“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11742 CENTRAL OF GEORGIA RAILROAD COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 UNITED TRANSPORTATION UNION, \u00a0 ????????????????????????????????????????????? Intervenor \u00a0 \u00a0April 5, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY, Commissioners.CLEARY, Commissioner:??????????? Adecision of Administrative Law Judge James D. Burroughs rendered on September2, 1975, is before the Commission for review pursuant to section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 et seq.[hereinafter ?the Act?].??????????? Inhis decision, Judge Burroughs affirmed item one of a citation alleging thatrespondent violated section 5(a)(2) of the Act by failing to comply with theoccupational safety and health standard at 29 CFR ? 1910.22(a)(1).[1] Respondent petitioned theCommission for review of this decision and an order granting its petition wasissued. We affirm the decision of the Judge insofar as it is consistent withthis opinion.??????????? OnOctober 30, 1974, respondent?s railyard near Augusta, Georgia, and the railroadfacilities at a nearby Continental Can Company, Inc., plant were inspected. Asa result of the inspection at the latter facility, a citation was issued torespondent for failure to comply with ? 1910.22(a)(1). The citation in relevantpart read:The following places of employment (especially theimmediate adjacent areas) were not kept clean:(a) Track #2: Covered with lime while itwas being unloaded. Lime had sifted from the railroadcar.(b) Track #7: Covered with tall oil.(c) Track #9: Fuel oil on it.(d) Tracks #11 and #1: Mud and chipspresent. At least two water filled depressions.??????????? Theseplaces presented a hazard to safe walking and the safe climbing of the fixedmetal ladders on the railroad cars as the shoes of the on-duty brakeman,conductor, and flagman became slippery.??????????? Thealleged violation was termed not ?serious? in nature, and a $25 penalty wasproposed.??????????? Inlieu of a hearing, a stipulation was entered into to serve as the record inthis proceeding. The relevant portions of the stipulation can be summarized asfollows: Respondent had entered into an agreement with Continental Can Company,pursuant to which respondent agreed to provide railroad shipping services tothe Continental Can plant over railroad tracks constructed, maintained, andowned by Continental Can. At the time of the inspection in this case,respondent performed switching operations at the Continental Can facilitiestwice daily. These operations involved dispatching an engine and a crew to deliverand pick-up freight cars at the Continental Can plant. Respondent has admittedthat in switching the railroad cars, its engine and crew traveled over thetracks involved, and that the crew had access to the area in which the allegedviolative conditions existed.[2] Respondent has alsoadmitted that the condition of the tracks was as described by the Secretary.??????????? Nevertheless,respondent argues that it cannot be held responsible for any violationresulting from these conditions. Three major arguments are made in support ofits position. These can be summarized as follows: (1) the Department ofTransportation, specifically, the Federal Railroad Administration, hasexercised its authority over occupational safety and health within the railroadindustry, and therefore, respondent is exempt from the Act?s coverage pursuantto section 4(b)(1) of the Act;[3] (2) the citation was notissued with ?reasonable promptness? within the meaning of section 9(a) of theAct[4] nor was it issued withinsix months of the occurrence of the violation as required by section 9(c);[5] and, (3) respondent cannotbe held responsible for a violation of the Act occurring on the premises of anindependent shipper who owns the facilities in question and is responsible fortheir maintenance.??????????? Respondent?ssection 4(b)(1) arguments have previously been rejected by a dividedCommission. See, e.g., Seaboard Coast Line R.R. Co., BNA 3 OSHC 1767,CCH 1975 76 OSHD para. 20,185 (No. 11904, 1975); Burlington Northern, Inc.,BNA 3 OSHC 1784, CCH 1975 76 OSHD para. 20,218 (No. 11418, 1975). For thereasons set forth in those decisions, the arguments also fail in the presentcase.??????????? Theargument that because the citation in the present case was not issued untilfifty-one days after the inspection,[6] it was not issued with?reasonable promptness? as required by section 9(a), is based on the contentionthat the ?72 hour rule? expressed in Chicago Bridge & Iron Co., BNA1 OSHC 1485, CCH 1973 74 OSHD para. 17,187 (No. 744, 1974), rev?d514 F.2d 1082 (7th Cir. 1975), is the correct interpretation of that section.We have since decided that a citation will not be vacated on reasonablepromptness grounds unless the employer demonstrates prejudice resulting fromthe delay. Coughian Constr. Co., Inc.,BNA 3 OSHC 1636, CCH 1975 76 OSHD para. 20,106 (Nos. 5303 & 5304, 1975).[7] Respondent has not allegedany prejudice, nor would the record support an allegation of prejudice causedby the delay in the issuance of the citation. Its section 9(a) defensetherefore fails.??????????? Respondentalso argues that the alleged violation ?occurred? more than six months beforethe issuance of the citation and that vacation of the citation is thereforemandated by section 9(c) of the Act. In respondent?s view, a violation ?occurs?at the time that the violative conditions first come into existence. Therefore,it is argued, because the conditions forming the basis of the citation in thiscase were admittedly in existence for more than six months prior to theissuance of the citation, the citation is unenforceable. This argument iswithout merit.??????????? Forsection 9(c) purposes, a violation of section 5(a)(2) of the Act ?occurs?whenever an applicable occupational safety and health standard is not compliedwith and an employee has access to the resulting zone of danger. Therefore, itis of no moment that a violation first occurred more than six months before theissuance of a citation, so long as the instances of noncompliance and employeeaccess providing the basis for the contested citation, occurred within sixmonths of the citation?s issuance. The citation in the present case allegedthat a violation occurred on October 30, 1974. The citation was issued lessthan two months after this date. Clearly, the requirements of section 9(c) havebeen met.??????????? Respondent?sfinal argument is that because the noncomplying conditions existed on propertyowned and maintained by Continental Can Company, it had neither the ability northe responsibility to abate the hazardous conditions. It argues that thepurposes of the Act cannot be served by a citation issued to respondent. Itsubmits that in this situation, the ?only way the purpose of the Act may beeffected? would be to cite Continental Can, which in respondent?s view, is theonly one that ?has the power to abate the alleged condition.? Respondent citesus to the decisions in Anning-Johnson Co. & WorkingerElectric Corp. v. O.S.H.R.C., 516 F.2d 1031 (7th Cir. 1975) and Brennanv. