\t\tMR. PODELL. [A]s my distinguished colleague knows, the U.S. Bureau of Mines of the Department of the Interior now has jurisdiction over the health and safety conditions of many mining industries pursuant to the Federal Metal and Non-Metallic Mine Safety Act of 1966. Does section 22(b) provide for a transfer of this jurisdiction to the Secretary of Labor?\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tMR. DANIELS of New Jersey. [T]he answer is \u2018No.\u2019 Section 22(b) would only allow the Secretary of Labor to assert jurisdiction over health and safety conditions within the mining industries now subject to the Federal Metal and Non-Metallic Mine Safety Act when the Secretary of Interior has failed to exercise his statutory authority to set health and safety standards or otherwise declines to assert any jurisdiction over the mining industries under that act. In other words, only when the Secretary of Interior\t\t\t\t\t\tcompletely abrogates\t\t\t\t\t\this responsibilities under the Federal Metal and Non-Metallic Mine Safety Act would the Secretary of Labor be allowed to invoke section 22(b) and set standards for the mining industries now subject to the Mine Safety Act.13\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOf course, the same would be true where other Federal agencies have jurisdiction to regulate occupational safety or health in other industries.\t\t\t\t\t\t\t\t\t\tThe recent remarks of Senator Williams, one of the coauthors of OSHA, in introducing S. 1743 on May 14, 1975, makes it clear that the present OSHA jurisdiction does not extend to the railroad industry. In introducing that bill, which would transfer jurisdiction over railroad safety and health from the Department of Transportation to the Department of Labor, Senator Williams stated that:\t\t\t\t\t\t\t\t\t\t[T]wo important occupations, mining and railroad work, remain outside the\t\t\t\t\t\tprotection of the Occupational Safety and Health Act and the Department of Labor. Time has proven that in both instances the better course would have been to accord these employees the same protection as nearly all others now receive.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t121 Cong. Rec. S8093 (1975)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe \u2018working conditions\u2019 concept, as adopted by the Commission, is too elusive. The term \u2018working\t\t\t\t\t\tconditions\u2019\t\t\t\t\t\tcould include anything that might be classified as hazardous to employees. It is difficult to think of anything that could not be so classified at one time or the other, whether it be an employee\u2019s hours of work, state of mind, age, or traits of personality.\t\t\t\t\t\t\t\t\t\tEmployers in the railroad industry must be familiar with all Department of Transportation railway safety regulations. The Commission\u2019s position will place an intolerable burden on those employers who will also be responsible for determining whether gaps in the railway safety regulations are covered by the massive OSHA regulations. It has recently been reported that when the initial OSHA regulations were \u2018stacked one on top of another, they created a pile 6 feet high.\u201914\t\t\t\t\t\tThe stack is even higher today. Those regulations cover every conceivable aspect of human endeavor, including the configuration of toilet seats,15\t\t\t\t\t\tthe disposal of used hand towels,16\t\t\t\t\t\tthe placement of fire extinguishers,17\t\t\t\t\t\tthe amount of noise18\t\t\t\t\t\tand toxic chemicals19\t\t\t\t\t\tto which an employee may be exposed, and the color of fire exit signs.20\t\t\t\t\t\tTo read all the regulations would take days. To understand their full meaning and applicability is probably an impossible task.\t\t\t\t\t\t\t\t\t\tFurthermore, an additional dilemma is created for employers when OSHA regulations conflict with those promulgated by another agency. A congressional subcommittee has commented on that situation in the following manner:\t\t\t\t\t\t\t\t\t\tThe problem of competing jurisdictions and conflicting regulations was also raised by\t\t\t\t\t\tmany of the witnesses. For example, the Bureau of Mines may have jurisdiction over certain excavations, and in\t\t\t\t\t\tsomes\t\t\t\t\t\t[sic] instances, its regulations directly conflict with those of OSHA which apply to excavations. The Department of the Treasury has jurisdiction over explosives, and its requirements are, in some cases, not the same as OSHA\u2019s. The Department of Agriculture and the Food and Drug Administration have standards applying to\t\t\t\t\t\tpacking-houses\t\t\t\t\t\twhich conflict with OSHA\u2019s general regulations. In these cases, an employer is caught in the middle, in that he may be fined by OSHA for doing what he is required to do by another governmental agency.\t\t\t\t\t\t\t\t\t\tOne witness testified that he solved this problem by having a two-way radio which he would use to notify the foreman of which agency was coming and then instruct him to make the appropriate changes. But this is not a realistic solution for a problem as serious as this.21\t\t\t\t\t\t\t\t\t\tI do not believe that Congress intended a result that could lead to such absurdities.\t\t\t\t\t\t\t\t\t\tIn my opinion, Congress envisioned a comprehensive program for employee safety under which the Department of Labor would have jurisdiction over those industries not under the regulatory authority of some other Federal agency. There is nothing in the legislative history which gives any reason why Congress would take jurisdiction from one agency with ling-standing expertise in a\t\t\t\t\t\tparticular industry\t\t\t\t\t\tand give it to another agency which had none. Again, I believe that any such intention would have been clearly stated.\t\t\t\t\t\t\t\t\t\tTo the contrary, however, 29 U.S.C. \u00a7 653(b)(4) amplifies the meaning of section 653(b)(1) by providing in pertinent part that:\t\t\t\t\t\t\t\t\t\tNothing in this chapter shall be construed . . . to enlarge or diminish. . . the . . . statutory rights,\t\t\t\t\t\tduties, or liabilities\t\t\t\t\t\tof employers . . . under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. (Emphasis added.)\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tThus,\t\t\t\t\t\tit is clear that Congress\t\t\t\t\t\tintended for section 653(b)(1) to exempt an entire industry where the safety or health of its employees is regulated by another Federal agency pursuant to statutory authority.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Complainant,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t v.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOSHRC DOCKET NOS.\t\t\t\t\t\t\t\t\t4616,\t\t\t\t\t\t\t\t\t5860, 7978, 11251, 9078,\t\t\t\t\t\t\t\t\t9642, 10758, 10771, 10332,\t\t\t\t\t\t\t\t\t10686, 10832,\t\t\t\t\t\t\t\t10886, 11013, 11177,\t\t\t\t\t\t\t\t\t11325,\t\t\t\t\t\t\t\t\t11338, 10917\t\t\t\t\t\t\t\t\t10836\t\t\t\t\t\t\t\t\tand\t\t\t\t\t\t\t\t\t10857\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBelt Railway Co. of Chicago,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tChicago, Milwaukee, St. Paul & Pacific Railroad Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNewburgh & South Shore Railway Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNorfolk and Western Railway Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSouthern Pacific Transportation Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBaltimore & Ohio Railway Company (The\t\t\t\t\t\t\t\t\tChessie\t\t\t\t\t\t\t\t\tSystem),\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tPenn Central Transportation Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBurlington Northern, Inc.,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIllinois Central Gulf Railroad Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tChicago Union Station Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRichmond, Fredericksburg & Potomac Railroad Company,\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t Respondents.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tOTTO, JUDGE:\t\t\t\t\t\t\t\t\t\tThe sole issue in the above case22\t\t\t\t\t\tis jurisdictional, whether working conditions of\t\t\t\t\t\trespondent\u2019s employees are subject to the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. This question has been resolved in favor of complainant in Review Commission decisions,\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) and\t\t\t\t\t\tSecretary v. Seaboard Coastline Railroad Company, \u2014\u2014 OSAHRC \u2014\u2014 (Docket No. 2802, November 18, 1974).\t\t\t\t\t\t\t\t\t\tAlthough no stipulation of facts has been filed, the procedural documents and the informal record of the pre-hearing conference establish that there is no dispute between the parties as to material facts. The conditions involved have been abated by the respondent.\t\t\t\t\t\t\t\t\t\tFollowing inspection on July 5, 1973, the Secretary of Labor issued a citation September 10, 1973 charging The Belt Railway Company of Chicago with eight items of non-serious violation, with a notification issued September 10, 1973 proposing a penalty of $55 each for item 3 and item 7. Timely notice of contest, complaint and answer were\t\t\t\t\t\tfiled\t\t\t\t\t\tand the proceedings held in abeyance pending resolution of the jurisdictional question.\t\t\t\t\t\t\t\t\t\tIt is therefore found that the respondent at all times relevant has been and remains an employer engaged in a business affecting commerce with employees within the meaning of 29 USC 652(5), is an employer subject to the provisions of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. and failed to comply with the standard or standards set forth in each citation item.\t\t\t\t\t\t\t\t\t\tIt is Ordered that the citation and the notification of proposed penalty issued September 10, 1973 be and the same are confirmed in all respects.\t\t\t\t\t\t\t\t\t\tOTTO, JUDGE:\t\t\t\t\t\t\t\t\t\tThe above two cases23\t\t\t\t\t\twere consolidated due to common questions of law, with no factual dispute. The legal question has been resolved in favor of complainant in Review Commission decisions,\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974) and Secretary v. Seaboard Coastline Railroad Company, \u2014\u2014 OSAHRC \u2014\u2014 (Docket No. 2802, November 18, 1974).\t\t\t\t\t\t\t\t\t\tComplainant has filed a motion for summary judgment. There is no dispute between the parties as to material facts, the respondent admits the violations charged by the complainant and the respondent\u2019s defense is insufficient as a matter of law. The motion for summary judgment is\t\t\t\t\t\tgranted in each case.\t\t\t\t\t\t\t\t\t\tDocket No. 5860\t\t\t\t\t\t\t\t\t\tA citation was issued November 21, 1973 alleging 34 items of non-serious violation. Notice of contest, complaint and answer were duly filed. A stipulation of facts was filed September 10, 1974, the respondent preserving the sole issue before the Review Commission of whether the respondent is exempt under Section 4(b)(1) of the Occupational Safety and Health Act from the provisions of such Act. Complainant\u2019s motion filed September 12, 1974 to withdraw certain items of the citation and complaint is granted and therefore citation item 14 and complaint paragraph IV(a)(14) is withdrawn, with withdrawal of citation item 9(b), (d) and (f) and complaint subparagraphs IV(a)(9)(b), (d) and (f). The parties stipulate that except as withdrawn, all citation items were in violation and contrary to the language of the specific standard cited.\t\t\t\t\t\t\t\t\t\tIt is therefore Ordered that citation items 9(b), 9(d) and 9(f) and citation item 14 be and the same are hereby deleted and that the citation is otherwise confirmed in all respects\t\t\t\t\t\twith regard to\t\t\t\t\t\teach item.1\t\t\t\t\t\t\t\t\t\tDocket No. 7978\t\t\t\t\t\t\t\t\t\tFollowing inspection on April 2, 1974, a citation was issued alleging two items of non-serious violation. Notice of contest and complaint were duly filed.\t\t\t\t\t\t\t\t\t\tOn September 10, 1974 the parties filed a stipulation of facts\u2019, including stipulation that the respondent maintained working conditions contrary to the language in 29 CFR 1910.179(j)(2)(iii) and 29 CFR 1910.179(m)(1), respondent preserving the jurisdictional issue under Section 4(b)(1) of the Occupational Safety and Health Act of 1970.