Union Pacific Railroad Company

Plain-English summary

Union Pacific Railroad was cited by OSHA in four consolidated cases and argued that the railroad industry is entirely exempt from OSHA regulation. The exemption it relied on, 29 U.S.C. § 653(b)(1), removes OSHA coverage for working conditions where another federal agency exercises its own statutory authority over occupational safety. Union Pacific pointed to the Federal Railroad Administration having issued some safety standards (not covering the cited conditions), revised its accident-reporting rules, and announced plans to adopt more regulations. The Administrative Law Judge rejected that argument under existing Commission precedent and, based on a stipulation between the parties, affirmed all the citations and proposed penalties. On review, the Commission agreed. Neither revised reporting requirements, nor a proposal to adopt future safety rules, nor the two combined, amounts to the actual "exercise of statutory authority" needed to displace OSHA under § 653(b)(1). The Commission affirmed the judge's decision.

Decision snapshot

• Cited standard(s): none enumerated; the order decides only OSHA's jurisdiction over railroads under 29 U.S.C. § 653(b)(1)
• Outcome: Affirmed. The railroad-industry exemption argument was rejected and all citations and penalties stand.
• Key point: The Federal Railroad Administration's revised accident-reporting rules and its stated plan to adopt future safety regulations do not "exercise statutory authority" over the cited conditions, so railroads remain subject to OSHA under 29 U.S.C. § 653(b)(1).

Full text (OSHRC public release)

Docket Nos. 76-1182; 76-1531; 76-1652; 76-2011

UNION PACIFIC RAILROAD COMPANY

OSHRC Docket Nos. 76-1182; 76-1531; 76-1652; 76-2011

Occupational Safety and Health Review Commission

June 28, 1977

Before BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

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

OPINION:

DECISION

BY THE COMMISSION: The only issue on review is whether the railroad industry is exempt from coverage of the Occupational Safety and Health Administration's (OSHA) regulations by 29 U.S.C. § 653(b)(1). n1 The Judge below decided that the railroad industry was not exempt by this section and, pursuant to a stipulation between the parties, affirmed all citations and proposed penalties. That decision is affirmed.

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n1 That section, in pertinent part, states:

"Nothing in this chapter 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."

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The respondent contends that the exemption applies to all railroad companies because the Federal Railroad Administration (FRA) has exercised the statutory authority contemplated in 29 U.S.C. § 653(b)(1) by: promulgating certain safety standards, even though they do not cover the cited conditions; revising its regulations pertaining to accident reporting, and; announcing that it planned to adopt regulations covering the same working conditions covered by the OSHA regulations. The Judge rejected the respondent's contention on the basis of Commission precedent.

The Judge properly applied Commission precedent. Neither the implementation of the revised reporting requirements, nor the proposal to adopt safety regulations, nor a combination, thereof, constitutes an "exercise [of] statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health" as contemplated by 29 U.S.C. § 653(b)(1). Indiana Harbor Belt Railroad Co., ___ OSAHRC ___, 4 BNA OSHC 2006, 1976-77 CCH OSHD para. 21,473 (No. 12420, 1977). n2

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n2 Accord, Baltimore and Ohio Railroad Co. v. OSHRC, 548 F.2d 1052 (D.C. Cir. 1976); Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976); Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied, 97 S. Ct. 525 (1976).

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The Judge's decision is affirmed.