AMERICAN AIRLINES, INC.

OSHRC Docket No. 9392

Occupational Safety and Health Review Commission

November 6, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

COUNSEL:

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

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

Ralph Cheifetz, TWU Air Transport Division, for the employees

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether, under Section 4(b)(1) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), certain of Complainant's (Labor) safety standards directed at the hazards presented by radioactive materials apply to the working conditions of Respondent's employees.

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n1 Section 4(b)(1) states, in relevant part:

Nothing in this Act 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.

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Respondent was cited because it did not (1) make radiation evaluation studies; (2) provide its personnel with radiation monitoring equipment; (3) post radiation [*2] areas with cautionary signs; and (4) maintain radiation exposure records, contrary to Labor's safety standards. n2 Respondent admitted non-compliance with respect to its employees working at its cargo facility at LaGuardia Airport, New York. It requests vacation of the citation saying, among other things, that the Federal Aviation Agency (FAA) regulates the working conditions of its employees insofar as radiation hazards are concerned. Judge Joseph Chodes accepted this argument only as to the alleged violation of 29 C.F.R. 1910.96(n)(1). He affirmed the remainder of the citation. We have reviewed the record. We conclude that Respondent's 4(b)(1) claim is valid as to all the standards cited, and vacate the citation in its entirety.

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n2 The cited standards are as follows:

29 C.F.R. 1910.96(d)(1): Every employer shall make such surveys as may be necessary for him to comply with the provisions in this section. "Survey" means an evaluation of the radiation hazards incident to the production, use, release, disposal, or presence of radioactive materials or other sources of radiation under a specific set of conditions. When appropriate, such evaluation includes a physical survey of the location of materials and equipment, and measurements of levels of radiation or concentrations of radioactive material present.

29 C.F.R. 1910.96(d)(2): Every employer shall supply appropriate personnel monitoring equipment, such as film badges, pocket chambers, pocket dosimeters, or film rings, to, and shall require the use of such equipment by:

(i) Each employee who enters a restricted area. . . .

29 C.F.R. 1910.96(e)(2): Each radiation area shall be conspicuously posted with a sign or signs bearing the radiation caution symbol described in subparagraph (1) of this paragraph and the words:

CAUTION RADIATION AREA

29 C.F.R. 1910.96(n)(1): Every employer shall maintain records of the radiation exposure of all employees for whom personnel monitoring is required under paragraph (d) of this section and advise each of his employees of his individual exposure on at least an annual basis.

[*3]

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The FAA has adopted standards governing the transportation by air of dangerous articles, including radioactive materials. n3 The shipper of such materials must comply with certain packaging and labeling requirements. n4 Air carriers, such as Respondent, may not accept radioactive materials for shipment unless accompanied by certification that these requirements have been met. n5

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n3 These standards are promulgated pursuant to the FAA's authority to regulate safety in air commerce. 49 U.S.C. 1421(a).

n4 14 C.F.R. 103.11 and 103.13, incorporating Department of Transportation standards at 49 C.F.R. Parts 172 through 178.

n5 14 C.F.R. 103.3.

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Labor contends that the FAA standards do not affect the working conditions of the employees in Respondent's terminal who handle the packaged radioactive material. Labor concedes that articles which have been properly packaged and not thereafter damaged will present no radiation hazard to these employees, [*4] but claims that no FAA regulations cover the hazard arising from improperly packaged or damaged articles.

This argument recognizes that compliance with the FAA standards will protect the same employees Labor seeks to protect. Labor's real concern is that the FAA standards may not be sufficiently stringent, or may not be complied with. Section 4(b)(1), however, does not permit Labor to enforce its standards simply because another Federal agency's standards may not be as effective, or may be violated. As we stated in Mushroom Transportation Co., 5 OSAHRC 64 (1973):

Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner. 5 OSAHRC at 67.

Labor also argues that a subsequent rulemaking proceeding, in which the FAA adopted standards requiring air carriers to inspect packages containing radioactive materials before they are placed on the aircraft, n6 demonstrates that the FAA standards do not extend protection to the employees who handle cargo in the [*5] terminal. This again, however, goes only to the adequacy of the FAA standards. That the FAA deemed additional precautions necessary before radioactive materials are placed on aircraft does not alter the fact that proper packaging and labeling affords protection to the workers who handle the cargo in the terminal.

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n6 40 Fed. Reg. 5140-5141 (Feb. 4, 1975).

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Accordingly, we conclude that Respondent was not required to comply with the cited standards. The citation is therefore vacated. It is so ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I concur with the disposition vacating the citation. It is my belief, however, that the reasons advanced in the foregoing opinion are unnecessary because the airline industry is not covered by the Occupational Safety and Health Act of 1970.

29 U.S.C. 653(b)(1) n7 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. [*6] I set forth the reasons for this conclusion in some detail in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC     (Docket No. 4616, October 17, 1975).

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n7 See note 1 supra.

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In this case, the complainant correctly concedes 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. 1421(a)(6) which empowers that agency 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 procedure, as the Administrator may find necessary to provide adequately for . . . safety in air commerce."

