OSHRC Docket No. 12831

Occupational Safety and Health Review Commission

November 29, 1979


Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

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

Glen Walker, American Airlines, Inc., for the employer




This case is before the Commission on remand from the United States Court of Appeals for the Second Circuit. American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2nd Cir. 1978). Administrative Law Judge Abraham Gold had affirmed a citation alleging a violation of the standard at 29 C.F.R. 1910.132(a) in that American Airlines employees working as cargo handlers at American's terminal at Kennedy International Airport were not protected by safety shoes in areas where they were exposed to foot injuries that could result from the dropping of freight containers and cargo container doors. The Commission affirmed the judge's decision and ordered that all such employees be required to use steel-toed safety shoes. American Airlines, Inc., 77 OSAHRC 219/A2, 6 BNA OSHC 1252, 1977-78 CCH OSHD P22,474 (No. 12831, 1977). American subsequently petitioned for review in the Second Circuit.

The court vacated the Commission's [*2] order, finding that the Commission had improperly failed to determine whether the safety precautions already undertaken by American were sufficient to satisfy the requirements of 1910.132(a). The court remanded the case to the Commission to consider whether a reasonable man familiar with conditions in the airline industry would have instituted protective measures beyond those already utilized by American. These measures included a payroll deduction plan for the purchase of safety shoes, the requirement that all employees wear sturdy shoes, and the automation of the facility to minimize the amount of manual cargo handling. The court also instructed the Commission to consider the feasibility of imposing corrective measures short of a blanket requirement that all affected employees wear steel-toed shoes.

In view of the fact that the parties did not focus on all of these issues at the initial hearing before Judge Gold, we conclude that it is appropriate to afford them an opportunity to address the issues raised by the court and to present additional evidence if they so desire. We therefore remand the case to the judge, who shall afford the parties an opportunity for a further hearing. [*3] The judge should consider whether the less rigorous precautions taken by American satisfy the court's reasonable man standard for determining the adequacy of personal protective equipment. If the judge again concludes that American violated the standard, he should determine the appropriate scope and nature of an abatement order in terms of the working conditions and job classifications requiring the use of protective shoes. See United Parcel Service of Ohio, Inc., 79 OSAHRC    , 7 BNA OSHC 1685, 1979 CCH OSHD P23,837 (No. 76-3621, 1979). However, should the judge conclude that only steel-toed shoes would effectively eliminate the hazard to all affected employees, then he may enter the same order on remand as he did initially.

The case is remanded for further proceedings consistent with this opinion. n1

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n1 In United Parcel Service of Ohio, supra, we instructed the judge to afford the union representing the affected employees an opportunity to participate as a party pursuant to Commission Rule 20, 29 C.F.R. 2200.20. The record here shows that the employees of American affected by the alleged violation are represented by a union. Therefore, on remand, we order that the union be afforded an opportunity to participate in the proceedings, consistent with United Parcel Service.

The record also reveals that under a collective bargaining agreement with the authorized employee representative American Airlines is or may be required to "furnish all necessary safety devices for employees." Based on this record evidence Commissioner Cottine would further conclude that the administrative law judge should consider the appropriateness of a preliminary order directing consultation between American Airlines and the authorized employee representative as an aid in developing a final abatement order. The authority for this preliminary order is the remedial power conferred by the appropriate relief clause of section 10(c) of the Act, 29 U.S.C. 659(c). See United Parcel Service of Ohio, supra (concurring opinion).


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BARNAKO, Commissioner, Concurring:

I agree with the majority's determination to remand the case to the judge so that the parties are afforded an opportunity for a further hearing on the question of an appropriate abatement order. However, I disagree with the majority insofar as they afford the union an opportunity to participate in the proceedings.

In United Parcel Service of Ohio, Inc., 79 OSAHRC    , 7 BNA OSHC 1685, 1979 CCH OSHD P23,837 (No. 76-3621, 1979), the Commission, in remanding that case to the judge, instructed him to afford the union an opportunity to participate in the proceedings. The majority implies that since both United Parcel Service and the instant case involve safety shoes, the participation of the union in this case is automatically appropriate. In my view, however, critical factors distinguish this case from United Parcel Service. There, in remanding the case to the Commission, the Eighth Circuit (1) pointed out that the affected employees were represented by a "strong" union, and (2) directed consideration of such factors as the price and style of the [*5] shoes, subjects on which the union could be expected to provide useful information. Neither of these factors are present in the instant case. The Second Circuit's opinion does not mention the union, nor does it indicate any concern with such considerations as price and style. The unusual circumstances that prompted the Commission to permit the inclusion of the union in the United Parcel Service proceedings are not present here. Thus, I would not permit the union an opportunity to participate in the proceedings at this late date.