TRANS WORLD AIRLINES, INC.

OSHRC Docket No. 76-3506

Occupational Safety and Health Review Commission

January 17, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Reg. Sol., USDOL

Larry D. McEnroe, Trans World Airlines, Inc., Kansas City International Airport, for the employer

Herb Johnson, Chairman, Kansas City Area Full-Time Safety & Health Committee, Local 1650, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

A decision of Judge Vernon Riehl vacating a citation issued under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651-678, "the Act") is before the Commission pursuant to 29 U.S.C. 661(i). The Secretary had alleged that doorways on Respondent's aircraft were open and unguarded during maintenance operations, thereby exposing maintenance employees to the hazard of falls as much as 15 feet from the aircraft to the concrete floor. This condition was alleged to violate 29 C.F.R. 1910.23(b)(1), which requires that "every wall opening from which there is a drop of more than 4 feet" must be guarded by a "rail, roller, picket fence, half door, or equivalent barrier."

The record indicates, and Judge Riehl found, that Respondent has a safety manual that among other things requires [*2] the installation of "suitable barriers" when floor sections or hatches of aircraft have been removed or when doors are open without steps in place. As the Judge further found, the manual in which this requirement is set forth had been developed pursuant to regulations of the Federal Aviation Administration (FAA) which require that each air carrier submit a manual to the FAA for its approval. Such a manual, among other things, must include safety procedures during aircraft maintenance. In accordance with its manual, during maintenance operations such as those at issue in this case n1 Respondent uses the door strap with which each aircraft is equipped by the manufacturer; it considers this strap a "suitable barrier" within the meaning of its safety rule.

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n1 The Secretary conceded at the hearing that Respondent's safety rule addresses the same hazard as that to which the citation is directed.

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Judge Riehl vacated the citation on the basis that by the terms of section 4(b)(1) of the Act (29 U.S.C. 653(b)(1)) n2 the [*3] Secretary is precluded from exercising jurisdiction over the condition alleged in the citation. n3

In part, he relied on the decision of Judge Jerome C. Ditore in Northwest Orient Airlines, Inc., No. 13649, where Judge Ditore concluded that the FAA exercises statutory authority over the safety of air carrier maintenance employees within the meaning of 653(b)(1) by requiring each air carrier to submit a maintenance manual to the FAA for its approval.

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n2 This provision of the Act states that the Act does not 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."

n3 The Judge also concluded that the cited standard is inapplicable to Respondent's aircraft. His decision in this regard, however, is not entirely clear. In his discussion he noted the inspector's testimony that the inspector had never before cited any employer for violating this standard in a situation involving a vehicle. Similarly, he observed that Respondent's manuals submitted to the FAA do not include matters that would be governed by a building code, and be specifically found that the cited standard is "tailored" for the construction industry and "commonly used" in instances involving wall openings in buildings. On the other hand, the Judge also, and somewhat inconsistently, stated that that standard is a "general industry standard" that "by the terms" applied to wall openings.

Accordingly, it is unclear whether the Judge's vacation of the citation is predicated on a distinction between a vehicle and a building as well as on 653(b)(1), or whether the Judge considers that the cited standard applies to all industries, in which event inapplicability is based solely upon the Secretary's lack of jurisdiction under 653(b)(1).

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Although Judge Ditore's decision on which Judge Riehl relied is presently pending review by the Commission, neither party petitioned for review or otherwise expressed objections to Judge Riehl's decision. Chairman Cleary sua sponte directed review on the issue whether the Judge erred in holding that under 653(b)(1) the working condition in issue is exempt from regulation by the Secretary. n4 In response to the directions for review, the Secretary sent a letter stating that he had decided not to file a brief because this case "is an inappropriate vehicle for determining the [ 653(b)(1)] issue." He reiterated his position that the FAA does not exercise statutory authority within the meaning of that section, and he referred to his brief filed on review in Northwest Orient, supra. Respondent filed a brief in support of Judge Riehl's decision.

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n4 Former Commissioner Moran also directed review sua sponte raising no specific issues.

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In the circumstances, we will not review this case. The Secretary, the aggrieved party, has expressly declined to file a brief or otherwise present arguments to the Commission. We also note as does the Secretary that the issue of exemption for air carriers under 653(b)(1) will be decided in Northwest Orient, supra, where it was addressed not only in oral argument before the Commission but in extensive briefs filed by all parties including the Department of Transportation on behalf of the FAA. We therefore see no compelling need to decide the issue in this case, nor does the Judge's decision raise any other issues of public importance justifying review in the absence of party interest. n5 Weyerhaeuser Co., 77 OSAHRC 44/D6, 5 BNA OSHC 1275, 1977-78 CCH OSHD para. 21,716 (No. 11869, 1977); Star Circle Wall Systems, Inc., 76 OSAHRC 38/C9, 4 BNA OSHC 1011, 1975-76 CCH OSHD para. 20,502 (No. 3271, 1976).

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n5 See note 3 supra. There is no compelling need to review this case to clarify the Judge's decision on the applicability issue or to determine whether the standard can be applied to vehicles. Even if we were to conclude that the standard is applicable, the outcome of this case would not change because the Judge's decision that the Secretary lacks jurisdiction is dispositive. Nor do we think that the applicability issue is of such importance that it must be decided now rather than awaiting an appropriate case in which a decision on the applicability issue is essential to the result.

[*6]

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We emphasize, however, that because we have declined to review Judge Riehl's decision, it is not binding as precedent. Although we affirm his decision, our action is not to be construed as an indication that the Judge did not err; rather, we express no opinion on whether he properly disposed of the issues before him. Penn-Dixie Industries, Inc., 76 OSAHRC 55/D13, 4 BNA OSHC 1209, 1976-77 CCH OSHD para. 20,703 (Nos. 8718 & 8380-P, 1976); Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

Accordingly, the Judge's decision is affirmed.

DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

I respectfully dissent from my colleagues' action in this case. The majority construes the Secretary's letter of May 19, 1977 as an abandonment of the case. I do not. Although the Secretary has expressly declined to file a brief, he did so because this case was an "inappropriate vehicle for determining the section 4(b)(1) issue presented." I read the Secretary's comments as an expectation that the Commission will decide this issue in Northwest Orient Airlines, [*7] Moreover, the Secretary specifically stated that his May 19, 1977 letter "should not be construed as an abandonment by the Secretary of his position that the Federal Aviation Administration's action with respect to an individual airline's manual does not constitute an exercise of authority within the meaning of section 4(b)(1)." It is therefore inappropriate to decline review on the basis of a lack of party interest. n6 Furthermore, the public interest in uniformity of adjudications involving national occupational safety and health policy compels the deferral of a decision in this case until the Commission decision is issued in Northwest Orient. See Monroe & Sons, Inc., 77 OSAHRC 14/B7, 4 BNA OSHC 2016, 1976-77 CCH OSHD P21,470 (No. 6031, 1977), appeal filed, No. 77-3157 (6th Cir. March 16, 1977).

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n6 Cf. Champion Construction & Engineering Co., 78 OSAHRC    /   , 6 BNA OSHC 2116, 1978 CCH OSHD P23,186 (No. 76-2576, 1978) (where ambiguous letter filed on review, parties afforded opportunity to express desire that Commission review proceed).

[*8]

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