SECRETARY OF LABOR,
Complainant,

v.

AMR SERVICES COMPANY,
Respondent.

Docket No. 89-1764

_ORDER_

This matter is before the Commission on a Direction for Review entered
by Commissioner Velma Montoya on August 9, 1990. The parties have now
filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing
in the Stipulation and Settlement Agreement, we conclude that this case
raises no matters warranting further review by the Commission. The terms
of the Stipulation and Settlement Agreement do not appear to be contrary
to the Occupational Safety and Health Act and are in compliance with the
Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement
Agreement into this order, and we set aside the Administrative Law
Judge's Decision and Order to the extent that it is inconsistent with
the Stipulation and Settlement Agreement. This is the final order of the
Commission in this case. See 29 U.S.C. §§ 659(c), 660(a), and (b).

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: July 24, 1992

 

 

SECRETARY OF LABOR,
Complainant,

v.

AMR SERVICES COMPANY, INC.,
Respondent.

OSHRC Docket No. 89-1764

APPEARANCES:
Larry A. Auerbach, Esquire, Office of the Solicitor, U. S. Department of
Labor, Atlanta, Georgia, on behalf of complainant.

G. Paris Sykes, Jr., Esquire, and Roy Manoll, Esquire, Ford and
Harrison, Atlanta, Georgia, on behalf of respondent.

_DECISION AND ORDER_

BRADY, Judge: AMR Services Company, Inc., ("AMR") and American Airlines
are sister corporations and wholly-owned subsidiaries of AMR Corporation
(Tr. 131). American Airlines employs approximately 78,000 employees (Tr.
126, 147). AMR employs more than 3,000 employees (Tr. 20).

AMR contracts with various airlines to provide certain ground support
services (Tr. 69). In November of 1988, AMR was under contract to Midway
Airlines at Hartsfield International Airport in Atlanta. AMR provided
ground services, including freight and baggage handling, fueling, and
guiding aircraft into and back from gates (Tr. 21, 69). Midway held a
Federal Aviation Administration ("FAA") certificate, and had developed
an FAA-approved safety manual (Tr.134-135,162-163).

AMR did not hold an FAA certificate. It had a contractual agreement to
comply with Midway's safety manual (Tr. 162).

When guiding aircraft to and from the gates, AMR used a crew of five
people: the supervisor, the marshaller, the driver of the pushout
tractor, and two wingwalkers. The supervisor oversees the operation. The
marshaller stands on the ground at the front of the plane and is in
contact by headset with the pilot. The driver operates the pushout
tractor which actually pushes the aircraft into place. The wingwalkers
stand on the ground at the rear of the plane and on either side of the
wings. It in the wingwalkers' responsibility to escort the aircraft back
from the gate to its position on the ramps where it is released for
take-off. The wingwalkers use wands to signal the marshaller at the
front of the plane, who in turn communicates with the pilot (Tr. 72).

At the time in question, AMR's employees wore uniforms consisting of
dark blue shirts and blue jeans. In inclement weather, employees wore
standard yellow rain gear (Tr. 52, 61). None of these garments bore
reflective material (Tr. 52, 62).

AMR employees working for Midway at Hartsfield worked on Concourse D,
which at night was lighted on only one side, unlike the other
concourses, which were lit on both sides (Tr. 56). The night shift
wingwalkers used wands which consisted of flashlights with yellow cone
extensions covering the ends. There was undisputed evidence that "with
some frequency," these wingwalkers were unable to locate the night wands
from the previous shift, or the night wands were found to contain dead
batteries (Tr. 52, 54, 62-64). At times when night wands could not be
located, day wands were used which did not light up (Tr. 54-55, 63).
During inclement weather, visibility on the concourse was drastically
reduced (Tr. 57, 65, 110).

On the night of November 4, 1988, Marian Taylor, a wingwalker for AMR,
was struck and killed by a fuel truck driven by AMR employee James
Darrell Brown as she was signaling an aircraft. On November 7, Robert
Harrison, a safety compliance officer for the Occupational Safety and
Health Administration ("OSHA"), was assigned to investigate the accident
(Tr. 12). He went to the site of the fatality, presented his
credentials, met with several of the employees, and took witness
statements (Tr. 13).

The next development in Harrison's investigation is of crucial
significance to the outcome of the case. According to Harrison (Tr. 13-14):

I observed the night-time operations, and the next day was calling
various Government agencies to see if they had any regulations that
might assist me in understanding what the company needed to be doing.
And eventual contact was made with the FAA, who expressed an interest in
the case.

