Central of Georgia R. Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 13 July 1978
• Docket Number: No. 77-2111,77-2111
• Citation: 576 F.2d 620
• Parties: 6 O.S.H. Cas.(BNA) 1784, 1978 O.S.H.D. (CCH) P 22,867 CENTRAL OF GEORGIA RAILROAD COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 620

576 F.2d 620

6 O.S.H. Cas.(BNA) 1784, 1978 O.S.H.D. (CCH) P 22,867

CENTRAL OF GEORGIA RAILROAD COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray

Marshall, Secretary of Labor, Respondents.

No. 77-2111.

United States Court of Appeals, Fifth Circuit.

July 13, 1978.

Edgar A. Neely, Jr., Richard K. Hines, Atlanta, Ga., Charles A. Horsky, Jeffrey S. Berlin, William P. Stallsmith, Jr., Washington, D. C., for petitioner.

Diane E. Burkley, Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety & Health, Allen H. Feldman, Acting Counsel, Dept. of Labor, Washington, D. C., for respondents.

Lawrence M. Mann, William A. Hutchins, Washington, D. C., for intervenor United Transp. Union.

On Petition to Review an Order of the Occupational Safety and Health Review Commission.

Before TUTTLE, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

Section 5 of the Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651-678, requires that every employer:

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

29 U.S.C. § 654(a). Among the standards promulgated under the Act is the general housekeeping requirement that "all places of employment . . . shall be kept clean and orderly and in a sanitary condition." 29 C.F.R. § 1910.22(a)(1).

In late 1974 OSHA investigators discovered a breach of this standard on and near railroad tracks where Central of Georgia Railroad employees work. The point now at issue is not whether those conditions in fact existed, but rather who is to be held responsible. In brief, the Occupational Safety and Health Review Commission (OSHRC) thinks that it can fix the blame on the petitioner, Central of Georgia Railroad Company, whose employees were exposed to the violative conditions, whereas Central argues that the only culprit must be the Continental Can Corporation, on whose property the conditions occurred.

The backdrop to the controversy is an arrangement between Central and Continental Can concerning railroad transportation service to and from the Continental Can plant at Augusta, Georgia. Under a 1963 agreement Central was to construct spur tracks from its main Augusta track in order to service the Continental plant. Continental, on its side, constructed connecting tracks through its own plant facility in accordance with the railroad's specifications. The railroad was to provide switching services for shipments to and from the Continental plant. The tracks within the plant facility were Continental's property, and under the contract Continental retained "jurisdiction" over these tracks, as well as the right to control entry to the property. However, railroad employees were permitted to enter the plant facility area for the purpose of delivering and receiving freight shipments; at the time this controversy arose, a Central switch engine and crew entered twice daily to pick up and deliver freight cars.

According to the 1963 agreement, Continental Can was to maintain its tracks in safe operating condition, and indeed the contract gave Central the right to suspend service if Continental Can failed to maintain the tracks in a condition satisfactory to the railroad. At least as early as April 1973, Central noticed debris and drainage problems along the tracks over which its switching crews walked in the Continental plant facility. Over the next year and a half, Central's officers in Augusta wrote six letters complaining of these problems, and they apparently made a number of telephone calls as well. Upon inspection in October 1974, however, OSHA investigators discovered mud, oil, lime, and other debris, along with water-filled depressions, on and around the tracks at the Continental Can plant. On the basis of this discovery the Secretary of Labor issued a citation against Central for a "nonserious" violation of the housekeeping regulation quoted above, stating that the violating conditions constituted a hazard by impeding the crews' safe walking and safe climbing on railway car ladders. ¹

The railroad contested this citation, saying, among other things, that Continental Can was responsible for the track area in question. The Administrative Law Judge (ALJ) ruled that a violation had been established but assessed a penalty of only $25, noting Central's "good faith" as evidenced in its letters and telephone calls to Continental Can and noting as well that the violation occurred on Continental Can's property where Central had no legal authority to enter and abate the condition. The OSHRC affirmed the ALJ's finding of a violation and $25 penalty, saying that "even if it is assumed" that the railroad did not create the hazardous conditions and did not control the hazard in such a way as to be able to abate it to meet the OSHA standard, the railroad nevertheless had and should have exercised an alternative means to protect its employees: it should have exercised its contractual right to suspend services until Continental Can took the necessary corrective action.

From this ruling the railroad petitions, again pointing out that Continental Can not Central was contractually responsible for maintaining the tracks and pointing out further that it had no authority to enter the property and abate the cited conditions. Under these circumstances, it says, not Central but Continental Can is responsible for any violation, and only Continental Can should have been cited. It relies chiefly on Anning-Johnson Co. v. OSHRC, 516 F.2d 1081 (7th Cir. 1975), a case in which the Seventh Circuit ruled that a subcontractor (one of a number on a construction site) could not be held liable for a nonserious violation to which its employees were exposed where the conditions causing the violation of the standard were created by and were within the control of third parties.

While we agree with Anning-Johnson that issues of creation and control of a violation are important in determining liability for a nonserious violation under section 5(a), we do not believe we can apply the reasoning of Anning-Johnson directly to the present case. Central's bilateral arrangement with Continental Can does not fit easily into the mold of the relationship between a general contractor and a subcontractor. This is reflected in Central's arguments; at times the railroad appears to analogize itself to a subcontractor saying that on the reasoning of the Seventh Circuit in Anning-Johnson it should not be responsible for a situation created and controlled by Continental Can whereas at other times it seems to wish to argue that it is the "general contractor" and thus cannot be held responsible for the acts of its "subcontractor," that is, Continental Can. See Southeast Contractors v. Dunlop, 512 F.2d 675 (5th Cir. 1975); cf. Brennan v. Gilles & Cotting, 504 F.2d 1255 (4th Cir. 1974); but see Clarkson Construction Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976).

Moreover, much of the Seventh Circuit's reasoning in Anning-Johnson relates specifically to the intricacies of multi-employer construction contracts where a variety of subcontractors enter the workplace, each carrying out a defined, specialized task over a finite period of time. This reasoning does not apply, or applies only with lessened force, to the circumstances of the present case. Thus, Anning-Johnson notes that if liability were to be placed on the subcontractor, the subcontractor, in abating a hazard, would be required to undertake tasks entirely outside its knowledge and expertise and perhaps outside the jurisdiction of its craftsmen. But here Central clearly understood the technology of maintaining tracks; the tracks in question were built according to its specifications, and it apparently inspected these tracks to see whether they were properly maintained. Indeed, the contract contains one clause under which, on Continental Can's written request, Central could do work for Continental Can and charge for the cost of work and materials. Thus, Anning-Johnson's concern about lack of technical expertise can hardly apply here. By the same token, a second consideration in the Seventh Circuit's Anning-Johnson opinion has little weight in the circumstances of this case: that is, that confusion and disruption in normal working relations could result if liability were imposed on a variety of subcontractors in addition to the general contractor. But we see little possibility of duplication of effort where at most only two parties to a contract might potentially be held liable for repairs; we also see little possibility in the present case that a contracting party with greater bargaining power could shift responsibility to a weaker party another concern of Anning-Johnson in the general contractor/subcontractor context. Finally, the Seventh Circuit in that case remarked that if a subcontractor were required to remove his employees from the workplace as an alternative to abatement of the hazard, the operations of an entire project, and of all other subcontractors, could be brought to a halt. But Central's cessation of switching and delivery services to Continental supposing that this were an appropriate and possible response might well not be so intimately related to Continental's production activities as to halt the latter.

For all these reasons we do not believe that the Seventh Circuit's discussion of...