“Docket No. 87-0365 SECRETARY OF LABOR,Complainant,v.BURLINGTON NORTHERN RAILROAD COMPANY, Respondent.OSHRC Docket No. 87-0365REMAND ORDERBefore: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:This case results from the Secretary’s inspection of a trench located alongside BurlingtonNorthern’s tracks in Kansas City, Missouri. Burlington Northern’s employees wereinstalling a sewer line in a portion of the trench when it collapsed, killing oneemployee. The Secretary cited Burlington Northern for several violations of OSHA standardsgoverning excavations and trenches, and Administrative Law Judge Louis J. LaVecchiaaffirmed all but one of the citation items.The only issue before us is whether the judge properly rejected Burlington Northern’sargument that under section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29U.S.C. {sec} 653(b)(1)) [[1\/]] regulations issued by the Federal Railroad Administration(FRA) preempt the Secretary from exercising authority over a trench located near andalongside railroad tracks. For the reasons that follow, we set aside the judge’s decisionand remand to afford an opportunity for the views of the FRA to be elicited.It is well-settled, and the parties do not dispute, that the FRA has statutory authorityto regulate the safety of railroad employees. However, that fact alone does not establishthat the FRA has preempted the Secretary under 29 U.S.C. {sec} 653(b)(1). The Secretary isnot divested of jurisdiction unless the FRA has exercised its statutory authority over theworking conditions that are the subject of the Secretary’s citations. Consolidated RailCorp., 82 OSAHRC 25\/B6, 10 BNA OSHC 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 a sewer linenear a railroad track comes within the purview of the FRA’s regulations and a \”policystatement\” the FRA has issued elaborating on the working conditions and hazards overwhich it has exercised authority. 43 Fed. Reg. 10583 (1978).Since preemption of OSHA under 29 U.S.C. {sec} 653(b)(1) involves another agency’sexercise of statutory authority over safety and health, any authoritative statements bythat agency as to the scope of its regulations will greatly assist the Commission indeciding the preemption issue. Northwest Airlines, Inc., 80 OSAHRC 87\/B5, 8 BNA OSHC 1982,1988, 1980 CCH OSHD [[P]] 24,751, p. 30,487 (No. 13649, 1980) (Commission givesconsiderable weight to interpretation by the Federal Aviation Administration that it hasexercised statutory authority to regulate the safety and health of airline maintenancepersonnel). In support of her position that FRA regulations do not preempt OSHA in thecircumstances here, the Secretary has moved to supplement her brief before us with aletter the Secretary states she received from S. Mark Lindsey, the Chief Counsel of theFRA, after she sent a copy of her review brief to Mr. Lindsey for his consideration. Theletter asserts that FRA regulations do not cover the working conditions at the trench onBurlington Northern’s worksite. In effect, the Secretary asks that we accept this letteras stating the view of the FRA that its regulations do not preempt OSHA in this case.However, we conclude that the letter attached to the Secretary’s brief does not show anofficial interpretation or position of the FRA for the following reason.The record reflects that the FRA investigated the accident at Burlington Northern’sworksite and prepared a report of its findings.[[2\/]] Although the FRA did not release itsinvestigative report until after this case was tried and the judge had issued hisdecision, the FRA’s report was available at the time the Lindsey letter was written.[[3\/]]However, the letter does not discuss the FRA report or any of its findings despite thefact that Mr. Lindsey acknowledges that \”[a]ccident investigations determine whetherregulations promulgated by the FRA have been violated or whether there may be need foradditional regulations to ensure employee safety in areas not within another agency’sjurisdiction.\” (emphasis added).In view of the admitted significance of FRA investigative reports, the failure of theLindsey letter to address or indeed to make any reference whatever to the FRA’s inquiryinto the incident that precipitated the Secretary’s inspection is a substantial omissionthat precludes us from treating the letter as an expression of the official view of theFRA regarding the scope of the FRA regulations in question. Cf. Long Beach ContainerTerminal, Inc. v. OSHRC, 811 F.2d 477 (9th Cir. 1987) (official statements of the agencythat promulgates the standards in question constitute the proper guide to their meaning).We simply cannot accept the letter as an authoritative statement of the FRA’s positionwhen it ignores a report prepared in the normal course of the FRA’s business pursuant tothe FRA’s regulations and dealing with the very factual situation at issue. We thereforedeny the Secretary’s motion to supplement her brief with Mr. Lindsey’s letter.Nevertheless, we do not think this case can be properly decided on the present record. Itis at least arguable that the results of the FRA investigation could support or couldcounter the Secretary’s contention that the FRA’s regulations do not extend to the workingconditions at issue. 