“SECRETARY OF LABOR,Complainant,v.BURLINGTON NORTHERN RAILROAD COMPANY,Respondent.OSHRC Docket No. 87-0365_REMAND ORDER_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case results from the Secretary’s inspection of a trench locatedalongside Burlington Northern’s tracks in Kansas City, Missouri.Burlington Northern’s employees were installing a sewer line in aportion of the trench when it collapsed, killing one employee. TheSecretary cited Burlington Northern for several violations of OSHAstandards governing excavations and trenches, and Administrative LawJudge Louis J. LaVecchia affirmed all but one of the citation items.The only issue before us is whether the judge properly rejectedBurlington Northern’s argument that under section 4(b)(1) of theOccupational Safety and Health Act of 1970 (29 U.S.C. {sec} 653(b)(1))[[1\/]] regulations issued by the Federal Railroad Administration (FRA)preempt the Secretary from exercising authority over a trench locatednear and alongside railroad tracks. For the reasons that follow, we setaside the judge’s decision and remand to afford an opportunity for theviews of the FRA to be elicited.It is well-settled, and the parties do not dispute, that the FRA hasstatutory authority to regulate the safety of railroad employees.However, that fact alone does not establish that the FRA has preemptedthe Secretary under 29 U.S.C. {sec} 653(b)(1). The Secretary is notdivested of jurisdiction unless the FRA has exercised its statutoryauthority over the working conditions that are the subject of theSecretary’s citations. Consolidated Rail Corp., 82 OSAHRC 25\/B6, 10 BNAOSHC 1577, 1579, 1982 CCH OSHD [[P]] 26,044, p. 32,708 (No. 79-1277,1982). In this case, the parties disagree on whether installation of asewer line near a railroad track comes within the purview of the FRA’sregulations and a \”policy statement\” the FRA has issued elaborating onthe working conditions and hazards over which it has exercisedauthority. 43 Fed. Reg. 10583 (1978).Since preemption of OSHA under 29 U.S.C. {sec} 653(b)(1) involvesanother agency’s exercise of statutory authority over safety and health,any authoritative statements by that agency as to the scope of itsregulations will greatly assist the Commission in deciding thepreemption issue. Northwest Airlines, Inc., 80 OSAHRC 87\/B5, 8 BNA OSHC1982, 1988, 1980 CCH OSHD [[P]] 24,751, p. 30,487 (No. 13649, 1980)(Commission gives considerable weight to interpretation by the FederalAviation Administration that it has exercised statutory authority toregulate the safety and health of airline maintenance personnel). Insupport of her position that FRA regulations do not preempt OSHA in thecircumstances here, the Secretary has moved to supplement her briefbefore us with a letter the Secretary states she received from S. MarkLindsey, the Chief Counsel of the FRA, after she sent a copy of herreview brief to Mr. Lindsey for his consideration. The letter assertsthat FRA regulations do not cover the working conditions at the trenchon Burlington Northern’s worksite. In effect, the Secretary asks that weaccept this letter as stating the view of the FRA that its regulationsdo not preempt OSHA in this case. However, we conclude that the letterattached to the Secretary’s brief does not show an officialinterpretation or position of the FRA for the following reason.The record reflects that the FRA investigated the accident at BurlingtonNorthern’s worksite and prepared a report of its findings.[[2\/]]Although the FRA did not release its investigative report until afterthis case was tried and the judge had issued his decision, the FRA’sreport was available at the time the Lindsey letter was written.[[3\/]]However, the letter does not discuss the FRA report or any of itsfindings despite the fact that Mr. Lindsey acknowledges that \”[a]ccidentinvestigations determine whether regulations promulgated by the FRA havebeen violated or whether there may be need for additional regulations toensure employee safety in areas not within another agency’sjurisdiction.\” (emphasis added).In view of the admitted significance of FRA investigative reports, thefailure of the Lindsey letter to address or indeed to make any referencewhatever to the FRA’s inquiry into the incident that precipitated theSecretary’s inspection is a substantial omission that precludes us fromtreating the letter as an expression of the official view of the FRAregarding the scope of the FRA regulations in question. Cf. Long BeachContainer Terminal, Inc. v. OSHRC, 811 F.2d 477 (9th Cir. 1987)(official statements of the agency that promulgates the standards inquestion constitute the proper guide to their meaning). We simply cannotaccept the letter as an authoritative statement of the FRA’s positionwhen it ignores a report prepared in the