In implementation of that statutory authority, the FAA has prescribed numerous regulations in Title 14, Code of Federal Regulations, which affect occupational safety of airline employees. Accordingly, the airline industry is not subject to the jurisdiction of the Occupational Safety and [*7] Health Act of 1970.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I dissent. Administrative Law Judge Chodes' decision correctly resolves the issues in this case and should, therefore, be affirmed.

In Southern Pacific Transp. Co., No. 1348 (November 15, 1974), petitions for review docketed, Nos. 74-3981 and 75-1091, 5th Cir., November 29, 1974 and January 10, 1975, we held that section 4(b)(1) does not create an industry exemption. Rather, there is an exemption only as to those working conditions that have been regulated by another federal agency pursuant to statutory authority, the purpose of which is consonant with the Occupational Safety and Health Act. n8

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n8 The concurring opinion asserts that section 4(b)(1) "creates an exemption for an entire industry when another Federal agency . . . prescribes or enforces any standard or regulation which affects occupational safety and health in that industry (emphasis supplied)." Inasmuch as this assertion is directly contrary to our holding in Southern Pacific Transp. Co., supra., I will not speak to the concurring opinion. I would also note that the Commission recently reaffirmed the rule of law announced in Southern Pacific in its decision in Belt Railway Co. of Chicago, et al., Nos. 4616 et al. (October 17, 1975).

[*8]

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Southern Pacific is dispositive here. Indeed, Judge Chodes applied Southern Pacific to the facts of this case, and stated:

In summary, there is a void, insofar as regulations of the Department of Transportation and the Atomic Energy Commission are concerned, with respect to the allegations charged against the respondent relating to evaluation of radiation hazards of radioactive materials stored in the respondent's hangar, the furnishing of monitoring equipment to employees and posting of caution signs in radiation areas. To further the purposes of the legislation as expressed in section 2(b) of the Act (29 U.S.C. 651) 'to assure as far as possible every working man and woman in the Nation safe and healthful working conditions ***,' it is necessary to give effect to the regulations of the complainant which do cover the specific working conditions which allegedly exposed the respondent's employees to the hazards of radiation exposure.

Nevertheless, the lead opinion reverses the Judge, and concludes that the Federal Aviation Administration formerly the Federal Aviation Agency (FAA), regulations [*9] requiring air carriers to comply with certain packaging and labeling requirements for radioactive materials also serve to regulate the working conditions of respondent's employees in its hangar facility.

On first glance it might appear that the FAA has, in fact, exercised its authority to regulate working conditions in respondent's hangar facility by promulgating regulations dealing with the packaging and labeling of radioactive materials. But close examination of the pertinent FAA regulations n9 suggests that the FAA does not regulate working conditions of air carriers' employees in cargo storage areas. This is discussed in some length below. Consequently, the lead opinion errs when it applies Mushroom Transp. Co., No. 1588 (November 7, 1973), petition for review dismissed, No. 74-1014, 3d Cir., April 17, 1974 to the facts of this case.

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n9 See note 4 supra.

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The essential objective of the Act is the assurance of safe and healthful working conditions for every working man and woman. [*10] See section 2(b). n10 Thus, when we examine regulations or other action of other Federal agencies in the context of section 4(b)(1), we should determine exactly what working conditions are being regulated. Congress plainly intended no gaps in employee protection.

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n10 This statement of statutory purpose is an expression of national policy to protect all workers, including those not covered by the Act by virtue of section 4(b)(1). Cf. Sinapp Company & Texas Eastern Trans. Corp., Nos. 4091 & 4078 (October 28, 1975) n.9a.

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There is no question that the FAA has statutory authority to regulate working conditions in respondent's hangars where radioactive materials are stored. n11 Consequently, the crucial question in this case is whether the FAA has exercised its authority and regulated working conditions in airline facilities where radioactive materials are stored. If there has been no exercise of authority, there can be no exemption under section 4(b)(1), and the Secretary of Labor's regulations apply to [*11] working conditions in respondent's hangar.

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n11 See note 3, supra.

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The lead opinion relies on two FAA regulations published at 14 CFR 103.11 and 103.13. The scope of 14 CFR Part 103 is described in its initial section as follows:

103.1 Applicability.

(a) This part prescribes rules for loading and carrying dangerous articles and magnetized materials in any civil aircraft of United States registry anywhere in commerce (emphasis added).

It is significant that nothing therein suggests application to storage in hangers.

Part 103 provides that persons offering dangerous articles n12 for shipment in air commerce must package and label such materials in accordance with certain requirements. There are, however, two regulations dealing exclusively with radioactive materials to which the lead opinion does not refer.

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n12 The term dangerous articles is defined at 14 CFR 103.1 and includes radioactive materials as well as seven other dangerous substances.

