UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11742
CENTRAL OF GEORGIA RAILROAD COMPANY,
Respondent.
UNITED TRANSPORTATION UNION,
Intervenor

April 5, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

A decision of Administrative Law Judge James D. Burroughs rendered on September 2, 1975, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’].

In his decision, Judge Burroughs affirmed item one of a citation alleging that respondent violated section 5(a)(2) of the Act by failing to comply with the occupational safety and health standard at 29 CFR § 1910.22(a)(1).[1] Respondent petitioned the Commission for review of this decision and an order granting its petition was issued. We affirm the decision of the Judge insofar as it is consistent with this opinion.

On October 30, 1974, respondent’s railyard near Augusta, Georgia, and the railroad facilities at a nearby Continental Can Company, Inc., plant were inspected. As a result of the inspection at the latter facility, a citation was issued to respondent for failure to comply with § 1910.22(a)(1). The citation in relevant part read:

The following places of employment (especially the immediate adjacent areas) were not kept clean:

(a) Track #2: Covered with lime while it was being unloaded. Lime had sifted from the railroad car.

(b) Track #7: Covered with tall oil.

(d) Tracks #11 and #1: Mud and chips present. At least two water filled depressions.

These places presented a hazard to safe walking and the safe climbing of the fixed metal ladders on the railroad cars as the shoes of the on-duty brakeman, conductor, and flagman became slippery.

The alleged violation was termed not ‘serious’ in nature, and a $25 penalty was proposed.

In lieu of a hearing, a stipulation was entered into to serve as the record in this proceeding. The relevant portions of the stipulation can be summarized as follows: Respondent had entered into an agreement with Continental Can Company, pursuant to which respondent agreed to provide railroad shipping services to the Continental Can plant over railroad tracks constructed, maintained, and owned by Continental Can. At the time of the inspection in this case, respondent performed switching operations at the Continental Can facilities twice daily. These operations involved dispatching an engine and a crew to deliver and pick-up freight cars at the Continental Can plant. Respondent has admitted that in switching the railroad cars, its engine and crew traveled over the tracks involved, and that the crew had access to the area in which the alleged violative conditions existed.[2] Respondent has also admitted that the condition of the tracks was as described by the Secretary.

Nevertheless, respondent argues that it cannot be held responsible for any violation resulting from these conditions. Three major arguments are made in support of its position. These can be summarized as follows: (1) the Department of Transportation, specifically, the Federal Railroad Administration, has exercised its authority over occupational safety and health within the railroad industry, and therefore, respondent is exempt from the Act’s coverage pursuant to section 4(b)(1) of the Act;[3] (2) the citation was not issued with ‘reasonable promptness’ within the meaning of section 9(a) of the Act[4] nor was it issued within six months of the occurrence of the violation as required by section 9(c);[5] and, (3) respondent cannot be held responsible for a violation of the Act occurring on the premises of an independent shipper who owns the facilities in question and is responsible for their maintenance.

Respondent’s section 4(b)(1) arguments have previously been rejected by a divided Commission. See, e.g., Seaboard Coast Line R.R. Co., BNA 3 OSHC 1767, CCH 1975 76 OSHD para. 20,185 (No. 11904, 1975); Burlington Northern, Inc., BNA 3 OSHC 1784, CCH 1975 76 OSHD para. 20,218 (No. 11418, 1975). For the reasons set forth in those decisions, the arguments also fail in the present case.

The argument that because the citation in the present case was not issued until fifty-one days after the inspection,[6] it was not issued with ‘reasonable promptness’ as required by section 9(a), is based on the contention that the ‘72 hour rule’ expressed in Chicago Bridge & Iron Co., BNA 1 OSHC 1485, CCH 1973 74 OSHD para. 17,187 (No. 744, 1974), rev’d 514 F.2d 1082 (7th Cir. 1975), is the correct interpretation of that section. We have since decided that a citation will not be vacated on reasonable promptness grounds unless the employer demonstrates prejudice resulting from the delay. Coughian Constr. Co., Inc., BNA 3 OSHC 1636, CCH 1975 76 OSHD para. 20,106 (Nos. 5303 & 5304, 1975).[7] Respondent has not alleged any prejudice, nor would the record support an allegation of prejudice caused by the delay in the issuance of the citation. Its section 9(a) defense therefore fails.

Respondent also argues that the alleged violation ‘occurred’ more than six months before the issuance of the citation and that vacation of the citation is therefore mandated by section 9(c) of the Act. In respondent’s view, a violation ‘occurs’ at the time that the violative conditions first come into existence. Therefore, it is argued, because the conditions forming the basis of the citation in this case were admittedly in existence for more than six months prior to the issuance of the citation, the citation is unenforceable. This argument is without merit.

For section 9(c) purposes, a violation of section 5(a)(2) of the Act ‘occurs’ whenever an applicable occupational safety and health standard is not complied with and an employee has access to the resulting zone of danger. Therefore, it is of no moment that a violation first occurred more than six months before the issuance of a citation, so long as the instances of noncompliance and employee access providing the basis for the contested citation, occurred within six months of the citation’s issuance. The citation in the present case alleged that a violation occurred on October 30, 1974. The citation was issued less than two months after this date. Clearly, the requirements of section 9(c) have been met.