normal course of the FRA’sbusiness pursuant to the FRA’s regulations and dealing with the veryfactual situation at issue. We therefore deny the Secretary’s motion tosupplement her brief with Mr. Lindsey’s letter.Nevertheless, we do not think this case can be properly decided on thepresent record. It is at least arguable that the results of the FRAinvestigation could support or could counter the Secretary’s contentionthat the FRA’s regulations do not extend to the working conditions atissue. See Dillingham Tug & Barge Corp., 82 OSAHRC 40\/D6, 10 BNA OSHC1859, 1862, 1982 CCH OSHD [[P]] 26,166, p. 32,997 (No. 77-4143, 1982)(reliance on findings of a Coast Guard investigation of the incidentthat resulted in the Secretary’s citations). The bearing the FRA’sreport may have on the preemption issue is best determined by the trialjudge since the significance of the report, if any, depends on whetherit is offered and admitted into evidence and on whatever factualfindings may be deduced from the investigative report should it becomepart of the record. Cf. Seattle Crescent Container Service, 79 OSAHRC91\/A2, 7 BNA OSHC 1895, 1898-99, 1979 CCH OSHD [[P]] 24,002, p. 29,133(No. 15242, 1979) (recently-discovered evidence not in existence at thetime of the hearing as a ground for reopening the record). Regardlesswhether the report itself is produced, a remand to the judge will alsoallow the parties an opportunity to present an official or authoritativestatement of position by the FRA by any other appropriate means,including the filing of a brief by the FRA.[[4\/]] See Puget Sound Tug &Barge, 81 OSAHRC 50\/A2, 9 BNA OSHC 1764, 1766, 1772-73, 1981 CCH OSHD[[P]] 25,373, pp. 31,586, 31,592-93 (No. 76-4905, 1981) (appearance atoral argument and amicus curiae brief by Coast Guard regarding itsexercise of its authority over the safety of employees on vessels innavigable waters).Accordingly, the judge’s decision is set aside and this case is remandedfor further proceedings consistent with this opinion.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: March 10, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.BURLINGTON NORTHERN RAILROAD COMPANY,Respondent.OSHRC Docket No. 87-0365APPEARANCES:Mary D. Wright and Stephen G. Reynolds,Attorneys for the U.S. Dept. of Labor.Edward W. Mullen and Daniel J. Ryan,Attorneys for the Respondent._DECISION AND ORDER_Louis G. LaVecchia, JudgeThis proceeding arises under Section 10 of the Occupational Safety andHealth Act of 1970 (29 U.S.C. sec. 651 et seq.), also referred to as the\”Act.\”A fatal accident during a trenching operation occurred on November 22,1986 at the respondent’s workplace in North Kansas City, Missouri. Aninvestigation by the Occupational Safety and Health Administration(OSHA) resulted in the issuance of a citation alleging seriousviolations of the safety standards promulgated under the Act and civilpenalties were proposed. The respondent seeks review of the citation andpenalties proposed.A hearing was held in the matter on November 4-5, 1987 in Kansas City.Briefs have been filed by the parties.The threshold question finds the respondent contending that OSHA waswithout jurisdiction to take action against it on the theory that theFederal Railroad Administration had preempted the authority to regulatesafety matters pertaining to the respondent’s operation, leaving OSHAwithout enforcement authority. The complainant denies that the FRAregulations amounted to a preemption of its authority.Section 4(b)(1) of the Act provides that \”nothing in this Act shallapply to working conditions of employees with respect to which otherFederal agencies…exercise statutory authority to prescribe or enforcestandards or regulations affecting occupational safety or health.\”The Secretary of Labor (the complainant herein) acknowledges that underthe Federal Railroad Safety Act of 1970, 45 USC ?421 et seq., theSecretary of Transportation, acting through the FRA, has authority topromulgate and enforce safety regulations affecting the workingconditions of railroad employees. However, the complainant argues thatthe exemption provided by section 4(b)(1) is not activated by the mereexistence in the FRA of statutory authority to regulate railroad safety,citing the following authorities:\”OSHA’s authority to regulate a given working condition. . . isforeclosed only insofar as another agency has exercised its authority toregulate that working condition.\” Practico v. Portland Terminal Co., 783F.2d 255, 262 (1st Cir. 1985); PBR, Inc., v. Secretary of Labor, 643F.2d 890,896 (1st Cir. 1981); Southern Pacific Transportation Co. v.Usery, 539 F.2d 386, 389 (5th Cir. 1976).\”Working conditions\” as used in section 4(b)(1) \”encompasses both aworker’s ‘surroundings’ and ‘hazardous incident to his work.