“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 enteredby Commissioner Velma Montoya on August 9, 1990. The parties have nowfiled a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the Occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order, and we set aside the Administrative LawJudge’s Decision and Order to the extent that it is inconsistent withthe Stipulation and Settlement Agreement. This is the final order of theCommission in this case. See 29 U.S.C. ?? 659(c), 660(a), and (b).Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: July 24, 1992 SECRETARY OF LABOR,Complainant,v.AMR SERVICES COMPANY, INC.,Respondent.OSHRC Docket No. 89-1764APPEARANCES:Larry A. Auerbach, Esquire, Office of the Solicitor, U. S. Department ofLabor, Atlanta, Georgia, on behalf of complainant.G. Paris Sykes, Jr., Esquire, and Roy Manoll, Esquire, Ford andHarrison, Atlanta, Georgia, on behalf of respondent._DECISION AND ORDER_BRADY, Judge: AMR Services Company, Inc., (\”AMR\”) and American Airlinesare 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 supportservices (Tr. 69). In November of 1988, AMR was under contract to MidwayAirlines at Hartsfield International Airport in Atlanta. AMR providedground services, including freight and baggage handling, fueling, andguiding aircraft into and back from gates (Tr. 21, 69). Midway held aFederal Aviation Administration (\”FAA\”) certificate, and had developedan FAA-approved safety manual (Tr.134-135,162-163).AMR did not hold an FAA certificate. It had a contractual agreement tocomply with Midway’s safety manual (Tr. 162).When guiding aircraft to and from the gates, AMR used a crew of fivepeople: the supervisor, the marshaller, the driver of the pushouttractor, and two wingwalkers. The supervisor oversees the operation. Themarshaller stands on the ground at the front of the plane and is incontact by headset with the pilot. The driver operates the pushouttractor which actually pushes the aircraft into place. The wingwalkersstand on the ground at the rear of the plane and on either side of thewings. It in the wingwalkers’ responsibility to escort the aircraft backfrom the gate to its position on the ramps where it is released fortake-off. The wingwalkers use wands to signal the marshaller at thefront of the plane, who in turn communicates with the pilot (Tr. 72).At the time in question, AMR’s employees wore uniforms consisting ofdark blue shirts and blue jeans. In inclement weather, employees worestandard yellow rain gear (Tr. 52, 61). None of these garments borereflective 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 otherconcourses, which were lit on both sides (Tr. 56). The night shiftwingwalkers used wands which consisted of flashlights with yellow coneextensions covering the ends. There was undisputed evidence that \”withsome frequency,\” these wingwalkers were unable to locate the night wandsfrom the previous shift, or the night wands were found to contain deadbatteries (Tr. 52, 54, 62-64). At times when night wands could not belocated, day wands were used which did not light up (Tr. 54-55, 63).During inclement weather, visibility on the concourse was drasticallyreduced (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 JamesDarrell Brown as she was signaling an aircraft. On November 7, RobertHarrison, a safety compliance officer for the Occupational Safety andHealth Administration (\”OSHA\”), was assigned to investigate the accident(Tr. 12). He went to the site of the fatality, presented hiscredentials, met with several of the employees, and took witnessstatements (Tr. 13).The next development in Harrison’s investigation is of crucialsignificance to the outcome of the case. According to Harrison (Tr. 13-14):I observed the night-time operations, and the next day was callingvarious Government agencies to see if they had any regulations thatmight assist me in understanding what the company needed to be doing.And eventual contact was made with the FAA, who expressed an interest inthe case.And after talking with my supervisors and other people, it wasdetermined that since the FAA was going to investigate we would breakoff our investigation.Much later, several months later, contact again was made between the FAAand OSHA, and the determination was made that the FAA did not havejurisdiction or did not have regulations dealing with the safety of thewingwalkers as far as being seen by vehicular traffic.So, I was instructed to go back and complete the investigation. I wentback out on site, had some more discussions with the company, had aclosing conference with the company and discussed abatement methods andeventually 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 reflectiveclothing.