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir. 1975),as purported support for its argument. We reject this argument for the reasonsthat follow.??????????? First,the cited courts of appeals decisions involved multi-employer constructionworksites and the unique citation and abatement problems attendant thereto, asubject on which the Commission subsequently has expressed its own views. See Anning-JohnsonCo., BNA 4 OSHC 1193, CCH 1975 76 OSHD para. 20,690 (Nos. 3694 & 4409,1976) and Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, CCH 197576 OSHD para. 20,691 (No. 12775, 1976). In Anning-Johnson Co. (Nos. 3694& 4409) and Grossman Steel & Aluminum Corp., the Commissionrecognized that the multi-employer construction worksite situation necessitatedan exception to the general rule that each employer is responsible for thesafety of its own employees and will be found in violation of the Act if it isdetermined that its employees had access to violative conditions. See, e.g., CaliforniaStevedore & Ballast Co., BNA 1 OSHC 1757, CCH 1973 74 OSHD para. 17,931(No. 1132, 1974).[8]The present case, however, does not involve a construction worksite, and thegeneral rule therefore applies. Under this rule, respondent is responsible forthe violation resulting from the exposure of its employees to the hazardousconditions herein involved.??????????? Second,even if we accepted respondent?s assertion that the rationale of themulti-employer construction worksite cases should be applied to the presentfacts, the defense recognized in those cases has not been established. A briefsummary of our holdings in Anning-Johnson Co., supra, is necessary inorder to illustrate the reasons for this conclusion.??????????? In Anning-JohnsonCo. (Nos. 3694 & 4409), we held that in multi-employer constructionworksite cases an employer will not be held to have violated the Act if it canestablish: (1) that it neither created nor controlled the hazardous condition,and (2) either that its employees who had access to the area of the hazard wereprotected by realistic alternative protective measures or that the employer didnot know, no with the exercise of reasonable diligence could have known, thatthe cited condition was hazardous.[9] BNA 4 OSHC at 1198 99, CCH1975 76 OSHD at 24,783 4. We stated that where such a showing is made, theexclusive responsibility for abating the violation by eliminating the hazardwill be placed on the party that created or controlled the hazard. Id.??????????? Essentially,the same holding was expressed in Grossman Steel & Aluminum Corp.,wherein it was concluded that, ?on a construction site, the safety of allemployees can best be achieved if each employer is responsible for assumingthat its own conduct does not create hazards to any employees on thesite, . . .? BNA 4 OSHC at 1188, CCH 1975 76 OSHD at 24,791 (emphasis added).Nevertheless, it was emphasized that, ?each employer has primaryresponsibility for the safety of its own employees.? BNA 4 OSHC at 1189, CCH1975 76 OSHD at 24,791 (emphasis added). Because of this primaryresponsibility, we stated that every employer must ?make a reasonable effort todetect violations of standards not created by it but to which its employeeshave access and, when it detects such violations, to exert reasonableefforts to have them abated or take such other steps as the circumstances maydictate to protect its employees.? Id. (emphasis added). Weconcluded that if the employer fails to make such reasonable efforts, ?we willstill hold each employer responsible for all violative conditions to which itsemployees have access.? Id.??????????? Inthe present case, even if it is assumed that respondent did not create thehazardous conditions described in the citation and that it did not control thehazard ?such that it realistically had the means to rectify the condition inthe manner contemplated by the standard,?[10] there was a realisticalternative measure that respondent could have taken to protect its employees,i.e., it could have suspended shipping services over the involved tracks untilthe necessary corrective action was taken.??????????? Respondentargues that this action is not a realistic means of abating the hazard and thatto require such is without support under the Act. We do not agree. Paragraphsix of respondent?s written agreement with Continental Can provided:6. Shipper agrees to maintain its saidtracks in safe operating condition . . .The Railway will perform switching serviceto the satisfaction of the Shipper?s needs, unless the Shipper fails orrefuses to maintain properly its tracks which are to be used within thescope of this agreement, in a condition satisfactory to the Railway. In theevent of such refusal or failure by the Shipper, then the Railway, without anyliability or accountability whatsoever to the Shipper, its successors orassigns, may suspend or discontinue switching service upon the said tracks . .., until said tracks are restored to a condition satisfactory to the Railway(emphasis added).???????????? Thatrespondent knew that its employees were being exposed to hazardous conditionsin Continental?s railyard is clear from the record. In the period between April24, 1973, and May 9, 1974, respondent had sent six letters to Continental Cancomplaining about various unsafe conditions, including the drainage problemmentioned in the citation.