\t\t\t\t\t\t\t\t\t\tIt is therefore Ordered that the citation issued April 11, 1974 be and the same is hereby confirmed in all respects.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tBy letter dated February 4, 1975, I informed Respondent that the jurisdictional question appeared to be the sole issue raised in the case,24\t\t\t\t\t\tthat the Commission had resolved such issue adversely to Respondent (Secretary v. Union Railroad Company, Docket No. 4318, November 2i, 1974);\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, Docket No. 1343, November 15,\t\t\t\t\t\t1974), and that I proposed to issue a summary order after February 20, 1975 affirming the Citation and the penalty proposals unless Respondent, on or before that date, indicated in writing that it desired a hearing on other issues. Respondent has failed to respond thereto.\t\t\t\t\t\t\t\t\t\tCitation number 1 for nineteen nonserious violations is affirmed. The following penalties are assessed:\t\t\t\t\t\t\t\t\t\tItem 1\u2014$100.00\t\t\t\t\t\t\t\t\t\tItem 3\u201455.00\t\t\t\t\t\t\t\t\t\tItem 14\u201430.00\t\t\t\t\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSTULLER, JUDGE:\t\t\t\t\t\t\t\t\t\tOn July 11, 1974, the Secretary of Labor issued a citation charging that on July 3, 1974, the respondent25\t\t\t\t\t\tfailed to comply with certain regulations in the violation of section 654(a)(2) of the Occupational Safety & Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as the Act). A Notification of Proposed Penalty was issued to the respondent simultaneously with the citation proposing total penalties of $110. A timely Notice of Contest was filed by the respondent and this Commission thereby acquired jurisdiction over the subject matter under section 659 of the Act. A hearing was held in Cleveland, Ohio on October 7, 1974.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe descriptions of the alleged violations as contained in the citation, the proposed penalties and the standards allegedly violated are as follows:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tItem 1 Failed to post notice of the Occupational Safety and Health Act of 1970.\t\t\t\t\t\t\t\t\t\tIn violation of 29 C.F.R. 1903.2(a). Proposed Penalty: $50.\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1903.2(a).\t\t\t\t\t\t\t\t\t\tEach employer shall post and keep posted a notice of notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to\t\t\t\t\t\temployees are customarily posted. Each employer shall take steps to\t\t\t\t\t\tinsure\t\t\t\t\t\tthat such notices are not altered, defaced or covered by other material.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem 2 Failed to utilize valve protection caps, where cylinder is designed to accept a cap, except when cylinders are in use or connected for use:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tOutside west end of car shop.\t\t\t\t\t\t\t\t\t\tIn violation of 29 C.F.R. 1910.252(a)(2)(ii)(d). Proposed Penalty: $30.\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1910.252(a)(2)(ii)(d)\t\t\t\t\t\t\t\t\t\tValve protection caps, where cylinder is designed to accept a cap, shall always be in place, hand-tight, except when cylinders are in use or connected for use.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem 3 Failed to store cylinders in a\t\t\t\t\t\twell protected, dry location at least twenty feet from highly combustible materials. Cylinders should be stored in\t\t\t\t\t\tdefinitely assigned\t\t\t\t\t\tplaces away from elevators, stairs, or gangways, and located where they will not be knocked over, damaged, or subject to tampering. Cylinder located at the east end of the locomotive repair and maintenance shop.\t\t\t\t\t\t\t\t\t\tIn violation of 29 C.F.R. 1910.252(a)(2)(ii)(b). Proposed Penalty: $30.\t\t\t\t\t\t\t\t\t\t29 C.F.R. 1910.252(a)(2)(ii)(b)\t\t\t\t\t\t\t\t\t\tInside of buildings, cylinders shall be stored in a well-protected, well-ventilated, dry location, at least 20 feet from highly combustible materials such as oil or excelsior. Cylinders should be stored in\t\t\t\t\t\tdefinitely assigned\t\t\t\t\t\tplaces away from elevators, stairs, or gangways. Assigned storage spaces shall be located where cylinders will not be knocked over or damaged by passing or falling objects, or subject to tampering by unauthorized persons. Cylinders shall not be kept in unventilated enclosures such as lockers and cupboards.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAt the hearing, the parties agreed that the only issue that they wish to be considered was whether the respondent railroad is exempted from compliance with the Act pursuant to section 4(b)(1) of the Act (29 U.S.C. 653(b)(1)). All other issues were conceded by the respondent including the commission of the violations as alleged and the appropriateness of the penalties.\t\t\t\t\t\t\t\t\t\tAfter the filing of briefs in this case, the Commission issued their decision in Secretary v.\t\t\t\t\t\tSouthern Pacific Transportation Company, 13 OSAHRC 258 (1974). The Commission held in the\t\t\t\t\t\tSouthern Pacific\t\t\t\t\t\tcase that section 4(b)(1) of the Act does not provide industry exemption but rather it provides an exemption only for specific working conditions where another federal agency\t\t\t\t\t\tactually exercises its statutory authority to prescribe and enforce safety and health standards in regard to those working conditions. The respondent in the present case has failed to show that the Department of Transportation has exercised its authority\t\t\t\t\t\tin regard to\t\t\t\t\t\tany specific working condition concerned herein. It is, therefore, concluded that the Act does apply to the violations in the present case.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tAs it has been concluded that the Act does apply to the violations alleged herein, and as the respondent has conceded the violations and the appropriateness of the proposed penalties, it is therefore ORDERED that the Citation and Notice of Proposed Penalty herein are AFFIRMED in all respects.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBRADY, JUDGE:\t\t\t\t\t\t\t\t\t\tThis consolidated proceeding26\t\t\t\t\t\tis brought pursuant to section 10 of the section 10 of the Occupational Safety and Health Act of 1970, 29 USC 651 et seq., (hereinafter referred to as the Act) to contest three citations issued by the Secretary of Labor (hereinafter referred to as the Secretary) pursuant to section 9(a) of the Act. The citations alleged that as the result of certain inspections at respondent\u2019s workplaces located at Muncie, Tipton, and Peru, Indiana, respondent violated section 5(a) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary pursuant to section 6 thereof. Notice of proposed penalties were issued with the citations.\t\t\t\t\t\t\t\t\t\tA stipulation by the parties hereto resolved the issues in this proceeding except those relating to whether the respondent being part of the railroad industry, is exempt under section 4(b)(1) of the Occupational Safety and Health Act, and whether the citations herein were issued with \u2018reasonable promptness.\u2019\t\t\t\t\t\t\t\t\t\tThe stipulation provided that the inspections which gave rise to the issuance of the citations were conducted jointly by representatives of the United States Departments of Labor and Transportation. Following each of the aforesaid inspections the compliance officer for the Department of Labor prepared a draft citation and proposed penalty which was reviewed by his area director. Subsequently, the draft citation and proposed penalty worksheet were forwarded to\t\t\t\t\t\tthe Washington office of the Department of Labor. After each case was forwarded to Washington it was reviewed by the Office of the Associate Solicitor, and the Office of Compliance Programing for the Occupational Safety and Health Administration. This review was concerned with\t\t\t\t\t\twhether or not\t\t\t\t\t\tthe conditions should be cited under the Occupational Safety and Health Administration or the Federal Railway Administration.\t\t\t\t\t\t\t\t\t\tThe stipulation reveals that the area director could not issue the citation until after authorization was granted from Washington. The parties agreed that at the time the area director reviewed the compliance officer\u2019s report he formed a belief as to whether the conditions found to exist were contrary to the language contained in OSHA standards. Also, he formed a belief as to whether the conditions cited were violations of the Act after Washington informed him that the Occupational Safety and Health Administration rather than Federal Railway Administration had jurisdiction of each violation.\t\t\t\t\t\t\t\t\t\tThe record indicates that the citations were issued approximately 83 days following the review by the area director in docket 9642, 25 days in docket 10758 and 52 days in docket 10771.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRespondent contends that the citations were not issued in accordance with section 9(a) of the Act (29 USC 658(a)) which provides in part:\t\t\t\t\t\t\t\t\t\tIf, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act or of any standard, rule or order promulgated pursuant to this Act, he shall with reasonable promptness issue a citation to the employer.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe Commission reviewed the legislative history in defining \u2018reasonable promptness\u2019 and stated in the case of\t\t\t\t\t\tSecretary of Labor v. Chicago Bridge and Iron Co. OSAHRC Docket No. 744 that:\t\t\t\t\t\t\t\t\t\tThe question before us was also before and answered by the House and Senate conferees. They said:\t\t\t\t\t\t\t\t\t\tIf the Secretary \u2018believes\u2019 that an employer has violated (mandatory requirements under the Act), he shall issue the citation with reasonable promptness. In the absence of exceptional circumstances any delay is not expected to exceed 72 hours from the time the violation is detected by the inspector. H. Rep. No. 91-1765 91st Cong. 2nd Sess. 38 (1970).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn view of this history, we conclude that absent exceptional circumstances complainant or his authorized representative must perform the ministerial task involved in issuing a citation within\t\t\t\t\t\t72 hours from the time he has formed his belief that a violation has occurred. We assume that Congress did not intend weekends or holidays to be included within the\t\t\t\t\t\t72 hour\t\t\t\t\t\tperiod so the period prescribed here is three working days.\t\t\t\t\t\t\t\t\t\tThe respondent therefore maintains that the extended\t\t\t\t\t\tperiod of time\t\t\t\t\t\tfollowing the inspections and before issuance of the citations herein disregarded the reasonable promptness criteria established in\t\t\t\t\t\tChicago Bridge and Iron Co., supra.\t\t\t\t\t\t\t\t\t\tThe complainant assets that the citations were issued in a manner which satisfied the terms of section 9(a) as interpreted by the Commission in the Chicago Bridge and Iron case. It is pointed out that as soon as the jurisdictional decision was made and communicated to the area\t\t\t\t\t\tdirector\t\t\t\t\t\the completed the decisional process by combining the jurisdictional decision with his previous decision as to the existence of conditions contrary to the particular standard. Therefore, the combination of decisions resulted in the area director forming his belief as to the violations under the Act, and all ministerial tasks were\t\t\t\t\t\tcompleted\t\t\t\t\t\tand the citations issued within the prescribed 72 hours. In\t\t\t\t\t\taddition\t\t\t\t\t\tcomplainant maintains that the 72 hour limitation was waived as \u2018exceptional circumstances\u2019 existed in this case as the coordinated action with the Federal Railway Administration on the question of legal jurisdiction constituted \u2018exceptional circumstances\u2019 within the purview of the\t\t\t\t\t\tChicago bridge and Iron\t\t\t\t\t\tcase.