This decision, although unsupportable through reference to the express language of Section 4(b) (1) itself, was not appealed. No less disquieting, although more in harmony with a plausible interpretation of Section 4(b) (1), was ALJ Cronin's opinion in California Stevedore & Ballast Co.,49 concluding that a Coast Guard regulation "similar in scope" to the OSHA standard in question was not sufficient to preclude enforcement of the latter. Approaching this obstructed statutory intersection from two different directions, rail and motor carriers ran head-on into the administrative fog. The nemesis of the trucking companies was the seemingly innocuous "chock-and-block" requirement of the Motor Carrier Safety Regulations. DOL citation of Mushroom Transportation Company was the opening salvo in a battle which would not end for years; despite systematic rejection of DOL's position by OSHRC and its Administrative Law Judges,50 OSHADMIN 51 continued to insist that wooden blocks, perfectly legal under DOT regulations, 52 were insufficient to insure that trucks being loaded or unloaded would remain stationary; instead, insisted OSHADMIN, chocks, mandated by 29 C.F.R. §1910.178(k) (1), had to be used. The Mushroom case proceeded through ALJ Joseph Chalk 53 to OSHRC. Both the hearing judge and the Review Commission agreed that OSHA jurisdiction was precluded. Commissioner Cleary found: Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same condition. See, S.Rept. No. 91-1282, 91st Cong., 2d sess., p. 22 (1970). Section 4(b) (1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner.55 DOL petitioned for review in the Third Circuit, but the petition. was dismissed.56 Meanwhile, OSHADMIN had pursued half a dozen 49 1971-1973 CCH OSH Dec. ¶ 15,351 (Dec. 19, 1972), aff'd, 8 OSAHRC 811, 1973-1974 CCH OSH Dec. 17,931 (May 28, 1974). 50 See cases enumerated in nn. 57, 59, infra. 51 This unwieldy acronym is necessitated by the like abbreviation of OSHA (the Act) and OSHA (the agency). Other vagaries—such as OSHRC's own self-styling as OSAHRC-have caused the Fifth Circuit to coin the "abbreviation" OSHRECOM. Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 992 n.1 (5th Cir. 1975) (Brown, Ch. J.). Yet another burden is the requirement that OSHRC be named as a respondent in an appeal of its decisions, while the Secretary of Labor may be either a petitioner or a respondent (OSHA § 11(a)); the result is a plethora of appellate decisions captioned "Brennan v. OSHRC." 52 49 C.F.R. §392.20. 53 1971-1973 CCH OSH Dec. 15,603 (Mar. 30, 1973). 54 5 OSAHRC 64, 1973-1974 CCH OSH Dec. 16,881 (Nov. 7, 1973). 55 Ibid. 56 Docket No. 74-1034 (filed Jan. 31, 1974; dismissed, Apr. 17, 1974). other trucking companies on the same basis,57 and only got around to advising its field personnel to cease this proliferation of baseless citations on March 17, 1975 58-precisely eleven months after the Court of Appeals had dismissed DOL's attempt to reverse the Mushroom decision. 50 IV. OSHADMIN Versus the Railroads As of January 1, 1976, OSHRC had rendered eighteen decisions 60 which, with one relatively minor exception,61 had uniformly rejected 57 Ruan Transport Corp., 1971-1973 OSH Dec. 15,715 (May 2, 1973) (no OSHA coverage); Consolidated Freightways Corp., 1973-1974 CCH OSH Dec. 16,719 (Oct. 4, 1973) (no OSHA coverage for chocks, but otherwise within OSHA control) petition for review dism'd, 7th Cir. No. 74-1032 (1974); Spector Freight System, 1973-1974 CCH OSH Dec. ¶ 17,089 (Jan. 7, 1974), remanded, 1974-1975 CCH OSH Dec. 19,718 (June 10, 1975); Arkansas Best Freight System, 1973-1974 CCH OSH Dec. ¶ 17,180 (Jan. 14, 1974); Safeway Stores, Inc., 1971-1973 CCH OSH Dec. 15,424 (Jan. 17, 1973), aff'd, 17 OSAHRC 454, 1974-1975 CCH OSH Dec. ¶ 19,161 (Dec. 26, 1974), as mfd. on reh'g, 1974-1975 CCH OSH Dec. 19,694 (Apr. 25, 1975); Mushroom Transportation Co., 1974-1975 CCH OSH Dec. 19,447 (Mar. 24, 1975); Smith's Transfer Corp., 1974-1975 CCH OSH Dec. 19,544 (OSHRC) (Apr. 18, 1975). 58 OSHA Field Inform. Memo. 75-25, CCH Empl. Safety & Health Guide 9732 (Mar. 17, 1975). 59 In a dying gasp over the issue, OSHRC remanded both Spector Freight System and Smith's Transfer Corp., Supra n.57, due to DOL refusal to concede that the DOT blocking regulations applied under the facts of those cases. 