Seaboard Coast Line Railroad Co.

Plain-English summary

Seaboard Coast Line received five nonserious items for poor housekeeping, failure to post the OSHA notice, and recordkeeping deficiencies. The judge vacated the three recordkeeping items because railroad recordkeeping was exempt, but affirmed the housekeeping and posting items without holding a merits hearing and assessed $95. The Commission rejected the railroad's claim that the entire industry was exempt from OSHA while preserving the recordkeeping exemption. It construed the notice of contest favorably and held that its challenge to the citation as illegally, improvidently, and untimely issued raised issues requiring a hearing. The Commission therefore remanded the housekeeping and posting items for further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1903.2(a); 29 C.F.R. § 1904.2(a); 29 C.F.R. § 1904.4; 29 C.F.R. § 1904.6; 29 C.F.R. § 1910.22(a)(1)
• Outcome: The three recordkeeping items remained vacated, while the housekeeping and posting items and their $95 penalties were remanded for a hearing.
• Key point: A notice of contest is construed in the employer's favor when its language reasonably raises merits or procedural issues beyond a claimed exemption.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 10732

SEABOARD COASTLINE RAILROAD
CO.,

���������������������������������������������
Respondent.

BEFORE
BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY,
Commissioner:

The
decision of Judge Joseph L. Chalk filed on December 23, 1974, has been directed
for review pursuant to section 12(j) of the Occupational Safety and Health Act
of 1970, 29 U.S.C. � 651 et seq. [hereinafter referred to as �the Act�].
Judge Chalk found that Seaboard Coast Line Railroad Co. [hereinafter referred
to as �SCL�] had only raised the issue of whether the railroad was exempt from
the Act�s requirements under section 4(b)(1). [1]
In denying a motion to dismiss filed by SCL he held that, with the exception of
recordkeeping requirements, the Act applies to railroads. He affirmed without a
hearing two items of a citation for other than �serious� violations, and
assessed a $95 penalty.

� ���������� The
issues before us are whether SCL is subject to the Act�s requirements, and if
so whether a hearing on the merits of the alleged violations should have been
held.

� ���������� A
citation was issued to SCL on October 24, 1974, stating that SCL�s premises had
been inspected on October 18, 1974. Item 1 of the citation alleged a failure to
comply with 29 CFR � 1910.22(a)(1) for poor housekeeping; Item 2 alleged
non-compliance with 29 CFR � 1903.2(a) for failure to post an Occupational
Safety and Health Administration [OSHA] poster; and Items 3, 4, and 5 alleged
non-compliance with the standards at 29 CFR �� 1904.2(a), .4, and .6, for
failure to comply with recordkeeping requirements. On October 31, 1974, SCL
filed a notice contesting the citation, stating in part that under section
4(b)(1) of the Act �the Commission has no jurisdiction over the subject matter
of this case� and that the citation was �illegally, improvidently and untimely
rendered.�

� ���������� Thereafter,
the Secretary filed his Complaint, and SCL filed an Answer thereto along with a
Motion to Dismiss. The Secretary responded to the Motion to Dismiss, and
simultaneously filed a �Cross-Motion for Summary Judgment.�

� ���������� Judge
Chalk concluded that the sole issue concerned SCL�s section 4(b)(1) claim, and
stated that SCL�s �failure to deny the violations themselves is deemed an
admission that they occurred (29 CFR 2200.33(b)(2)).� In concluding that the
Act applies to railroads, but that respondent is exempt from the Act�s
recordkeeping 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 Southern
Pacific Transportation Co ., No. 1348 (November 15, 1974), petition for
review docketed , No. 74�3981, 5th Cir. November 29, 1974. He granted SCL�s
Motion to Dismiss Items 3, 4, and 5, the recordkeeping items; and affirmed
Items 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 hearing
he in effect granted the Secretary�s motion for summary judgment as to these
items, although no express ruling was made in the decision.