[11] These letters weresupplemented by numerous phone calls voicing the same concerns. Nevertheless,on the date of the inspection the cited conditions remained uncorrected.Respondent?s employees, therefore, had been exposed to the hazards on a dailybasis for a period of approximately 18 months.??????????? Webelieve that in view of the lack of success in bringing about safe workingconditions by writing and telephoning Continental Can about the safety problemsencountered, a further step on respondent?s part was warranted. The enforcementof the suspension of shipping services clause provided an obvious andappropriate method for attempting to effect compliance while at the same timeprotecting its employees. By failing to suspend shipping services until theworking area was put into a satisfactory condition, respondent failed to takean available alternative precautionary measure.[12]??????????? Accordingly,the Judge?s decision finding respondent in nonserious violation of the Act forfailure to comply with the standard at 29 CFR ? 1910.22(a)(1) and assessing a$25 penalty is affirmed insofar as it is consistent with this opinion.?It is so ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: APR 5, 1977?BARNAKO, Chairman, Concurring:??????????? Iconcur but do not join in Commissioner Cleary?s explanation of our decisionsrelating to multi-employer construction industry worksites. See DataElectric Company, Inc., Docket No. 13122 (Rev. Comm?n, March 7, 1977)(concurring opinion). I do agree that were we to apply our constructionindustry decisions to this general industry case they would be distinguishableon the basis of respondent?s contract as discussed by Commissioner Cleary.?MORAN, Commissioner, Dissenting:??????????? Forthe reasons expressed in my opinion in Secretary v. Belt Railway Company ofChicago, 20 OSAHRC 568 (1975), I would vacate the citation because therailroad industry, of which respondent is a part, is not subject to thejurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29U.S.C. ? 653(b)(1).??????????? Furthermore,I disagree with my colleagues? rejection of respondent?s contention that thecitation was not issued with ?reasonable promptness? as required by 29 U.S.C. ?658(a). As I have explained at some length in previous opinions,[13] an employer?s rightsunder 29 U.S.C. ?\u00a0658(a) are not contingent upon a showing of prejudice orthe existence of ?unconscionable? delay. Rather, it is clear that in requiringthe Secretary of Labor to issue citations ?with reasonable promptness,?Congress meant that they should be issued within 72 hours after a violation isdetected by a Department of Labor inspector, unless a longer delay is justifiedbecause of ?exceptional circumstances.???????????? Theevidence is this case fails to establish that the delay of 51 days was due toexceptional circumstances. The parties stipulated that the inspection wasconducted on October 30, 1974, and that 13 days later the area director referredthe case to the regional office, which in turn referred the case to thenational office 6 days thereafter. The national office held the case for amonth. Finally, on December 18, the area director was authorized by thenational office to issue the citation and he did so 2 days later.??????????? Thereis no reason why it should have taken 19 days to forward the case to thenational office. It is unclear from the meager record in this case, however,whether the causes of the delay at the national office constituted ?exceptionalcircumstances? or whether it was caused by the bureaucratic red tape whichseems to typify the Department of Labor?s processing of these cases.[14] As I stated in Secretaryv. Louisville and Nashville Railroad Company,[15] the initial efforts to coordinatethe jurisdictional problems of the Occupational Safety and HealthAdministration and the Federal Railroad Administration would have caused someunderstandable delay. Nevertheless, the record does not clarify why it wasthereafter necessary for the regional representatives of the Secretary of Laborto continue referring such cases to the national office. Even if that referralwas necessary, however, the justification for holding this case for a month atthe national office, when the case had been thoroughly reviewed by the regionaloffice, has not been established.??????????? Finally,the citation should be vacated on the basis of Anning-Johnson Company v.OSAHRC, 516 F.2d 1081 (7th Cir. 1975), which held that employers onmulti-employer worksites are not liable under the Act for conditions which theydid not create or cause or for which they did not otherwise haveresponsibility. The primary basis for that holding was that only the employerwho is primarily at fault should be held liable. That sound logic is applicablewhether the multi-employer worksite is a construction project or a facilitysuch as the one in this case.??????????? Icontinue to disagree with my colleagues? shifting the burden of proof torequire cited employers to show that they had no responsibility for the allegedviolative conditions or that they protected their employees with ?realisticalternative measures.?[16] In this case, Messrs.Barnako and Cleary extend the latter rule to mean that respondent was requiredto ?suspend shipping services.? That is contrary to the well-reasoned decisionof the Seventh Circuit in the Anning-Johnson case. It also broadensliability of employers under the Barnako-Cleary ?rule? and illustrates theambiguousness and arbitrariness of their ?rule.?[17]??????????? In Secretaryv. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12,1976, my colleagues stated that:Simply because a subcontractor cannothimself abate a violative condition does not mean it is powerless to protectits employees. It can, for example, attempt to have the generalcontractor correct the condition, attempt to persuade the employerresponsible for the condition to correct it, instruct its employees toavoid the area . . . or in some instances provide an alternative means ofprotection . . . (Emphasis supplied.)???????????? Underthis test, an employer can attempt to have the responsible employer abate theviolation, or it can ?provide alternative means of protection.? In Secretaryv. Otis Elevator Company, OSAHRC Docket No. 8468, May 14, 1976, mycolleagues based liability of an employer for a housekeeping violation on theirfinding that he ?should have requested the responsible subcontractor to correctthis condition, or [he] should have notified the general contractor.? Sincerespondent in this case repeatedly requested the responsible employer to abatethe housekeeping violation, it did all that was required under the holdings inthose cases.??????????? Evenassuming the validity of requiring an employer to provide ?alternative means?to protect its employees in some cases, it is unreasonable and unfair torequire respondent to discontinue the switching service as an ?alternative means.?In Anning-Johnson Company v. OSAHRC, supra, the Court held that a policyrequiring removal of employees from a worksite is contrary to the purposes ofthe Act. The Court observed that such a requirement could have disastrousconsequences for the individual employer involved and for other industries towhich he provides services. Accordingly, it held that ?