\t\t\t\t\t\t\t\t\t\tIn\t\t\t\t\t\tChicago Bridge\t\t\t\t\t\tthe Commission stated that the fundamental purpose of the Act is best served by prompt abatement of safety and health violations, thus \u2018prompt abatement can be achieved only when an employer receives prompt notification of the conditions which are believed to be in violation of the Act\u2019s requirements.\u2019 It is therefore clear that Congress intended that all hazardous working conditions found to exist are to be corrected without undue delay and the prompt issuance of a citation is the first step toward accomplishing this purpose. The extended periods of time in question relate to action taken by the Washington office.\t\t\t\t\t\tOn the basis of\t\t\t\t\t\tthe facts presented, it would seem incumbent upon complainant to more specifically show that action occasioned the delays, in conformance with the reasonable promptness requirement. This view appears consistent with the Commission ruling that various actions by the Secretary\u2019s representatives during\t\t\t\t\t\ta period of time\t\t\t\t\t\tdid not constitute exceptional circumstances which would warrant a delay in the issuance of the citation.\t\t\t\t\t\tSecretary of Labor v. Julius\t\t\t\t\t\tNasso\t\t\t\t\t\tConcrete Corporation, Contractors Layout Company, Inc. and Grossman Steel and Aluminum Corporation\t\t\t\t\t\t7 OSAHRC 355.\t\t\t\t\t\t\t\t\t\tHowever, the recent Commission decision in Secretary of Labor v. Louisville and Nashville Railroad Company\t\t\t\t\t\tOSAHRC Docket No. 5521 is controlling in this case on the question of reasonable promptness. Based on a similar factual situation the Commission held that:\t\t\t\t\t\t\t\t\t\tThe delay occasioned by the necessity for clearing of the citation by the national office was an \u2018exceptional circumstance\u2019 encompassed by the majority opinion in\t\t\t\t\t\tChicago Bridge and Iron Company, No. 744 (January 29, 1974).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOn the basis of\t\t\t\t\t\tthe foregoing it therefore is held that the citations herein were issued with \u2018reasonable promptness\u2019 within the meaning of section 9(a) of the Act.\t\t\t\t\t\t\t\t\t\tThe remaining issue before the Commission relates to whether the respondent being part of the railroad industry is exempt under section 4(b)(1) of the Occupational Safety and Health Act. It is respondent\u2019s contention that exclusive jurisdiction of matters relating to the health and safety of railroad employees resides with the Department of Transportation and, therefore, it is exempt from the provisions of section 4(b)(1). This issue of jurisdiction has been considered and resolved by the Commission in\t\t\t\t\t\tSecretary of Labor v. Southern Pacific Transportation Co., OSAHRC Docket No. 1348. The Commission ruled that the exemption provided under section 4(b)(1) of the act extends only to specific working conditions over which the Department of Transportation has\t\t\t\t\t\tactually exercised\t\t\t\t\t\tits authority. In that case it was stated that:\t\t\t\t\t\t\t\t\t\tWhen a federal agency or department has authority to regulate safety and health working conditions in e.g., railroad shops, and does not exercise that authority, the working conditions are subject to OSHA regulations . . .\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThere is no evidence that the Department of Transportation has exercised authority to prescribe or enforce safety regulations with reference to the working conditions found to exist in this case. Thus, the working conditions which are alleged in the complaint, as amended, are of the type which are subject to regulation under the Occupational Safety and Health Act; and, therefore, this consolidated proceeding is correctly before the Commission.\t\t\t\t\t\t\t\t\t\tFINDINGS OF FACT\t\t\t\t\t\t\t\t\t\t1. Norfolk and Western Railway Company, is a\t\t\t\t\t\tcorporation operating facilities\t\t\t\t\t\tamong other places at Muncie, Peru, and Tipton, Indiana.\t\t\t\t\t\t\t\t\t\t2. A compliance officer of the Occupational Safety and Health Administration conducted a joint inspection of the aforesaid facilities with a representative of the Federal Railroad Administration.\t\t\t\t\t\t\t\t\t\t3. The joint inspections were conducted pursuant to agreement and in accordance with procedures to resolve any possible jurisdictional conflicts.\t\t\t\t\t\t\t\t\t\t4. Following the aforesaid inspections the compliance officer\u2019s reports were reviewed by his area director who formed a belief as to whether the conditions reported were contrary to the language of OSHA standards.\t\t\t\t\t\t\t\t\t\t5. Upon review by the area director in each case, draft citations were forwarded to the Washington office for review. Subsequently, the citations herein were issued approximately 83 days, 25 days, and 52 days, respectively, following review by the area director.\t\t\t\t\t\t\t\t\t\t6. The Department of Transportation has not prescribed or enforced safety regulations applicable to the areas of safety covered in the complaint, as amended.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. Norfolk and Western Railway Company\t\t\t\t\t\tat all times\t\t\t\t\t\tpertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein.\t\t\t\t\t\t\t\t\t\t2. Respondent is, and\t\t\t\t\t\tat all times\t\t\t\t\t\tpertinent hereto, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.\t\t\t\t\t\t\t\t\t\t3. Review of the citations herein by the national office constituted an exceptional circumstance within the meaning of section 9(a) of the Act.\t\t\t\t\t\t\t\t\t\t4. On May 15, 1974, respondent was in violation of the standards as alleged in paragraphs IV(a) and IV(b)(4) of the complaint as amended in docket No. 9642.\t\t\t\t\t\t\t\t\t\t5. On August 28, 1974, respondent was in violation of the standards as alleged in paragraph IV(a) of the complaint as amended in docket No. 10758.\t\t\t\t\t\t\t\t\t\t6. On September 26, 1974, respondent was in violation of the standards as alleged in paragraph IV(a) of the complaint as amended in docket No. 10771.\t\t\t\t\t\t\t\t\t\tUpon the basis of the foregoing findings of fact and conclusions of law and the entire record, it is\t\t\t\t\t\t\t\t\t\tORDERED:\t\t\t\t\t\t\t\t\t\t1. Respondent\u2019s Motion\t\t\t\t\t\tFor\t\t\t\t\t\tSummary Judgment is hereby denied.\t\t\t\t\t\t\t\t\t\t2. The citation and proposed penalties filed in docket No. 9642 alleging violation of the following standards are hereby affirmed.\t\t\t\t\t\t\t\t\t\t29 CFR 1910.22(a)(1)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.141(g)(3)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.25(d)(1)(x)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.252(a)(2)(iv)(c)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.219(d)(1)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.252(b)(4)(ix)(c)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.157(d)(3)(i)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.157(a)(5)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.106(g)(8)\t\t\t\t\t\t\t\t\t\t29 CFR 1903.2(a)\t\t\t\t\t\t\t\t\t\t3. The citation and proposed penalties filed in docket No. 10758 alleging violation of the following standards are hereby affirmed.\t\t\t\t\t\t\t\t\t\t29 CFR 1903.2(a)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.25(d)(1)(x)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.22(a)(1)\t\t\t\t\t\t\t\t\t\t4. The citation and proposed penalties filed in docket No. 10771 alleging violation of the following standards are hereby affirmed.\t\t\t\t\t\t\t\t\t\t29 CFR 1903.2(a)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.141(a)(3)(i)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.141(a)(4)(i)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.141(a)(5)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.141(c)(1)(iv)\t\t\t\t\t\t\t\t\t\t29 CFR 1910.141(c)(2)(i)\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tMARTIN, JUDGE:\t\t\t\t\t\t\t\t\t\tThis is a proceeding27\t\t\t\t\t\tbrought pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. \u00a7 651 et seq), hereinafter referred to as the Act, regarding a nonserious citation issued by the Secretary of Labor, hereinafter referred to as complainant, pursuant to section 9(a) of the Act and the proposed assessment of penalties in the total amount of\t\t\t\t\t\t$355.00, pursuant to section 10(a) of the Act.\t\t\t\t\t\t\t\t\t\tThe citation, alleging certain nonserious violations, was issued on September 6, 1974, and alleges that an inspection of the\t\t\t\t\t\twork place\t\t\t\t\t\t(repair shop for signal equipment) under the ownership, operation, and control of respondent at 1400 Fulton Street, Houston, Texas, was conducted on or about May 29, 1974.\t\t\t\t\t\t\t\t\t\tThe citation describes the five alleged violations as follows:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tItem Number\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tStandard or Regulation Allegedly Violated\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDescription of Alleged Violation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDate Which Violation Must Be Corrected\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1903.2(a)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe employer failed to post and keep posted a notice or notices informing employees of the protections and obligations provided for in the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tImmediately upon receipt of this citation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1904.2(a)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe employer failed to maintain in each establishment a log of all recordable injuries and illnesses for that establishment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tImmediately upon receipt of this citation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1904.5(a)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe employer failed to compile an annual summary of occupational injuries and illnesses for each establishment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tImmediately upon receipt of this citation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.94(c)(2)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIn the Signal Repair Shop the employer failed to confine the spraying of B-3 thinner, a flammable liquid, to a spray booth or spray room.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOct. 30, 1974\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.133(a)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tAn employee spraying B-3 thinner in the Signal Repair Shop was not wearing eye protection.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSept. 25, 1974\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe standards upon which the alleged violations are based provide as follows:\t\t\t\t\t\t\t\t\t\t29 CFR 1903.2\t\t\t\t\t\t\t\t\t\tPosting of Notice; availability of the Act, regulations and applicable standards.\t\t\t\t\t\t\t\t\t\t(a) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U. S. Department of Labor, informing employees of the protection and obligations provided for in the Act, and\t\t\t\t\t\tthat for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to\t\t\t\t\t\tinsure\t\t\t\t\t\tthat such notices are not altered, defaced, or covered by other material.\t\t\t\t\t\t\t\t\t\t29 CFR 1904.2\t\t\t\t\t\t\t\t\t\tLog of Occupational injuries and illnesses\t\t\t\t\t\t\t\t\t\t(a) Each employer shall maintain in each establishment a log of all recordable occupational injuries and illnesses for that establishment, except that under the circumstances described in paragraph (b) of this section an employer may maintain the log of occupational injuries and illnesses at a place other than the establishment. Each employer shall enter each recordable occupational injury and illness on the log as early as practicable but not later than 6 working days after receiving information that a recordable case has occurred.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t29 CFR 1904.5\t\t\t\t\t\t\t\t\t\tAnnual summary\t\t\t\t\t\t\t\t\t\t(a) Each employer shall compile an annual summary of occupational injuries and illnesses for each establishment. Each annual summary shall be based on information contained in the log of occupational injuries and illnesses for the\t\t\t\t\t\tparticular establishment.