60 Southern Pacific Transportation Co., 13 OSAHRC 258, 1974-1975 CCH OSH Dec. 19,054 (Nov. 15, 1974); Seaboard Coast Line R.R., 1974-1975 CCH OSH Dec. 19,073 (Nov. 18, 1974); Union R.R., 1974-1975 CCH OSH Dec. 19,068 (Nov. 22, 1974); Illinois Terminal R.R., 1974-1975 CCH OSH Dec. 19,111 (Nov. 26, 1974); Union Pacific R.R., 1974-1975 CCH OSH Dec. 19,106 (Nov. 26, 1974); Southern Ry., 1974-1975 CCH OSH Dec. ¶ 19,164 (Nov. 26, 1974); Penn Central Transportation Co., 1974-1975 CCH OSH Dec. 19,133 (Nov. 29, 1974); Norfolk & Western Ry., 1974-1975 CCH OSH Dec. 19,188 (Jan. 8, 1975); Norfolk & Portsmouth Belt Line R.R., 1974-1975 CCH OSH Dec. ¶ 19,483 (Apr. 1, 1975); Louisville & Nashville R.R., 19741975 CCH OSH Dec. ¶ 19,598 (May 1, 1975); Belt Ry. of Chicago, 1975-1976 CCH OSH Dec. ¶ 20,069 (Oct. 17, 1975) (deciding 19 separate cases); Southern Ry., 1975-1976 CCH OSH Dec. 20,091 (Oct. 28, 1975); Chicago, Rock Island & P. R.R., 1975-1976 CCH OSH Dec. 20,158 (Nov. 14, 1975); Pittsburg & Lake Erie R.R., 1975-1976 CCH OSH Dec. 20,174 (Nov. 26, 1975); Seaboard Coast Line R.R., 1975-1976 CCH OSH Dec. ¶ 20,175 (Nov. 26, 1975); Seaboard Coast Line R.R., 1975-1976 CCH OSH Dec. 120,184 (Nov. 28, 1975); Seaboard Coast Line R.R. and Winston-Salem Southbound Ry., 1975-1976 CCH OSH Dec. 20,185 (Dec. 1, 1975); and Chesapeake & Ohio Ry., 1975-1976 CCH OSH Dec. 20,186 (Nov. 28, 1975). There are approximately 50 similar cases now pending. 61 The exception is the holding of a divided Commission that DOT/FRA recordkeeping requirements foreclose application of OSH recordkeeping standards to the railroads. Southern Pacific Transportation Co., 13 OSAHRC 258, 1974-1975 CCH OSH Dec. ¶ 19,054, petition for review dism'd on motion of DOL, No. 75-1091 (5th Cir. 1975). any argument that Section 4(b) (1) was relevant to the railroad industry. Many of those eighteen decisions are presently before the Courts of Appeal upon petitions for review,62 while even more cases await the predestined OSHRC rejection of the railroads' arguments. The first Commission opinion concerning the railroad industry was Southern Pacific Transportation Co. (Four Cases-Southern Pacific, Penn Central, Seaboard Coast Line, and Union Pacific-for purposes of oral argument.63 The cases were then severed for decision purposes, with the Southern Pacific opinion issued first.) In Southern Pacific, the Commission majority flatly denied that Section 4(b) (1) of OSHA was intended to provide an industry exemption for the railroads. Ignoring the arguments predicated upon legislative history because "the legislative history is as persuasive for one side as for the other," 64 the decision rested in toto upon the "purpose of OSHA." Quoting a brief filed by DOT at OSHRC's request, Commissioner Van Namee stated "[t]o interpret the exemption as an 'industry' exemption would leave wide gaps in coverage." 65 Chairman Moran dissented at length, pointing out that the majority's opinion strayed from both a coherent reading of OSHA in its entirety and the repeated references in the legislative history regarding "industry exemption" 66 and to avoidance of duplicative regulation.67 He concluded: The decision also leads one to the inescapable conclusion that-in the opinion of two members of this Commission-Congress had no sense of order and intended to create confusion. I don't share such a view. 62 Penn Central (4th Cir. No. 75-1102); Southern Pacific (5th Cir. No. 74-3981) consolidated with Seaboard Coast Line (5th Cir. No. 74-3984) and Union Pacific (8th Cir. No. 75-1065, transferred to 5th Cir. No. 75-1613); Chicago, M., St. P. & P. (7th Cir. No. 75-2112); Southern (4th Cir. No. 751055); Chesapeake & O. (4th Cir. No. 75-1182); Baltimore & O. (D.C. Cir. No. 75-2163); Seaboard Coast Line (D.C. Cir. No. 75-2244); and see, Dunlop v. Burlington Northern, Inc., 395 F.Supp. 203 (D. Mont. 1975), appeal pending, 9th Cir. No. 75-3184. 63 Cases are rarely presented to the Commission on oral argument. 65 Ibid., p. 5, quoting, Brief of DOT at p. 8. 66 Senate Committee on Labor and Public Welfare, Legislative History of the Occupational Safety & Health Act of 1970 (Committee Print, 1971) (hereinafter, LEG.HIST.) at pp. 1018-1020 ("Erlenborn-Daniels colloquy") quoted in, Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1167 (D.C. Cir. 1975); LEG.HIST. 1037 ("Podell-Daniels colloquy"); LEG.HIST. 1216-1217 (remarks of Rep. Steiger) and cf., LEG. HIST. 334 (remarks of Senator Saxbe); LEG.HIST. 1005 (remarks of Rep. Cohelan); LEG.HIST. 1223-1224 (remarks of Rep. Scherle). 