[[1]]The circumstances regarding OSHA’s withdrawal from the investigation andits subsequent renewal of its investigation were explained more fully byHarrison 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 FAAhad 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 manualand that the — stated that the case was closed out because everybodywas doing what they were suppose to be doing?A. The information I was given was that the extent of the FAAinvestigation was to check the company’s manuals and to see that thepeople 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 forthe family of the deceased person?A. No.Q. Isn’t that what initiated it?A. We were contacted by a — an investigator representing himself asworking 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 todetermine what they had done.Q.Uh-huh (affirmative).A. And that was when it was determined that they had gone out to thesite, inspected the company’s manuals and seen if people were doing whatthe manuals said.Because the company had not investigated specifically whether there wereadditional safety measures that needed to be taken to protect thewingwalkers from vehicular traffic, consultations were made between theFAA and OSHA, and it was determined that OSHA had jurisdiction over thatsafety matter and that the FAA had not investigated that. So, the OSHAinvestigation was reopened to investigate that one matter and to closeout on that.No one directly involved in the discussions between OSHA and the FAAtestified at the hearing and no documentary evidence of thesediscussions or the discussions’ conclusions was offered into evidence.No evidence was presented regarding the findings or conclusions of theFAA investigation.___JURISDICTION _AMR argues that OSHA has no jurisdiction over the matter, because OSHA’sjurisdiction was preempted by the FAA. AMR relies on section 4(b)(1) ofthe 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 withrespect to which other Federal agencies…exercise statutory authorityto prescribe or enforce standards or regulations affecting occupationalsafety or health.\”Preemption as mandated by Section 4(b)(1) is not an affirmative defensebut is a jurisdictional limitation upon OSHA’S authority to issue acitation.\” U. S. Air v. OSHRC, 689 F.2d 1191, 1195 (4th Cir. 1982). TheSecretary has the burden of proof on the issue of jurisdiction.The phrase \”exercise statutory authority\” is the key to a determinationof preemption. The Review Commission stated in an early case: \”Onceanother Federal agency exercises its authority over specific workingconditions, OSHA cannot enforce its own regulations covering the sameconditions. Section 4(b)(1) does not require that another agencyexercise its authority in the same manner or in an equally stringentmanner.\” 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 theFederal Aviation Act of 1958 (49 U.S.C. ?? 1301 et seq.), over MidwayAirlines, a certificated carrier. AMR had a contractual obligation tocomply with Midway’s FAA-approved safety manual. Did the FAA havestatutory authority over AMR?In Fortec Constructors, 73 OSAHRC 46\/A2, 1 BNA OSHC 3208, 1973-74 CCHOSHD ? 16,612 (No. 2524, 1973), Judge Burroughs addressed the questionof whether the FAA had jurisdiction over Fortec, a constructioncontractor. Fortec was the general contractor for the expansion of abuilding for the FAA. Judge Burroughs found in that case thatcontractual provisions of a construction contract which made an FAAsafety manual applicable to construction work performed for the FAA wasnot statutory authority to prevent OSHA jurisdiction. Judge Burroughsheld \”[t]he regulation of working conditions relating to constructionoperations are not within the ambit of statutory authority granted tothe Federal Aviation Administration.\” Id. (Emphasis added.)Fortec is, however, distinguishable from the present case. Fortec was abuilding contractor working on an expansion of the FAA’s facilities, anendeavor clearly not related to the promotion of \”safety of flight ofcivil aircraft in air commerce.\” Section 601(a) of the Federal AviationAct of 1958, 49 U.S.C. ? 1421(a).The question of whether airline personnel engaged in ground operationsare subject to the statutory authority of the FAA was answeredaffirmatively 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 whenconsidering a preemption question (8 BNA OSHC at 1988):In determining whether the FAA has the statutory authority to regulatethe health and safety of airline maintenance personnel, we must giveconsiderable weight to the fact that the FAA interprets its enablinglegislation to give it such authority. . . . Even if another agencyclaims authority not explicitly granted by the statute the agency’sinterpretation is nonetheless controlling if the authority can bereasonably implied from the statute. (Emphasis added.)In Northwest, the ground operations employees found to be under thejurisdiction of the FAA were employees of the airline, Northwest. In thepresent case, it must be determined whether authority over AMR can bereasonably implied by the statute. Northwest’s examination of theFederal Aviation Act is instructive here (Id. at 1984):Subsections (1) through (5) of section 601(a) enumerate specificsubjects the Administrator may regulate. Subsection (6) which is theprovision pertinent to this case is a \”catchall\” provision that givesthe Administrator general authority to issue rules and regulationspromoting \”national security and safety in air commerce.\”The Administrator has promulgated a number of standards and regulationspursuant to section 601(a) and other statutes not relevant here. Amongthese is a requirement that \”[e]ach domestic and flag air carrier shallprepare and keep current a manual for the use and guidance of flight andground personnel in conducting its operations.\” 14 C.F.R. ? 121.133(a).Such a manual must meet the following requirements that are pertinent tothis case:? 