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.94\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tVentilation.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(c)(2) Spray booths or spray rooms are to be used to enclose or confine all operations. Spray-finishing operations shall be located as provided in sections 201 through 206 of the Standard for Spray Finishing Using Flammable and Combustible Materials, NFPA No. 33-1969.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 CFR 1910.133\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tEye and face protection\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t(a) General. (1) Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. In such cases, employers shall make conveniently available a type of protector suitable for the work to be performed, and employees shall use such protectors. No unprotected person shall knowingly be subjected to a hazardous environmental condition. Suitable eye protectors shall be provided where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tA notification of proposed penalty was issued by complainant\u2019s area director on September 6, 1974. Respondent, through its counsel, filed a timely notice of contest relative to the aforesaid charges. Following the filing of a formal complaint and answer this matter was scheduled for hearing in Houston, Texas, on January 10, 1975. However, the undersigned Judge was advised just prior to the hearing date that the parties\t\t\t\t\t\twere in agreement\t\t\t\t\t\tas to a settlement of this matter without a formal hearing. Accordingly, the hearing was cancelled.\t\t\t\t\t\t\t\t\t\tA settlement agreement has been submitted by the parties pursuant to Rule 100 of the Review Commission\u2019s Rules of Procedure whereby the Commission has been requested to enter a final order affirming the citation and the penalties proposed relative to items four and five of the citation (failure to confine spraying operations to a spray booth and failure of an employee to wear eye protection while spraying thinner). Items two and three (dealing with respondent\u2019s failure to maintain and compile certain Accident or injury records) were withdrawn by complainant as well as the penalties proposed in connection therewith.\t\t\t\t\t\t\t\t\t\tThe settlement in this matter was consented to by respondent for the purpose of disposing of this matter without further litigation and without admitting that it violated the Act (except as may be pertinent in any proceeding subsequently brought by the Secretary pursuant to sections 10(a) and 10(b) of the Act) and without admitting that its operations are subject to said Act. Respondent has certified that the\t\t\t\t\t\taforementioned settlement\t\t\t\t\t\tagreement was posted where its employees would have notice thereof.\t\t\t\t\t\t\t\t\t\tItem one of the citation, dealing with the failure of respondent to post the OSHA poster, was reserved for disposition by the undersigned Judge and Review Commission.28\t\t\t\t\t\tComplainant did not submit a brief; however, he did call attention to the Review Commission\u2019s decision in the case of the Secretary of Labor v. Southern Pacific Transportation Co. (Docket 1348), decided on November 15, 1974, 13 OSAHRC 258, wherein the Review Commission determined that section 4(b)(1) of the Act did not provide for an industry-wide exemption. The\t\t\t\t\t\taforementioned case\t\t\t\t\t\tis now pending before the U.S. Court of Appeals for the Fifth Circuit.\t\t\t\t\t\t\t\t\t\tThe Review Commission in the earlier Southern Pacific case also decided that it would be an unnecessary duplication for OSHA to impose record keeping requirements on an employer\t\t\t\t\t\tsince the Department of Transportation had exercised its statutory authority in the area of record keeping. The citation was therefore vacated as to the items dealing with accident reports, logs, and summaries of injuries. The Commission, without discussion, affirmed the informational poster violation.29\t\t\t\t\t\t\t\t\t\tIn respondent\u2019s brief it is contended that the railroad industry is exempt from the Act. Respondent relies upon its brief in the Southern Pacific case now on appeal in the Fifth Circuit. With respect to item 1 of the citation respondent states that the \u2018notice-posting\u2019 requirements is in reality a \u2018record keeping\u2019 requirement from which respondent is exempt because the Federal Railroad Administration has exercised its statutory authority to prescribe record keeping requirements concerning the safety of railroad operations.\t\t\t\t\t\t\t\t\t\tIn support of its view respondent has submitted a copy of a U.S. Department of Labor (OSHA) booklet, revised 1975, entitled \u2018Record Keeping Requirements Under the Occupational Safety and Health Act of 1970,\u2019 which contains a paragraph entitled \u2018Poster,\u2019 which states in part:\t\t\t\t\t\t\t\t\t\tEach employer must display in each establishment a poster which explains the protections and obligations of employees under the Occupational Safety and Health Act.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tIt is, therefore, respondent\u2019s position that the insertion of the\t\t\t\t\t\taforementioned paragraph\t\t\t\t\t\tin the booklet is an indication that the Secretary considers the poster requirement to be an integral part of the record keeping requirements.\t\t\t\t\t\t\t\t\t\tThe undersigned Judge cannot agree with this contention. The publishing of a policy statement, informational bulletin, or pamphlet as a guide to employers or to the public in general cannot be elevated to a level above the Secretary\u2019s regulations or standards which were adopted pursuant to section 6 of the Act. Part 1903 of the standards deal generally with inspections, citations, and proposed penalties and give employers vital information as to the procedural steps to be followed subsequent to an inspection. Section 1903.2(a) makes it mandatory that employers \u2018post and keep posted\u2019 a notice (sometimes referred to as the OSHA poster) informing the employees of the protections and obligations provided for in the Act.\t\t\t\t\t\t\t\t\t\tOn the other hand, Part 1904 sets out regulations requiring employees to maintain records\t\t\t\t\t\tof occupational injuries and illnesses, specifying the types of reports, logs, summaries, and forms (Form 100, 101, and 102) to be utilized for such purpose. This part, 1904, and the sections thereunder were promulgated pursuant to section 8(c)(1) of the Act with the cooperation of the Secretary of Health Education, and Welfare. The purpose of this part is to develop information and statistics regarding the causes of occupational accidents and illnesses and hopefully looking toward a prevention of the same. Clearly, the display of a poster informing employees of their protection and obligations under the Act has no relation to the announced purpose and scope of Part 1904. It is, therefore, concluded that respondent is in violation of 29 CFR 1903.2(a) for its failure to post the notice to employees as required by the Act.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tAccordingly, it is ORDERED that:\t\t\t\t\t\t\t\t\t\t1. The\t\t\t\t\t\taforementioned settlement\t\t\t\t\t\tagreement be and the same is hereby approved and respondent\u2019s motion to withdraw its notice of contest with reference to items 4 and 5 of the citation is hereby granted.\t\t\t\t\t\t\t\t\t\t2. The penalties proposed in connection with the aforementioned items be and the same are hereby affirmed.\t\t\t\t\t\t\t\t\t\t3. Item 1 of the citation\t\t\t\t\t\tas\t\t\t\t\t\tissued herein and the proposed penalty therefore be and the same are hereby affirmed.\t\t\t\t\t\t\t\t\t\t4. Complainant\u2019s motion to withdraw items 2 and 3 from the citation and complaint and the notification of proposed penalty related thereto as granted and the same are hereby dismissed.\t\t\t\t\t\t\t\t\t\t5. This proceeding be and the same is hereby terminated.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tBRENTON, JUDGE:\t\t\t\t\t\t\t\t\t\tThese causes30\t\t\t\t\t\thaving been consolidated on December 20, 1974, for hearing, now come on for disposition pursuant to the stipulation of facts, submitted by the parties and intervenors, the record made of the hearing on the merits of the issue of whether each citation was issued by complainant with reasonable promptness, and the briefs and supplemental memorandums of the parties and intervenors as submitted on motion for summary judgment.\t\t\t\t\t\t\t\t\t\tThe stipulation as filed by the parties herein shows that the real party in interest as the\t\t\t\t\t\trespondent in all three cases is The Baltimore and Ohio Railroad Company. Pursuant thereto, it is herein and hereby found that The Baltimore and Ohio Railroad Company is in fact the respondent in these causes and is the only real party respondent subject to the proceedings therein and herein and the order hereinafter set forth, regardless of the reference, in any of the proceedings in these causes, to respondent or employer by any other name.\t\t\t\t\t\t\t\t\t\tThese causes arise from citations issued by complainant following inspections, conducted by him, of workplaces, under the control and management of respondent, located in Cincinnati, Ohio. Each citation alleges respondent violated section 5(a)2 of the Occupational Safety and Health Act of 1970, hereinafter called the Act, by failing to comply with certain safety regulations promulgated by complainant pursuant to the Act.\t\t\t\t\t\t\t\t\t\tThe hearing was held in Cincinnati, Ohio, pursuant to assignment on February 27, 1975. The intervenors chose not to appear but reserved the right to present briefs on the law questions.\t\t\t\t\t\t\t\t\t\tAlthough complainant has filed a reply memorandum of law alleged to be in response to respondent\u2019s cross motion for summary judgment, this tribunal has no record of the filing or submission of such motion.\t\t\t\t\t\t\t\t\t\tThe stipulation eliminates as an issue any and all material issues of fact and presents for determination two issues:\t\t\t\t\t\t\t\t\t\t1. Is complainant invested with jurisdiction to enforce job safety and health standards over railroads or his preclusion thereof by virtue of section 4(b)(1) of the Act.\t\t\t\t\t\t\t\t\t\t2. If jurisdiction obtains were the citations issued with reasonable promptness.\t\t\t\t\t\t\t\t\t\tI\t\t\t\t\t\t\t\t\t\tSecretary v. Southern Pacific Transportation\t\t\t\t\t\tCo. 13 OSAHRC 258, is relied upon by complainant as dispositive of the jurisdictional dispute in these cases. These the Commission held that so long as another Agency has not exercised its statutory authority to promulgate and enforce safety regulations affecting the working conditions of railway employees a railroad company is neither excepted nor exempted from the Act.31\t\t\t\t\t\t\t\t\t\tRespondent contends, as was contended by the employer in Southern Pacific supra, that the Department of Transportation and its Federal Railroad Administration has, by virtue of 45\t\t\t\t\t\tU.S.C. Section 431, been given all regulatory power for job safety in the railroad industry. Further, that this power is preemptive, to the exclusion of the Department of Labor under the Act, even though the Secretary of Transportation may not have exercised his statutory authority to prescribe safety standards regulating certain railroad working conditions and places.\t\t\t\t\t\t\t\t\t\tRespondent bottoms his case against jurisdiction hereof and herein on two propositions. First, that the FRA, by publication in the Federal Register on March 7, 1975, announced its intention to prescribe railroad occupational safety and health standards. Second, that the decision of the United States District Court for the District of Montana, Billings Division, in\t\t\t\t\t\tDunlop v. Burlington Northern, Misc. CV-75-3-BLG, clearly demonstrates the fallacy of the majority holding of the Review Commission in\t\t\t\t\t\tSouthern Pacific, supra, and is in accord with the dissent of the Commission\u2019s Chairman therein.32\t\t\t\t\t\t\t\t\t\tRespondent also argues in view of the Burlington Northern pronouncement that this tribunal should ignore the holdings by Judges Rubin and Osterman in Secretary v. Penn Central Transportation Co., OSAHRC Docket 10886 and Secretary v. The Chesapeake and Ohio Railway Co., OSAHRC Docket 10334, respectively, where each Judge held that advanced notice of proposed\t\t\t\t\t\trule-making\t\t\t\t\t\twas not tantamount to an exercise of jurisdiction within the meaning of section 4(b)(1) of the Act. It is apparent that each Judge\t\t\t\t\t\twas of the opinion that\t\t\t\t\t\the was bound by the majority decision of the Review Commission in Southern Pacific, supra.