Respondent’s final argument is that because the noncomplying conditions existed on property owned and maintained by Continental Can Company, it had neither the ability nor the responsibility to abate the hazardous conditions. It argues that the purposes of the Act cannot be served by a citation issued to respondent. It submits that in this situation, the ‘only way the purpose of the Act may be effected’ would be to cite Continental Can, which in respondent’s view, is the only one that ‘has the power to abate the alleged condition.’ Respondent cites us to the decisions in Anning-Johnson Co. & Workinger Electric Corp. v. O.S.H.R.C., 516 F.2d 1031 (7th Cir. 1975) and Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032 (2d Cir. 1975), as purported support for its argument. We reject this argument for the reasons that follow.

First, the cited courts of appeals decisions involved multi-employer construction worksites and the unique citation and abatement problems attendant thereto, a subject on which the Commission subsequently has expressed its own views. See Anning-Johnson Co., BNA 4 OSHC 1193, CCH 1975 76 OSHD para. 20,690 (Nos. 3694 & 4409, 1976) and Grossman Steel & Aluminum Corp., BNA 4 OSHC 1185, CCH 1975 76 OSHD para. 20,691 (No. 12775, 1976). In Anning-Johnson Co. (Nos. 3694 & 4409) and Grossman Steel & Aluminum Corp., the Commission recognized that the multi-employer construction worksite situation necessitated an exception to the general rule that each employer is responsible for the safety of its own employees and will be found in violation of the Act if it is determined that its employees had access to violative conditions. See, e.g., California Stevedore & Ballast Co., BNA 1 OSHC 1757, CCH 1973 74 OSHD para. 17,931 (No. 1132, 1974).[8] The present case, however, does not involve a construction worksite, and the general rule therefore applies. Under this rule, respondent is responsible for the violation resulting from the exposure of its employees to the hazardous conditions herein involved.

Second, even if we accepted respondent’s assertion that the rationale of the multi-employer construction worksite cases should be applied to the present facts, the defense recognized in those cases has not been established. A brief summary of our holdings in Anning-Johnson Co., supra, is necessary in order to illustrate the reasons for this conclusion.

In Anning-Johnson Co. (Nos. 3694 & 4409), we held that in multi-employer construction worksite cases an employer will not be held to have violated the Act if it can establish: (1) that it neither created nor controlled the hazardous condition, and (2) either that its employees who had access to the area of the hazard were protected by realistic alternative protective measures or that the employer did not know, no with the exercise of reasonable diligence could have known, that the cited condition was hazardous.[9] BNA 4 OSHC at 1198 99, CCH 1975 76 OSHD at 24,783 4. We stated that where such a showing is made, the exclusive responsibility for abating the violation by eliminating the hazard will be placed on the party that created or controlled the hazard. Id.

Essentially, the same holding was expressed in Grossman Steel & Aluminum Corp., wherein it was concluded that, ‘on a construction site, the safety of all employees can best be achieved if each employer is responsible for assuming that its own conduct does not create hazards to any employees on the site, . . .’ BNA 4 OSHC at 1188, CCH 1975 76 OSHD at 24,791 (emphasis added). Nevertheless, it was emphasized that, ‘each employer has primary responsibility for the safety of its own employees.’ BNA 4 OSHC at 1189, CCH 1975 76 OSHD at 24,791 (emphasis added). Because of this primary responsibility, we stated that every employer must ‘make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees.’ Id. (emphasis added). We concluded that if the employer fails to make such reasonable efforts, ‘we will still hold each employer responsible for all violative conditions to which its employees have access.’ Id.

In the present case, even if it is assumed that respondent did not create the hazardous conditions described in the citation and that it did not control the hazard ‘such that it realistically had the means to rectify the condition in the manner contemplated by the standard,’[10] there was a realistic alternative measure that respondent could have taken to protect its employees, i.e., it could have suspended shipping services over the involved tracks until the necessary corrective action was taken.

Respondent argues that this action is not a realistic means of abating the hazard and that to require such is without support under the Act. We do not agree. Paragraph six of respondent’s written agreement with Continental Can provided:

6. Shipper agrees to maintain its said tracks in safe operating condition . . .

The Railway will perform switching service to the satisfaction of the Shipper’s needs, unless the Shipper fails or refuses to maintain properly its tracks which are to be used within the scope of this agreement, in a condition satisfactory to the Railway. In the event of such refusal or failure by the Shipper, then the Railway, without any liability or accountability whatsoever to the Shipper, its successors or assigns, may suspend or discontinue switching service upon the said tracks . . ., until said tracks are restored to a condition satisfactory to the Railway (emphasis added).

That respondent knew that its employees were being exposed to hazardous conditions in Continental’s railyard is clear from the record. In the period between April 24, 1973, and May 9, 1974, respondent had sent six letters to Continental Can complaining about various unsafe conditions, including the drainage problem mentioned in the citation.[11] These letters were supplemented by numerous phone calls voicing the same concerns. Nevertheless, on the date of the inspection the cited conditions remained uncorrected. Respondent’s employees, therefore, had been exposed to the hazards on a daily basis for a period of approximately 18 months.