\” CorningGlass Works v. Brennan, 417 U.S. 188, 202 (1974); Southern Pacific, 539F.2d at 390; PBR, 643 F.2d at 896.The complainant further notes that in the FRA’s 1978 policy statement,subpart C, entitled OSHA JURISDICTION, the FRA stated that:* * * If FRA were to address all occupational safety and health issueswhich arise in the railroad yards, shops, and associated offices, theagency would be forced to develop a staff and field capability which, toan extent, would duplicate the capability already possessed by OSHA. Inview of this situation, FRA recognizes that OSHA currently is notprecluded from exercising jurisdiction with respect to conditions notrooted in railroad operations nor so closely related to railroadoperations as to require regulation by FRA in the interest of controllingpredominant operational hazards.43 Federal Register, No. 50, March 14, 1978, at 10587. The term\”railroad operations\” refers to the movement of equipment over therails. Id. at 10585.Following the accident giving rise to the complaint herein the FRAconducted an investigation of the event, but a final report was neverissued by that agency. (Tr. 232-233).The respondent argues that OSHA jurisdiction is ousted and inapplicablewhere the physical structures involved, such as the tracks and adjacentexcavation may be subject to FRA regulation.There has not appeared any precedent covering the precise situationpresented here. In the absence of such precedent I am inclined towardthe position taken by the government–that the installation of a sewerline near a railroad track is not related to the movement of equipmentover the tracks, and cannot be considered railroad operations or anactivity so closely related to railroad operations as to requireregulation by FRA in the interest of controlling predominant operationalhazards._The Alleged Violations_As amended, the citation and complaint assert, in essence, that therespondent violated the safety standard set forth at 29 CFR 1926.652(b)in that the sides of the trench, which were in unstable or softmaterial, and which were 5 feet or more in depth, were not shored,sheeted, braced, sloped, or otherwise supported by means of sufficientstrength to protect the employees working within them.In the alternative the complainant alleges that the respondent violated29 CFR 1926.652(c) in that the sides of the trench, which were in hardor compact soil, including embankments, were not shored or otherwisesupported when the trench was more than five feet in depth and eightfeet or more in length and the sides of the trench above the five-footlevel were sloped steeper than a one-foot rise to each 1\/2 foot horizontal.Under Item 1b of the citation, as amended, the complainant alleges thatthe respondent was in violation of 29 CFR 1926.650(i) in that dailyinspections of the excavation were not made by a competent person and,although evidence of a possible cave-in or slide was apparent, all workwas not ceased until the necessary precautions had been taken.Item 2 of the citation alleges that the respondent was in violation of29 CFR 1926.651(i)(1) in that the excavated or other material was noteffectively stored and retained at least 2 feet or more from the edge ofthe excavation.Item 3a alleges a violation of 29 CFR 1926.652(e) in that additionalprecautions by way of shoring and bracing were not taken to preventslides or cave-ins in an excavation which was subjected to vibrationsfrom railroad traffic.Item 3b alleges that the respondent was in violation of 29 CFR1926.652(h) in that employees were required to be in a trench 4 feetdeep or more, without adequate means of exit, such as a ladder or steps,having been provided and located so as to require no more than 25 feetof lateral travel._Specific Findings_Consideration has been given to the entire record in this proceeding,and the following specific findings of fact are made:1. The respondent Burlington Northern Railroad is a corporation with aplace of business and a workplace in North Kansas City, Missouri.2. The respondent employs in excess of 2,500 employees and is engaged ininterstate commerce.3. On November 22, 1986 and for several days prior thereto respondent’semployees were engaged in installing a new sewer line within a trench.4. On November 22, 1986 the sides of the trench were five feet or morein depth. (Tr. 33-34, 96).5. On November 22, 1986 and for some time before that, the sides of thetrench were in soil comprised of a sand and clay mix. (Tr. 41, 100, 139).6. The sides of the trench were sloped to less than 45 degrees on theday the sewer line crossed Atlantic Street, the day the line crossed thesingle tracks, and each day thereafter through the date of the cave-inon November 22, 1986. (Tr. 35,38,41,97-8,135-7).7. The trench was not shored in the date of the accident. (Tr. 35,38,41,48).8. For