\t\t\t\t\t\t\t\t\t\tAlthough this tribunal has the added attraction of Burlington Northern, which is persuasive, it is not compelling. The Review Commission\u2019s decision in Southern Pacific is not invalidated by the District Court\u2019s decision in Burlington Northern.\t\t\t\t\t\tIt would appear that Burlington\t\t\t\t\t\tNorthern would have little or no impact upon the majority of the Review Commission as it was composed at the time of Southern Pacific. Moreover, this tribunal is not permitted to speculate as to what the future course of the Review Commission may be on this jurisdictional issue. Southern Pacific, supra, stands unreversed by any Appellate Court and the Review Commission has not\t\t\t\t\t\tdemonstrated that it is prepared to modify or overturn its ruling in\t\t\t\t\t\tSouthern Pacific, Secretary v. Union Railroad Co., 13 OSAHRC 434; and\t\t\t\t\t\tSecretary v. Penn Central Transportation Co.,\t\t\t\t\t\t13 OSAHRC 604.\t\t\t\t\t\t\t\t\t\tTherefore, being bound by the Review Commission\u2019s decision in\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Co., supra, and subsequent affirmations thereof, respondent\u2019s jurisdictional defense must be rejected, except with respect to items 23, 24, and 25 of the citation in Docket 10832. These items have to do with record keeping which according to the conclusions reached in Southern Pacific are exempt under section 4(b)(1) of the Act, where the Department of Transportation has taken over that area by requiring the maintenance of similar or same records of occupational safety and health statistics.\t\t\t\t\t\t\t\t\t\tII\t\t\t\t\t\t\t\t\t\tAt the hearing respondent based its affirmative defense to the citations, urging the vacation thereof, on the Review Commission decision in\t\t\t\t\t\tSecretary v. Chicago Bridge and Iron Co., 6 OSAHRC 244, where it was held that a citation issued more than 72 hours after the Area Director formed his belief that the regulation had been violated, without an explanation of some exceptional circumstance which accounted for the delay, was not reasonable promptness.\t\t\t\t\t\t\t\t\t\tSubsequent to the hearing the Seventh Circuit Court of Appeals, on April 22, 1975, upon reviewing\t\t\t\t\t\tSecretary v. Chicago Bridge and Iron Co., supra, reversed.33\t\t\t\t\t\tIn so doing it did not preclude the Commission from fashioning a rule giving the \u2018reasonable promptness\u2019 language some effect. It simply held the\t\t\t\t\t\t72 hour\t\t\t\t\t\ttest, as ruled by the Review Commission, was improper and must be invalidated. The approximate one-month delay in\t\t\t\t\t\tChicago Bridge, evaluated by Administrative Law Judge Goldstein as reasonable, was recognized by the Court of Appeals in its review, but without approval or disapproval.\t\t\t\t\t\t\t\t\t\tThis Circuit Court of Appeals\u2019 decision suggests, where the defense of reasonable promptness is made an issue, that it should be adjudged on a case by case basis. Establishing a period any place between inspection or investigation and six months, the latter being the Act\u2019s sole absolute limitation at section 9(c), would be arbitrary. It appears, however, that any delay, unexplained, beyond thirty days may be unreasonable.\t\t\t\t\t\tAlso\t\t\t\t\t\ta delay which works to the prejudice of an employer\u2019s case may in all common probability be unreasonable.\t\t\t\t\t\t\t\t\t\tWhether the time lag between an inspection or an investigation and the issuance of a citation is reasonable or unreasonable, however, is not the sole criteria in determining the issue. The word promptness cannot be disregarded. Congress could have chosen the\t\t\t\t\t\tage old\t\t\t\t\t\texpression \u2018within a reasonable time.\u2019 But it chose to exact promptness in the issuance of citations. Promptness is a noun and in section 9(a) of the Act it functions as the main element of the subject of the mandate of Congress. Action done, performed, or delivered with promptness is at once or without delay. Here Congress in its wisdom qualified the promptness of the action by stating that it must be reasonable. The delay, then, cannot be excessive as opposed to the limit prescribed by reason.\t\t\t\t\t\t\t\t\t\tAlso, the showing, by hard evidence, that a delay has created an inequitable, unfair, or unjust situation, viewed in the light of the pragmatic idea of simple common sense, which in the world of today is the essence of reasonableness, then the citation has not been issued with reasonable promptness. Moreover, the Congress did not intend that the Secretary could be dilatory, grossly negligent, or arbitrary in the performance of the duty prescribed because this kind of action is irreconcilable with action with promptness.\t\t\t\t\t\t\t\t\t\tIII\t\t\t\t\t\t\t\t\t\tExamination of the facts pursuant to the foregoing discussion reveals, in Docket No. 10687, that the total time elapsed from inspection to the issuance of the citation was 104 days. It would appear logical to conclude, upon the evidence of 104\t\t\t\t\t\tdays time\t\t\t\t\t\tlag, without more, that such a delay is ridiculous and fails to meet the mandate of section 9(a) of the Act. In the instant case the inspection was conducted on June 20, 1974, after which the inspector on June 21, 1974, completed his analysis and write up of the alleged violations observed. Thereafter there was Area Director adjustments, Special Area Officer review and jurisdictional conflicts debate, the latter being the subject of the other issue herein and which was unsettled at that time. By reason of the jurisdictional conflict the complainant\u2019s file was forwarded to the OSHA National Office on July 3, 1974, for review and advice. It was returned and received by the Area Director on September 12, 1974, permitting issuance of citation, however, the citation was subject to review and reorganization, pursuant to national\u2019s suggested changes, by the inspector; special review as before, and then to the Acting Area Director for review and signature effectuating the issuance of the citation, which was accomplished on October 2, 1974.\t\t\t\t\t\t\t\t\t\tRespondent suggests the decisional process ended on September 12, 1974, when the Area\t\t\t\t\t\tDirector received approval to proceed with the issuance of a citation. Based on this suggestion there is a time lag of 19 days. But Chicago Bridge, supra, rejected the\t\t\t\t\t\t72 hour\t\t\t\t\t\tlimitation adopted by the Review Commission and at the same time left the issue of \u2018reasonable promptness\u2019 in limbo.\t\t\t\t\t\t\t\t\t\tNow, therefore, is the phrase merely directive. This is apparently complainant\u2019s position. He urges that section 9(c) of the Act is jurisdictional rather than section 9(a) and with this interpretation this tribunal\t\t\t\t\t\tis in agreement. This tribunal, however, does not condone the proposition that the phrase is merely directive. The legislative history, which appears in Chicago Bridge, supra, shows that Congress expected prompt action but was reluctant to create an absolute limit less than six months. Does it then necessarily follow that in any given case the Secretary is privileged to sit back and issue the citation the day before the expiration of the\t\t\t\t\t\tsix month\t\t\t\t\t\tperiod.\t\t\t\t\t\t\t\t\t\tIt is apparent that Congress has been aware for many years that law enforcement by administrative agencies becomes mired down with protracted procedures and their own rules and regulations together with outright neglect in some cases, all of which renders law enforcement ineffective. To be effective each procedural step in the enforcement process must be administered with dispatch, which of course is synonymous with prompt and speed. It is inconceivable that Congress intended to give the Secretary a wide birth, that is, from one to 182 days within which to issue a citation in all cases. Otherwise the phrase \u2018reasonable promptness,\u2019 mandated by \u2018shall,\u2019 is simply an exercise in rhetoric. Moreover, to expedite the enforcement of the Act, Congress chose to completely lock out the employer, with no place to go, upon his failure to file a notice of contest within 15 working days of receipt of a citation.\t\t\t\t\t\t\t\t\t\tMore recently, and after 200 years, Congress finally expressed in real terms its concern with federal criminal law enforcement by enacting the \u2018Speedy Trial Act,\u2019 18 U.C.A. 3161, et seq. There, for example, indictment or information must follow an arrest within 30 days and if trial is not commenced within the time prescribed the case is subject to dismissal on motion of the accused.\t\t\t\t\t\t\t\t\t\tThe \u2018reasonable promptness\u2019 phrase, as it appears in section 9(a) of the Act, is an elastic term and can only be appraised in light of the particular facts and circumstances of each case, ever mindful of the mandate \u2018shall\u2019 which precedes the phrase. In determining what time span is \u2018reasonable promptness\u2019 for performance, consideration should be given to such factors as relationship between the parties, subject matter of the inspection or investigation, and time that a person of ordinary diligence and prudence would have or should have used under similar\t\t\t\t\t\tcircumstances. At this point in time, the Secretary now having in excess of four\t\t\t\t\t\tyears experience, and painting with a broad brush, the elasticity of the term may well be ripe for significant curtailment.\t\t\t\t\t\t\t\t\t\tAccordingly, this tribunal, without specifically ruling, suggests that generally \u2018reasonable promptness,\u2019 in the sense in which it is employed in Section 9(a) of the Act, requires the issuance of a citation after an on-site inspection or investigation within a time period that is free of all the elements of an unreasonable delay. Any portion of the time period which has been furthered by either overt arbitrariness dilatoriness or plain gross neglect of duty is conduct which should be adjudged unreasonable delay, and thus the citation has not been issued with reasonable promptness.\t\t\t\t\t\t\t\t\t\tIn the instant case, Docket 10687, this tribunal is of the opinion that the evidence adduced reflects procrastination within the gamut of complainant\u2019s department. The sole purpose for the file resting in the National Office was to resolve the alleged jurisdictional conflicts. 71 days elapsed in accomplishing this alleged monumental task.\t\t\t\t\t\tObviously\t\t\t\t\t\tsome of those days were consumed by the file being in the mail. The Postal Department is sometimes slow, however, here there is no evidence of any unusual movement, loss, or standstill of this file in the mail. Moreover, the National Office, prior to the inspection in this case, had resolved the very same jurisdictional conflicts in more railroad cases than are necessary to mention.\t\t\t\t\t\tSecretary v. Louisville and Nashville and Nashville Railroad Co., OSAHRC Docket 5521, CCH, \u00b6 19,598, however, is worthy of note inasmuch as in that case there were 10 violations for jurisdictional conflict considerations, whereas here there were only four. Moreover, three of the four here were considered there, thus, only a housekeeping violation remained for clearance. Without examining all the cases, it is probably a safe guess that this violation had been previously earmarked. It is observed the Review Commission in reversing the Judge\u2019s decision in\t\t\t\t\t\tLouisville and Nashville, supra, held 71 days appropriate for clearance of any jurisdictional conflicts. But the determination was concluded on or about November 2, 1973, which is at least seven months prior to the commencement of the examination, by the National Office in the instant case, of the same ground as before. Regardless of whether the housekeeping violation was a first impression conflict examination the holding of the proposed citation for nearly 71 days is, absent any other explanation, conduct which is dilatory as well as gross neglect of duty in their respective purest forms.