And after talking with my supervisors and other people, it was
determined that since the FAA was going to investigate we would break
off our investigation.

Much later, several months later, contact again was made between the FAA
and OSHA, and the determination was made that the FAA did not have
jurisdiction or did not have regulations dealing with the safety of the
wingwalkers as far as being seen by vehicular traffic.

So, I was instructed to go back and complete the investigation. I went
back out on site, had some more discussions with the company, had a
closing conference with the company and discussed abatement methods and
eventually a citation was hand-delivered by myself to the company.

The citation issued respondent alleged a serious violation of 29 C.F.R.
§ 1910.132(a) for failure to provide employees with reflective
clothing.[[1]]

The circumstances regarding OSHA's withdrawal from the investigation and
its subsequent renewal of its investigation were explained more fully by
Harrison under cross-examination (Tr. 25-27):

A. I was specifically told by my supervisor to break off the investigation.
Q. And isn't it true that you were told to break it off because the FAA
had jurisdiction?
A. That is correct.
Q. And you told the company of that fact; right?
A. Yes; that --I communicated that fact to the company.
Q. And you were also told that FAA had, in fact, exercised jurisdiction;
isn't that right?
A. I was not told that until much later.
Q. But you were told that at some point that...
A. Yes.
Q. ... FAA had exercised jurisdiction over this particular accident?
A. That is correct.
Q. Would you agree that the FAA had checked out their operating manual
and that the -- stated that the case was closed out because everybody
was doing what they were suppose to be doing?
A. The information I was given was that the extent of the FAA
investigation was to check the company's manuals and to see that the
people were doing what the manual said to do. And that the FAA had been
-- closed their investigation; yes.
Q. But then the case was somehow reopened almost six months later?
A. Yes.
Q. Wasn't that due, in fact, to a contact by a private investigator for
the family of the deceased person?
A. No.
Q. Isn't that what initiated it?
A. We were contacted by a -- an investigator representing himself as
working for a law firm that was representing the family of the deceased.
Because of his contact with us, we got in touch with the FAA to
determine what they had done.
Q.Uh-huh (affirmative).
A. And that was when it was determined that they had gone out to the
site, inspected the company's manuals and seen if people were doing what
the manuals said.

Because the company had not investigated specifically whether there were
additional safety measures that needed to be taken to protect the
wingwalkers from vehicular traffic, consultations were made between the
FAA and OSHA, and it was determined that OSHA had jurisdiction over that
safety matter and that the FAA had not investigated that. So, the OSHA
investigation was reopened to investigate that one matter and to close
out on that.

No one directly involved in the discussions between OSHA and the FAA
testified at the hearing and no documentary evidence of these
discussions or the discussions' conclusions was offered into evidence.
No evidence was presented regarding the findings or conclusions of the
FAA investigation.
__

_JURISDICTION _

AMR argues that OSHA has no jurisdiction over the matter, because OSHA's
jurisdiction was preempted by the FAA. AMR relies on section 4(b)(1) of
the Occupational Safety and Health Act of 1970 ("Act)", 29 U.S.C. §
653(b)(1), which provides:

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.

"Preemption as mandated by Section 4(b)(1) is not an affirmative defense
but is a jurisdictional limitation upon OSHA'S authority to issue a
citation." U. S. Air v. OSHRC, 689 F.2d 1191, 1195 (4th Cir. 1982). The
Secretary has the burden of proof on the issue of jurisdiction.

The phrase "exercise statutory authority" is the key to a determination
of preemption. The Review Commission stated in an early case: "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." Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390,
1392, 1973-74 CCH OSHD ¶ 16,881 (No. 1588, 1973).

It is clear that the FAA did have statutory authority, by virtue of the
Federal Aviation Act of 1958 (49 U.S.C. §§ 1301 et seq.), over Midway
Airlines, a certificated carrier. AMR had a contractual obligation to
comply with Midway's FAA-approved safety manual. Did the FAA have
statutory authority over AMR?

In Fortec Constructors, 73 OSAHRC 46/A2, 1 BNA OSHC 3208, 1973-74 CCH
OSHD ¶ 16,612 (No. 2524, 1973), Judge Burroughs addressed the question
of whether the FAA had jurisdiction over Fortec, a construction
contractor. Fortec was the general contractor for the expansion of a
building for the FAA. Judge Burroughs found in that case that
contractual provisions of a construction contract which made an FAA
safety manual applicable to construction work performed for the FAA was
not statutory authority to prevent OSHA jurisdiction. Judge Burroughs
held "[t]he regulation of working conditions relating to construction
operations are not within the ambit of statutory authority granted to
the Federal Aviation Administration." Id. (Emphasis added.)

