Union Pacific Railroad Co.

Plain-English summary

Union Pacific faced a failure-to-correct matter and citations involving machine guarding, woodworking equipment, respiratory protection, posting, and other conditions. It argued that an advance notice of proposed Federal Railroad Administration rulemaking exempted it from OSHA requirements. The Commission held that announcing possible future regulations was not an actual exercise of regulatory authority over the cited working conditions. It therefore found no railroad-agency exemption under section 4(b)(1) of the Act. The Commission affirmed the judge's decision; this release does not state the penalty amounts.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.212(a)(5); 29 C.F.R. § 1910.212(a)(3)(iii); 29 C.F.R. § 1910.213(c)(1); 29 C.F.R. § 1910.213(h)(1); 29 C.F.R. § 1910.213(i)(1); 29 C.F.R. § 1910.134(b)(5); 29 C.F.R. § 1910.134(b)(6); 29 C.F.R. § 1903.2(a)
• Outcome: Failure-to-correct and safety citations affirmed; penalty amounts are not stated in this release
• Key point: Proposed FRA rules do not displace OSHA because a proposal is not an exercise of regulatory authority over existing working conditions.

Full text (OSHRC public release)

Docket Nos. 13214; 13251; 13337

UNION PACIFIC RAILROAD CO.
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OSHRC Docket Nos. 13214; 13251; 13337

Occupational Safety and Health Review Commission

August 1, 1977

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Before BARNAKO, Chairman: CLEARY, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Daniel W. Teehan, Regional Solicitor

John J. Marchant, Asst. General Counsel Union Pacific Railroad Company, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue is whether Section 4(b)(1) of the Act, n1 in conjunction with an Advance Notice of proposed Rulemaking n2 published by the Federal Railway Administration, exempts the Union Pacific Railroad Company from compliance with certain of the Secretary of Labor's occupational safety and health standards.
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Administrative Law Judge Thomas E. Donegan concluded that the company was not exempt, and found that it had violated the standards as alleged. n3 We affirm the Judge's decision.

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n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Section 4(b)(1) states in part:

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 and health.

n2 40 Fed. Reg. 10693 (1975).

n3 Docket No. 13214 involves a Notification of Failure to Correct Alleged Violation and of Proposed Additional Penalty.
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The standard cited is at 29 C.F.R. 1910.212(a)(5).
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Docket No. 13251 involves a nonserious citation alleging forty separate violations of the Act.
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It also involves one serious citation alleging violations of the standard at 29 C.F.R. 1910.212(a)(3)(iii), and another serious citation alleging violations of the standards at 29 C.F.R. 1910:213(c)(1), 213(h)(1), and 213(i)(1).
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Docket No. 13337 involves one nonserious citation alleging violations of the standards at 29 C.F.R. 1910.134(b)(5), 1910.134(b)(6), and 1903.2(a).

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In Indiana Harbor Belt R.R., Docket No. 12420, 4 OSHC 2006, 1976-77 OSHD para. 21,473 (January 17, 1977) and Seaboard Coast Line R.R.., 75 OSAHRC 11/E14, 3 OSHC 1767, 1975-76 OSHD para. 20,185 (1975), the Commission held that an Advance Notice of Proposed Rulemaking was not an "exercise" of authority within the meaning of Section 4(b)(1).
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Accord, Baltimore and Ohio R.R. v. OSHRC, No. 75-2163, D.C. Cir., December 30, 1976; n4 Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), pet. for cert. filed, 45 U.S.L.W. 3692 (U.S. April 11, 1977) (No. 76-1400); Southern Ry. Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 45 U.S.L.W. 3410 (U.S. December 6, 1976).
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Accordingly, the Judge properly concluded that the proposed rulemaking did not exempt the company from compliance with the standards cited in these cases.

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n4 The D.C. Circuit ruled that publication of an initial Notice of Proposed Rulemaking after publication of an Advance Notice of Proposed Rulemaking is similarly insufficient to constitute an "exercise" within the meaning of Section 4(b)(1).

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The Judge's decision is affirmed.
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