[*12]

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These regulations read as follows:

14 CFR Part 103 - Transportation of Dangerous Articles and Magnetized Materials

* * *

103.23 Special requirements for radioactive materials.

(a) No person may place packages of radioactive materials bearing 'radioactive yellow-II' or 'radioactive yellow-III' labels in aircraft closer than the distance; shown in the following table to a space (or dividing partition between spaces) which may be continuously occupied by people, or shipments of animals, or closer than the distances shown in the following table to any package containing undeveloped film (if so marked). If more than one of these packages is present, the distance shall be computed from the following table on the basis of the total transport index numbers shown on the labels of the individual packages in the aircraft:

* * *

(table omitted)

(b) In addition to the reporting requirements of 103.28, the carrier must also notify the shipper at the earliest practicable moment following any incident in which there has been breakage, spillage, or suspected radioactive contamination involving [*13] radioactive materials shipments. Aircraft in which radioactive materials have been spilled may not be again placed in service or routinely occupied until the radiation dose rate at any accessible surface is less than 0.5 millirem per hour and there is no significant removable radioactive surface contamination (see 49 CFR 173.397). In these instances, the package or materials should be segregated as far as practicable from personnel contact. If radiological advice or assistance is needed, the U.S. Atomic Energy Commission should also be notified. In case of obvious leakage, or if it appears likely that the inside container may have been damaged care should be taken to avoid inhalation, ingestion, or contact with the radioactive materials. Any loose radioactive materials should be left in a segregated area pending disposal instructions from qualified persons (emphasis added).

103.24 Special requirements for fissile class III radioactive materials.

(a) No person may carry aboard any aircraft any package of fissile class III radioactive material (as defined in 49 CFR 173.389(a)(3)), except as follows:

(1) On a cargo only aircraft which has been assigned for the sole [*14] use of the consignor for the specific shipment of fissile radioactive material. Instructions for such sole use must be provided for in special arrangements between the consignor and carrier, with instructions to that effect issued with shipping papers; or

(2) On any aircraft on which there are no other packages of radioactive material required to bear one of the 'radioactive' labels described in 49 CFR 173.414. Specific arrangements must be effected between the shipper and carrier, with instructions to that effect issued with the shipping papers; or

(3) In accordance with any other procedure specifically approved by the Administrator (emphasis added).

A reading of these regulations indicates plainly that they are not addressed to working conditions in places where radioactive materials are stored before shipment. Rather, they deal solely with working conditions aboard aircraft carrying radioactive materials. Nowhere is there any reference to working conditions in on-the-ground storage areas such as respondent's hangar. Nevertheless, the lead opinion broadly construes the packaging and labeling requirements as an exercise by the FAA of statutory authority to regulate working [*15] conditions in storage areas.

True, packaging and labeling requirements would affect indirectly working conditions in storage areas to a limited extent. However, such a benign, but fortuitous effect does not constitute an "exercise of authority" within the meaning of section 4(b)(1). Fineberg Packing Co., No. 61 (March 22, 1974).

It is obvious that the FAA did not adopt packaging and labeling requirements regulating working conditions in storage areas. This conclusion is not based solely on a reading of the pertinent FAA regulations. In the record before us there is a portion of the transcript of the Public Conference on Transportation of Hazardous Materials in Air Commerce held on October 2-3, 1974, by the Department of Transportation. This exhibit includes the following dialogue between Ralph Cheifetz of Local 501, Transport Workers Union of America (ALF-CIO) n13 and Curtis A. McKay, the Deputy Division Chief, Flight Operations Division of the FAA:

MR. CHEIFETZ: Yes sir. My name is Ralph Cheifetz, and I'm with the Transport Workers Union, Local 501. My question is, is the FAA concerned with airline storage on ground of radioactive materials in normal work areas? [*16] And I'd like to point out that these normal work areas contain over 150 to 200 TI index, and these people spend over eight hours a day exposed to the radiation. I'm not aware of the exact millirems, but I'm sure it's far above two and far above ten, and I'd also like to end my question with a suggestion, why not store them in pavillions away from normal work areas. Thank you.

MR. McKAY: Yes, we are concerned about that, but unfortunately at the present time our rules don't cover materials stored in a warehouse. We have put out an advisory circular recommending that lots be stored in quantities no greater than 50 transport indexes, and between lots of these kinds that the spacing of twenty feet -- I believe -- be provided. And since we have no regulatory authority in this area we can only suggest and recommend.

MR. CHEIFETZ: Do you distinguish between a warehouse and what I would call a normal work area, or where all other material is also handled, in addition to the radio-active material?

MR. McKAY: Yeah, at the airline freight dock --

MR. CHEIFETZ: At the dock, right. It's the rules --

MR. McKAY: We say in effect that no shipper may knowingly offer, and no [*17] carrier may accept, and that means accept on board the aircraft. The FAA regulations don't cover storage at warehouses or at the freight docks. If they're improperly packaged and have been offered for air transportation then that would be a violation, but we have no limitations on the number of transport indexes that can be stored at a freight dock or at a warehouse (emphasis added).

The wording of the relevant regulations and the statements of Mr. McKay indicate that the FAA does not regulate working conditions in storage areas such as respondent's hangar.

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n13 Local 501 of the Transport Workers Union, Air Transport Division, is the authorized representative of respondent's employees. Local 501 elected party status in this case pursuant to Commission Rule 20(a).

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Accordingly, I would affirm Judge Chodes' holding that the working conditions in respondent's hangar were subject to regulations promulgated and enforced by the Department of Labor.