121.135 Contents.(a) Each manual required by ? 121.133 must–(1) Include instructions and information necessary to allow the personalconcerned to perform their duties and responsibilities with a highdegree of safety;(emphasis added.)Applying Northwest’s reasoning, this court finds that authority overground operations personnel, who are employed by a contractor and not anairline, is not explicitly granted by the statute. It can be reasonablyinferred; however, that when the statute provides for a manual for theuse of ground operations personnel which includes instructions on how toperform their duties with a high degree of safety, the statute isimplicitly granting authority over ground operations personnel,regardless of their employer. This authority would be in keeping withthe FAA’s goal of promoting safety in air commerce.Having determined that the FAA’s authority over AMR can be reasonablyimplied 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 didso 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 havejurisdiction over the matter. OSHA had already commenced investigatingthe accident when the FAA asserted authority.Harrison \”was specifically told by [his] supervisor to break off theinvestigation\” (Tr. 25). This indicates that not only the FAA, but OSHA,considered the FAA to have jurisdiction. The FAA conducted its owninvestigation. OSHA would not have entered into the matter again had itnot been contacted by a private investigator representing Taylor’sfamily. There in no evidence that the FAA ever renounced its claim ofauthority. The FAA did not contact OSHA after its investigation, aswould be expected if the FAA had determined that it had overstepped itsauthority.Paul Erickson is a Regional Office Staff Specialist for the FAA and wasthe only representative of the agency who testified at the hearing. Hewas not involved in the investigation of Taylor’s death, nor in any ofthe discussions between OSHA and the FAA regarding jurisdiction. Histestimony proved inconclusive.Erickson first stated that the FAA would exercise jurisdiction over thecertificate holder and not a contractor such as AMR. He said that theFAA had no jurisdiction over a wingwalker exposed to the hazards ofvehicular 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 forcompliance with FAA regulations by anyone who’s performing work on itsbehalf, 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 exercisejurisdiction over the contractor if he’s performing work that is subjectto 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 inmoving an airplane.A. Well, we would got back into the safety matters. It’s good operatingpractice, if you’re going to move an aircraft, to have a wingwalker.So, if they had moved the airplane without the wingwalker, then I wouldget into that. If it were around buildings or vehicular traffic orsomething 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’thave 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 theairplane and caused it to jolt to a sudden stop, you’d get concernedabout that; wouldn’t you?A. I would get concerned about it, but I don’t know that we couldenforce anything there.Q. You don’t know that you couldn’t. You really don’t know legallywhether 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 theFAA\/OSHA discussions is deemed fatal to the Secretary’s case. InNorthwest, the Commission stated that, \”another agency preempts the Actonly by issuing standards or regulations having the force and effect oflaw,\” and found that the FAA had exercised its authority \”[b]ecause the[safety] manual addresses the specific hazard for which Northwest wascited . . .\” 8 BNA OSHC at 1989.In the case at bar, Harrison stated that the FAA \”had not investigatedspecifically whether there were additional safety measures that neededto be taken to protect the wingwalkers from vehicular traffic,…. andit was determined that OSHA had jurisdiction over the safety matter andthe FAA had not investigated that\” (Tr. 27).No evidence pertaining to the FAA’s investigation was adduced, andHarrison’s comments regarding the investigation cannot be given muchweight. In Burlington Northern Railroad Co., OSAHRC____, 13 BNA OSHC2099, 2100, 1989 CCH OSHD ? 28,458 (No. 87-365, 1989), the Commissionstated: \”Since preemption of OSHA under 29 U.S.C. ? 653(b)(1) involvesanother agency’s exercise of statutory authority, any authoritativestatements by that agency will greatly assist the Commission in decidingthe preemption issue.\” Such is the case here. The record begs forauthoritative statements by the FAA to assist in determiningjurisdiction. Since none were forthcoming; however, it must be held thatthe Secretary failed to meet her burden of proof. The record establishesthat the FAA reasonably interpreted the Federal Aviation Act to give itjurisdiction over AMR’s employees. It exercised this authority bystepping in during OSHA’s investigation and asserting its claim. OSHArecognized this claim by agreeing to discontinue its investigation.There was no evidence that the FAA renounced its claim of authority, orthat it had not investigated the specific hazard at issue. OSHA waspreempted in its jurisdiction over AMR by the FAA._PROTECTIVE CLOTHING_Assuming that OSHA had had jurisdiction over the matter, AMR would havebeen in violation of 29 C.F.R. ? 