[c]orrectingthe hazard, not shutting down construction sites, is the desired result.? 516F.2d at 1090. Nevertheless, my colleagues require respondent to terminate theswitching operations because of respondent?s contract with the Continental CanCompany. That requirement will adversely affect the entire production ofContinental Can simply because of the uncleanliness of the switchyard . . .This is exactly the kind of ruling that the United States Court of Appeals ofthe Seventh Circuit was trying to avert.??????????? Moreover,it is unfair and inconsistent for my colleagues to find liability because ofthe contract. The agreement was signed in 1963, many years prior to the passageof the Occupational Safety and Health Act of 1970. Thus, respondent is beingpenalized for attempting to make its worksite safe for its employees 8 yearsbefore it was required to do so under the law. Also, since my colleagues do notallow an employer to escape liability through contractual arrangements,[18] it is unfair for them tohold an employer liable simply because of a contractual arrangement.??????????? Sincethis decision does not cover all the matters discussed in Judge Burroughs?decision, his decision is attached hereto as Appendix A.?APPENDIXA\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11742 CENTRAL OF GEORGIA RAILROAD COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 UNITED TRANSPORTATION UNION, \u00a0 ????????????????????????????????????????????? Intervenor \u00a0 September 2, 1975APPEARANCES:Stephen J. Simko, Jr., Esquire, Office ofthe Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf ofcomplainant.\u00a0Richard K. Hines, V, Esquire, Neely,Freeman & Hawkins, Atlanta, Georgia, on behalf of respondent.\u00a0Lawrence M. Mann, Esquire, Bernstein, Alper, Schoene & Friedman,Washington, D.C., on behalf of Intevenor?DECISION AND ORDERSTATEMENT OF CASE??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and health Actof 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter ?Act?). Respondentseeks review of a non-serious citation issued to it on December 20, 1974,pursuant to section 9(a) of the Act. Review is also sought of a notification ofproposed penalty issued to respondent on December 20, 1974.??????????? Thenon-serious citation and notification of proposed penalty emanated from aninspection conducted on October 30, 1974, at the railroad tracks of aContinental Can Company plant located in Augusta, Georgia. Respondent wasengaged in switching, moving and locating of railroad cars for loading andunloading. Respondent at all times germane to this proceeding was engaged inthe operation of a common carrier interstate railroad.??????????? Thecitation alleges that respondent committed two non-serious violations ofsection 5(a)(2) of the Act by failing to comply with a regulation published at29 CFR 1903.2(a) and a safety standard published at 29 CFR 1910.22(a)(1). Thecitation described the alleged violations as follows:Item 1?29 CFR 1910.22(a)(1)The following places of employment(especially the immediate adjacent areas) were not kept clean:(a) Track #2: Covered with lime while itwas being unloaded. Lime had sifted from the railroadcar.?(b) Track #7: Covered with tall oil.?(c) Track #9: Fuel oil on it.?(d) Tracks #11 and #1: Mud and chipspresent. At least two water filled depressions.\u00a0These places presented a hazard to safewalking and the safe climbing of the fixed metal ladders on the railroad carsas the shoes of the on-duty brakeman, conductor, and flagman became slippery.?Item 2?29 CFR 1903.2(a)No poster furnished by OSHA informingemployees of the protections and obligations provided for in the Act posted bythe employer in a conspicuous place where notices to employees are customarilyposted.?Penalties of $25 and $50 were proposed for items 1 and2, respectively.??????????? Therespondent, by letter dated December 30, 1974, and received by complainant onJanuary 2, 1975, timely advised complainant that it desired to contest thecitation and notification of proposed penalty. The notice raised two affirmativedefenses. The defenses are: (1) respondent is exempt from the Act by virtue ofthe provisions of section 4(b)(1), and (2) complainant failed to comply withsection 9(a) of the Act by failing to issue the citation ?with reasonablepromptness.???????????? Respondentconcedes in a stipulation filed by the parties that the tracks described initem 1 of the citation were in the condition as described by the citation.Respondent, however, submits that it was not responsible for the maintenance ofthe tracks and should not be held responsible for the violation (Par. X,Stip.).??????????? Pursuantto Rule 21 of the Commission?s Rules of Procedure, the United TransportationUnion, Local 674, intervened in the proceeding and filed a brief on thequestion of whether section 4(b)(1) of the Act exempts the railroad industry.??????????? Priorto the scheduled hearing in this matter, the parties advised that all issuescould be fully stipulated and that there was no necessity for a formal hearing.On April 22, 1975, a stipulation was received from the parties setting forththe facts with respect to all issues in dispute.JURISDICTION AND ISSUES??????????? Respondentconcedes that it is engaged in the operation of an interstate railway systemand engaged in activities affecting commerce (Part. II, Complaint and Answer;Par. IV, Stip.). It denies that it is subject to the provisions of the Act.This denial is premised on the belief that section 4(b)(1) exempts it from theprovisions of the Act.??????????? Thefollowing issues are pertinent to a disposition of this proceeding:??????????? 1.Does section 4(b)(1) of the Act exempt respondent from the standardspromulgated by complainant pursuant to section 6 of the Act???????????? 2.Was the citation issued with ?reasonable promptness? as required by section9(a) of the Act???????????? 3.Did respondent violate section 5(a)(2) of the Act by failing to comply with theregulation published at 29 CFR 1903.2(a) and the standard published at 29 CFR1910.22(a)(1)???????????? 