67 OSHA § 4(b) (3), 29 U.S.C. §653 (b) (3); S.REP. No. 91-1282 (91st Cong., 2d Sess.) 17, 22-23 (Oct. 5, 1970); H.R.REP. No. 91-1291 (91st Cong., 2d Sess.) 34 (July 9, 1970); LEG.HIST. 979 (remarks of Rep. Steiger); LEG.HIST. 997 (remarks of Rep. Steiger); LEG. HIST, 1084 (remarks of Rep. Hosmer). See also, Tobin, OSHA, Section 301 and the NLRB: Conflicts of Jurisdiction and Rights, 23 AM.U.L.Rev. 837 (1974)... :. I am of the opinion that Congress intended to create a workable system to improve occupational safety and health and that they were wise enough to leave all aspects of safety in the railroad industry in the hands of the railroad experts in the Department of Transportation.68 Whatever the courts determine to be the true scope and meaning of Section 4(b) (1), it is apparent that the present program of regulation and enforcement being pursued by the Secretary of Labor is ill-designed to the peculiar needs of the transportation industries, especially the railroads. The Nation's railroads have been dealt with as sui generis in almost every regulatory context, and should be accorded like treatment in the safety and health field. In the pressure to "assure so far as possible every working man and woman in the Nation's safe and healthful working conditions" 69 it should not be ignored that it is the Department of Transportation, and not the Department of Labor, which Congress selected to provide these assurances to employees in transportation services. "The problem of competing jurisdictions and conflicting regulations' "'70 has been the source of much criticism of OSHA enforcement, most of it amply justified. Hopefully, this problem will be definitively resolved in the near future.71 GPO PUBLICATIONS AVAILABLE AT Interstate Commerce Act Revised to July 1, 1973-$5.30 (No shipping charges on prepaid orders) 68 Southern Pacific, supra, slip op. at p. 30. 69 OSHA § 2(b), 29 U.S.C. § 651(b). This oft-quoted "purpose clause" should not be allowed to obscure the fact that the Act nonetheless does not apply to employment not affecting interstate commerce, nor does it protect governmental employees although the Federal government is directed to develop safety and health protections for its employees; see OSHA §§ 3(3), 3(5), 19(a); 29 U.S.C. §§ 652(3), 652(5), 668(a). 70 H.R. REP. No. 93-1608 (93d Cong. 2d Sess.) 20 (1974). 71 The Southern Railway case was argued before the Fourth Circuit on July 10, 1975; the Southern Pacific-Seaboard Coast Line-Union Pacific trilogy, before the Fifth Circuit on December 8, 1975. BOSTON: A SYSTEMS SOLUTION TO URBAN MASS TRANSPORTATION PROBLEMS FREDERICK J. STEPHENSON * In the 1960's, Boston awakened to the realities of the automobile age. In the process, it found it was choking from automobile congestion and pollution and that instead of solving urban transportation problems, highway expansion was literally destroying the city. Not only were the ribbons of steel and concrete not handling the rising traffic demands, but also they were breaking up neighborhoods, displacing residents and businesses, and encouraging urban sprawl.1 Thus, regional planners reversed themselves and focused attention on a public mass transit solution. Purpose It is the purpose of this paper to examine the particulars of the transit plan, to measure the effectiveness of the solution, and to prescribe a modified course of action to deal with Boston's urban transportation problem. The underlying purpose is to expose the myths and realities of public transit. Boston Boston is simultaneously blessed and cursed by the sea (Map, Figure 1). For years, the citizenry have benefited from Boston's being a major seaport, but being on the Bay also comes at a price, for the sea occupies what for many cities is available land. Consequently, Boston residential densities are some of the highest in the country, and new settlement is forced by necessity to take place at the more remote perimeters to the north, west, and south. This magnifies the transportation problem in that more people must commute via the same limited corridors. As the Boston regional 2 population grew, the decision was made *Third place winner ($250.00) of the Clyde B. Aitchison Essay_contest. Dr. Stephenson is Assistant Professor of Transportation and Business Logistics at the College of Business Administration, Northeastern University in Boston. He received his B.A. from Elon College and his M.S. and Ph.D. from the University of Minnesota. 1 Thirty percent of all land in Boston Proper (downtown Boston) was used for roads and parking. Boston Redevelopment Authority, Transportation Planning Department, Transportation Facts for the Boston Region (Second Edition; Boston: 1968), p. 106. 2 Unless otherwise stated, the term "Boston region" refers to the 101 cities and towns in the Metropolitan Area Planning Council (MAPC) region (Figure 1). |