We believe that in view of the lack of success in bringing about safe working conditions by writing and telephoning Continental Can about the safety problems encountered, a further step on respondent’s part was warranted. The enforcement of the suspension of shipping services clause provided an obvious and appropriate method for attempting to effect compliance while at the same time protecting its employees. By failing to suspend shipping services until the working area was put into a satisfactory condition, respondent failed to take an available alternative precautionary measure.[12]

Accordingly, the Judge’s decision finding respondent in nonserious violation of the Act for failure to comply with the standard at 29 CFR § 1910.22(a)(1) and assessing a $25 penalty is affirmed insofar as it is consistent with this opinion.

It is so ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: APR 5, 1977

BARNAKO, Chairman, Concurring:

I concur but do not join in Commissioner Cleary’s explanation of our decisions relating to multi-employer construction industry worksites. See Data Electric Company, Inc., Docket No. 13122 (Rev. Comm’n, March 7, 1977) (concurring opinion). I do agree that were we to apply our construction industry decisions to this general industry case they would be distinguishable on the basis of respondent’s contract as discussed by Commissioner Cleary.

MORAN, Commissioner, Dissenting:

For the reasons expressed in my opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568 (1975), I would vacate the citation because the railroad industry, of which 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).

Furthermore, I disagree with my colleagues’ rejection of respondent’s contention that the citation was not issued with ‘reasonable promptness’ as required by 29 U.S.C. § 658(a). As I have explained at some length in previous opinions,[13] an employer’s rights under 29 U.S.C. § 658(a) are not contingent upon a showing of prejudice or the existence of ‘unconscionable’ delay. Rather, it is clear that in requiring the Secretary of Labor to issue citations ‘with reasonable promptness,’ Congress meant that they should be issued within 72 hours after a violation is detected by a Department of Labor inspector, unless a longer delay is justified because of ‘exceptional circumstances.’

The evidence is this case fails to establish that the delay of 51 days was due to exceptional circumstances. The parties stipulated that the inspection was conducted on October 30, 1974, and that 13 days later the area director referred the case to the regional office, which in turn referred the case to the national office 6 days thereafter. The national office held the case for a month. Finally, on December 18, the area director was authorized by the national office to issue the citation and he did so 2 days later.

There is no reason why it should have taken 19 days to forward the case to the national office. It is unclear from the meager record in this case, however, whether the causes of the delay at the national office constituted ‘exceptional circumstances’ or whether it was caused by the bureaucratic red tape which seems to typify the Department of Labor’s processing of these cases.[14] As I stated in Secretary v. Louisville and Nashville Railroad Company,[15] the initial efforts to coordinate the jurisdictional problems of the Occupational Safety and Health Administration and the Federal Railroad Administration would have caused some understandable delay. Nevertheless, the record does not clarify why it was thereafter necessary for the regional representatives of the Secretary of Labor to continue referring such cases to the national office. Even if that referral was necessary, however, the justification for holding this case for a month at the national office, when the case had been thoroughly reviewed by the regional office, has not been established.

Finally, the citation should be vacated on the basis of Anning-Johnson Company v. OSAHRC, 516 F.2d 1081 (7th Cir. 1975), which held that employers on multi-employer worksites are not liable under the Act for conditions which they did not create or cause or for which they did not otherwise have responsibility. The primary basis for that holding was that only the employer who is primarily at fault should be held liable. That sound logic is applicable whether the multi-employer worksite is a construction project or a facility such as the one in this case.

I continue to disagree with my colleagues’ shifting the burden of proof to require cited employers to show that they had no responsibility for the alleged violative conditions or that they protected their employees with ‘realistic alternative measures.’[16] In this case, Messrs. Barnako and Cleary extend the latter rule to mean that respondent was required to ‘suspend shipping services.’ That is contrary to the well-reasoned decision of the Seventh Circuit in the Anning-Johnson case. It also broadens liability of employers under the Barnako-Cleary ‘rule’ and illustrates the ambiguousness and arbitrariness of their ‘rule.’[17]

In Secretary v. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12, 1976, my colleagues stated that:

Simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees. It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area . . . or in some instances provide an alternative means of protection . . . (Emphasis supplied.)

Under this test, an employer can attempt to have the responsible employer abate the violation, or it can ‘provide alternative means of protection.’ In Secretary v. Otis Elevator Company, OSAHRC Docket No. 8468, May 14, 1976, my colleagues based liability of an employer for a housekeeping violation on their finding that he ‘should have requested the responsible subcontractor to correct this condition, or [he] should have notified the general contractor.’ Since respondent in this case repeatedly requested the responsible employer to abate the housekeeping violation, it did all that was required under the holdings in those cases.

Even assuming the validity of requiring an employer to provide ‘alternative means’ to protect its employees in some cases, it is unreasonable and unfair to require respondent to discontinue the switching service as an ‘alternative means.’ In Anning-Johnson Company v. OSAHRC, supra, the Court held that a policy requiring removal of employees from a worksite is contrary to the purposes of the Act. The Court observed that such a requirement could have disastrous consequences for the individual employer involved and for other industries to which he provides services. Accordingly, it held that ‘[c]orrecting the hazard, not shutting down construction sites, is the desired result.’ 516 F.2d at 1090. Nevertheless, my colleagues require respondent to terminate the switching operations because of respondent’s contract with the Continental Can Company. That requirement will adversely affect the entire production of Continental Can simply because of the uncleanliness of the switchyard . . . This is exactly the kind of ruling that the United States Court of Appeals of the Seventh Circuit was trying to avert.