4.What penalties, if any, should be assessed for any violations of the Act?FINDINGS OF FACT??????????? Theevidence of record has been carefully considered in its entirety. The followingfacts are specifically determined in resolving all issues in dispute:??????????? 1.Respondent, Central of Georgia Railroad Company, is a railway corporationorganized under the laws of the State of Georgia, having a place of businessand doing business in, among other places, Augusta, Georgia. It was at alltimes germane to this proceeding engaged in the operation of a common carrierinterstate railway system that affected interstate commerce (Par. IV, Stip.).??????????? 2.Respondent owns and operates a satellite yard known as the ?Nixon Yard.? Theyard is located nine miles south of Augusta, Georgia (Par. IV, Stip.).??????????? 3. OnJanuary 11, 1963, respondent entered into an agreement with Continental CanCompany, Inc. (hereinafter ?Continental?) wherein it agreed to provide railroadshipping services to Continental over an industrial track to be constructed andmaintained in a safe operating condition by Continental (Ex. A; Par. IV, Stip.).??????????? 4.Paragraph 6 of the agreement of January 11, 1963, provided, in part, asfollows:Shipper agrees to maintain its said tracksin safe operating condition. *** ?The Railway will perform switching service tothe satisfaction of the Shipper, commensurate with the Shipper?s needs, unlessthe Shipper fails or refuses to maintain properly its tracks which are to beused within the scope of this agreement, in a condition satisfactory to theRailway. In the event of such refusal or failure by the Shipper, then theRailway, without any liability or accountability whatsoever to the Shipper, itssuccessor or assigns, may suspend or discontinue switching service upon thesaid tracks to be used within the scope of this agreement, until said tracksare restored to a condition satisfactory to the Railway.???????????? 5. Atthe time of the inspection in this case, respondent, pursuant to the agreementof January 11, 1963, switched railway cars for Continental on a twice dailybasis. A switch engine and crew went twice daily to the premises of Continentalto deliver and pick up freight cars. In the conduct of these operations, theswitch engine and crew passed over the tracks that form the subject matter ofthe citation issued respondent on December 20, 1974 (Pars. IV, X, Stip.).??????????? 6.The complainant, through a duly authorized compliance officer, conducted aninspection on October 30, 1974, of the industrial tracks of Continental locatedon State Highway 56, Augusta, Georgia (Par. VII, Stip.).??????????? 7. Asa result of the inspection, complainant?s acting Area Director forwarded theinspection report to complainant?s regional office in Atlanta for review. OnNovember 18, 1974, the regional office sent the report to the national officefor review. On December 18, 1974, the regional office received a telephone callfrom the national office authorizing the issuance of a citation. On the samedate, the regional office telephoned the acting Area Director and authorizedthe issuance of the citation. The citation was issued on December 20, 1974 (Par.IX, Stip.).??????????? 8.Prior to the date of inspection, respondent was aware of two water filleddepressions existing at track number one and eleven. Its train passed overthese tracks (Par. X, Stip.).??????????? 9. OnApril 24, 1973, June 7, 1973, January 16, 1974, April 29, 1974, May 1, 1974,and May 9, 1974, respondent mailed letters to Continental requesting thatContinental correct the drainage problems. The letters were supplemented bynumerous telephone calls (Exs. D through I; Par. X,Stip.).??????????? 10.During January and February, 1975, Continental corrected the conditions setforth in item 1 of the citation issued respondent on December 20, 1974 (Par. X,Stip.).??????????? 11.Respondent had no ?Safety and Health Protection on the Job? poster posted atthe Nixon Yard facility at the time of inspection (Par. XI, Stip.).??????????? 12.Respondent, after investigation and review of its records, could find noevidence of any kind or nature that it ever received the poster or copiesthereof for posting at its Nixon Yard facility (Par. XI, Stip.).??????????? 13.On or about December 3, 1971, complainant mailed all railroad operators,including respondent, a letter and booklet containing recordkeepingrequirements and the ?Safety and Health Protection on the Job? poster (Par. XI,Stip.).LAW AND OPINIONI. SECTION 4(b)(1)??????????? TheCommission held in Secretary v. Southern Pacific Transportation Company,13 OSAHRC 258 (1974), that section 4(b)(1) does not provide an industryexemption, but does provide an exemption for specific working conditions. Thedecision in Southern Pacific is controlling.[19] The purport of the SouthernPacific decision is that if any of the alleged violations are covered byregulations promulgated by the Secretary of Transportation, then the Act wouldnot apply to that specific alleged violation or violations. The violations, ifany, must be determined on an individual basis by ascertaining whether or notregulations promulgated by the Department of Transportation cover the specificworking conditions. Respondent does not contend that any promulgatedregulations of the Department of Transportation cover the alleged violations inthis case.??????????? Sincethe Commission has decided that railroads are not totally exempt under section4(b)(1) of the Act and no regulations promulgated by the Department ofTransportation cover the alleged violations, it is concluded that the Commissionhas jurisdiction of the parties and of the subject matter. The stipulation byrespondent that it is engaged in interstate commerce would satisfy thedefinition of an employer under section 3(5) of the Act which only requiresthat an employer be engaged in a business affecting commerce.II. Reasonable PromptnessSection 9(a) of the Act provides, in pertinent part,as follows:If, upon inspection or investigation, theSecretary or his authorized representative believes that an employer hasviolated a requirement of section 5 of this Act, of any standard, rule or orderpromulgated pursuant to section 6 of this Act, he shall with reasonablepromptness issue a citation to the employer. (underlining