\t\t\t\t\t\t\t\t\t\tAlso there was additional abuse of the command of Congress by the Acting Area Director,\t\t\t\t\t\twhereby, upon receipt of the proposed citation, he held it an additional 19 days for so called additional reviews, whereas, in fact, the only matter standing in the way of its issuance upon receipt was retyping. The complainant\u2019s attempt to purify this additional delay is simply ridiculous and unacceptable.\t\t\t\t\t\t\t\t\t\tThere is just no way to rationalize the procedural conduct of the complainant, in issuing the citation in this case, whereby it spells in certain terms \u2018reasonable promptness\u2019 in accordance with the meaning of the employment of this phase in section 9(a) of the Act as hereinabove delineated. Therefore, the complainant having failed to issue the citation in Docket 10687 with reasonable promptness it, together with the proposed penalty to be assessed therefor, should be vacated.\t\t\t\t\t\t\t\t\t\tIV\t\t\t\t\t\t\t\t\t\tThe elapsed time from inspection to issuance of the citation in each of the other cases, Dockets 10686 and 10832, was 12 days. This time lag, of course, does not compare with the expectation (the hope) of Congress. Governmental agency bureaucratic law enforcement procedural processes were not unknown to Congress. Thus, there is a strange notion this time lag of 12 days would be, by the Congress, although not within the range of its expectation, considered speedy. Certainly, 12 days should not be considered per se dilatory, arbitrary, or gross neglect of duty. Taking bureaucracy for what it is and allowed to be the circumstances in these two cases fail to show any element of an unreasonable delay. And finally, there being no evidence of any injustice, inequity, or unfairness prejudicial to respondent in either of these cases because of the\t\t\t\t\t\t12 day\t\t\t\t\t\ttime lag, it cannot be adjudged that either citation was not issued with reasonable promptness.\t\t\t\t\t\t\t\t\t\tAccordingly, having found jurisdiction persisted in these cases, the citations and proposed penalties to be assessed in Dockets 10686 and 10832 should be affirmed, saving and excepting from Docket 10832 items 23, 24, and 25 as herein\t\t\t\t\t\tabove delineated.\t\t\t\t\t\t\t\t\t\tCONCLUSIONS OF LAW\t\t\t\t\t\t\t\t\t\t1. The Review Commission has jurisdiction to hear and decide these cases.\t\t\t\t\t\t\t\t\t\t2. Whether a citation has been issued with reasonable promptness can only be determined by an examination of the facts and circumstances surrounding the conduct of the Secretary and his authorized representatives appertaining to an individual case.\t\t\t\t\t\t\t\t\t\t3. The citation in Docket No. 10687 was not issued with reasonable promptness.\t\t\t\t\t\t\t\t\t\t4. Upon the determination that a citation has not been issued with reasonable promptness it has not been issued in accordance with law and should be vacated.\t\t\t\t\t\t\t\t\t\t5. The citations in Dockets 10686 and 10832 were issued with reasonable promptness.\t\t\t\t\t\t\t\t\t\t6. Whereas here another Federal Agency with statutory authority has promulgated regulations requiring the recording of occupational safety and health data the requirements under OSHA in the same area are inapplicable.\t\t\t\t\t\t\t\t\t\t7. Where the material facts of a citation and proposed penalty to be assessed are conceded by stipulation, and the issues of jurisdiction and reasonable promptness are resolved against the respondent on motion for summary judgment, the citation and proposed penalty must be affirmed.\t\t\t\t\t\t\t\t\t\t8. The Baltimore and Ohio Railroad Company is the real party respondent herein, and as such is the only employer to which all proceedings had in these causes and which may hereafter be had apply, including this Decision and Order.\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tWherefore, it is ordered that:\t\t\t\t\t\t\t\t\t\tComplainant\u2019s motion for summary judgment on the jurisdictional issue be and it is hereby granted in Docket 10686, 10687, and 10832, excepting from the latter items 23, 24, and 25 of the citation therein.\t\t\t\t\t\t\t\t\t\tComplainant\u2019s motion for summary judgment on the reasonable promptness issue be and it is hereby denied in Docket 10687 and granted in Dockets 10686 and 10832.\t\t\t\t\t\t\t\t\t\tThe citation in Docket 10686 and proposed penalty to be assessed therein be and each is hereby affirmed.\t\t\t\t\t\t\t\t\t\tThe citation in Docket 10687 and proposed penalty to be assessed therein be and each is hereby vacated.\t\t\t\t\t\t\t\t\t\tThe citation in Docket 10832 and the proposed penalty to be assessed therein be and each is hereby affirmed, saving and excepting therefrom items 23, 24, and 25 of this citation and the aggregate proposed penalty of $300 to be assessed for these three alleged violations of 29 CFR 1904.2(a), 4, and 5(a) each of which is hereby vacated.\t\t\t\t\t\t\t\t\t\tIt is so ordered.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tRUBIN, JUDGE:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe parties have stipulated that the sole matter to be determined is whether respondent34\t\t\t\t\t\tis subject to the jurisdiction of the Occupational Safety and Health Act of 1970 (the Act) or is exempt therefrom by reason of Section 4(b)(1) of the Act. The parties agreed to submit this question on cross motions for summary judgment and memorandum of law.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tA citation was issued on November 4, 1974 alleging five non-serious violations of the Act. Penalties were proposed for item 1 ($30) and item 5 ($45). Complainant has moved to vacate the proposed penalties. Respondent advised in its answer that items 1, 2, 4 and 5 were abated prior to the abatement dates set forth in the citation and that the abatement status of item 3 would be reported\t\t\t\t\t\tat a later date.\t\t\t\t\t\t\t\t\t\tRespondent argues that the Federal Railroad Administration (FRA) has exclusive jurisdiction on an industry basis as a matter of statutory law. The Commission has resolved the industry-wide exemption argument adversely to respondent (Secretary v. Southern Pacific Transportation Company, 3 OSAHRC 258, November 15, 1974;\t\t\t\t\t\tSecretary v. Union Pacific Railroad Company, 13 OSAHRC 539, November 26, 1974).\t\t\t\t\t\t\t\t\t\tRespondent argues in the alternative that by Docket No. ROS-1, Notice 1, Federal Register Volume 40, pages 10693 et seq., dated March 3, 1975, FRA preempted this area of jurisdiction by publication of its proposal to adopt Occupational Safety and Health Administration standards 29 CFR 1910. Respondent asserts, in effect, that the publication of this notice is an \u2018exercise of statutory authority\u2019 under Section 4(b)(1) of the Act.\t\t\t\t\t\t\t\t\t\tThe publication is headed \u2018Advance Notice of Proposed Rule Making.\u2019 The purpose is clearly expressed in the document itself:\t\t\t\t\t\t\t\t\t\tPublic advice and participation requested.\t\t\t\t\t\t\t\t\t\tThe purpose of this advance notice is to request public advice on the priorities for and content of railroad occupational safety and health standards. FRA solicits public participation in the development of the most effective approach for adoption of specific standards. FRA intends to expedite consideration of all comments received in response to this notice. Notices of Proposed Rule Making will be developed and issued separately as each subpart is completed relating to specific railroad employee working conditions and\t\t\t\t\t\twork places.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tSpecific advice and recommendations are requested to\t\t\t\t\t\tidentify:. . ..\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tIt is clear that the\t\t\t\t\t\tpublication is merely a preliminary step to obtain public reaction to\t\t\t\t\t\tproposed\t\t\t\t\t\trule making. The proposal may never be adopted. In view thereof, it is held that the \u2018Advance Notice of Proposed Rule Making\u2019 is not an \u2018exercise of statutory authority\u2019 within the meaning of Section 4(b)(1) and does not exempt respondent from jurisdiction of the Act.\t\t\t\t\t\t\t\t\t\tNo evidence was submitted by either party to establish\t\t\t\t\t\twhether or not\t\t\t\t\t\tthe Department of Transportation or some other Federal agency has exercised its authority with respect to the standards allegedly violated. The Review Commission has held that the provisions of Section 4(b)(1) are\t\t\t\t\t\tin the nature of an\t\t\t\t\t\texception to the general applicability of the Act and that the party claiming the exception has the burden of proving its entitlement thereto. Respondent has not met this burden. (Secretary v. Southern Pacific Transportation Company, supra.;\t\t\t\t\t\tSecretary v. Penn Central Transportation Company, 13 OSAHRC 604, November 29, 1974).\t\t\t\t\t\t\t\t\t\tRespondent\u2019s motion to dismiss is denied. Complainant\u2019s motion for summary judgment is granted. The citation is affirmed. The proposed penalties for items 1 and 5 are vacated.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tAll parties have stipulated that the only matter in issue is whether Respondent35\t\t\t\t\t\tis entitled to the exemption accorded by 29 U.S.C. 653(b)(1), as asserted by Respondent. Complainant and the employees\u2019 representative oppose Respondent\u2019s assertion and pray for summary judgment.\t\t\t\t\t\t\t\t\t\tAdditionally, Complainant moves for leave to \u2018vacate\u2019 its proposed penalties in the case. There appears to be no objection to this motion.\t\t\t\t\t\t\t\t\t\tIn\t\t\t\t\t\tSecretary v. Union Railroad Company, 13 OSAHRC 434 (1974), and\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), the Commission ruled that 29 U.S.C. 653(b)(1) does not provide an industry-wide exemption for railroads from the provisions of the Act. Rather, according to these rulings, it provides only for an exemption for specific working conditions regulated by the Department of Transportation. Accordingly, despite the new matter argued by Respondent to the effect that the Department of Transportation (Federal Railroad Administration) has served notice of its intention to regulate in future\t\t\t\t\t\temployee safety and health in areas of railroad operations not now regulated, the exemption question has been decided adversely to Respondent\u2019s claim.\t\t\t\t\t\t\t\t\t\tCitation number 1 for four nonserious violations is affirmed.\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tThe primary issue in this case**\t\t\t\t\t\tis whether Respondent railroad is entitled to the exemption accorded by 29 U.S.C. 653(b)(1), as urged by Respondent. Additionally, Respondent has contested the appropriateness of the $70.00 penalty proposed by Complainant. In connection with both issues, the parties have indicated the desire for me to dispense with a hearing and to resolve these issues on a stipulation of facts and the briefs they have heretofore filed in the proceedings.\t\t\t\t\t\t\t\t\t\tThe primary issue has already been decided by the Commission adversely to Respondent\u2019s claim in\t\t\t\t\t\tSecretary v. Union Railroad Company, 13 OSAHRC 434 (1974), and in\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974). Specifically, the Commission, in those cases, ruled that 29 U.S.C. 653(b)(1) does not provide railroads with an industry-wide exemption from the provisions of 29 U.S.C. 651 et seq. Rather, according to those rulings, it provides only for an exemption for specific working conditions regulated by the Department of Transportation. Accordingly, the Commission\u2019s stand on this issue forecloses a ruling in favor of Respondent in this instance. Moreover, I am not persuaded that a different result should be reached because the Department of Transportation (Federal Railroad Administration) has recently announced its intention of regulating employee safety and health in areas of railroading not now regulated (40 FR 10693, March 7, 1975).