Moreover, it is unfair and inconsistent for my colleagues to find liability because of the contract. The agreement was signed in 1963, many years prior to the passage of the Occupational Safety and Health Act of 1970. Thus, respondent is being penalized for attempting to make its worksite safe for its employees 8 years before it was required to do so under the law. Also, since my colleagues do not allow an employer to escape liability through contractual arrangements,[18] it is unfair for them to hold an employer liable simply because of a contractual arrangement.

Since this decision does not cover all the matters discussed in Judge Burroughs’ decision, his decision is attached hereto as Appendix A.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11742
CENTRAL OF GEORGIA RAILROAD COMPANY,
Respondent.
UNITED TRANSPORTATION UNION,
Intervenor

September 2, 1975

APPEARANCES:

Stephen J. Simko, Jr., Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Richard K. Hines, V, Esquire, Neely, Freeman & Hawkins, Atlanta, Georgia, on behalf of respondent.

Lawrence M. Mann, Esquire, Bernstein, Alper, Schoene & Friedman, Washington, D.C., on behalf of Intevenor

DECISION AND ORDER

STATEMENT OF CASE

This is a proceeding under section 10(c) of the Occupational Safety and health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter “Act”). Respondent seeks review of a non-serious citation issued to it on December 20, 1974, pursuant to section 9(a) of the Act. Review is also sought of a notification of proposed penalty issued to respondent on December 20, 1974.

The non-serious citation and notification of proposed penalty emanated from an inspection conducted on October 30, 1974, at the railroad tracks of a Continental Can Company plant located in Augusta, Georgia. Respondent was engaged in switching, moving and locating of railroad cars for loading and unloading. Respondent at all times germane to this proceeding was engaged in the operation of a common carrier interstate railroad.

The citation alleges that respondent committed two non-serious violations of section 5(a)(2) of the Act by failing to comply with a regulation published at 29 CFR 1903.2(a) and a safety standard published at 29 CFR 1910.22(a)(1). The citation described the alleged violations as follows:

Item 1—29 CFR 1910.22(a)(1)

The following places of employment (especially the immediate adjacent areas) were not kept clean:

(a) Track #2: Covered with lime while it was being unloaded. Lime had sifted from the railroad car.

(b) Track #7: Covered with tall oil.

(d) Tracks #11 and #1: Mud and chips present. At least two water filled depressions.

These places presented a hazard to safe walking and the safe climbing of the fixed metal ladders on the railroad cars as the shoes of the on-duty brakeman, conductor, and flagman became slippery.

Item 2—29 CFR 1903.2(a)

No poster furnished by OSHA informing employees of the protections and obligations provided for in the Act posted by the employer in a conspicuous place where notices to employees are customarily posted.

Penalties of $25 and $50 were proposed for items 1 and 2, respectively.

The respondent, by letter dated December 30, 1974, and received by complainant on January 2, 1975, timely advised complainant that it desired to contest the citation and notification of proposed penalty. The notice raised two affirmative defenses. The defenses are: (1) respondent is exempt from the Act by virtue of the provisions of section 4(b)(1), and (2) complainant failed to comply with section 9(a) of the Act by failing to issue the citation “with reasonable promptness.”

Respondent concedes in a stipulation filed by the parties that the tracks described in item 1 of the citation were in the condition as described by the citation. Respondent, however, submits that it was not responsible for the maintenance of the tracks and should not be held responsible for the violation (Par. X, Stip.).

Pursuant to Rule 21 of the Commission’s Rules of Procedure, the United Transportation Union, Local 674, intervened in the proceeding and filed a brief on the question of whether section 4(b)(1) of the Act exempts the railroad industry.

Prior to the scheduled hearing in this matter, the parties advised that all issues could be fully stipulated and that there was no necessity for a formal hearing. On April 22, 1975, a stipulation was received from the parties setting forth the facts with respect to all issues in dispute.

JURISDICTION AND ISSUES

Respondent concedes that it is engaged in the operation of an interstate railway system and engaged in activities affecting commerce (Part. II, Complaint and Answer; Par. IV, Stip.). It denies that it is subject to the provisions of the Act. This denial is premised on the belief that section 4(b)(1) exempts it from the provisions of the Act.

The following issues are pertinent to a disposition of this proceeding:

1. Does section 4(b)(1) of the Act exempt respondent from the standards promulgated by complainant pursuant to section 6 of the Act?

2. Was the citation issued with “reasonable promptness” as required by section 9(a) of the Act?

3. Did respondent violate section 5(a)(2) of the Act by failing to comply with the regulation published at 29 CFR 1903.2(a) and the standard published at 29 CFR 1910.22(a)(1)?

4. What penalties, if any, should be assessed for any violations of the Act?

FINDINGS OF FACT

The evidence of record has been carefully considered in its entirety. The following facts are specifically determined in resolving all issues in dispute:

1. Respondent, Central of Georgia Railroad Company, is a railway corporation organized under the laws of the State of Georgia, having a place of business and doing business in, among other places, Augusta, Georgia. It was at all times germane to this proceeding engaged in the operation of a common carrier interstate railway system that affected interstate commerce (Par. IV, Stip.).

2. Respondent owns and operates a satellite yard known as the “Nixon Yard.” The yard is located nine miles south of Augusta, Georgia (Par. IV, Stip.).

