ST. LOUIS-SAN FRANCISCO RAILWAY CO. �

OSHRC Docket No. 78-4611

Occupational Safety and Health Review Commission

March 24, 1981

� [*1] �

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners. �

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Thomas H. Mug, St. Louis-San Francisco Railway Company, for the employer

Mr. E. E. Goswick, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. � � � 651-678 ("the Act"). � A decision of Administrative Law Judge F. Dalev Abels is before the Commission for review under section 12(j) of the Act, 29 U.S.C. � � 661(i). � In his decision, Judge Abels, among other things, affirmed item 3(c) of citation 1, which alleged that the St. Louis-San Francisco Railway Company ("the Company") had violated the standard at 29 C.F.R. � � 1910.23(c)(1). n1

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n1 The standard states:

� � 1910.23 Guarding floor and wall openings and holes.

* * *

(c) Protection of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. � The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

(iii) There is equipment with which falling materials could create a hazard.

� [*2] �

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The Company petitioned for review of the judge's decision, and review was granted by Acting Chairman Barnako. � The Company's petition raises the following issues:

1) Whether the judge erred in concluding that the March 1978 policy statement of the Federal Railroad Administration [at 43 Fed. Reg. 10583-10590 (1978)] is not an exercise of authority under 29 U.S.C. � � 653(b)(1).

2) Whether the judge erred in concluding that [the Company] had not established the "greater hazards" defense.

On review, the Company renews the arguments it made before the judge. � We have considered these arguments and affirm the judge's conclusion that the Federal Railroad Administration's policy statement does not exempt the cited working condition. � Consolidated Rail Corp., 81 OSAHRC    , 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (Nos. 78-3100, 78-4881, 78-5805, 1981).

The judge's holding that the Company had not established the greater hazard defense also was correct. � The Company claims that the judge erred in basing his holding on the Company's failure to prove that compliance with the standard would increase rather � [*3] � than decrease the likelihood of a fall from unguarded platforms into adjacent locomotive inspection pits. � We do not share this reading of the judge's decision as a whole. � Rather, we read the judge's decision as concluding that the Company failed to prove its claim that operating locomotives alongside guardrails necessarily results in other types of hazards to employees. � Since the judge considered and correctly rejected the Company's contention, his decision is affirmed. n2 See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

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n2 Commissioner Cleary dissents for the reasons stated in his separate opinion in Consolidated Rail Corp., 81 OSAHRC    , 9 BNA OSHC 1258, 1981 CCH OSHD P25,172 (Nos. 78-3100, 78-4881, 78-5805, 1981) (dissenting opinion).

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SO ORDERED. �