DELAWARE AND HUDSON RAILWAY CO.  

OSHRC Docket No. 76-787

Occupational Safety and Health Review Commission

April 23, 1980

  [*1]  

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Kinga M. LaChappelle, Delaware & Hudson Railway Company, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Robert P. Weil is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   657-678 ("the Act").

United Transportation Union, Local No. 256 ("the Union"), filed a complaint with the Occupational Safety and Health Administration ("OSHA") in January, 1976, regarding alleged unsanitary conditions in the crew dispatcher's office at Respondent Delaware and Hudson Railway Company's Colonie yard at Watervliet, N.Y.   As the result of an inspection by an OSHA compliance officer, the Secretary of Labor ("Secretary") issued to Respondent one citation alleging five nonserious violations of the Act for failure to comply with the following standards: 29 C.F.R. §   1910.141(b)(1)(iii), 29 C.F.R. §   1910.141(c)(2)(iii), 29 C.F.R. §   1910.309(a), 29 C.F.R. §   1910.157(a)(5), and 29 C.F.R. §   1910.157(d)(3)(i).   [*2]   No penalties were proposed for these alleged nonserious violations.

Administrative Law Judge Weil vacated the item of the citation alleging a failure to comply with section 1910.309(a) for failure to ground a water fountain and a refrigerator, but affirmed the remaining items.   The judge assessed a $250 penalty for failure to comply with sections 1910.141(b)(1)(iii) and 1910.141(c)(2)(iii) pertaining to an unsanitary water fountain and an unsanitary toilet room. The judge assessed a $100 penalty for failure to comply with sections 1910.157(a)(5) and 1910.157(d)(3)(i) pertaining to an unmounted and uninspected fire extinguisher.   Both Respondent and the Union filed petitions for discretionary review of the judge's decision and their petitions were granted by Chairman Cleary.   The issues on review are those raised in the petitions, namely:

1.   Whether section 4(b)(1) of the Act exempts Respondent from OSHA's and the Commission's jurisdiction;

2.   Whether the judge erred in concluding that Respondent's drinking fountain and toilet room failed to comply with 29 C.F.R. § §   1910.141(b) and (c);

3.   Whether Respondent's ungrounded electrical appliances violated 29 C.F.R. §   1910.309(a);   [*3]   and

4.   Whether the judge's assessment of penalties totalling $350 violated Respondent's right to due process of law. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Respondent also argued that the judge erred in stating that the inspected building contained sleeping facilities.   Respondent submits that the error may have led the judge to conclude that the violations were of a higher gravity, thus causing a penalty assessment larger than that warranted.   In view of our conclusion regarding the appropriate penalties to be assessed in this case, discussed infra, we need not address Respondent's argument.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

1.   Jurisdiction

On review Respondent argues that, under section 4(b)(1) of the Act, n2 OSHA lacks jurisdiction to enforce the cited standards at the crew dispatcher's office because the Federal Railroad Administration ("FRA") "had already promulgated regulations affecting occupational health and safety with respect to the working conditions in question. . . ." In support of this assertion Respondent cites regulations at 49 C.F.R. Part 225 adopted [*4]   by the FRA regarding the reporting and investigation of railroad accidents and incidents.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 Section 4(b)(1), 29 U.S.C. §   653(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 and health.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Union argues that the FRA regulations relied upon by Respondent provide no substantive safety and health protection for employees and do not displace the cited OSHA standards requiring maintenance of sanitary facilities.

We reject Respondent's argument.   Section 4(b)(1) provides an exemption from the Act's coverage with respect to only those specific working conditions over which another Federal agency has "exercised" its authority.   Seaboard Coast Line R.R. Co., 78 OSAHRC 21/C8, 6 BNA OSHC 1433, 1978 CCH OSHD P22,596 (No. 12078, 1978).   We have previously held that the FRA's revised reporting requirements at 49 C.F.R. Part 225 do [*5]   not constitute an exercise of statutory authority sufficient to provide a section 4(b)(1) exemption.   See, e.g., Union Pacific R.R. Co., 77 OSAHRC 150/A2, 5 BNA OSHC 1702, 1977-78 CCH OSHD P22,036 (Nos. 11558 et al., 1977); Indiana Harbor Belt R.R. Co., 77 OSAHRC 12/A2, 4 BNA OSHC 2006, 1976-77 CCH OSHD P21,473 (No. 12420, 1977).   Accordingly, Respondent's argument is rejected.