3. On January 11, 1963, respondent entered into an agreement with Continental Can Company, Inc. (hereinafter ‘Continental”) wherein it agreed to provide railroad shipping services to Continental over an industrial track to be constructed and maintained in a safe operating condition by Continental (Ex. A; Par. IV, Stip.).

4. Paragraph 6 of the agreement of January 11, 1963, provided, in part, as follows:

Shipper agrees to maintain its said tracks in safe operating condition. *** “The Railway will perform switching service to the satisfaction of the Shipper, commensurate with the Shipper’s needs, unless the Shipper fails or refuses to maintain properly its tracks which are to be used within the scope of this agreement, in a condition satisfactory to the Railway. In the event of such refusal or failure by the Shipper, then the Railway, without any liability or accountability whatsoever to the Shipper, its successor or assigns, may suspend or discontinue switching service upon the said tracks to be used within the scope of this agreement, until said tracks are restored to a condition satisfactory to the Railway.

5. At the time of the inspection in this case, respondent, pursuant to the agreement of January 11, 1963, switched railway cars for Continental on a twice daily basis. A switch engine and crew went twice daily to the premises of Continental to deliver and pick up freight cars. In the conduct of these operations, the switch engine and crew passed over the tracks that form the subject matter of the citation issued respondent on December 20, 1974 (Pars. IV, X, Stip.).

6. The complainant, through a duly authorized compliance officer, conducted an inspection on October 30, 1974, of the industrial tracks of Continental located on State Highway 56, Augusta, Georgia (Par. VII, Stip.).

7. As a result of the inspection, complainant’s acting Area Director forwarded the inspection report to complainant’s regional office in Atlanta for review. On November 18, 1974, the regional office sent the report to the national office for review. On December 18, 1974, the regional office received a telephone call from the national office authorizing the issuance of a citation. On the same date, the regional office telephoned the acting Area Director and authorized the issuance of the citation. The citation was issued on December 20, 1974 (Par. IX, Stip.).

8. Prior to the date of inspection, respondent was aware of two water filled depressions existing at track number one and eleven. Its train passed over these tracks (Par. X, Stip.).

9. On April 24, 1973, June 7, 1973, January 16, 1974, April 29, 1974, May 1, 1974, and May 9, 1974, respondent mailed letters to Continental requesting that Continental correct the drainage problems. The letters were supplemented by numerous telephone calls (Exs. D through I; Par. X, Stip.).

10. During January and February, 1975, Continental corrected the conditions set forth in item 1 of the citation issued respondent on December 20, 1974 (Par. X, Stip.).

11. Respondent had no “Safety and Health Protection on the Job” poster posted at the Nixon Yard facility at the time of inspection (Par. XI, Stip.).

12. Respondent, after investigation and review of its records, could find no evidence of any kind or nature that it ever received the poster or copies thereof for posting at its Nixon Yard facility (Par. XI, Stip.).

13. On or about December 3, 1971, complainant mailed all railroad operators, including respondent, a letter and booklet containing recordkeeping requirements and the “Safety and Health Protection on the Job” poster (Par. XI, Stip.).

LAW AND OPINION

I. SECTION 4(b)(1)

The Commission held in Secretary v. Southern Pacific Transportation Company, 13 OSAHRC 258 (1974), that section 4(b)(1) does not provide an industry exemption, but does provide an exemption for specific working conditions. The decision in Southern Pacific is controlling.[19] The purport of the Southern Pacific decision is that if any of the alleged violations are covered by regulations promulgated by the Secretary of Transportation, then the Act would not apply to that specific alleged violation or violations. The violations, if any, must be determined on an individual basis by ascertaining whether or not regulations promulgated by the Department of Transportation cover the specific working conditions. Respondent does not contend that any promulgated regulations of the Department of Transportation cover the alleged violations in this case.

Since the Commission has decided that railroads are not totally exempt under section 4(b)(1) of the Act and no regulations promulgated by the Department of Transportation cover the alleged violations, it is concluded that the Commission has jurisdiction of the parties and of the subject matter. The stipulation by respondent that it is engaged in interstate commerce would satisfy the definition of an employer under section 3(5) of the Act which only requires that an employer be engaged in a business affecting commerce.

II. Reasonable Promptness

Section 9(a) of the Act provides, in pertinent part, as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, he shall with reasonable promptness issue a citation to the employer. (underlining added)

Respondent submits that “reasonable promptness” requires that the citation be issued within 72 hours after the inspection.

The Commission’s decision in Secretary v. Chicago Bridge & Iron Company, 6 OSAHRC 244 (1974), rev’d. and remanded, ––– F.2d –––– (7th Cir. No. 74–1214, April 22, 1975) sets forth guidelines and limits as to the applicability of the “reasonable promptness” requirement. In the absence of exceptional circumstances, the Commission adopted the 72 hour requirement for reasonable promptness which appears in the legislative history. The 72–hour rule appears to be in a state of uncertainty. The Commission has not indicated whether it accepts or rejects the ruling of the seventh circuit.

Even if the philosophy of the Commission in Chicago Bridge & Iron Company is deemed applicable, since respondent is in a circuit other than the seventh, the facts show that complainant complied with the requirements of Chicago Bridge as amplified in Secretary v. Illinois Central Gulf Railroad Company, 16 OSAHRC 156 (1975). In Illinois Central Gulf the Judge concluded that review by a regional office or national office constitutes exceptional circumstances up to the point that the Area Director or any other person who might be authorized to issue the citation is officially notified to issue the citation. In this case authority to issue the citation was received on December 18, 1974, and the citation was issued on December 20, 1974, which was within the 72 hour requirement. The citation was issued with “reasonable promptness” as required by section 9(a).

