SEABOARD COAST LINE RAILROAD COMPANY

OSHRC Docket No. 2802

Occupational Safety and Health Review Commission

July 10, 1978

COUNSEL:

� [*1] �

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Associate Regional Solicitor, U.S. Department of Labor

F. Saunders Aldridge, III, for the employer

OPINION:

ORDER

The Commission's Order of Stay issued on September 6, 1977 (copy attached), is hereby dissolved. � This dissolution of stay thus reinstates the Commission Decision issued on August 3, 1977 (copy attached).

Before CLEARY, Chairman; and BARNAKO, Commissioner.

ORDER OF STAY

BY THE COMMISSION:

On August 3, 1977, the Commission issued a decision finding Seaboard in violation of the safety standard at 29 C.F.R. 1910.94(b)(2)(i). � We affirmed a decision of Administrative Law Judge Paul L. Brady to whom we had remanded the case for a hearing on the merits after our decision of November 18, 1974 holding that Seaboard was not exempted from compliance with the Occupational Safety and Health Act by Section 4(b)(1).

During the pendency of the case before Judge Brady, Seaboard petitioned the United States Court of Appeals for the Fifth Circuit to review our decision of November 18, 1974. � The Fifth Circuit denied that petition on September 22, 1976. � The Court was still considering Seaboard's petition, however, � [*2] � before Judge Brady rendered his decision on the merits. � Both Seaboard and the Fifth Circuit were aware of the proceedings before Judge Brady. � Although Seaboard at one time moved for the proceedings before Judge Brady to be stayed, it later withdrew its motion stating, "Respondent prays that a decision on remand be rendered at the earliest practicable date." Furthermore, after the judge rendered his decision and before the Fifth Circuit had denied Seaboard's petition to that Court, Seaboard petitioned the Commission for review of the judge's decision and review was directed.

By Letter dated August 12, 1977, Seaboard advises that it has petitioned for a writ of certiorari from the Supreme Court and that the Court of Appeals for the Fifth Circuit has stayed its mandate pending action on the petition. � Seaboard does not request that we stay, vacate, or otherwise take any action with respect to our order of August 3, 1977. � However, we deem it appropriate to stay our order pending action by the Supreme Court on the petition. � So ordered.

FOR THE COMMISSION

DATE: SEP 6 1977