Fortec is, however, distinguishable from the present case. Fortec was a
building contractor working on an expansion of the FAA's facilities, an
endeavor clearly not related to the promotion of "safety of flight of
civil aircraft in air commerce." Section 601(a) of the Federal Aviation
Act of 1958, 49 U.S.C. § 1421(a).

The question of whether airline personnel engaged in ground operations
are subject to the statutory authority of the FAA was answered
affirmatively in Northwest Airlines, 80 OSAHRC 87/B5, 8 BNA OSHC 1982,
1980 CCH OSHD ¶ 24,751 (No. 13649, 1980).

The Review Commission established the following guideline when
considering a preemption question (8 BNA OSHC at 1988):

In determining whether the FAA has the statutory authority to regulate
the health and safety of airline maintenance personnel, we must give
considerable weight to the fact that the FAA interprets its enabling
legislation to give it such authority. . . . Even if another agency
claims authority not explicitly granted by the statute the agency's
interpretation is nonetheless controlling if the authority can be
reasonably implied from the statute. (Emphasis added.)

In Northwest, the ground operations employees found to be under the
jurisdiction of the FAA were employees of the airline, Northwest. In the
present case, it must be determined whether authority over AMR can be
reasonably implied by the statute. Northwest's examination of the
Federal Aviation Act is instructive here (Id. at 1984):

Subsections (1) through (5) of section 601(a) enumerate specific
subjects the Administrator may regulate. Subsection (6) which is the
provision pertinent to this case is a "catchall" provision that gives
the Administrator general authority to issue rules and regulations
promoting "national security and safety in air commerce."

The Administrator has promulgated a number of standards and regulations
pursuant to section 601(a) and other statutes not relevant here. Among
these is a requirement that "[e]ach domestic and flag air carrier shall
prepare and keep current a manual for the use and guidance of flight and
ground personnel in conducting its operations." 14 C.F.R. § 121.133(a).
Such a manual must meet the following requirements that are pertinent to
this case:

§ 121.135   Contents.

(a) Each manual required by § 121.133 must--
(1) Include instructions and information necessary to allow the personal
concerned to perform their duties and responsibilities with a high
degree of safety;
(emphasis added.)

Applying Northwest's reasoning, this court finds that authority over
ground operations personnel, who are employed by a contractor and not an
airline, is not explicitly granted by the statute. It can be reasonably
inferred; however, that when the statute provides for a manual for the
use of ground operations personnel which includes instructions on how to
perform their duties with a high degree of safety, the statute is
implicitly granting authority over ground operations personnel,
regardless of their employer. This authority would be in keeping with
the FAA's goal of promoting safety in air commerce.

Having determined that the FAA's authority over AMR can be reasonably
implied from the statute, it must now be determined whether the FAA did,
in fact, interpret the statute to give it such authority. If the FAA did
so interpret it, this interpretation must be given "considerable weight"
in deciding whether the FAA had statutory authority over AMR.

The record establishes that the FAA considered itself to have
jurisdiction over the matter. OSHA had already commenced investigating
the accident when the FAA asserted authority.

Harrison "was specifically told by [his] supervisor to break off the
investigation" (Tr. 25). This indicates that not only the FAA, but OSHA,
considered the FAA to have jurisdiction. The FAA conducted its own
investigation. OSHA would not have entered into the matter again had it
not been contacted by a private investigator representing Taylor's
family. There in no evidence that the FAA ever renounced its claim of
authority. The FAA did not contact OSHA after its investigation, as
would be expected if the FAA had determined that it had overstepped its
authority.

Paul Erickson is a Regional Office Staff Specialist for the FAA and was
the only representative of the agency who testified at the hearing. He
was not involved in the investigation of Taylor's death, nor in any of
the discussions between OSHA and the FAA regarding jurisdiction. His
testimony proved inconclusive.

Erickson first stated that the FAA would exercise jurisdiction over the
certificate holder and not a contractor such as AMR. He said that the
FAA had no jurisdiction over a wingwalker exposed to the hazards of
vehicular traffic (Tr. 42).