Respondent also argues that the violations occurred more than six months prior to the issuance of the citation and that section 9(c) absolutely prohibits the issuance of the citation in this case. Section 9(c) states:

“No citation may be issued under this section after the expiration of six months following the occurrence of any violation.”

Respondent submits that the initial date of the violation prevails rather than the inspection date.

Section 9(a) gives the Secretary of Labor the authority to issue a citation whenever he believes that an employer has committed a violation of the Act. Until a belief is formed that a violation exists, there is no basis for the issuance of a citation. The six months requirement of section 9(c) is directed to the date the Secretary forms a belief that a violation existed. In this case the belief was formed on October 10, 1974, the date when the violations were observed. Since the citation was issued on December 20, 1974, the six month requirement of section 9(c) has been satisfied.

III. Alleged Violation of 29 CFR 1903.2

Section 1903.2 of 29 CFR provides, in pertinent part, as follows:

Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protection and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer and the nearest office of the Department of Labor.

Respondent concedes that it did not have a poster posted as required by 29 CFR 1903.2. However, it contends that no poster was furnished to it for posting at the Nixon Yard, Augusta, Georgia.

Complainant states in the stipulation that it mailed all railroad operators, including respondent, a poster on or about December 3, 1971. The stipulation does not state the address to which the poster was mailed. Presumably, only one poster was mailed to respondent. There is no indication that the poster was furnished for posting at the Nixon Yard in Augusta, Georgia. Respondent states in the stipulation that it could find no evidence of any kind or nature that the poster was ever received for posting at the Nixon Yard facility. Thus, one can not conclude that a poster was furnished for posting at the Nixon Yard.

The stipulated facts are too inconclusive for arriving at a determination that respondent was furnished a poster as required by the regulation. The alleged violation must be vacated. See Secretary v. Puterbaugh Enterprises, Inc., 9 OSAHRC 718 (1974). Secretary v. Woerfel Corporation, 6 OSAHRC 428 (1974).

IV. Alleged Violation of 29 CFR 1910.22(a)(1)

Section 1910.22(a)(1) of 29 CFR provides as follows:

All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

Complainant contends that the following conditions existed:

AREA

CONDITION

Track No. 2

Covered with lime while car was being unloaded. Lime sifted from car.

Track No. 7

Covered with tall oil.

Track No. 9

Fuel Oil on it.

Track Nos. 1 and 11

Mud and chips present. Two water filled depressions.

Respondent conceded that the alleged conditions did in fact exist but submits that it was without authority to correct the conditions and should not be held in violation of the standard.

The tracks on which the conditions were observed were on the property of Continental Can Company, Inc. and were constructed pursuant to an agreement between Continental and respondent. The agreement was dated January 11, 1963, and, among other things, provided that the tracks would be maintained in a safe operating condition by Continental. The evidence clearly reflects that respondent was aware of the conditions and had made repeated attempts by letter and telephone to have the conditions corrected prior to the date of inspection.

Respondent argues that it should not be held responsible for violations of the Act occurring on the premises of an independent shipper. It was without authority to enter the premises of Continental to correct the conditions. Respondent clearly had another choice. It could simply have refused to enter the premises of Continental to deliver and pick up freight cars. In the event Continental failed to maintain the tracks in satisfactory condition, the respondent, under paragraph 6 of the agreement of January 11, 1963, could have suspended or discontinued switching service upon the tracks. The violation became attributable to respondent when it submitted its employees to the conditions. Under the agreement, it was clearly not obligated to expose its employees to unsafe working conditions.

The Commission held in Secretary v. Savannah Iron and Fence Corporation, 10 OSAHRC 1, 4 (1974), that “each employer has as to his employees the duty of complying with standards.” Respondent did not have to expose its employees to the conditions existing on the premises of Continental. Respondent was not relieved of its legal responsibility to comply with safety standards by virtue of Continental’s obligation to maintain the tracks in a safe condition. Respondent can not contract away its responsibility to protect its employees.

The United States Court of Appeals for the Seventh Circuit in Anning–Johnson Company and Workinger Electric, Inc. v. OSAHRC and Secretary of Labor, –––F.2d –––– (Nos. 74–1381, 74–1382, May 27, 1975) distinguished between serious and non-serious violations with respect to the responsibility of a subcontractor at a multi-employer construction site to provide protection for its employees where the responsibility to provide the protection was with another employer. It concluded that the policy of imposing liability on subcontractors for non-serious violations merely because their employees are exposed to conditions which were not created, caused or for which the subcontractors were not responsible for does not fulfill the purposes of the Act. The impact of the Seventh Circuit’s decision on future Commission decisions is not yet discernible. Since the case was decided in a different circuit from which this case arises and the Commission has not indicated it will follow the decision, it is held inapplicable to the respondent. The violation has been established.

PENALTY DETERMINATION

The Commission is required by section 17(j) of the Act to find and give “due consideration” to the size of the employer’s business, the gravity of the violation, the good faith of the employer, the history of previous violations in determining the assessment of an appropriate penalty. The principal factor to be considered is the gravity of the offense. Secretary v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972).

