“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10732 SEABOARD COASTLINE RAILROAD CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0BEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.CLEARY,Commissioner:Thedecision of Judge Joseph L. Chalk filed on December 23, 1974, has been directedfor review pursuant to section 12(j) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ?\u00a0651 et seq. [hereinafter referred to as ?the Act?].Judge Chalk found that Seaboard Coast Line Railroad Co. [hereinafter referredto as ?SCL?] had only raised the issue of whether the railroad was exempt fromthe Act?s requirements under section 4(b)(1).[1]In denying a motion to dismiss filed by SCL he held that, with the exception ofrecordkeeping requirements, the Act applies to railroads. He affirmed without ahearing two items of a citation for other than ?serious? violations, andassessed a $95 penalty.??????????? Theissues before us are whether SCL is subject to the Act?s requirements, and ifso whether a hearing on the merits of the alleged violations should have beenheld.??????????? Acitation was issued to SCL on October 24, 1974, stating that SCL?s premises hadbeen inspected on October 18, 1974. Item 1 of the citation alleged a failure tocomply with 29 CFR ? 1910.22(a)(1) for poor housekeeping; Item 2 allegednon-compliance with 29 CFR ? 1903.2(a) for failure to post an OccupationalSafety and Health Administration [OSHA] poster; and Items 3, 4, and 5 allegednon-compliance with the standards at 29 CFR ?? 1904.2(a), .4, and .6, forfailure to comply with recordkeeping requirements. On October 31, 1974, SCLfiled a notice contesting the citation, stating in part that under section4(b)(1) of the Act ?the Commission has no jurisdiction over the subject matterof this case? and that the citation was ?illegally, improvidently and untimelyrendered.???????????? Thereafter,the Secretary filed his Complaint, and SCL filed an Answer thereto along with aMotion to Dismiss. The Secretary responded to the Motion to Dismiss, andsimultaneously filed a ?Cross-Motion for Summary Judgment.???????????? JudgeChalk concluded that the sole issue concerned SCL?s section 4(b)(1) claim, andstated that SCL?s ?failure to deny the violations themselves is deemed anadmission that they occurred (29 CFR 2200.33(b)(2)).? In concluding that theAct applies to railroads, but that respondent is exempt from the Act?srecordkeeping requirements, he cited Union Pacific Railroad Co., No.1697 (November 29, 1974), petition for review docketed, No. 75?1065, 8th Cir.,January 27, 1975; Union Railroad Co., No. 4318 (November 22, 1974),petition for review dismissed, No. 75?1013, 3d Cir., May 16, 1975; and SouthernPacific Transportation Co., No. 1348 (November 15, 1974), petition forreview docketed, No. 74?3981, 5th Cir. November 29, 1974. He granted SCL?sMotion to Dismiss Items 3, 4, and 5, the recordkeeping items; and affirmedItems 1 and 2 and the proposed penalties therefor of $45 and $50, respectively.He denied SCL?s motion for a stay, and by affirming Items 1 and 2 without a hearinghe in effect granted the Secretary?s motion for summary judgment as to theseitems, although no express ruling was made in the decision.Afterreview before the full Commission was ordered, SCL moved to vacate the Judge?sdecision. SCL continued to argue that the entire railroad industry is exemptfrom the Act?s requirements by virtue of section 4(b)(1). Incorporating itsbrief filed before Judge Chalk, it argues that the Act does not apply becauseof section 202(a) of the Federal Railroad Safety Act of 1970, 45 U.S.C. section431 et seq., which states in part(a) The Secretary ofTransportation . . . shall (1) prescribe, as necessary, appropriate rules,regulations, orders, and standards for all areas of railroad safety….\u00a0??????????? This section merely gives theSecretary of Transportation authority to prescribe safety rules. It does notcreate an industry exemption for railroads. See Southern Pacific, supra.[2]?SCL additionally argues that section 405(d) ofthe Rail Passenger Service Act of 1970, 45 U.S.C. section 501 et seq., and thelegislative history of the Occupational Safety and Health Act of 1970, amongother things, warrant an industry-wide exemption. These arguments were rejectedin Southern Pacific. SCL has added nothing that compels a different result. [3]With the exception of recordkeeping requirements, SCL is not exempt from theAct?s provisions. The Judge?s decision is affirmed, and SCL?s Motion to Vacateis denied.??????????? Thereremains the question of whether the Judge erred in denying SCL a hearing on themerits for Items 1 and 2 of the citation. As noted above, SCL?s notice ofcontest states that the citation was ?illegally, improvidently and untimelyrendered.???????????? SCLmaintains that the notice of contest thereby raised issues requiring a hearingfor their determination.