After
review before the full Commission was ordered, SCL moved to vacate the Judge�s
decision. SCL continued to argue that the entire railroad industry is exempt
from the Act�s requirements by virtue of section 4(b)(1). Incorporating its
brief filed before Judge Chalk, it argues that the Act does not apply because
of section 202(a) of the Federal Railroad Safety Act of 1970, 45 U.S.C. section
431 et seq., which states in part

(a) The Secretary of
Transportation . . . shall (1) prescribe, as necessary, appropriate rules,
regulations, orders, and standards for all areas of railroad safety....

����������� This section merely gives the
Secretary of Transportation authority to prescribe safety rules. It does not
create an industry exemption for railroads. See Southern Pacific, supra. [2]

� SCL additionally argues that section 405(d) of
the Rail Passenger Service Act of 1970, 45 U.S.C. section 501 et seq., and the
legislative history of the Occupational Safety and Health Act of 1970, among
other things, warrant an industry-wide exemption. These arguments were rejected
in Southern Pacific. SCL has added nothing that compels a different result. [3]
With the exception of recordkeeping requirements, SCL is not exempt from the
Act�s provisions. The Judge�s decision is affirmed, and SCL�s Motion to Vacate
is denied.

� ���������� There
remains the question of whether the Judge erred in denying SCL a hearing on the
merits for Items 1 and 2 of the citation. As noted above, SCL�s notice of
contest states that the citation was �illegally, improvidently and untimely
rendered.�

� ���������� SCL
maintains that the notice of contest thereby raised issues requiring a hearing
for their determination. [4] On
review the Secretary argues that the Judge properly considered the contest to
be limited to the issue of the scope of section 4(b)(1) of the Act.

� ���������� The
issue is not free from doubt, and the Commission has a consistent policy of
construing notices of contest in this most favorable light. Eastern Knitting
Mills, Inc. , No. 2019 (April 23, 1974). Accordingly, this case is hereby
remanded for hearing on the contentions of respondent that the citation was
�illegally, improvidently and untimely rendered.�

� So ORDERED.

� FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: Nov. 26,
1975

MORAN,
Commissioner, Dissenting:

����������� For the reasons expressed in my
opinion in Secretary v. Belt Railway Company of Chicago , 20 OSAHRC ��
(Docket No. 4616, October 17, 1975), I would vacate the entire citation because
the railroad industry, of which the respondent is a part, is not subject to the
jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29
U.S.C. � 653(b)(1).

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 10732

SEABOARD COASTLINE RAILROAD
CO.,

���������������������������������������������
Respondent.

Chalk, Judge

On
November 27, 1974, Respondent railroad filed an Answer to the Complaint, a
motion to dismiss, with brief, and a motion for stay of proceedings. The thrust
of all these submissions is that the safety and health of all railroad
employees is the sole concern of the Secretary of Transportation and that
Respondent, accordingly, is not subject to the Occupational Safety and Health
Act of 1970 (29 USC 651 et seq.) by virtue of 29 USC 653(b)(1). As this is the
sole issue raised by Respondent throughout these proceedings, its failure to
deny the violations themselves is deemed an admission that they occurred (29
CFR 2200.33(b)(2)).

� ���������� The
Commission has addressed itself to the same argument advanced by railroads in
other cases and has resolved the issue adversely to Respondent with one
exception ( 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 Pacific
Railroad Co ., �� OSAHRC ��, Docket No. 1697, November 26, 1974). That
exception is that the argument for exemption of railroads from the safety and
health recordkeeping requirements of the Act is a valid one ( Secretary v.
Southern Pacific Transportation Co ., supra). Accordingly, except for the
recordkeeping charges in this case, the Citation must be affirmed.

� ���������� Respondent�s
motion for stay of proceedings is denied, whereas its motion to dismiss is
granted as to item numbers 3, 4, and 5 of Citation number 1 (nonserious
violations) 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 item
numbers 1 and 2.

� So ORDERED.

�

JOSEPH L. CHALK

Judge OSAHRC

Dated: 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 to
working conditions of employees with respect to which other Federal agencies .
. . exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health.

[2] The
purpose 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 railroad
operations and to reduce railroad-related accidents, and to reduce deaths and
injuries to persons and to reduce damage to property caused by accidents
involving any carrier of hazardous materials.

Whether this
statutory purpose encompasses occupational safety and health is not an issue
before 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 an
affirmative 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 to
be heard has been afforded.