Complainant proposed a penalty of $25 for the violation of 29 CFR 1910.22(a)(1). The violation occurred on the premises of Continental and Continental was responsible for maintaining the tracks in safe operating condition. Respondent had no legal authority to enter the premises and abate the conditions. Respondent recognized the hazardous conditions and made repeated good faith attempts to have the conditions corrected. For these reasons, a penalty of only $25 is assessed for the violation.

CONCLUSIONS OF LAW

1. The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.

2. Respondent is not totally exempt from the jurisdiction of the Act by virtue of the provisions of section 4(b)(1) of the Act. The exemption is a limited one applying to working conditions which are covered by regulations promulgated by the Secretary of Transportation.

3. The complainant failed to meet its burden of proof that the poster required to be posted by 29 CFR 1903.2 was furnished to respondent as required by the regulation.

4. On October 30, 1974, employees of respondent were working over tracks owned and maintained by Continental Can Company, Inc., which were not being kept clean in violation of 29 CFR 1910.22(a)(1).

5. Each employer has as to his employees the duty of complying with standards promulgated under the Act. Respondent exposed its employees to the conditions of the tracks owned by Continental and thereby violated 29 CFR 1910.22(a)(1).

6. A penalty of $25 is assessed for the violation of 29 CFR 1910.22(a)(1).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, it is

ORDERED: That item 1 of the citation and notification of proposed penalty issued to respondent on December 20, 1974, is affirmed and that item 2 of the citation and notification are vacated.

Dated this 2nd day of September, 1975.

JAMES D. BURROUGHS

JUDGE OSAHRC

[1] The standard reads:

§ 1910.22 General requirements.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

[2] The stipulation in relevant part provided:

. . . [T]he railroad represents that during the conduct of its switching operations at Continental Can Company, its four-man crew passes over the tracks that are the subject matter of this litigation and may need to walk over the area that is the subject matter of this litigation in order to effect the said switching operations . . .

That the employees had ‘access’ to the area involved is clear from this statement. See Gilles & Cotting, Inc., BNA 3 OSHC 2002, CCH 1975 76 OSHD para. 20,448 (No. 504, 1976).

[3] Section 4(b)(1) provides:

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.

[4] Section 9(a) provides:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer . . .

[5] Section 9(c) provides:

No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

[6] The issuance of the citation was delayed due to the need of the Area Director to receive approval from the national office to issue a citation to the railroad. The inspection occurred on October 30, 1974. On November 12, the file was sent to the regional office for review. On November 18, the regional office forwarded the file to the national office. On December 18, the national office notified the regional office that the citation could be issued. On the same date the regional office contacted the Area Director and authorized the citation’s issuance. The citation was issued on December 20, 1974.

In a case involving a 102 day period between an inspection and the issuance of a citation to a railroad, the Commission held that the necessity of obtaining approval from the national office before issuing a citation constituted an ‘exceptional circumstance’ justifying the delay. Louisville & Nashville R.R. Co., BNA 3 OSHC 1148, CCH 1974 75 OSHD para. 19,598 (No. 5521, 1975). Also, see Louisville & Nashville R.R. Co., BNA 4 OSHC 1868, CCH 1976 77 OSHD para. 21,310 (No. 9740, 1976). This reasoning is equally applicable to the present case.

[7] Chairman Barnako is of the opinion that a citation can also be vacated on reasonable promptness grounds if the delay in the issuance of the citation is ‘so patently unnecessary and unjustifiable as to be unconscionable.’ See Louisville & Nashville R.R. Co., BNA 4 OSHC 1868, CCH 1976 77 OSHD para. 21,310 (No. 9740, 1976); Jack Conie & Sons Corp., BNA 4 OSHC 1378, CCH 1976 77 OSHD para. 20,849 (No. 6794, 1976) (concurring opinion).

[8] The Secretary filed a letter with the Commission indicating that affirmance of the Judge’s decision was being urged on the basis of the application of the general rule as expressed in R. H. Bishop Co., BNA 1 OSHC 1767, CCH 1973 74 OSHD para. 17,930 (No. 637, 1974).

[9] A majority of the Commission has since decided that the knowledge element stated in section 17(k) of the Act is implicit in section 5(a)(2) and that the Secretary has the burden of proof on this point. Green Constr. Co. & Massman Constr. Co., A Joint Venture, BNA 4 OSHC 1808, CCH 1976 77 OSHD para. 21,235 (No. 5356, 1976); Scheel Constr., Inc., BNA 4 OSHC 1824, CCH 1976 77 OSHD para. 21,263 (No. 8687, 1976). Therefore, the Secretary must establish that respondent had actual or constructive knowledge of the violative conditions. The respondent may then affirmatively show that it did not know, nor with the exercise of reasonable diligence, could have known, that the cited condition was hazardous. Data Electric Co., Inc., BNA 5 OSHC 1077 CCH 1977 78 OSHD para. 21,593 (No. 13122, 1977) (lead and concurring opinions).