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 onfindings of a Coast Guard investigation of the incident that resulted in the Secretary’scitations). The bearing the FRA’s report may have on the preemption issue is bestdetermined by the trial judge since the significance of the report, if any, depends onwhether it is offered and admitted into evidence and on whatever factual findings may bededuced from the investigative report should it become part of the record. Cf. SeattleCrescent Container Service, 79 OSAHRC 91\/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). Regardless whether the reportitself is produced, a remand to the judge will also allow the parties an opportunity topresent an official or authoritative statement of position by the FRA by any otherappropriate 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 at oral argument and amicus curiaebrief by Coast Guard regarding its exercise of its authority over the safety of employeeson vessels in navigable waters).Accordingly, the judge’s decision is set aside and this case is remanded for furtherproceedings consistent with this opinion.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED: March 10, 1989 SECRETARY OF LABOR,Complainant, v.BURLINGTON NORTHERN RAILROAD COMPANY, Respondent.OSHRC Docket No. 87-0365 APPEARANCES: 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 ORDERLouis G. LaVecchia, JudgeThis proceeding arises under Section 10 of the Occupational Safety and Health 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 therespondent’s workplace in North Kansas City, Missouri. An investigation by theOccupational Safety and Health Administration (OSHA) resulted in the issuance of acitation alleging serious violations of the safety standards promulgated under the Act andcivil penalties were proposed. The respondent seeks review of the citation and penaltiesproposed.A hearing was held in the matter on November 4-5, 1987 in Kansas City. Briefs have beenfiled by the parties.The threshold question finds the respondent contending that OSHA was without jurisdictionto take action against it on the theory that the Federal Railroad Administration hadpreempted the authority to regulate safety matters pertaining to the respondent’soperation, leaving OSHA without 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 shall apply to workingconditions of employees with respect to which other Federal agencies…exercise statutoryauthority to prescribe or enforce standards or regulations affecting occupational safetyor health.\”The Secretary of Labor (the complainant herein) acknowledges that under the FederalRailroad Safety Act of 1970, 45 USC ?421 et seq., the Secretary of Transportation, actingthrough the FRA, has authority to promulgate and enforce safety regulations affecting theworking conditions of railroad employees. However, the complainant argues that theexemption provided by section 4(b)(1) is not activated by the mere existence in the FRA ofstatutory authority to regulate railroad safety, citing the following authorities:\”OSHA’s authority to regulate a given working condition. . . is foreclosed onlyinsofar as another agency has exercised its authority to regulate that workingcondition.\” Practico v. Portland Terminal Co., 783 F.2d 255, 262 (1st Cir. 1985);PBR, Inc., v. Secretary of Labor, 643 F.2d 890,896 (1st Cir. 1981); Southern PacificTransportation 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.\” Corning Glass Works v.Brennan, 417 U.S. 188, 202 (1974); Southern Pacific, 539 F.2d at 390; PBR, 643 F.2d at896.The complainant further notes that in the FRA’s 1978 policy statement, subpart C, entitledOSHA JURISDICTION, the FRA stated that:* * * If FRA were to address all occupational safety and health issues which arise in therailroad yards, shops, and associated offices, the agency would be forced to develop astaff and field capability which, to an extent, would duplicate the capability alreadypossessed by OSHA. In view of this situation, FRA recognizes that OSHA currently is notprecluded from exercising jurisdiction with respect to conditions not rooted in railroadoperations nor so closely related to railroad operations as to require regulation by FRAin the interest of controlling predominant operational hazards.43 Federal Register, No. 50, March 14, 1978, at 10587. The term \”railroadoperations\” refers to the movement of equipment over the rails. Id. at 10585.Following the accident giving rise to the complaint herein the FRA conducted aninvestigation of the event, but a final report was never issued by that agency. (Tr.232-233).The respondent argues that OSHA jurisdiction is ousted and inapplicable where the physicalstructures involved, such as the tracks and adjacent excavation may be subject to FRAregulation.There has not appeared any precedent covering the precise situation presented here. In theabsence of such precedent I am inclined toward the position taken by the government–thatthe installation of a sewer line near a railroad track is not related to the movement ofequipment over the tracks, and cannot be considered railroad operations or an activity soclosely related to railroad operations as to require regulation by FRA in the interest ofcontrolling predominant operational hazards.The Alleged ViolationsAs amended, the citation and complaint assert, in essence, that the respondent violatedthe safety standard set forth at 29 CFR 1926.652(b) in that the sides of the trench, whichwere in unstable or soft material, and which were 5 feet or more in depth, were notshored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength toprotect the employees working within them.In the alternative the complainant alleges that the respondent violated 29 CFR 1926.652(c)in that the sides of the trench, which were in hard or compact soil, includingembankments, were not shored or otherwise supported