Southern Ry. Co. v. Occupational Safety and Health Review Com'n, AFL-CIO and U

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before CRAVEN, BUTZNER and FIELD; FIELD
• Citation: 539 F.2d 335
• Parties: 3 O.S.H. Cas.(BNA) 1940, 1975-1976 O.S.H.D. ( 20,414 SOUTHERN RAILWAY COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents,nited Transportation Union, Intervenors.
• Docket Number: AFL-CIO and U,No. 75-1055
• Decision Date: 09 February 1976

Page 335

539 F.2d 335 3 O.S.H. Cas.(BNA) 1940, 1975-1976 O.S.H.D. ( 20,414 SOUTHERN RAILWAY COMPANY, Petitioner,
v.
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter
J. Brennan, Secretary of Labor, United States
Department of Labor, Respondents,
AFL-CIO and United Transportation Union, Intervenors. No. 75-1055. United States Court of Appeals,
Fourth Circuit. Argued July 10, 1975.
Decided Feb. 9, 1976.

Charles A. Horsky, Washington, D. C. (Jeffrey S. Berlin, Covington & Burling, Washington, D. C., Edgar A. Neely, Jr., Richard K. Hines, Neely, Freeman & Hawkins, Atlanta, Ga., and William P. Stallsmith, Jr., Washington, D. C., on brief), for petitioner.

William M. Moloney, John B. Norton, John F. Kay, Jr., Mays, Valentine, Davenport & Moore, Richmond, Va., on brief, for amicus curiae Ass'n of American Railroads.

Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health, U. S. Dept. of Labor, Washington, D. C. (William J. Kilberg, Solicitor of Labor, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Asst. Counsel for Appellate Litigation, and Dennis K. Kade, Atty., U. S. Dept. of Justice, Washington, D. C., on brief), for respondents.

Lawrence M. Mann, Washington, D. C. (Bernstein, Alper, Schoene & Friedman, Washington, D. C., on brief), for intervenors.

Before CRAVEN, BUTZNER and FIELD, Circuit Judges.

FIELD, Circuit Judge:

This case is before the court upon a petition for review of a final order of the

Page 336

Occupational Safety and Health Review Commission (Commission) entered November 26, 1974, against Southern Railway Company (Southern). This court has jurisdiction under Section 11(a) of the Occupational Safety and Health Act of 1970 (OSHA/Act). ¹

The facts are undisputed. The petitioner, Southern, a Virginia corporation, operates an interstate common carrier railroad system which includes a facility for maintenance and repair of rolling stock known as the Hayne Shop in Spartanburg, South Carolina. In October of 1973, an OSHA compliance officer made a routine inspection of the facility pursuant to 29 U.S.C. § 657(a), and on November 2, 1973, the Secretary of Labor (Secretary) cited Southern for ten "non-serious" violations of standards promulgated by the Secretary under the authority of OSHA, proposing certain penalties and requiring abatement of the alleged violations by April of 1974. The citations were affirmed by an administrative law judge and his decision was upheld by a split Commission. ²

Southern admits that it has not complied with the OSHA standards and regulations alleged to have been violated, but takes the position that it is exempt from compliance by Section 4(b)(1) of the Act ³ which reads in pertinent part as follows:

"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."

Southern contends that the exemption is operative because the Secretary of Transportation, acting through the Federal Railroad Administration (FRA), has exercised his authority pursuant to the Federal Railway Safety Act of 1970, 45 U.S.C. § 421, et seq., and earlier railway safety acts ⁴ to promulgate and enforce safety regulations affecting the working conditions of railway employees. Conceding that FRA has not exercised its authority to regulate employee safety in railway shop and repair facilities such as the Hayne Shop, Southern urges that, nonetheless, there has been a sufficient exercise of the regulatory authority to exempt the working conditions of all employees in the railway industry from the OSHA standards. The Secretary admits that under the Federal Safety Act the FRA has authority to regulate all areas ⁵ of employee safety for the railway industry, but contends that Section 4(b)(1) exempts only those areas of railway employee safety in which FRA has expressly exercised its authority. The Commission, in essence, adopted the Secretary's view. ⁶

While Section 4(b)(1) may not be entirely self-defining, it is clear that the exemption applies only when another Federal agency has actually exercised its statutory authority. It does not apply where such an agency has regulatory authority but has failed to exercise it. This is clear not only from the statutory language but

Page 337

from the legislative history as well. Earlier versions of the legislation had provided that the mere existence of statutory authority in another Federal agency was sufficient to invoke the exemption, but they were rejected by the Congress. See Legislative History of the Occupational Safety and Health Act of 1970, pp. 62, 620, 671, 710 (Committee Print, 1971) (Legislative History). ⁷ That actual exercise of the statutory authority rather than its mere existence was contemplated is clearly evident from the following colloquy during debate on the Act in the House of Representatives:

"MR. ERLENBORN.

If there is authority under the Federal law, but it has (not) yet been put into effect and it is not being exercised by the executive agency because they have no rules or regulations, then until they do adopt rules and regulations and exercise that authority then this does apply; is that correct?

MR. DANIELS of New Jersey. Yes, that would be correct. The gentleman has placed his finger on the key word and the key word is 'exercise.'

If an agency fails to pursue the law and exercise the authority that has been given to it, then this law will step in.

MR. ERLENBORN. In other words, the mere existence of statutory authority does not exempt an industry? It is the exercise of that authority pursuant to the statute that does exempt it; is that correct?

MR. DANIELS of New Jersey. That is correct."

Legislative History, p. 1019.

With respect to Southern's argument that the exercise of authority by the FRA in substantial areas of employee safety exempted the entire industry from OSHA standards, the specific statutory language is less clear. Both the Secretary and Southern have referred us to the Legislative History as providing support for their respective positions, but we find nothing definitive bearing upon the question before us. ⁸

In addition to his references to the Legislative History, the Secretary urges that the Commission's construction of the statute should be virtually dispositive. In advancing this argument he places primary reliance upon Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), where the Court stated:

"When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' * * * 'Particularly is this respect due when the administrative practice at stake " involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while...