St. Louis-San Francisco Railway Co.

Plain-English summary

St. Louis-San Francisco Railway was cited for open-sided platforms beside locomotive inspection pits that lacked required railings. The company argued that a Federal Railroad Administration policy displaced OSHA authority and that guardrails would create greater hazards during locomotive operations. The Commission held that the policy statement did not exempt the cited working condition. It also agreed with the judge that the company had not proved guardrails necessarily would create greater hazards. The Commission affirmed the cited item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.23(c)(1)
• Outcome: Open-sided platform guarding item affirmed.
• Key point: A general railroad policy did not preempt OSHA, and a greater-hazard defense required proof that compliance would actually create the claimed operational dangers.

Full text (OSHRC public release)

Docket No. 78-4611

ST. LOUIS-SAN FRANCISCO RAILWAY CO.
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OSHRC Docket No. 78-4611

Occupational Safety and Health Review Commission

March 24, 1981

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Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.
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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. � �
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651-678 ("the Act").
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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. �
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661(i).
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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. �
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1910.23(c)(1). n1

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n1 The standard states:

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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.
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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.

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The Company petitioned for review of the judge's decision, and review was granted by Acting Chairman Barnako.
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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. �
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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.
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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.
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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.
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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
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than decrease the likelihood of a fall from unguarded platforms into adjacent locomotive inspection pits.
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We do not share this reading of the judge's decision as a whole.
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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.
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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.
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