added)\u00a0??????????? Respondentsubmits that ?reasonable promptness? requires that the citation be issuedwithin 72 hours after the inspection.??????????? TheCommission?s decision in Secretary v. Chicago Bridge & Iron Company,6 OSAHRC 244 (1974), rev?d. and remanded, ??? F.2d???? (7th Cir. No. 74?1214, April 22, 1975) sets forth guidelines and limits asto the applicability of the ?reasonable promptness? requirement. In the absenceof exceptional circumstances, the Commission adopted the 72 hour requirementfor reasonable promptness which appears in the legislative history. The 72?hourrule appears to be in a state of uncertainty. The Commission has not indicatedwhether it accepts or rejects the ruling of the seventh circuit.??????????? Evenif the philosophy of the Commission in Chicago Bridge & Iron Companyis deemed applicable, since respondent is in a circuit other than the seventh,the facts show that complainant complied with the requirements of ChicagoBridge as amplified in Secretary v. Illinois Central Gulf Railroad Company,16 OSAHRC 156 (1975). In Illinois Central Gulf the Judge concluded that reviewby a regional office or national office constitutes exceptional circumstancesup to the point that the Area Director or any other person who might beauthorized to issue the citation is officially notified to issue the citation.In this case authority to issue the citation was received on December 18, 1974,and the citation was issued on December 20, 1974, which was within the 72 hourrequirement. The citation was issued with ?reasonable promptness? as requiredby section 9(a).??????????? Respondentalso argues that the violations occurred more than six months prior to theissuance of the citation and that section 9(c) absolutely prohibits theissuance of the citation in this case. Section 9(c) states:?No citation may be issued under thissection after the expiration of six months following the occurrence of anyviolation.??Respondent submits that the initial date of the violationprevails rather than the inspection date.??????????? Section9(a) gives the Secretary of Labor the authority to issue a citation whenever hebelieves that an employer has committed a violation of the Act. Until a beliefis formed that a violation exists, there is no basis for the issuance of acitation. The six months requirement of section 9(c) is directed to the datethe Secretary forms a belief that a violation existed. In this case the beliefwas formed on October 10, 1974, the date when the violations were observed.Since the citation was issued on December 20, 1974, the six month requirementof section 9(c) has been satisfied.III. Alleged Violation of 29 CFR 1903.2??????????? Section1903.2 of 29 CFR provides, in pertinent part, as follows:Each employer shall post and keep posted anotice or notices, to be furnished by the Occupational Safety and HealthAdministration, U.S. Department of Labor, informing employees of the protectionand 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 and the nearest office of the Departmentof Labor.???????????? Respondentconcedes that it did not have a poster posted as required by 29 CFR 1903.2. However,it contends that no poster was furnished to it for posting at the Nixon Yard,Augusta, Georgia.??????????? Complainantstates in the stipulation that it mailed all railroad operators, includingrespondent, a poster on or about December 3, 1971. The stipulation does notstate the address to which the poster was mailed. Presumably, only one posterwas mailed to respondent. There is no indication that the poster was furnishedfor posting at the Nixon Yard in Augusta, Georgia. Respondent states in thestipulation that it could find no evidence of any kind or nature that theposter was ever received for posting at the Nixon Yard facility. Thus, one can not conclude that a poster was furnished for posting atthe Nixon Yard.??????????? Thestipulated facts are too inconclusive for arriving at a determination thatrespondent was furnished a poster as required by the regulation. The allegedviolation must be vacated. See Secretary v. PuterbaughEnterprises, Inc., 9 OSAHRC 718 (1974). Secretary v. WoerfelCorporation, 6 OSAHRC 428 (1974).IV. Alleged Violation of 29 CFR 1910.22(a)(1)??????????? Section1910.22(a)(1) of 29 CFR provides as follows:All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in a sanitarycondition.???????????? Complainantcontends that the following conditions existed: AREA CONDITION Track No. 2 \u00a0 Covered with lime while car was being unloaded. Lime sifted from car. Track No. 7 \u00a0 Covered with tall oil. \u00a0 Track No. 9 \u00a0 Fuel Oil on it. Track Nos. 1 and 11 \u00a0 Mud and chips present. Two water filled depressions. \u00a0 \u00a0??????????? Respondentconceded that the alleged conditions did in fact exist but submits that it waswithout authority to correct the conditions and should not be held in violationof the standard.??????????? Thetracks on which the conditions were observed were on the property ofContinental Can Company, Inc. and were constructed pursuant to an agreementbetween Continental and respondent. The agreement was dated January 11, 1963,and, among other things, provided that the tracks would be maintained in a safeoperating condition by Continental. The evidence clearly reflects thatrespondent was aware of the conditions and had made repeated attempts by letterand telephone to have the conditions corrected prior to the date of inspection.??????????? Respondentargues that it should not be held responsible for violations of the Actoccurring on the premises of an independent shipper. It was without authorityto enter the premises of Continental to correct the conditions. Respondentclearly had another choice. It could simply have refused to enter the premisesof Continental to deliver and pick up freight cars. In the event Continentalfailed to maintain the tracks in satisfactory condition, the respondent, underparagraph 6 of the agreement of January 11, 1963, could have suspended ordiscontinued switching service upon the tracks. The violation becameattributable to respondent when it submitted its employees to the conditions.Under the agreement, it was clearly not obligated to expose its employees tounsafe working conditions.??????????? TheCommission held in Secretary v. Savannah Iron and Fence Corporation, 10OSAHRC 1, 4 (1974), that ?each employer has as to his employees the duty ofcomplying with standards.? Respondent