when the trench was more than fivefeet in depth and eight feet or more in length and the sides of the trench above thefive-foot level 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 that the respondent wasin violation of 29 CFR 1926.650(i) in that daily inspections of the excavation were notmade by a competent person and, although evidence of a possible cave-in or slide wasapparent, all work was not ceased until the necessary precautions had been taken.Item 2 of the citation alleges that the respondent was in violation of 29 CFR1926.651(i)(1) in that the excavated or other material was not effectively stored andretained at least 2 feet or more from the edge of the excavation.Item 3a alleges a violation of 29 CFR 1926.652(e) in that additional precautions by way ofshoring and bracing were not taken to prevent slides or cave-ins in an excavation whichwas subjected to vibrations from railroad traffic.Item 3b alleges that the respondent was in violation of 29 CFR 1926.652(h) in thatemployees were required to be in a trench 4 feet deep or more, without adequate means ofexit, such as a ladder or steps, having been provided and located so as to require no morethan 25 feet of lateral travel.Specific FindingsConsideration has been given to the entire record in this proceeding, and the followingspecific findings of fact are made:1. The respondent Burlington Northern Railroad is a corporation with a place of businessand a workplace in North Kansas City, Missouri.2. The respondent employs in excess of 2,500 employees and is engaged in interstatecommerce.3. On November 22, 1986 and for several days prior thereto respondent’s employees wereengaged in installing a new sewer line within a trench.4. On November 22, 1986 the sides of the trench were five feet or more in depth. (Tr.33-34, 96).5. On November 22, 1986 and for some time before that, the sides of the trench were insoil 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 the day the sewer linecrossed Atlantic Street, the day the line crossed the single tracks, and each daythereafter through the date of the cave-in on 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 other employees worked intrenches over 4 feet deep, the sides of which were not sloped to less than a 45 degreesangle or shored. (Tr. 34-5, 37-8, 48, 130, 179, 209).9. On the day the sewer line passed Atlantic Street Carpenter had to be told two or threetimes to get out of the unshored trench. (Tr. 208).10. The respondent’s employees were never instructed to stop work or get out of the trenchuntil proper sloping had been done, or adequate shoring 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 the top, about 15 feetdeep, 15 to 18 feet long, and 4 to 4-1\/2 feet wide at the bottom. (Tr. 48).12. No ladder or steps were in the trench at the time of the accident or at any timebefore that. (Tr. 51, 140).13. There was train traffic on the tracks near the trenching operation on the date of theaccident. (Stip. 6; Tr. 46-7, 50, 143).14. The respondent’s safety training program was inadequate and the enforcement of itssafety rules was lax and inefficient.15. The emergency exit facilities and arrangements were inadequate.16. The respondent’s supervisory personnel were lax in their enforcement of the companysafety rules.17. The respondent knew or should have known that there was present a significant hazardto the safety of its employees in the manner in which the trenching operation was beingperformed.DiscussionThe evidence establishes that a trench between 10 and 15 feet deep was being dug by therespondent’s employees on the respondent’s property for the purpose of laying a sewerline. Although shoring and bracing materials were made available, the respondent’ssupervisory personnel failed to make certain that the shoring of the trench, which was notsufficiently sloped, was performed for the safety of the employees. Sloping of the trenchwall when it reached a point close to one of the respondent’s main tracks was not possiblefor proximity, but shoring, sheeting, or bracing of the wall could have been accomplished.None of these measures was undertaken, and the fatal cave-in of the trench wall occurred.The supervisory personnel were aware of the proximity of the trench to the railroad tracksand the vulnerability of the trench walls to the vibrations caused by passing trains. Theywere under a duty to stop the work immediately as they saw that employees were working ina trench which had not been properly protected against cave-in hazards. No resumption ofwork should have been permitted until proper shoring had been effected.Although the respondent contends that it had an adequate safety program for theinstillation of safe working habits in its employees their action in entering a deeptrench without protection against cave-ins belies the effectiveness of the program. Theprogram must be considered inadequate in view of the results.It is also evident that the safety measures which might have been ordered followed by therespondent’s employees were not enforced by the company. No disciplinary action againstthe deceased employee or any other employee for violating the company safety regulationswith respect to trench operations was taken.In the circumstances shown the respondent’s defense of employee misconduct will not lie.Respecting the absence of a ladder or steps which could be used by an employee to exit thetrench quickly in the event of an emergency the inadequacy of the sloping at the ends ofthe trench is shown in the fact that when the deceased attempted to climb out of