AMERICAN AIRLINES, INC.

OSHRC Docket No. 6706

Occupational Safety and Health Review Commission

August 24, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert Ross, Regional Solicitor

Glen Walker, American Airlines, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On January 7, 1975, Administrative Law Judge Abraham Gold issued his decision in this case finding that American Airlines had failed to comply with 29 CFR 1910.132(a), and holding that item 5(a) n1 of a citation be affirmed but that no penalty be assessed. On January 20, 1975, Commissioner Moran directed that the Judge's decision be reviewed by the full Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., (hereinafter "the Act"). He invited submissions on the following questions:

(1) Did complainant sustain his burden of proving that respondent violated the Act as alleged?

(2) Was there jurisdiction over respondent [,] particularly in view of the provisions of 29 U.S.C. 653(b)(1) [ 4(b)(1)]?

(3) Did respondent have fair warning of the requirements of the occupational safety and health standard at issue in this case sufficient to meet constitutional due process requirements and the provisions of 29 U.S.C. 652(8) [ 3(8)]? [*2]

We affirm and adopt the Judge's decision.

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n1 The disposition of item 4 is not before us on review.

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The second question raised by the direction will not be addressed. We have held that section 4(b)(1) of the Act is not jurisdictional but is exemptory in nature, n2 and that the affirmative defense it provides cannot be raised at any stage of the proceedings. n3 American Airlines has never raised the directed question before us, and indeed has declined to address it in its brief on review. And even if we were to consider the defense, there is no record evidence to support it. n4

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n2 See e.g., Southern Railway Company, 20 OSAHRC 691, BNA 3 OSHC 1657, CCH 1975-76 OSHD para. 20,091 (No. 5960, October 28, 1975); Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, 1844 n.1, CCH 1975-76 OSHD para. 20,250 (No. 7674, December 22, 1975) and cases cited.

n3 Crescent Wharf & Warehouse Company, 15 OSAHRC 674, BNA 2 OSHC 1623, 1624, CCH 1974-75 OSHC para. 19,327 (No. 1672, February 21, 1975). See also, Fed. R. Civ. P. 8(c).

n4 See e.g., Lee Way Motor Freight, Inc., supra note 2; Kimball Office Furniture, Inc., BNA 4 OSHC 1276, 1278, CCH 1976-77 OSHD para. 20,760 at 24,892 (No. 9438-P, June 1, 1976) (lead and concurring opinions).

[*3]

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With respect to the third issue directed for review, the Judge's decision accurately reflects the views of a divided Commission that 29 CFR 1910.132(a) cannot be found unenforceable under the circumstances presented here, and it is therefore adopted. On the vagueness point, see e.g., Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, 1845, CCH 1975-76 OSHD para. 20,250 (No. 7674, December 22, 1975). See also Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). n5 On section 3(8) of the Act, see General Electric Co., 17 OSAHRC 49, 62-63, BNA 3 OSHC 1031, 1040-41, CCH 1974-75 OSHD para. 19,567 at 23,366 (No. 2739, April 21, 1975); Cornish Dress Mfg. Co., BNA 3 OSHC 1850, CCH 1975-76 OSHD para. 20,246 (No. 6765, December 23, 1975); Van Raalte Co., Inc., BNA 4 OSHC 1115, CCH 1975-76 OSHD para. 20,633 (No. 5007, April 19, 1976).

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n5 My additional views on the vagueness issue are set forth in The Great A & P Tea Company, Inc., BNA 3 OSHC 2018, CCH 1975-76 OSHD para. 20,430 (Nos. 10667 etc., February 18, 1976) (dissenting opinion); Coughlan Constr. Co., BNA 3 OSHC 1636, CCH 1975-76 OSHD para. 20,106 (Nos. 5303 & 5304, October 28, 1975) (concurring opinion). Cf. Isseks Brothers, Inc., BNA 3 OSHC 1964, CCH 1975-76 OSHD para. 20,361 (No. 6415, January 29, 1976) (lead opinion).

[*4]

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With respect to the sufficiency of the evidence, we adopt without comment the Judge's findings concerning respondent's employees in the line cargo and freight areas. In the maintenance area, the evidence also preponderates in favor of the Judge's finding that maintenance workers were in the course of their duties exposed to foreseeable hazards n6 and that safety shoes constitute necessary personal protective equipment. See Lee Way Motor Freight, Inc., supra. The maintenance area is used to perform a wide and varied assortment of jobs ranging from general maintenance work such as changing tires, welding, and painting, to servicing support equipment and vehicles. When engines are removed from equipment, the affected employees service them in the maintenance area. Indeed, at the time of the inspection, employees were seen servicing a piece of heavy equipment in that area; a forklift truck was also used there. The area contained 55 gallon drums of oil and solvent, an unsecured stack of cinder blocks, loose shovels, and compressed gas cylinders (containing oxygen and acetylene) which weigh [*5] at least 100 pounds each, and which if dropped or knocked over could cause injury to the feet. n7

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n6 Arkansas-Best Freight Systems, Inc., v. O.S.H.R.C., 529 F.2d 649, 655 (8th Cir. 1976).