[4]Onreview the Secretary argues that the Judge properly considered the contest tobe limited to the issue of the scope of section 4(b)(1) of the Act.??????????? Theissue is not free from doubt, and the Commission has a consistent policy ofconstruing notices of contest in this most favorable light. Eastern KnittingMills, Inc., No. 2019 (April 23, 1974). Accordingly, this case is herebyremanded for hearing on the contentions of respondent that the citation was?illegally, improvidently and untimely rendered.??So ORDERED.?FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryDATED: Nov. 26,1975\u00a0MORAN,Commissioner, Dissenting:??????????? For the reasons expressed in myopinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC ??(Docket No. 4616, October 17, 1975), I would vacate the entire citation becausethe railroad industry, of which the 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).\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10732 SEABOARD COASTLINE RAILROAD CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0Chalk, JudgeOnNovember 27, 1974, Respondent railroad filed an Answer to the Complaint, amotion to dismiss, with brief, and a motion for stay of proceedings. The thrustof all these submissions is that the safety and health of all railroademployees is the sole concern of the Secretary of Transportation and thatRespondent, accordingly, is not subject to the Occupational Safety and HealthAct of 1970 (29 USC 651 et seq.) by virtue of 29 USC 653(b)(1). As this is thesole issue raised by Respondent throughout these proceedings, its failure todeny the violations themselves is deemed an admission that they occurred (29CFR 2200.33(b)(2)).??????????? TheCommission has addressed itself to the same argument advanced by railroads inother cases and has resolved the issue adversely to Respondent with oneexception (Secretary v. Southern Pacific Transportation Co., ?? OSAHRC??, Docket No. 1348, November 15, 1974; Secretary v. Union Railroad Co.,?? OSAHRC ??, Docket No. 4318, November 22, 1974; Secretary v. Union PacificRailroad Co., ?? OSAHRC ??, Docket No. 1697, November 26, 1974). Thatexception is that the argument for exemption of railroads from the safety andhealth recordkeeping requirements of the Act is a valid one (Secretary v.Southern Pacific Transportation Co., supra). Accordingly, except for therecordkeeping charges in this case, the Citation must be affirmed.??????????? Respondent?smotion for stay of proceedings is denied, whereas its motion to dismiss isgranted as to item numbers 3, 4, and 5 of Citation number 1 (nonseriousviolations) but denied as to item numbers 1 and 2 thereof. Item numbers 3, 4,and 5 of said Citation are vacated, whereas item numbers 1 and 2 are affirmed.Penalties in the amount of $45.00 and $50.00 respectively are assessed for itemnumbers 1 and 2.?So ORDERED.?JOSEPH L. CHALKJudge OSAHRCDated: DEC 23,1974?Hyattsville,Maryland[1]Section 4(b)(1) states in part:Sec. 4 Applicability of this Act(b)(1) Nothing in this Act shall apply toworking conditions of employees with respect to which other Federal agencies .. . exercise statutory authority to prescribe or enforce standards orregulations affecting occupational safety or health.[2]Thepurpose of the Federal Railroad Safety Act of 1970, as stated in section 101,45 U.S.C. section 421, is to:Promote safety in all areas of railroadoperations and to reduce railroad-related accidents, and to reduce deaths andinjuries to persons and to reduce damage to property caused by accidentsinvolving any carrier of hazardous materials.Whether thisstatutory purpose encompasses occupational safety and health is not an issuebefore us. See generally Gearhart-Owen Industries, Inc., No. 4263(February 21, 1975), petition for review docketed, No. 75?1392, D.C. Cir.,April 21, 1975.[3]Section 4(b)(1) is in the nature of an exemption that must be proved as anaffirmative defense. See Idaho Travertine Corp., No. 1134 (September 30,1975) and cases cited therein.[4]SCL has also sought a hearing on its section 4(b)(1) claim. That opportunity tobe heard has been afforded.”