several days the deceased employee (Carpenter) and otheremployees worked in trenches over 4 feet deep, the sides of which werenot sloped to less than a 45 degrees angle or shored. (Tr. 34-5, 37-8,48, 130, 179, 209).9. On the day the sewer line passed Atlantic Street Carpenter had to betold two or three times to get out of the unshored trench. (Tr. 208).10. The respondent’s employees were never instructed to stop work or getout of the trench until proper sloping had been done, or adequateshoring had been installed. (Tr. 38, 98, 131-2, 244).11. On the date of the accident the trench was 8 to 9 feet wide at thetop, about 15 feet deep, 15 to 18 feet long, and 4 to 4-1\/2 feet wide atthe bottom. (Tr. 48).12. No ladder or steps were in the trench at the time of the accident orat any time before that. (Tr. 51, 140).13. There was train traffic on the tracks near the trenching operationon the date of the accident. (Stip. 6; Tr. 46-7, 50, 143).14. The respondent’s safety training program was inadequate and theenforcement of its safety rules was lax and inefficient.15. The emergency exit facilities and arrangements were inadequate.16. The respondent’s supervisory personnel were lax in their enforcementof the company safety rules.17. The respondent knew or should have known that there was present asignificant hazard to the safety of its employees in the manner in whichthe trenching operation was being performed._Discussion_The evidence establishes that a trench between 10 and 15 feet deep wasbeing dug by the respondent’s employees on the respondent’s property forthe purpose of laying a sewer line. Although shoring and bracingmaterials were made available, the respondent’s supervisory personnelfailed to make certain that the shoring of the trench, which was notsufficiently sloped, was performed for the safety of the employees.Sloping of the trench wall when it reached a point close to one of therespondent’s main tracks was not possible for proximity, but shoring,sheeting, or bracing of the wall could have been accomplished. None ofthese measures was undertaken, and the fatal cave-in of the trench walloccurred.The supervisory personnel were aware of the proximity of the trench tothe railroad tracks and the vulnerability of the trench walls to thevibrations caused by passing trains. They were under a duty to stop thework immediately as they saw that employees were working in a trenchwhich had not been properly protected against cave-in hazards. Noresumption of work should have been permitted until proper shoring hadbeen effected.Although the respondent contends that it had an adequate safety programfor the instillation of safe working habits in its employees theiraction in entering a deep trench without protection against cave-insbelies the effectiveness of the program. The program must be consideredinadequate in view of the results.It is also evident that the safety measures which might have beenordered followed by the respondent’s employees were not enforced by thecompany. No disciplinary action against the deceased employee or anyother employee for violating the company safety regulations with respectto trench operations was taken.In the circumstances shown the respondent’s defense of employeemisconduct will not lie.Respecting the absence of a ladder or steps which could be used by anemployee to exit the trench quickly in the event of an emergency theinadequacy of the sloping at the ends of the trench is shown in the factthat when the deceased attempted to climb out of one end of the trenchhe was unable to do so and was trapped by the cave-in.There did not appear to be any violation of the applicable standardconcerning the piling of the spoils on the sides of the trench. Theconflicting testimony of the employees must be resolved in favor of therespondent.The question of the inspection of the work by a competent person doesnot necessarily revolve around the actual competency of the persons whomade the inspections. In this respect it appears that those who did sowere competent to identify existing and predictable hazards which mighthave been evident during the progress of the work. It was the inactionon the part of these individuals – their failure to take promptcorrective measures to eliminate the hazards, that must be criticized.It is axiomatic that the actions or inaction’s of supervisory personnelare imputed to the employer in matters of this kind.I conclude that the complainant has successfully sustained the burden ofproving by a preponderance of the evidence that the respondent violatedall items shown in the citation, as amended, with the exception of Item2 regarding the storing of the spoils of the trench excavation. Theaffirmed violations were serious._CONCLUSIONS OF LAW_1. The Occupational Safety and Health Review