did not have to expose its employees tothe conditions existing on the premises of Continental. Respondent was notrelieved of its legal responsibility to comply with safety standards by virtueof Continental?s obligation to maintain the tracks in a safe condition.Respondent can not contract away its responsibilityto protect its employees.??????????? TheUnited States Court of Appeals for the Seventh Circuit in Anning?JohnsonCompany and Workinger Electric, Inc. v. OSAHRC andSecretary of Labor, ???F.2d ???? (Nos. 74?1381, 74?1382, May 27, 1975)distinguished between serious and non-serious violations with respect to theresponsibility of a subcontractor at a multi-employer construction site toprovide protection for its employees where the responsibility to provide theprotection was with another employer. It concluded that the policy of imposingliability on subcontractors for non-serious violations merely because theiremployees are exposed to conditions which were not created, caused or for whichthe subcontractors were not responsible for does not fulfill the purposes ofthe Act. The impact of the Seventh Circuit?s decision on future Commission decisionsis not yet discernible. Since the case was decided in a different circuit fromwhich this case arises and the Commission has not indicated it will follow thedecision, it is held inapplicable to the respondent. The violation has beenestablished.PENALTY DETERMINATION??????????? TheCommission is required by section 17(j) of the Act to find and give ?dueconsideration? to the size of the employer?s business, the gravity of theviolation, the good faith of the employer, the history of previous violationsin determining the assessment of an appropriate penalty. The principal factorto be considered is the gravity of the offense. Secretary v. NaciremaOperating Company, Inc., 1 OSAHRC 33 (1972).??????????? Complainantproposed a penalty of $25 for the violation of 29 CFR 1910.22(a)(1). Theviolation occurred on the premises of Continental and Continental wasresponsible for maintaining the tracks in safe operating condition. Respondenthad no legal authority to enter the premises and abate the conditions.Respondent recognized the hazardous conditions and made repeated good faithattempts to have the conditions corrected. For these reasons, a penalty of only$25 is assessed for the violation.CONCLUSIONS OF LAW??????????? 1.The respondent was at all times material hereto engaged in a business affectingcommerce within the meaning of section 3(5) of the Act.??????????? 2.Respondent is not totally exempt from the jurisdiction of the Act by virtue ofthe provisions of section 4(b)(1) of the Act. The exemption is a limited oneapplying to working conditions which are covered by regulations promulgated bythe Secretary of Transportation.??????????? 3.The complainant failed to meet its burden of proof that the poster required tobe posted by 29 CFR 1903.2 was furnished to respondent as required by theregulation.??????????? 4. OnOctober 30, 1974, employees of respondent were working over tracks owned andmaintained by Continental Can Company, Inc., which were not being kept clean inviolation of 29 CFR 1910.22(a)(1).??????????? 5.Each employer has as to his employees the duty of complying with standardspromulgated under the Act. Respondent exposed its employees to the conditionsof the tracks owned by Continental and thereby violated 29 CFR 1910.22(a)(1).??????????? 6. Apenalty of $25 is assessed for the violation of 29 CFR 1910.22(a)(1).ORDER??????????? Uponthe basis of the foregoing findings of fact and conclusions of law, it is??????????? ORDERED:That item 1 of the citation and notification of proposed penalty issued torespondent on December 20, 1974, is affirmed and that item 2 of the citationand notification are vacated.?Dated this 2nd day of September,1975.?JAMESD. BURROUGHSJUDGEOSAHRC[1] The standardreads:? 1910.22 General requirements.(a) Housekeeping. (1) All places ofemployment, passageways, storerooms, and service rooms shall be kept clean andorderly and in a sanitary condition.[2] The stipulationin relevant part provided:. . . [T]he railroad represents thatduring the conduct of its switching operations at Continental Can Company, itsfour-man crew passes over the tracks that are the subject matter of thislitigation and may need to walk over the area that is the subject matter ofthis litigation in order to effect the said switching operations . . .Thatthe employees had ?access? to the area involved is clear from this statement.See Gilles & Cotting, Inc., BNA 3 OSHC 2002, CCH 1975 76 OSHD para.20,448 (No. 504, 1976).[3] Section 4(b)(1) provides:Nothing in this Act shall apply to workingconditions of employees with respect to which other Federal agencies, . . .exercise statutory authority to prescribe or enforce standards or regulationsaffecting occupational safety or health.\u00a0[4] Section 9(a) provides:If, upon inspection or investigation, theSecretary or his authorized representative believes that an employer has violateda requirement of section 5 of this Act, of any standard, rule or orderpromulgated pursuant to section 6 of this Act, or of any regulations prescribedpursuant to this Act, he shall with reasonable promptness issue a citation tothe employer . . .\u00a0[5] Section 9(c) provides:No citation may be issued under thissection after the expiration of six months following the occurrence of anyviolation.\u00a0[6] The issuance of the citation wasdelayed due to the need of the Area Director to receive approval from thenational office to issue a citation to the railroad. The inspection occurred onOctober 30, 1974. On November 12, the file was sent to the regional office forreview. On November 18, the regional office forwarded the file to the nationaloffice. On December 18, the national office notified the regional office thatthe citation could be issued. On the same date the regional office contactedthe Area Director and authorized the citation?s issuance. The citation wasissued on December 20, 1974.\u00a0??????????? In a case involving a 102 day periodbetween an inspection and the issuance of a citation to a railroad, theCommission held that the necessity of obtaining approval from the nationaloffice before issuing a citation constituted an ?exceptional circumstance?justifying the delay. Louisville & Nashville R.R. Co., BNA 3 OSHC1148, CCH 1974 75 OSHD para. 19,598 (No. 5521, 1975). Also, see Louisville& Nashville R.R. Co., BNA 4 OSHC 1868, CCH 1976 77 OSHD para. 21,310(No. 9740, 1976). This reasoning is equally applicable to the present case.