[10] Anning-Johnson Co. (Nos. 3694 & 4409), supra, BNA 4 OSHC at 1198, CCH 1975 76 OSHD at 24,783. In the present case the Judge stated in his decision that ‘[r]espondent had no legal authority to enter the premises and abate the conditions.’ Judge’s Decision at 14. We also note that a further prerequisite to recognition of this defense in a particular case is a showing that the party that created or controlled the hazard involved could be cited for a violation even though none of its own employees may have been exposed to this hazard. Anning-Johnson Co., (Nos. 3694 & 4409), supra, BNA 4 OSHC at 1199, CCH 1975 76 OSHD at 24,784; Grossman-Steel & Aluminum Corp., supra, BNA 4 OSHC at 1188, CCH 1975 76 OSHD at 24,790, Brennan v. O.S.H.R.C. & Underhill Constr. Corp., 513 F.2d 1032, 1038 (2d Cir. 1975). To recognize this defense in the absence of a party that could be ordered to effect literal compliance with the standard would result in certain employees not receiving the protection intended by the Act. Grossman Steel & Aluminum Corp., supra.

[11] For example, the letter of June 7, 1973, read:

CONTINENTAL CAN CO.

AUGUSTA, GA.

MR. WHIT LANDRUM:

I KNOW YOU HAVE CORRECTED SOME OF THE CONDITIONS, HOWEVER, I’M AFRAID WE ARE GOING TO GET IN TROUBLE UNLESS WE PUSH TO GET ALL THE UNSAFE CONDITIONS CORRECTED. I FEEL SURE THAT YOUR MAINTENANCE PEOPLE COULD POLICE THE AREA AND GIVE THE TRAIN CREWS BETTER WALKING CONDITIONS.

MR. LANE AND I FOUND MATERIAL LEFT BETWEEN THE RAILS AND IN THE PATH THE MEN NEED TO WALK. WE ALSO FOUND THINGS OTHER THAN TRACK MATERIAL LEFT TOO CLOSE TO THE TRACK. SOMETHING HAS GOT TO BE DONE TO YOUR DRAINAGE PROBLEM, WE CAN’T FORCE OUR PEOPLE TO WALK IN MUD AND WATER. A MAN CAN’T WALK SAFELY ON OR ABOUT TRACKS 12, 9, 8, 7, 6, 5, 4, 3, 2, or 11.

ENCLOSED IS A COPY OF MR. LANE’S LETTER OF APR. 24, 1973. PLEASE BRING THESE UNSAFE CONDITIONS TO THE ATTENTION OF YOUR PEOPLE, SO THAT THEY CAN BE CORRECTED NOW.

YOURS TRULY,

H. A. LOVETT

[TRAINMASTER]

Also, the letter of May 1, 1974, in pertinent part read:

Dear Mr. Landrum:

L.C. Gooding and I inspected track area in your plant on Wednesday, May 1, 1974 and the following conditions need to be corrected before some man gets hurt.

These are the conditions that exist now and have for over a year, and are what I had reference to when I said that the men must have a safe, clean, dry place to walk and would have to be policed to see that it stays safe.

/s/ H. A. Lovett

H. A . Lovett

Trainmaster

[12] In Anning-Johnson Co. (Nos. 3694 & 4409), supra, I stated that in certain minor situations a complaint registered with the creating or controlling party could be an appropriate and realistic alternative measure. BNA 4 OSHC at 1200 n.23, CCH 1975 76 OSHD at 24,785 n.23. In Grossman Steel & Aluminum Corp., supra, Chairman Barnako stated that ‘[a]s a general rule we will not require an employer to remove its employees from the vicinity of the hazard if the condition is not corrected.’ BNA 4 OSHC at 1189 n.7, CCH 1975 76 OSHD at 24,791 n.7. We both agree that in the circumstances of the present case removal of respondent’s employees from the area of the hazard pursuant to the terms of the suspension of shipping services clause, was a realistic alternative precautionary measure that should have been taken.

[13] See Secretary v. Jack Conie & Sons Corporation, OSAHRC Docket No. 6794, June 25, 1976, and my dissenting opinions in Secretary v. Par Construction Company, Inc., OSAHRC Docket No. 11092, October 15, 1976; Secretary v. U.T.S., A Division of Universal Maritime Service Corp., OSAHRC Docket No. 4956, September 9, 1976; and Secretary v. Coughlan Construction Company, 20 OSAHRC 641, 648 (1975).

[14] See Secretary v. Louisville and Nashville Railroad Co., OSAHRC Docket No. 9740, November 23, 1976 (dissenting opinion); Secretary v. Baltimore & Ohio Railroad Co., OSAHRC Docket No. 10687, November 16, 1976 (dissenting opinion).

[15] Supra note 14.

[16] For a more comprehensive discussion of my views on multi-employer responsibility, see my separate opinions in Secretary v. Data Electric Company, Inc., OSAHRC Docket No. 13122, March 7, 1977; Secretary v. Valley Sheet Metal Company, OSAHRC Docket No. 12717, October 4, 1976; Secretary v. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, May 12, 1976; and Secretary v. Anning-Johnson Company, OSAHRC Docket Nos. 3694 & 4409, May 12, 1976.

[17] See Secretary v. Truland-Elliot, OSAHRC Docket No. 11259, July 21, 1976.

[18] Secretary v. Data Electric Company, Inc., supra.

[19] The decision in Dunlop v. Burlington Northern, ––– F.S. –––– (D.Mont.C.V. –75–3–BLG, May 13, 1975) denying the Secretary of Labor the right to inspect the workplaces of Burlington Northern in Laurel, Montana, draws some conclusions contrary to those of the Commission in Southern Pacific.