1910.132(a). AMR argued that thefailure to require wingwalkers to wear reflective clothing was not arecognized hazard in the airline industry.Before Harrison worked for OSHA, he had been a senior safety officer forFederal Express for two and a half years (Tr. 12). He testified thatFederal Express required wingwalkers to wear reflective vests at alltimes, 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 involvedwith ramp operations to wear uniforms having reflective stripes. Unitedhas 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. JohnMontgomery is the Corporate Manager for Environmental Safety and Healthfor American Airlines. He stated that as a member of the AmericanTransportation Association (\”ATA\”) and the International AirTransportation Executive Committee that he was in constant communicationwith his counterparts at other airlines. Montgomery testified that thesubject of reflective clothing had \”never come up\” (Tr. 150). As theSecretary points out in her brief, this is not the same as testifyingthat 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 practicesof other airlines regarding the wearing of reflective material, hereplied, \”Well, I have looked at the ramps of other airlines. I’ve neverspecifically looked at their reflectorized clothing\” (Tr. 150).Dr. Montgomery’s testimony does not, as AMR claims, establish that theairline industry does not recognize a need for wingwalkers to wearreflective clothing.The hazard of not requiring wingwalkers to wear reflective clothing isobvious. In the present case, Taylor was required to stand on a roadwayat night, wearing dark blue clothing. Vehicular traffic is not haltedduring the pushback procedure.AMR argues that the light from the wands provides sufficientillumination. The purpose of the wands is to signal the marshaller, notto provide visibility. Evidence also shows that, when night wands withworking batteries could not be found, the wingwalkers would use daywands, or night wands with dead batteries.Paula Boyd, a former wingwalker for AMR, stated that when working nightwands were not used at night, the wingwalkers were \”not very visiblethen\” (Tr. 57). Darrell Brown stated that \”at certain times, if they’renot lit, you can’t really see\” (Tr. 109). William Hart, a former rampservices supervisor for AMR, stated that in inclement weather\”visibility was drastically reduced. . . . You could see them if youwere looking for them\” (Tr. 65).AMR asserted the defense of unpreventable employee misconduct, arguingthat the truck driver was negligent in failing to report a brokendefroster in his truck on the night of the fatality. That defense goesto the actions of employees regarding the cited violation. AMR offeredno evidence and did not allege that the failure of its wingwalkers towear 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. AMRwas under contract to Midway Airlines in November 1988 at HartsfieldInternational Airport in Atlanta.2. Midway Airlines held an FAA certificate and had developed anFAA-approved safety manual. AMR did not hold an FAA certificate but wascontractually 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 twowingwalkers. The wingwalkers stand at the rear of the aircraft andsignal the marshaller with wands.4. At the time in question, the uniform of AMR employees consisted of adark blue shirt and blue jeans. In inclement weather, employees worestandard yellow rain gear. None of the garments bore reflective material.5. Night shift wingwalkers were supposed to use night wands, which wereflashlights with yellow cone extensionscovering the ends. Often, wingwalkers were unable to locate the nightwands from the pervious shift, or the night wands they located containeddead batteries. The wingwalkers would then use day wands, which do notlight up.6. During inclement weather, visibility of the concourse on which thewingwalkers worked was drastically reduced.7. On November 7, 1988, OSHA Compliance Officer Robert Harrison, wasassigned to investigate a fatality that occurred on November 4, when anAMR wingwalker was struck and killed by a fuel truck driven by anotherAMR employee. Harrison visited the site and took several witness statements.8. Harrison was told by his supervisor to discontinue his investigationof the accident, because the FAA had jurisdiction over the case.Harrison did so. Several months later, OSHA was contacted by a privateinvestigator working for the deceased’s family. After consulting withthe 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 abusiness affecting commerce within the meaning of section 3(5) of the Act.2. AMR, at all times material to this proceeding, was subject to therequirements of the Act and the standards promulgated thereunder. TheCommission 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 toprovide reflective clothing to employees. OSHA’s jurisdiction waspreempted by the FAA’s exercise of statutory authority._ORDER_Based upon the foregoing findings of fact and conclusions of law, it ishereby ORDERED:The citation issued to AMR on May 3, 1989, is vacated.Dated this 9th day of July, 1990.PAUL L. BRADYJudge FOOTNOTES:[[1]] Section 1910.132(a) of 29 C.F.R. provides in pertinent part:Protective equipment, including . . . protective clothing . . shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment. . . .”