2.   Unsanitary Drinking Fountain and Toilet Room

Respondent argues that the judge erred in finding a violation for failure to company with 29 C.F.R. §   1910.141(b)(1)(iii) n3 due to alleged unsanitary conditions in a drinking fountain. Respondent contends that it maintained such cleanliness as was feasible for a building located in an unpaved area of a railroad yard.   Respondent submits that the degree of cleanliness required to be maintained is set forth in 29 C.F.R. §   1910.141(a)(3)(i): "All places of employment shall be kept clean to the extent that the nature of the work allows." Respondent claims that the required degree of cleanliness was maintained in the fountain in view of the following: The area outside the building is muddy when it rains and dusty when it is dry; the [*6]   degree of the unsanitary condition described by the witnesses could occur on a daily basis without negligence on the part of anyone; the crews that use the facility have dust and grease on their hands and clothing; and janitorial service is provided.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 The cited standard provides:

§   1910.141 Sanitation.

* * *

(b) Water supply-(1) Potable water.

* * *

(iii) Portable drinking water dispensers shall be designed, constructed, and serviced as that sanitary conditions are maintained, shall be capable of being closed, and shall be equipped with a tap.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Union argues that there is ample evidence in the record to support the judge's finding, citing the testimony of the compliance officer describing the condition of the fountain. The Union also argues against the "principle of relative enforcement" advanced by Respondent.   The Union submits that the standards set minimum standards of cleanliness below which facilities can not fall.

The judge's finding concerning the section 1910.141(b)(1)(iii) violation is affirmed.   [*7]   The compliance officer testified that in the basin of the fountain, two or three inches from a user's mouth, there "was the kind of dirt, grease and grime that builds up over a long time of not cleaning it." The chairman of the Union's grievance committee, called as a witness on behalf of the Union, corroborated the compliance officer's testimony and testified that the condition had existed for several months.   In the view of Respondent's assistant superintendent, however, the fountain simply was "dusty" from non-use.   Although Respondent is correct in its assertion that under section 1910.141(a)(3)(i) the nature of the work must be considered in determining the degree of cleanliness required, the preponderance of the evidence of record supports the conclusion that the condition of Respondent's fountain breached the appropriate minimum level of sanitation.

With respect to the toilet room, the citation alleged that the "floor, walls, ceiling, partitions, and doors" of Respondent's toilet room did not have "a finish that can easily be cleaned" in violation of 29 C.F.R. §   1910.141(c)(2)(iii). n4 Respondent makes no separate argument regarding the judge's finding of a failure to comply [*8]   with this standard other than to state the the "fact that perhaps the place needed a coat of paint certainly did not constitute a hazard or warrant an increase of the penalty by $250.00."

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 The cited standard provides:

§   1910.141 Sanitation.

* * *

(c) Toilet facilities -

* * *

(2) Construction of toilet rooms.

* * *

(iii) The floors, walls, ceilings, partitions, and doors of all toilet rooms shall be of a finish that can be easily cleaned.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Union argues that the judge's finding of a violation is supported by the record and should not be disturbed.   The Union notes that the standard requires a finish that can be easily cleaned. The Union cites testimony regarding the deteriorated nature of the painted surface and the fact that it could not be easily cleaned.

The judge's finding of a failure to comply with section 1910.141(c)(2)(iii) is affirmed.   The compliance officer testified that the room was in complete disrepair and described the walls, floors, and toilet and shower partitions as "rotting", "peeling",   [*9]   "flaky" and "direty." In his view, the rough surfaces of the room would hold "bacteria, dirt and other particles," and would be "very hard to clean." Again, the Union's witness corroborated the compliance officer's testimony.   Respondent's witness acknowledged that the shower partitions were rusted at the bottom, but testified that in his view the facilities were "clean" rather than "unhealthy" or "filthy." We find that the preponderance of the record evidence supports the conclusion that, contrary to the standard's requirements, the surfaces of Respondent's toilet room did not have a finish that was capable of being easily cleaned.

3.   Ungrounded Electrical Appliances

Item 3 of the citation alleged that Respondent's water cooler and refrigerator, both of which were plugged into 110 volt outlets with two prong plugs, "had no effective means for grounding." This situation allegedly exposed Respondent's employees to the hazard of an accidental electrical shock.   The citation alleged a violation of 29 C.F.R. §   1910.309(a) for failure to comply with the National Electrical Code (NEC), NFPA 1971, article 250-45(d)(1). n5 The judge vacated the citation finding that the applicances [*10]   had been installed prior to March 15, 1972, and that the evidence did not show that they had been replaced, modified, repaired, or rehabilitated after that date. n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The cited standard provides:

§   1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968) shall apply to all electrical installations and utilization equipment:

* * *

250-45(a), (b), (c), and (d).   Equipment Connected by Cord and Plug, Grounding.

The NEC article referenced in the citation provides:

250-45.   Equipment Connected by Cord and Plug.