\t\t\t\t\t\t\t\t\t\tApart from the exemption issue, I have carefully reviewed all the facts furnished me by the stipulation and otherwise relating to the appropriateness of a penalty in this instance. In this regard, the Act enjoins me to give due consideration to Respondent railroad\u2019s size, the gravity of the violation, and Respondent\u2019s good faith and\t\t\t\t\t\tpast history\t\t\t\t\t\tof violations (29 U.S.C. 666(j)). Specifically, the charge in this case involves a failure of Respondent to have adequately trained first did personnel in various areas of one of its maintenance and repair yards and approved first aid supplies available for their use (29 C.F.R. 1910.151(b)). I have been assured in these proceedings that these conditions have long since been abated.\t\t\t\t\t\t\t\t\t\tAfter due consideration of all the foregoing factors, especially those indicating Respondent\u2019s bankrupt condition and its good faith, particularly in pursuing an important, controverted issue that will only be laid to rest after present judicial appeals in other cases are\t\t\t\t\t\tconcluded, I find that a penalty assessment is not appropriate in this case.\t\t\t\t\t\t\t\t\t\tCitation number 1 for nonserious violation is affirmed.\t\t\t\t\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tRIEHL, JUDGE:\t\t\t\t\t\t\t\t\t\tThis is a proceeding36\t\t\t\t\t\tpursuant to section 10 of the Occupational Safety and Health Act of 1970, (29 U.S.C. 651 et seq., hereinafter called the Act) contesting citations issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of that Act. The citations allege that an inspection of workplaces under the ownership, operation and control of the respondent revealed the existence of workplace conditions that violate section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.\t\t\t\t\t\t\t\t\t\tThe parties have agreed to submit case for determination to this Judge by stipulated facts and conclusions of law in lieu of oral testimony.\t\t\t\t\t\t\t\t\t\tThe stipulated facts and conclusions of law are as follows:\t\t\t\t\t\t\t\t\t\tCounsel for the parties named above hereby stipulate as follows:\t\t\t\t\t\t\t\t\t\t1. Respondent Burlington Northern, Inc. is a Class I common carrier by railroad, has employees, and is engaged in a business affecting interstate commerce.\t\t\t\t\t\t\t\t\t\t2. Respondent admits that,\t\t\t\t\t\tat all times\t\t\t\t\t\tpertinent to these actions, there were no duly promulgated rules, regulations, standards or orders of the Department of Transportation affecting the occupational safety and health of the particular working conditions for which it was cited.\t\t\t\t\t\t\t\t\t\t3. Without waiving any defense based on lack of jurisdiction under the Occupational Safety and Health Act of 1970, respondent admits that, if the Secretary of Labor does have jurisdiction to prescribe regulations for the working conditions involved, it violated sections 5(a)(2) and 8(c) of the Act and the standards promulgated thereunder as charged in the complaints filed by the Secretary in these causes.\t\t\t\t\t\t\t\t\t\t4. Respondent further agrees that if the Secretary had jurisdiction to issue the citations in controversy, the penalties proposed in connection therewith, as herein adjusted, are reasonable and are no longer in contest.\t\t\t\t\t\t\t\t\t\t5. The Secretary,\t\t\t\t\t\ton the basis of\t\t\t\t\t\tall information available, considers that the penalty proposed in conjunction with the citation for willful violation should be reduced to $3,500.00.\t\t\t\t\t\t\t\t\t\tWe adopt the stipulated facts and conclusions of law as our own. We note, in particular, that\t\t\t\t\t\tthe Secretary considers the penalty proposed in conjunction with the citation for willful violation should be reduced to $3,500; that this proposal is joined into by the respondent.\t\t\t\t\t\t\t\t\t\tExamination of the citations issued to respondent reveals that the citation for docket number 11325 was issued to respondent November 26, 1974, for alleged violations at respondent\u2019s Havelock shop facility in Lincoln, Nebraska.\t\t\t\t\t\t\t\t\t\tDocket 11418 pertains to a citation issued to respondent on November 27, 1974, for alleged violations at respondent\u2019s branch office establishment in Omaha, Nebraska.\t\t\t\t\t\t\t\t\t\tComplaints were filed by the Secretary in both causes, and answers were filed by respondent. The stipulation of facts was filed by the parties and dated April 18, 1975.\t\t\t\t\t\t\t\t\t\tRespondent in its brief argues that the Review Commission erred in its decision of November 15, 1974,\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company,\t\t\t\t\t\t13 OSAHRC 258, in not recognizing the exclusive jurisdiction of the Department of Transportation (DOT) over railroad health and safety. Respondent bases its conclusion on a number of factors, including the existence of numerous railroad safety acts, especially the Federal Railroad Safety Act of 1970 (45 U.S.C. \u00a7 431 et seq.), and the legislative history of that Act, the language of OSHA, the legislative history of that Act, the relationship of section 24(a) of OSHA (29 U.S.C. \u00a7 673(a)) to section 4(b)(1) (29 U.S.C. \u00a7 653(b)(1)), the language of the Rail Passenger Service Act of 1970 (P.L. 91-518), and the legislative history of the\t\t\t\t\t\tAmtrack\t\t\t\t\t\tImprovement Act of 1973 (P.L. 93-146).\t\t\t\t\t\t\t\t\t\tRespondent further argues that the Review Commission erred in refusing to recognize that DOT has and exercises statutory authority to regulate health and safety matters in the railroad industry, and that the Department of Labor therefore has no such jurisdiction. Respondent contends that the Department of Transportation regulates health and safety in the railroad industry very extensively, and, the fact that a particular working condition has not yet been specifically addressed by DOT or that DOT has rejected proposed regulation of the particular working condition, or that DOT has not as yet seen fit to regulate every \u2018nook and cranny\u2019 of safety and health in the railroad industry, can in no way vest the Department of Labor with authority to regulate those areas in the railroad industry.\t\t\t\t\t\t\t\t\t\tRespondent\u2019s position is not well taken.\t\t\t\t\t\t\t\t\t\tThere is only one difference of any substance between the present case and\t\t\t\t\t\tSouthern Pacific Transportation Company, 13 OSAHRC 258 (RC 1974). That difference is that the inspection of November 26, 1974, found the respondent had failed to post and keep posted the notice or notices informing employees of the protections and obligations provided by the Act. The employer failed to maintain the OSHA 100 series log of occupational injuries and illnesses.\t\t\t\t\t\t\t\t\t\tIn the\t\t\t\t\t\tIllinois Terminal Railroad Company\t\t\t\t\t\tcase, which this Judge decided, 13 OSAHRC 476 (RC 1974), it was held that there was substantial compliance because evidence was submitted of the type of record kept for the railroad industry.\t\t\t\t\t\t\t\t\t\tOtherwise, the instant cases are on all fours with the case involving\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company\t\t\t\t\t\tand the\t\t\t\t\t\tIllinois Terminal Railroad Company\t\t\t\t\t\tcase which we have previously decided. (See also\t\t\t\t\t\tSecretary v. Union Pacific Railroad Company,\t\t\t\t\t\t13 OSAHRC 539 (RC 1974), and\t\t\t\t\t\tSecretary v. Southern Railway Company,\t\t\t\t\t\t13 OSAHRC 498 (RC 1974)).\t\t\t\t\t\t\t\t\t\tThere has been no evidence stipulated to by the parties as to\t\t\t\t\t\twhether or not\t\t\t\t\t\tthe respondent has kept records, if so, how they compare with OSHA records. For that reason, we will affirm the citation insofar as record keeping is concerned.\t\t\t\t\t\t\t\t\t\tIn all of these cases the holding under almost identical facts has been that section 4(b)(1) of the Act does not provide an industry exemption and accordingly in the absence of other Federal agencies exercising their authority to regulate safety and health working conditions, such working conditions are subject to OSHA regulations.\t\t\t\t\t\t\t\t\t\tWe see no reason to vary from these holdings\t\t\t\t\t\tat this point in time\t\t\t\t\t\tand feel that they all state the matter correctly insofar as OSHA coverage in certain cases of those industries regulated by DOT.\t\t\t\t\t\t\t\t\t\tInasmuch as both complainant and respondent have joined in the stipulation recommending that the citation for willful violations should be reduced to $3,500, we will accordingly so order.\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBased upon the above stipulation of facts which we\t\t\t\t\t\tadopt\t\t\t\t\t\tand our conclusions of law as herein stated, it is ORDERED that:\t\t\t\t\t\t\t\t\t\t1. The citations and proposed penalties, as amended, for docket numbers 11325 and 11418, are affirmed.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tBy letter dated February 5, 1975, I informed Respondent that the jurisdictional question appeared to be the sole issue raised in the case,37\t\t\t\t\t\tthat the Commission had resolved such issue adversely to Respondent, except for the recordkeeping charges (Secretary v. Union Railroad Company, Docket No. 4318, November 22, 1974;\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, Docket No. 1348, November 15, 1974), and that I proposed to issue a summary order after February 20, 1975 affirming the Citation and the penalty proposals, except for the recordkeeping charges, unless Respondent, on or before that date, indicated in writing that it desired a hearing on other issues. Respondent has failed to respond thereto.\t\t\t\t\t\t\t\t\t\tItem numbers 1 and 2 of Citation number 1 for nonserious violations are vacated. Item numbers 3 through 30 of said Citation are affirmed. The following penalties are assessed:\t\t\t\t\t\t\t\t\t\tItem 3\u2014$50.00\t\t\t\t\t\t\t\t\t\tItem 8\u201440.00\t\t\t\t\t\t\t\t\t\tItem 13\u201460.00\t\t\t\t\t\t\t\t\t\tItem 15\u201445.00\t\t\t\t\t\t\t\t\t\tItem 17\u201435.00\t\t\t\t\t\t\t\t\t\tItem 28\u201440.00\t\t\t\t\t\t\t\t\t\tItem 30\u201445.00\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tBy letter dated January 29, 1975, I informed Respondent that the jurisdictional question appeared to be the sole issue raised in the case,38\t\t\t\t\t\tthat the Commission had resolved such issue adversely to Respondent (Secretary v. Union Railroad Company, Docket No. 4318, November 22, 1974;\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company,\t\t\t\t\t\tDocket No. 1348, November 15, 1974), and that I proposed to issue a summary order after February 12, 1975 affirming the Citation and the penalty proposals unless Respondent, on or before that date, indicated in writing that it desired a hearing on other issues. Respondent has failed to respond thereto.\t\t\t\t\t\t\t\t\t\tCitation number 1 for nonserious violations is affirmed. The following penalties in the total amount of $190.00 are assessed:\t\t\t\t\t\t\t\t\t\tItem 1\u2014$100.00\t\t\t\t\t\t\t\t\t\tItem 13\u201430.00\t\t\t\t\t\t\t\t\t\tItem 17\u201430.00\t\t\t\t\t\t\t\t\t\tItem 18\u201430.00\t\t\t\t\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tThe sole issue in this case**\t\t\t\t\t\tis the railroad jurisdictional question raised by and resolved adversely to Respondent in\t\t\t\t\t\tSecretary v. Southern Pacific Transportation Company, Docket Number 1348 (November 15, 1974), except for the recordkeeping charge. Respondent does not desire a hearing on any other issue.\t\t\t\t\t\t\t\t\t\tItem number 2 of Citation number 1 for nonserious violations is affirmed. A penalty of $30.00 is assessed therefor. Item Number 1 of said Citation is vacated for lack of jurisdiction (29 USC 653(b)(1)).1\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tCHALK, JUDGE:\t\t\t\t\t\t\t\t\t\tThe sole issue in this case39\t\t\t\t\t\tis the railroad jurisdictional question raised in and resolved adversely to Respondent in Secretary v. Southern Pacific Transportation Company, Docket Number 1348 (November 15, 1974), except for the recordkeeping charge. Respondent does not desire a hearing on any other issue.