Commission has jurisdictionover the parties and the subject matter herein.2. The Federal Railroad Administration has not exercised its authorityto regulate the working conditions at issue and, therefore, theOccupational Safety and Health Administration (OSHA) regulations havenot been preempted under Section 4(b)(1) of the Act.3. At all times material hereto the respondent was an employer withinthe meaning of Section 3(5) of the Act, engaged in a business affectingcommerce, and having employees.4. The citation, as amended, the notification of proposed penalty, andthe notice of contest were served by and upon the respective parties inaccordance with Section 10 of the Act.5. The respondent violated the safety standard set forth at 29 CFR1926.652(b), or, in the alternative the standard set forth at 29 CFR1926.652(c).6. The respondent violated the safety standard set forth at 29 CFR1926.650(i).7. The respondent violated the safety standard set forth at 29 CFR1926.652(e).8. The respondent violated the safety standard set forth at 29 CFR1926.652(h).9. The violations shown above were properly categorized as \”serious\”within the meaning of Section 17(k) of the Act.10. The penalty assessed below is reasonable and appropriate in light ofthe criteria in Section 17(j) of the Act.11. The respondent did not violate the safety standard set forth at 29CFR 1926.651(i)(1)._ORDER_1. Items 1a, 1b, 3a, and 3b of Citation No. 1, as amended, are affirmed.2. Item 2 of Citation No. 1, as amended, is vacated.3. A civil penalty of $910 is assessed for the violations found underitems 1 and 3 (and subsections thereof) of the described citation.So ORDERED.Louis G. LaVecchiaJudge, OSHRCDate: July 5, 1988SECRETARY OF LABOR,Complainant,v.BURLINGTON NORTHERN RAILROAD COMPANY,Respondent.OSHRC Docket No. 87-0365Appearances: As shown in my initial decision. In addition, on brief:Mark J. Lerner, Esquire, for the Complainant._Decision on Remand_The Commission remanded this matter for further consideration of the4(b)(1) exemption discussed previously. The parties agreed to presenttheir arguments on brief, eschewing the necessity of a further hearing.The briefs expand upon the arguments made earlier. The respondent’sbrief while demonstrative of erudite analysis of the railroad’sposition, fails to convince me that OSHA does not have jurisdiction ofthe case under the facts found.The complainant’s brief contains a statement from the FRA’s chiefcounsel recognizing OSHA’s expertise and jurisdiction in areas outsidetraditional railroad operation, reserving to FRA those areas that aredirectly related to the provision of a transportation service by rail.It considers the digging of a trench for the installation of a waterline to be a \”construction\” activity, and therefore defers jurisdictionto OSHA.In these circumstances I find no reason for any revision in the findingsof fact and conclusions of law set forth in my initial decision. It is,therefore, reaffirmed.So ORDERED.Louis G. LaVecchiaJudge, OSHRCDate: November 2, 1989FOOTNOTES:[[1\/]] 29 U.S.C. {sec} 653(b)(1) provides:Nothing in this Act shall apply to working conditions of employees withrespect to which other Federal agencies, and State agencies acting undersection 2021 of Title 42, exercise statutory authority to prescribe orenforce standards or regulations affecting occupational safety or health.[[2\/]] Under 49 C.F.R. ? 225.31, the FRA, in addition to investigatingall accidents arising out of rail transportation that cause death to arailroad employee, also investigates any accident or incident \”when itappears that an investigation would substantially serve to promoterailroad safety.\”[[3\/]] The Secretary’s review brief states that the Secretary’s counselhas received a copy of the FRA report. However, the Secretary’s counselhas not moved to admit the report into evidence.[[4\/]] We do not necessarily require the parties to introduce the FRA’sinvestigative report into the record if they do not wish to do so.However, we expect at the very least that the substance or significanceof the report will be addressed in whatever documents are submitted toestablish the FRA’s position so that we are not forced to speculate onhow the FRA’s investigation affects or relates to the preemption issueraised here.We also express no opinion on Burlington Northern’s cryptic statementthat \”it is of absolutely no importance here what action FRA may havetaken upon concluding its own investigation in this case, or upon theissuance of its final report.\” Contrary to Burlington Northern’sargument, this case does not involve the adequacy of FRA’s enforcementof its regulations. The issue regarding the FRA investigation iswhether, and if so how, the FRA investigation bears on the scope of theFRA regulations alleged to preempt OSHA.”