AMERICAN AIRLINES, INC.

OSHRC Docket No. 78-918

Occupational Safety and Health Review Commission

February 27, 1981

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

Glen Walker, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James A. Cronin, Jr., is before the Commission pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 661-678 (the "Act").

Chairman Cleary directed review of the judge's decision on, inter alia, the following issue: n1 "Whether the administrative law judge erred in vacating [the citations] on the grounds the cited working conditions are regulated by the Federal Aviation Administration so that section 4(b)(1) of [the Act] deprives the Secretary of Labor of jurisdiction over those working conditions."

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n1 Also directed for review was the issue of whether the Secretary's warrantless inspection of Respondent's premises was conducted in violation of the fourth amendment to the United States Constitution. The Commission has held that an inspection conducted prior to the United States Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), as was the inspection in this case, even if conducted in violation of the Barlow's warrant requirement, cannot result in the exclusion of evidence gathered as a result of the inspection. Meadows Indus., Inc., 79 OSAHRC    , 7 BNA OSHC 1709, 1979 CCH OSHD P23,847 (No. 76-1463, 1979). Furthermore, because of the disposition of this case, there is no need to address the other issues directed for review: whether the Secretary proved that certain of the cited standards were violated; whether the violation alleged in citation 2 was shown to be willful; and, whether the violations alleged in citation 3 were repeated.

[*2]

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We have reviewed the pertinent portions of the record and have considered the parties' arguments, which are substantially the same as those arguments made to the judge. We conclude, for the reasons assigned in his decision and order, that the judge properly determined that section 4(b)(1) n2 of the Act precludes the Secretary from citing American Airlines with respect to the working conditions at issue in the disputed citations. n3 See Northwest Airlines, Inc., 80 OSAHRC    , 8 BNA OSHC 1982, 1980 CCH OSHD P24,751 (No. 13649, 1980), pet. for review filed, No. 80-4222 (2d Cir. Nov. 3, 1980).

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n2 Section 4(b)(1) of the Act, 29 U.S.C. 653(b)(1) provides in pertinent part:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies . . ., exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

n3 The Secretary argues with respect to item 3 of citation 3 that Respondent was in violation of 29 C.F.R. 1910.132(a) for failing to require employees to wear rubber boots during dipping operations involving the handling of corrosive chemicals. The evidence supports the judge's finding that there was a specific provision of the FAA approved manual for Respondent's ground operations personnel dealing with the identical hazard and working condition. The Commission has held that a 4(b)(1) exemption arises even though another federal agency has not exercised its authority in the same or an equally stringent manner. See Mushroom Transp. Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1973).

[*3]

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Accordingly, the judge's decision is affirmed. SO ORDERED.