one endof the trench he was unable to do so and was trapped by the cave-in.There did not appear to be any violation of the applicable standard concerning the pilingof the spoils on the sides of the trench. The conflicting testimony of the employees mustbe resolved in favor of the respondent.The question of the inspection of the work by a competent person does not necessarilyrevolve around the actual competency of the persons who made the inspections. In thisrespect it appears that those who did so were competent to identify existing andpredictable hazards which might have been evident during the progress of the work. It wasthe inaction on the part of these individuals – their failure to take prompt correctivemeasures to eliminate the hazards, that must be criticized.It is axiomatic that the actions or inaction’s of supervisory personnel are imputed to theemployer in matters of this kind.I conclude that the complainant has successfully sustained the burden of proving by apreponderance of the evidence that the respondent violated all items shown in thecitation, as amended, with the exception of Item 2 regarding the storing of the spoils ofthe trench excavation. The affirmed violations were serious.CONCLUSIONS OF LAW1. The Occupational Safety and Health Review Commission has jurisdiction over the partiesand the subject matter herein.2. The Federal Railroad Administration has not exercised its authority to regulate theworking conditions at issue and, therefore, the Occupational Safety and HealthAdministration (OSHA) regulations have not been preempted under Section 4(b)(1) of theAct.3. At all times material hereto the respondent was an employer within the meaning ofSection 3(5) of the Act, engaged in a business affecting commerce, and having employees.4. The citation, as amended, the notification of proposed penalty, and the notice ofcontest were served by and upon the respective parties in accordance with Section 10 ofthe Act.5. The respondent violated the safety standard set forth at 29 CFR 1926.652(b), or, in thealternative the standard set forth at 29 CFR 1926.652(c).6. The respondent violated the safety standard set forth at 29 CFR 1926.650(i).7. The respondent violated the safety standard set forth at 29 CFR 1926.652(e).8. The respondent violated the safety standard set forth at 29 CFR 1926.652(h).9. The violations shown above were properly categorized as \”serious\” within themeaning of Section 17(k) of the Act.10. The penalty assessed below is reasonable and appropriate in light of the criteria inSection 17(j) of the Act.11. The respondent did not violate the safety standard set forth at 29 CFR 1926.651(i)(1).ORDER1. 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 under items 1 and 3 (andsubsections thereof) of the described citation.So ORDERED.Louis G. LaVecchia Judge, OSHRC Date: 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 RemandThe Commission remanded this matter for further consideration of the 4(b)(1) exemptiondiscussed previously. The parties agreed to present their arguments on brief, eschewingthe necessity of a further hearing. The briefs expand upon the arguments made earlier. The respondent’s brief whiledemonstrative of erudite analysis of the railroad’s position, fails to convince me thatOSHA does not have jurisdiction of the case under the facts found.The complainant’s brief contains a statement from the FRA’s chief counsel recognizingOSHA’s expertise and jurisdiction in areas outside traditional railroad operation,reserving to FRA those areas that are directly related to the provision of atransportation service by rail. It considers the digging of a trench for the installationof a water line to be a \”construction\” activity, and therefore defersjurisdiction to OSHA. In these circumstances I find no reason for any revision in the findings of fact andconclusions 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 with respect to whichother Federal agencies, and State agencies acting under section 2021 of Title 42, exercisestatutory authority to prescribe or enforce standards or regulations affectingoccupational safety or health.[[2\/]] Under 49 C.F.R. ? 225.31, the FRA, in addition to investigating all accidentsarising out of rail transportation that cause death to a railroad employee, alsoinvestigates any accident or incident \”when it appears that an investigation wouldsubstantially serve to promote railroad safety.\”[[3\/]] The Secretary’s review brief states that the Secretary’s counsel has received acopy of the FRA report. However, the Secretary’s counsel has not moved to admit the reportinto evidence.[[4\/]] We do not necessarily require the parties to introduce the FRA’s investigativereport into the record if they do not wish to do so. However, we expect at the very leastthat the substance or significance of the report will be addressed in whatever documentsare submitted to establish the FRA’s position so that we are not forced to speculate onhow the FRA’s investigation affects or relates to the preemption issue raised here.We also express no opinion on Burlington Northern’s cryptic statement that \”it is ofabsolutely no importance here what action FRA may have taken upon concluding its owninvestigation in this case, or upon the issuance of its final report.\” Contrary toBurlington Northern’s argument, this case does not involve the adequacy of FRA’senforcement of its regulations. The issue regarding the FRA investigation is whether, andif so how, the FRA investigation bears on the scope of the FRA regulations alleged topreempt OSHA.”