\u00a0[7] Chairman Barnako is of the opinionthat a citation can also be vacated on reasonable promptness grounds if thedelay in the issuance of the citation is ?so patently unnecessary andunjustifiable as to be unconscionable.? See Louisville & Nashville R.R.Co., BNA 4 OSHC 1868, CCH 1976 77 OSHD para. 21,310 (No. 9740, 1976); JackConie & Sons Corp., BNA 4 OSHC 1378, CCH 1976 77 OSHD para. 20,849 (No.6794, 1976) (concurring opinion).[8] The Secretary filed a letter withthe Commission indicating that affirmance of the Judge?s decision was beingurged on the basis of the application of the general rule as expressed in R.H. Bishop Co., BNA 1 OSHC 1767, CCH 1973 74 OSHD para. 17,930 (No. 637,1974).[9] A majority of theCommission has since decided that the knowledge element stated in section 17(k)of the Act is implicit in section 5(a)(2) and that the Secretary has the burdenof proof on this point. Green Constr. Co. & Massman Constr. Co., A JointVenture, BNA 4 OSHC 1808, CCH 1976 77 OSHD para. 21,235 (No. 5356, 1976); ScheelConstr., Inc., BNA 4 OSHC 1824, CCH 1976 77 OSHD para. 21,263 (No. 8687,1976). Therefore, the Secretary must establish that respondent had actual orconstructive knowledge of the violative conditions. The respondent may thenaffirmatively show that it did not know, nor with the exercise of reasonablediligence, could have known, that the cited condition was hazardous. DataElectric Co., Inc., BNA 5 OSHC 1077 CCH 1977 78 OSHD para. 21,593 (No.13122, 1977) (lead and concurring opinions).\u00a0[10] Anning-Johnson Co. (Nos. 3694 &4409), supra, BNA 4 OSHC at 1198, CCH 1975 76 OSHD at 24,783. In the presentcase the Judge stated in his decision that ?[r]espondent had no legal authorityto enter the premises and abate the conditions.? Judge?s Decision at 14. Wealso note that a further prerequisite to recognition of this defense in aparticular case is a showing that the party that created or controlled thehazard involved could be cited for a violation even though none of its ownemployees may have been exposed to this hazard. Anning-Johnson Co.,(Nos. 3694 & 4409), supra, BNA 4 OSHC at 1199, CCH 1975 76 OSHD at 24,784; Grossman-Steel& Aluminum Corp., supra, BNA 4 OSHC at 1188, CCH 1975 76 OSHD at24,790, Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d1032, 1038 (2d Cir. 1975). To recognize this defense in the absence of a partythat could be ordered to effect literal compliance with the standard wouldresult in certain employees not receiving the protection intended by the Act. GrossmanSteel & Aluminum Corp., supra.\u00a0[11] ???????? For example, the letter of June 7,1973, read:CONTINENTAL CAN CO.AUGUSTA, GA.MR. WHIT LANDRUM:I KNOW YOU HAVE CORRECTED SOME OF THECONDITIONS, HOWEVER, I?M AFRAID WE ARE GOING TO GET IN TROUBLE UNLESS WE PUSHTO GET ALL THE UNSAFE CONDITIONS CORRECTED. I FEEL SURE THAT YOUR MAINTENANCEPEOPLE COULD POLICE THE AREA AND GIVE THE TRAIN CREWS BETTER WALKINGCONDITIONS.MR. LANE AND I FOUND MATERIAL LEFT BETWEENTHE RAILS AND IN THE PATH THE MEN NEED TO WALK. WE ALSO FOUND THINGS OTHER THANTRACK MATERIAL LEFT TOO CLOSE TO THE TRACK. SOMETHING HAS GOT TO BE DONE TOYOUR DRAINAGE PROBLEM, WE CAN?T FORCE OUR PEOPLE TO WALK IN MUD AND WATER. AMAN CAN?T WALK SAFELY ON OR ABOUT TRACKS 12, 9, 8, 7, 6, 5, 4, 3, 2, or 11.ENCLOSED IS A COPY OF MR. LANE?S LETTER OFAPR. 24, 1973. PLEASE BRING THESE UNSAFE CONDITIONS TO THE ATTENTION OF YOURPEOPLE, SO THAT THEY CAN BE CORRECTED NOW.YOURS TRULY,H. A. LOVETT[TRAINMASTER]Also,the letter of May 1, 1974, in pertinent part read:Dear Mr. Landrum:L.C. Gooding and I inspected track area inyour plant on Wednesday, May 1, 1974 and the following conditions need to becorrected before some man gets hurt.These are the conditions that exist nowand have for over a year, and are what I had reference to when I said that themen must have a safe, clean, dry place to walk and would have to be policed tosee that it stays safe.\/s\/ H. A. LovettH. A . LovettTrainmaster\u00a0[12] In Anning-JohnsonCo. (Nos. 3694 & 4409), supra, I stated that in certain minorsituations a complaint registered with the creating or controlling party couldbe an appropriate and realistic alternative measure. BNA 4 OSHC at 1200 n.23,CCH 1975 76 OSHD at 24,785 n.23. In Grossman Steel & Aluminum Corp.,supra, Chairman Barnako stated that ?[a]s a general rule we will notrequire an employer to remove its employees from the vicinity of the hazard ifthe condition is not corrected.? BNA 4 OSHC at 1189 n.7, CCH 1975 76 OSHD at24,791 n.7. We both agree that in the circumstances of the present case removalof respondent?s employees from the area of the hazard pursuant to the terms ofthe suspension of shipping services clause, was a realistic alternativeprecautionary measure that should have been taken.[13] See Secretaryv. Jack Conie & Sons Corporation, OSAHRC Docket No. 6794, June 25,1976, and my dissenting opinions in Secretary v. Par Construction Company,Inc., OSAHRC Docket No. 11092, October 15, 1976; Secretary v. U.T.S., ADivision of Universal Maritime Service Corp., OSAHRC Docket No. 4956, September9, 1976; and Secretary v. Coughlan Construction Company, 20 OSAHRC 641,648 (1975).[14] See Secretary v. Louisville andNashville Railroad Co., OSAHRC Docket No. 9740, November 23, 1976(dissenting opinion); Secretary v. Baltimore & Ohio Railroad Co.,OSAHRC Docket No. 10687, November 16, 1976 (dissenting opinion).\u00a0[15] Supra note 14.[16] For a morecomprehensive discussion of my views on multi-employer responsibility, see myseparate opinions in Secretary v. Data Electric Company, Inc., OSAHRCDocket No. 13122, March 7, 1977; Secretary v. Valley Sheet Metal Company,OSAHRC Docket No. 12717, October 4, 1976; Secretary v. Grossman Steel &Aluminum Corp., OSAHRC Docket No. 12775, May 12, 1976; and Secretary v.Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976.\u00a0[17] See Secretaryv. Truland-Elliot, OSAHRC Docket No. 11259, July 21, 1976.[18] Secretary v. Data Electric Company,Inc., supra.[19] The decision in Dunlopv. Burlington Northern, ??? F.S. ???? (D.Mont.C.V. ?75?3?BLG, May 13, 1975)denying the Secretary of Labor the right to inspect the workplaces ofBurlington Northern in Laurel, Montana, draws some conclusions contrary tothose of the Commission in Southern Pacific.”