Under cross-examination, Erickson backed off of his earlier statements,
leaving the court with less guidance as to the FAA's position (Tr. 42-44):

Q. Isn't it true though that the certificated carrier is responsible for
compliance with FAA regulations by anyone who's performing work on its
behalf, whether it be an employee or a contractor or otherwise?
A. Yes; that's true.
Q. So, in that sense of the word, you would indirectly exercise
jurisdiction over the contractor if he's performing work that is subject
to your jurisdiction; correct?
A. If the contractor is performing maintenance, then we would; yes.
Q. And your area is limited to maintenance; correct?
A. That's correct.
Q. Do you really have any connection at all with the ground operations?
A. Inasmuch as the movement of the airplane; yes.
Q. I don't understand how maintenance relates to a ground operation in
moving an airplane.
A. Well, we would got back into the safety matters. It's good operating
practice, if you're going to move an aircraft, to have a wingwalker.
So, if they had moved the airplane without the wingwalker, then I would
get into that. If it were around buildings or vehicular traffic or
something like that where they may have -- or say an accident happened...
Q. Suppose they had...
A. ...as far as damage to the aircraft.
Q. That could cause damage to the aircraft?
A. Yes, sir.
Q. Suppose they tried to move the aircraft with a wingwalker who didn't
have a wand at night. You'd get concerned about that; wouldn't you,
A. Oh, sure.
Q. Suppose the vehicle hit a wingwalker and knocked him into the
airplane and caused it to jolt to a sudden stop, you'd get concerned
about that; wouldn't you?
A. I would get concerned about it, but I don't know that we could
enforce anything there.
Q. You don't know that you couldn't. You really don't know legally
whether you could or couldn't; do you? You'd just...
A. That's correct; that's correct. Yeah.

The absence of evidence regarding the FAA's investigation and the
FAA/OSHA discussions is deemed fatal to the Secretary's case. In
Northwest, the Commission stated that, "another agency preempts the Act
only by issuing standards or regulations having the force and effect of
law," and found that the FAA had exercised its authority "[b]ecause the
[safety] manual addresses the specific hazard for which Northwest was
cited . . ." 8 BNA OSHC at 1989.

In the case at bar, Harrison stated that the FAA "had not investigated
specifically whether there were additional safety measures that needed
to be taken to protect the wingwalkers from vehicular traffic,.... and
it was determined that OSHA had jurisdiction over the safety matter and
the FAA had not investigated that" (Tr. 27).

No evidence pertaining to the FAA's investigation was adduced, and
Harrison's comments regarding the investigation cannot be given much
weight. In Burlington Northern Railroad Co., OSAHRC____, 13 BNA OSHC
2099, 2100, 1989 CCH OSHD ¶ 28,458 (No. 87-365, 1989), the Commission
stated: "Since preemption of OSHA under 29 U.S.C. § 653(b)(1) involves
another agency's exercise of statutory authority, any authoritative
statements by that agency will greatly assist the Commission in deciding
the preemption issue." Such is the case here. The record begs for
authoritative statements by the FAA to assist in determining
jurisdiction. Since none were forthcoming; however, it must be held that
the Secretary failed to meet her burden of proof. The record establishes
that the FAA reasonably interpreted the Federal Aviation Act to give it
jurisdiction over AMR's employees. It exercised this authority by
stepping in during OSHA's investigation and asserting its claim. OSHA
recognized this claim by agreeing to discontinue its investigation.
There was no evidence that the FAA renounced its claim of authority, or
that it had not investigated the specific hazard at issue. OSHA was
preempted in its jurisdiction over AMR by the FAA.

_PROTECTIVE CLOTHING_

Assuming that OSHA had had jurisdiction over the matter, AMR would have
been in violation of 29 C.F.R. § 1910.132(a). AMR argued that the
failure to require wingwalkers to wear reflective clothing was not a
recognized hazard in the airline industry.

Before Harrison worked for OSHA, he had been a senior safety officer for
Federal Express for two and a half years (Tr. 12). He testified that
Federal Express required wingwalkers to wear reflective vests at all
times, night and day (Tr. 18, 30-31).

William Martinez, Supervisor of Customer Service for United Airlines,
testified that United requires all personnel who are directly involved
with ramp operations to wear uniforms having reflective stripes. United
has enforced this policy since the late 1970's (Tr. 45-47).

AMR argues that no other airline, apart from Federal Express and United,
recognized the need for wingwalkers to wear reflective clothing. John
Montgomery is the Corporate Manager for Environmental Safety and Health
for American Airlines. He stated that as a member of the American
Transportation Association ("ATA") and the International Air
Transportation Executive Committee that he was in constant communication
with his counterparts at other airlines. Montgomery testified that the
subject of reflective clothing had "never come up" (Tr. 150). As the
Secretary points out in her brief, this is not the same as testifying
that other members of the ATA do not recognize it as an industry hazard,
only that the subject had not arisen.