n7 To the extent that the Judge's findings were based on his evaluation of the credibility of the Secretary's witnesses during their testimony, we find no reason on this record to disturb them. Sugar Cane Growers Cooperative of Florida, No. 7673 (June 15, 1976) (at note 7). We have also examined that the exhibits of record, particularly the photographs showing the conditions at the maintenance area, and find that they support the Judge's findings as well. The absence of recorded injuries in the maintenance area, while relevant, cannot be considered controlling. Concrete Construction Corp., BNA 4 OSHC 1133, CCH 1975-76 OSHD para. 24,610 (No. 2490, April 8, 1976). The standard requires protection against foreseeable hazards which are "capable" of causing injury. An infrequency of injury does not alone negate the existence of a hazard. Cf. Slyter Chair, Inc., BNA 4 OSHC 1110, CCH 1975-76 OSHD para. 20,589 (No. 1263, April 8, 1976). As former Commissioner Van Namee said in Yellow Freight System, Inc., 16 OSAHRC 214, 215, BNA 2 OSHC 1690, CCH 1974-75 OSHD para. 19,439 (No. 2658, March 20, 1975), aff'd without opinion, No. 75-1438 (D.C. Cir., February 20, 1976), petition for cert, filed, 44 U.S.L.W. 3707 (U.S. May 20, 1976) (No. 75-1683), the lack of recorded injuries "merely establishes Respondent's good fortune to date." We also point out that despite American's good faith efforts to keep accurate records, not all foot injuries were reported.

[*6]

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In its brief on review, American Airlines contends that item 5(b) of the citation, relating to the use of eye protection equipment, was withdrawn by consent of the parties during the hearing. To relieve any uncertainty on this matter n8 we note that item 5(b) has become a final order of the Commission by operation of law. As respondent's counsel acknowledged at the hearing, American's notice of contest did not contest this matter within the 15 working day period provided by the Act.

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n8 See 5 U.S.C. section 554(e).

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Accordingly, item 5(a) of the citation is affirmed. The proposed penalty is vacated. The Judge's decision is adopted and affirmed.

So ORDERED.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The citation should be vacated for two reasons. First, the airline industry, of which the respondent is a part, is not subject to the jurisdiction of the Occupational Safety and Health Act by virtue of 29 U.S.C. 653(b)(1). Second, for [*7] 1910.132(a) is invalid as it has not been properly promulgated as an occupational safety and health standard.

In regard to the first point, 29 U.S.C. 653(b)(1) n9 creates an exemption for an entire industry when another Federal agency, pursuant to statutory authority, prescribes or enforces any standard or regulation which affects occupational safety or health in that industry. See my separate opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568, 571 (1975), for the reasons supporting that conclusion. Complainant has correctly conceded and this Commission has properly found in a prior case that the Federal Aviation Agency has statutory authority to prescribe regulations affecting occupational safety and health of airline employees by virtue of 49 U.S.C. Pursuant to this authority the FAA has prescribed numerous regulations in Title 14, Code of Federal Regulations, which affect occupational safety of airline employees. [*8] For example, see 14 C.F.R. 103.3, 103.11, and 103.13. Therefore, the airline industry is not subject to the jurisdiction of the Occupational Safety and Health Act. n11

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n9 That section provides that:

"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."

n10 That section empowers the FAA to:

"promote safety of flight of civil aircraft in air commerce by prescribing . . . [s]uch reasonable rules and regulations or minimum standards, governing other practices, methods and procedures, as the Administrator may find necessary to provide adequately for . . . safety in air commerce."

n11 For the reasons cited in my separate opinion in Secretary v. Belt Railway, supra, 29 U.S.C. 653(b)(1) is jurisdictional in nature rather than exemptory as the lead opinion asserts. Jurisdictional issues may be raised by the Commission on its own motion at any time and need not be raised by the parties. See Clark v. Paul Gray, Inc., 306 U.S. 583, 588 (1939); Givens. v. W.T. Grant Company, 457 F.2d 612 (2d Cir. 1972); Nieves v. Stamford Hospital, 345 F. Supp. 1014, 1016 (D. Conn. 1972); Fed. R. Civ. P. 12(h)(3).

[*9]

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In view of the majority's reliance on Judge Gold's findings, his decision is attached hereto as Appendix A in order that the law of this case can be known.

APPENDIX A

DECISION AND ORDER

John Casler, for Complainant

A. Joaquin Yordan, for Respondent

This case arose under Section 10(c) of the Occupational Safety and Health Act, 29 U.S.C. 659(c), and was heard at Hartford, Connecticut, on June 20, 1974.

On January 30, 1974, Respondent was cited for ten nonserious violations for which a total penalty of $175 was proposed. Respondent contested item 4 and part (a) of item 5. The Secretary recommended a penalty of $35 for item 4 and no penalty for item 5. In his complaint the Secretary withdrew item 4 and the proposed penalty. Hence, the only issue is whether Respondent was in violation of item 5(a) of the citation, which alleges noncompliance with 29 C.F.R. 1910.132(a) for failure to provide, require use of, and properly maintain, personal protective equipment for feet where necessary by reason of hazards of processes or environment, specifically affecting line cargo men, freight area men, and maintenance [*10] men.