Under any of the following conditions, exposed noncurrent-carrying metal parts of cord-and-plug-connected equipment, which are liable to become energized, shall be grounded;

* * *

(d) In other than residential occupancies, (1) refrigerators, freezers, air conditioners. . . .

n6 29 C.F.R. §   1910.309(b) provides:

National Electrical Code

* * *

(b) Every new electrical installation and all new utilization equipment installed after March 15, 1972, and every replacement, modification, or repair or rehabilitation, after March 15, 1972, of any electrical installation or utilization equipment installed before March 15, 1972, shall be installed or made, and maintained, in accordance with the provisions of the 1971 National Electrical Code, 70-1971; ANSI C1-1971 (Rev. of C1-1968).

  [*11]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Union argues that the judge erred in vacating the alleged grounding violations.   The Union submits that the judge erroneously interpreted the cited standard, section 1910.309(a), as applying only to appliances installed after March 15, 1972.   In the Union's view, section 1910.309(a) requires compliance with article 250.45 regardless of the installation date of the covered applications.   The Union reads section 1910.309(a) as an application of certain specified parts of the NEC (including article 250-45) to all electrical installations, while section 1910.309(b) applies the remainder of the NEC to installations installed repaired after March 15, 1972.

Respondent argues that the judge correctly vacated the citation.   Respondent submits that section 1910.309(b) limits the application of section 1910.309(a) to equipment installed after March 15, 1972.

Sections 1910.309(a) and (b) must be read together.   Section 1910.309(a) incorporates by reference certain specified sections of the NEC as occupational safety and health standards and provides that they "shall apply to all electrical installations.   [*12]   . . ." (emphasis added).   Section 1910.309(a) contains no clause excluding previously installed equipment from its coverage.   Section 1910.309(b), on the other hand, goes further than section 1910.309(a)'s incorporation of only specific sections of the NEC, and requires compliance with the entire electrical code.   The terms of section 1910.309(b), however, limit its application to equipment installed, replaced, modified, repaired, or rehabilitated after March 15, 1972.   Because Respondent was cited for a failure to comply with an NEC provision specifically incorporated in section 1910.309(a), the date of installation of Respondent's equipment is irrelevant.

It is undisputed that Respondent's equipment was not grounded as required by article 250-45.   Therefore, Respondent's failure to comply with section 1910.309(a) was established.   Accordingly, the judge's decision regarding this item is reversed, and the citation is affirmed.

4.   Penalties

The Secretary proposed that no penalties be assessed for the violations alleged.   The judge assessed penalties totalling three hundred and fifty dollars: $250 for the unsanitary water fountain and toilet room and $100 for the unmounted   [*13]   and uninspected fire extinguisher.   Respondent argues that unless another hearing is granted on the issue of the reasonableness of the penalty assessed, "Respondent shall have never had an opportunity for a hearing on whether the penalty assessed was reasonable or an abuse of discretion." Respondent argues that since it has been denied this opportunity, it has been denied its right to due process of law.   Respondent further argues that the penalty increase is "especially a deprivation of . . . due process" in the present case because in its notice of contest only the citation was contested, not the amount of the penalty proposed.   Respondent argues that, because the penalty was not contested, under section 10(a) of the Act n7 it became a final order not to be reviewed by any court or agency.   Because the penalty is a final order, argues Respondent, the judge exceeded his statutory authority in assessing a penalty.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Section 10(a) of the Act, 29 U.S.C. §   659(a), in pertinent part, provides:

If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, . . . the citation and assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

  [*14]  

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's arguments regarding whether the administrative law judge had the authority to review and increase the amount of the penalties proposed by the Secretary are rejected.   Under section 10 of the Act, a contest of a citation also places in issue the appropriateness of the proposed penalty.   Plastering, Inc., 74 OSAHRC 26/E2, 1 BNA OSHC 1730 1973-74 CCH OSHD P17,767 (No. 1037, 1974); see Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973-74 CCH OSHD P17,272 (No. 2354, 1974).   Furthermore, it is well settled that an administrative law judge or the Commission may assess a higher penalty than that proposed by the Secretary.   See e.g, Long Mfg. Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); Clarkson Constr. Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975); and Jensen Constr. Co., 77 OSAHRC 201/C6, 6 BNA OSHC 1070, 1977-78 CCH OSHD P22,323 (No. 14300, 1977) (Commission affirms judge's assessment of $100 penalty where no penalty was proposed by Secretary).

Nevertheless, we   [*15]   conclude that the penalties assessed by the judge are not appropriate given the facts of this case.   On the basis of the statutory criteria specified in section 17(j) of the Act, 29 U.S.C. 666(i), we find that no penalty should be assessed for these nonserious violations.

Conclusion

The judge's findings of nonserious violations of the Act for Respondent's failure to comply with 29 C.F.R. § §   1910.141(b)(1)(iii) and 1910.141(c)(2)(iii) are affirmed.   The judge's vacation of the item of the citation alleging a nonserious violation for failure to comply with 29 C.F.R. §   1910.309(a) is reversed and the citation is affirmed.   The judge's assessment of a $350 penalty is vacated. No penalty is assessed.

SO ORDERED.