When Montgomery was asked about his personal knowledge of the practices
of other airlines regarding the wearing of reflective material, he
replied, "Well, I have looked at the ramps of other airlines. I've never
specifically looked at their reflectorized clothing" (Tr. 150).

Dr. Montgomery's testimony does not, as AMR claims, establish that the
airline industry does not recognize a need for wingwalkers to wear
reflective clothing.

The hazard of not requiring wingwalkers to wear reflective clothing is
obvious. In the present case, Taylor was required to stand on a roadway
at night, wearing dark blue clothing. Vehicular traffic is not halted
during the pushback procedure.

AMR argues that the light from the wands provides sufficient
illumination. The purpose of the wands is to signal the marshaller, not
to provide visibility. Evidence also shows that, when night wands with
working batteries could not be found, the wingwalkers would use day
wands, or night wands with dead batteries.

Paula Boyd, a former wingwalker for AMR, stated that when working night
wands were not used at night, the wingwalkers were "not very visible
then" (Tr. 57). Darrell Brown stated that "at certain times, if they're
not lit, you can't really see" (Tr. 109). William Hart, a former ramp
services supervisor for AMR, stated that in inclement weather
"visibility was drastically reduced. . . . You could see them if you
were looking for them" (Tr. 65).

AMR asserted the defense of unpreventable employee misconduct, arguing
that the truck driver was negligent in failing to report a broken
defroster in his truck on the night of the fatality. That defense goes
to the actions of employees regarding the cited violation. AMR offered
no evidence and did not allege that the failure of its wingwalkers to
wear reflective clothing was a violation of a company rule or policy.
The unpreventable employee misconduct defense would fail for AMR.

_FINDINGS OF FACT_

1. AMR contracts with airlines to provide ground support services. AMR
was under contract to Midway Airlines in November 1988 at Hartsfield
International Airport in Atlanta.

2. Midway Airlines held an FAA certificate and had developed an
FAA-approved safety manual. AMR did not hold an FAA certificate but was
contractually bound to comply with Midway's safety manual.

3. Guiding aircraft to and from gates requires a crew of five people:
the supervisor, the marshaller, the driver of the pushout truck and two
wingwalkers. The wingwalkers stand at the rear of the aircraft and
signal the marshaller with wands.

4. At the time in question, the uniform of AMR employees consisted of a
dark blue shirt and blue jeans. In inclement weather, employees wore
standard yellow rain gear. None of the garments bore reflective material.

5. Night shift wingwalkers were supposed to use night wands, which were
flashlights with yellow cone extensions
covering the ends. Often, wingwalkers were unable to locate the night
wands from the pervious shift, or the night wands they located contained
dead batteries. The wingwalkers would then use day wands, which do not
light up.

6. During inclement weather, visibility of the concourse on which the
wingwalkers worked was drastically reduced.

7. On November 7, 1988, OSHA Compliance Officer Robert Harrison, was
assigned to investigate a fatality that occurred on November 4, when an
AMR wingwalker was struck and killed by a fuel truck driven by another
AMR employee. Harrison visited the site and took several witness statements.

8. Harrison was told by his supervisor to discontinue his investigation
of the accident, because the FAA had jurisdiction over the case.
Harrison did so. Several months later, OSHA was contacted by a private
investigator working for the deceased's family. After consulting with
the FAA, it was agreed that OSHA could reopen its investigation.

_CONCLUSIONS OF LAW_

1. AMR, at all times material to this proceeding, was engaged in a
business affecting commerce within the meaning of section 3(5) of the Act.

2. AMR, at all times material to this proceeding, was subject to the
requirements of the Act and the standards promulgated thereunder. The
Commission has jurisdiction of the parties and of the subject matter.

3. AMR was not in violation of 29 C.F.R. § 1910.132(a) for failing to
provide reflective clothing to employees. OSHA's jurisdiction was
preempted by the FAA's exercise of statutory authority.

_ORDER_

Based upon the foregoing findings of fact and conclusions of law, it is
hereby ORDERED:
The citation issued to AMR on May 3, 1989, is vacated.
Dated this 9th day of July, 1990.

PAUL L. BRADY
Judge

 

FOOTNOTES:

[[1]] Section 1910.132(a) of 29 C.F.R. provides in pertinent part:

Protective equipment, including . . . protective clothing . . shall be
provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or
environment. . . .