\t\t\t\t\t\t\t\t\t\tItem number 1 through 15 of Citation number 1 for nonserious violations are affirmed. The following penalties are assessed:\t\t\t\t\t\t\t\t\t\tItem 4\u2014$30.00\t\t\t\t\t\t\t\t\t\tItem 5\u201430.00\t\t\t\t\t\t\t\t\t\tItem 6\u201440.00\t\t\t\t\t\t\t\t\t\tItem 8\u201430.00\t\t\t\t\t\t\t\t\t\tItem 10\u201430.00\t\t\t\t\t\t\t\t\t\tItem 11\u201445.00\t\t\t\t\t\t\t\t\t\tItem 13\u201430.00\t\t\t\t\t\t\t\t\t\tItem 14\u201430.00\t\t\t\t\t\t\t\t\t\tItem 15\u201450.00\t\t\t\t\t\t\t\t\t\tItem number 16 of said Citation is vacated for lack of jurisdiction (29 USC 653(b)(1)).1\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSo\t\t\t\t\t\tORDERED.\t\t\t\t\t\t\” \t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1 Since the controlling question is common to all cases listed in the caption, we hereby consolidate them pursuant to 29 C.F.R. 2200.9 for decisional purposes. Docket Nos. 10686 and 10832 (Baltimore & Ohio Railway Company) were previously consolidated with Docket No. 10687, and that consolidation is severed pursuant to 29 C.F.R. 2200. 10 for decisional purposes since Docket 10687 presents a different issue. Similarly, Docket No. 11325 (Burlington Northern, Inc.) was previously consolidated with Docket No. 11418, and it too is severed because it presents a different issue for decisional purposes.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2 \t\t\t\t\t\tRespondent in Docket Nos. 11251 and 11338 did not stipulate to the violative conditions. However, their failure to raise any issue as to the merits before the Administrative Law Judge or in briefs before the Commission supports the Judge\u2019s determination that the existence of the violative conditions is not in dispute.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3 \t\t\t\t\t\tIn Docket Nos. 9642, 10771, 10758, 10686 and 10832 Respondents did raise the issue of whether the citation had been issued with reasonable promptness consistent with the requirements of section 9(a) of the Act. Respondents did not pursue the issue on review, and we deem it to have been abandoned.\t\t\t\t\t\tBouma Post Yards, 12 OSAHRC 550 (1974).\t\t\t\t\t\t\t\t\t\tAnd Respondent in Docket No. 10886 contends that it is for the Secretary to establish that Respondent is not exempt from the coverage of the Act pursuant to Section 4(b)(1). We have previously rejected a similar contention in\t\t\t\t\t\tCrescent Wharf and Warehouse Co., 15 OSAHRC 674 (Feb. 21, 1975), where we stated that Section 4(b)(1) is\t\t\t\t\t\texemptory\t\t\t\t\t\tand must be raised and shown by those seeking the exemption.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t4 \t\t\t\t\t\tRespondent\t\t\t\t\t\tSouthern Pacific Transportation Company, Docket No. 10332, contends that the requirement of 29 C.F.R. 1903.2(a) that it post a notice informing employees of their rights and obligations under the Act is a recordkeeping requirement which it does not have to comply with. We note that in our prior decision involving this Respondent we did affirm a citation alleging a violation of the posting requirement; the issue now presented was not raised in that case. We find no merit in the argument. Section 8(c) of the Act imposes\t\t\t\t\t\ta number of\t\t\t\t\t\tdifferent obligations. It requires that records of various types be made, kept, preserved, and made available to Labor and HEW in order to assist the Departments in discharging their responsibilities under the Act. It also requires posting. But such posting is for the purpose of informing employees \u2018of their protections and obligations under\u2019 the Act. Clearly, the purpose of the posting requirement is different than the purposes for the recordkeeping requirements. Finally, we note that Respondent has failed to show that the Department of Transportation has exercised authority respecting the poster issue.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t5 \t\t\t\t\t\tRespondents in Docket Nos. 9078, 10886, 11013, 11177, 11325 and 11338 contend that the Advance Notice of Proposed Rulemaking by the Secretary of Transportation published in 40 Fed. Reg. 10693 (March 7, 1975; No. 46) constitutes an exercise of statutory authority by the Department of Transportation which exempts the railroads from compliance with the Act pursuant to section 4(b)(1). We reject Respondents\u2019 argument. It is enough here to note that the inspections were\t\t\t\t\t\tconducted\t\t\t\t\t\tand citations issued in each case prior to publication of the advance notice of proposed rulemaking.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t6 \t\t\t\t\t\tIn\t\t\t\t\t\tChicago, Milwaukee, St. Paul & Pacific Railroad Company, Docket No. 5860, Judge Otto affirmed an alleged recordkeeping violation (29 C.F.R. 1904.5) contrary to our decision in\t\t\t\t\t\tSouthern Pacific.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t7 \t\t\t\t\t\tWe note that the issues in\t\t\t\t\t\tSouthern Pacific\t\t\t\t\t\tare now on review before several Courts of Appeal.\t\t\t\t\t\tPenn Central Transportation Company,\t\t\t\t\t\t13 OSAHRC 604 (1974),\t\t\t\t\t\tappeal docketed, No. 75-1102 (4th Cir., Jan. 28, 1975);\t\t\t\t\t\tChesapeake and Ohio Railway Company,\t\t\t\t\t\t15 OSAHRC 15 (1975), appeal docketed,\t\t\t\t\t\tNo. 75-1182 (4th Cir., Feb. 18, 1975);\t\t\t\t\t\tSouthern Railway Company, 13 OSAHRC 498 (1974),\t\t\t\t\t\tappeal docketed, No. 75-1055 4th Cir., Jan. 15, 1975);\t\t\t\t\t\tSeaboard Coast Line Railroad Company,\t\t\t\t\t\t\u2014\u2014 OSAHRC \u2014\u2014 (Docket No. 2802, 1974),\t\t\t\t\t\tappeal docketed, No. 74-3984 (5th Cir., Nov. 29, 1974);\t\t\t\t\t\tUnion Pacific Railroad Company, 13 OSAHRC 539 (1974),\t\t\t\t\t\tappeal docketed, No. 75-1065 (8th Cir., Jan. 27, 1975). The results of the litigation may, of course, have an impact upon any subsequent adjudication of the issues before OSHRECOM.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8 \t\t\t\t\t\tIn Docket No. 4616, review was directed\t\t\t\t\t\tinter alia, on the issue of whether \u2018there was adequate evidence before the Judge to justify the disposition.\u2019 Subsequent to the direction for review, Respondent indicated it had no intent to take exceptions to the Judge\u2019s decision and that it had paid the penalty assessed by the Judge. Accordingly, it is not necessary to decide the issue mentioned above.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9 \t\t\t\t\t\tThe Respondent stipulated to the appropriateness of the proposed penalty of $635. The Judge, however, failed to discuss the issue of a penalty in his decision. We assess the stipulated penalty since no party or employee has objected to it and the amount is not clearly repugnant to the objectives of the Act.\t\t\t\t\t\tThorleif\t\t\t\t\t\tLarsen & Son, Inc., 12 OSAHRC 313 (1974).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t10 \t\t\t\t\t\tStaff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 997 (Comm. Print 1971).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11 \t\t\t\t\t\tId. at 1018-1020 (emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t12 \t\t\t\t\t\tId. at 975.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t13 \t\t\t\t\t\tId. at 1037 (emphasis added).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t14 \t\t\t\t\t\tSubcommittee on Environmental Problems Affecting Small Business of the Permanent Select Committee on Small Business, The Effects of the Administration of the Occupational Safety and Health Act on Small Business, H.R. Rep. No. 93-1608, 93d Cong., 2d Sess. at 3 (1974).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t15 \t\t\t\t\t\t29 C.F.R. \u00a7 1910.141(c)(3)(ii).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t16 \t\t\t\t\t\t29 C.F.R. \u00a7 1910.141(d)(2)(v).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t17 \t\t\t\t\t\t29 C.F.R. \u00a7 1910.157.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t18 \t\t\t\t\t\t29 C.F.R. \u00a7 1910.95.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t19 \t\t\t\t\t\t29 C.F.R. \u00a7 1910.93.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t20 \t\t\t\t\t\t29 C.F.R. \u00a7 1910.144(a)(1)(i)(d).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t21 \t\t\t\t\t\tH.R. Rep. No. 93-1608,\t\t\t\t\t\tsupra\t\t\t\t\t\tnote 14, at 20.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t22 \t\t\t\t\t\tBeltway Railway of Chicago #4616.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t23 \t\t\t\t\t\tChicago, Milwaukee, St. Paul & Pacific Railroad Company, #5860, 7978.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t24 \t\t\t\t\t\tChicago, Milwaukee, St. Paul & Pacific Railroad Company #11251.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t25 \t\t\t\t\t\tNewburgh & South Shore Railway #9078.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t26 \t\t\t\t\t\tNorfolk & Western Railway Company #9642, 10758, 10771.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t27 \t\t\t\t\t\tSouthern Pacific Transportation Company #10332\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t28 \t\t\t\t\t\tRespondent, in its answer, admitted its failure to post the\t\t\t\t\t\taforementioned poster\t\t\t\t\t\tbut contended that it is exempt from the Act\u2019s applicability by section 4(b)(1) of the Act.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t29 \t\t\t\t\t\tSee also\t\t\t\t\t\tSecretary of Labor v. Norfolk and Western Railway\t\t\t\t\t\tCo.,(docket 5936) decided January 8, 1975, 14 OSAHRC\t\t\t\t\t\t777, where the Review Commission affirmed a violation of 29 CFR 1903.2(a)(failure to display OSHA poster) and assessed a $50 penalty.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t30 \t\t\t\t\t\tBaltimore & Ohio Railway Company (The\t\t\t\t\t\tChessie\t\t\t\t\t\tSystem) #10686 & 10832. Docket No. 10687 called for review 7\/22\/75 and is still pending.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t31 \t\t\t\t\t\tSee also\t\t\t\t\t\tSecretary v. Union Pacific Railroad Co., 13 OSAHRC 539;\t\t\t\t\t\tSecretary v. Seaboard Coastline Railroad Co., OSAHRC Docket 2802; and Secretary v. Penn Central Transportation Co., 13 OSAHRC 604.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t32 \t\t\t\t\t\tIn\t\t\t\t\t\tBurlington Northern\t\t\t\t\t\tthe Secretary of Labor petitioned the Court for an order allowing an inspection of the railroad\u2019s workplaces. Without ruling that the entire railroad industry is exempt from the Occupational Safety and Health Act of 1970, the Court denied the petition stating the Secretary of Transportation has exercised and is exercising his statutory authority under 45 U.S.C. \u00a7 431 to prescribe Standards for the safety of railroad employees. In a footnote the Court observed that although the FRA standards are in the stage of proposed\t\t\t\t\t\trule making\t\t\t\t\t\tsection 4(b)(1) of the Act triggers the exception and does not require actual adoption of the regulations before the Act is inapplicable.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t33 \t\t\t\t\t\tPer\t\t\t\t\t\tCuriam, (4\/22\/74) No. 74-1214; CCH \u00b6 19569.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t34 \t\t\t\t\t\tPenn Central Transportation Company #10886.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t35 \t\t\t\t\t\tPenn Central Transportation Company ,11013.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t**\t\t\t\t\t\tPenn Central Transportation Company #11177.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t36 \t\t\t\t\t\tBurlington Northern, Inc. #11325. Docket No. 11418 called for review 6\/11\/75 and is still pending.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t37 \t\t\t\t\t\tIllinois Central Gulf Railroad Company #11338.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t38 \t\t\t\t\t\tChicago Union Station Company #10917.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t**\t\t\t\t\t\tRichmond, Fredericksburg & Potomac Railroad Company #10836.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t39 \t\t\t\t\t\tComplainant\u2019s motion for leave to vacate this item for lack of evidence is mooted.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t”