Respondent stipulated (Tr. 6-7) that at all times pertinent herein Respondent, a Delaware corporation, had its principal place of business at New York City and a place of business at Bradley International Airport, Windsor Locks, Connecticut, where it was engaged in interstate transportation of passengers and freight by air, employing 103 persons at said airport.

In addition, Respondent stipulated that it employs 26 fleet service clerks in its line cargo operations, seven fleet clerks in its freight operation, and two plant maintenance mechanics at said airport (Tr. 7).

The pertinent standard reads:

Subpart 1 -- Personal Protective Equipment

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part [*11] of the body through absorption, inhalation or physical contact.

29 C.F.R. 1910.136 deals with requirements and specifications for safety-toe footwear for employees.

29 U.S.C. 654(a)(2) requires that each employer comply with occupational safety and health standards promulgated under the Occupational Safety and Health Act.

Pursuant to 29 U.S.C. 666(c), an employer may be assessed a civil penalty of up to $1,000 for a nonserious violation.

Civil penalties shall be assessed only after considering the size of the business of the employer, gravity of the violation, good faith of the employer, and history of previous violations. 29 U.S.C. 666(j).

On January 23, 1974, a compliance officer of the Department of Labor inspected Respondent's facility at the airport (Tr. 11).

The employees load or unload, or stack, articles by hand, but they are furnished such equipment as dollies, pallets, hand trucks, forklift trucks, and conveyor belts for any significant movement of freight or cargo (Tr. 54, 88, 102).

Items of air cargo vary in weight from a few pounds to several hundred pounds; heavy items are loaded or unloaded manually by two men (Tr. 114-115).

In the maintenance area the [*12] employees work on heavy equipment; the inspecting officer also observed in that area cylinders of oxygen, cylinders of acetylene, and drums of solvents or oils (Tr. 44).

Freight personnel load packages into closed containers or igloos (open-faced containers) which are placed on a roller bed and rolled into a hand truck; the packages vary from 10 pounds to a couple of hundred pounds (Tr. 38, 89). Pieces weighing up to 50 or 60 pounds are loaded by hand, but a forklift is used for loading heavier articles (Tr. 177).

Rolls of cloth weighing several hundred pounds are unloaded by two of Respondent's employees who station themselves in the arriving aircraft and place the rolls on a conveyor belt which runs toward a cart on the ground; personnel then hand-carry the rolls to the cart and stack them, and then the rolls are transported by cart to the warehouse; either cargo or freight personnel handle the unloading of these rolls (Tr. 101-102).

Except for one supervisor, none of the Respondent's employees at the facility wore any protective equipment for the feet (Tr. 69, 73, 137, 148), such as safety shoes or snap-on toe protective equipment.

Accident reports reflect four occurrences [*13] of toe injuries to Respondent's freight or cargo personnel while on duty at the airport (Tr. 152, 153, Exhs. J-1 to J-4). One mishap was reported in 1971, two in 1972, and one in 1973.

Respondent corporation will allow its employees to purchase safety shoes through a payroll deduction plan (Tr. 124, 164), listing and describing safety shoes in its Purchasing and Supply Manual (Exh. R-1), but has no program which either requires or encourages employees to obtain and use such protective equipment (Tr. 165, 166).

Respondent's contention that the cited standard is unenforceably vague and ambiguous has been faced, and rejected, by the courts. McLean Trucking Co. v. OSHRC, and Sec. of Labor, 503 F. 2d 8 (4 Cir. 1974). Ryder Truck Lines v. Sec. of Labor, 497 F. 2d 230 (5 Cir. 1974).

Since Respondent's employees handled individual articles weighing as much as several hundred pounds, and in light of the history of toe injuries on the job, it is found that it was necessary for Respondent to require its employees to wear safety footwear to protect them against hazards capable of causing injury. Respondent's failure on January 23, 1974, to require its employees to wear [*14] safety shoes or snap-on toe protection equipment was a violation of the standard at 29 C.F.R. 1910.132(a), and it is so found. No penalty was proposed, and it is felt that no useful purpose would be served in imposing a monetary penalty in this instance.

Upon consideration of the entire record, it is found that Respondent is and at all times relevant herein was engaged in a business affecting commerce, and it is concluded that the Commission has jurisdiction over the parties and the subject matter, within the contemplation of 29 U.S.C. 652 and 653. It is also concluded that on January 23, 1974, Respondent was in violation of 29 U.S.C. 654(a)(2) for failure to comply with the standard at 29 C.F.R. 1910.132(a), and that in accordance with 29 U.S.C. 666(c) and (j) it is appropriate to impose no penalty therefor.

IT IS ORDERED that item 5(a) of the citation of January 30, 1974, and the proposal of no penalty therefor be and the same hereby are AFFIRMED; and that item 4 of said citation and the proposed penalty therefor be and the same hereby are VACATED.

ABRAHAM GOLD, [*15] Judge, OSHRC

Dated: Jan. 7, 1975

Boston, Massachusetts