“Docket No. 89-1764 SECRETARY OF LABOR,Complainant, v. AMR SERVICES COMPANY,Respondent.Docket No. 89-1764ORDERThis matter is before the Commission on a Direction for Reviewentered by Commissioner Velma Montoya on August 9, 1990. The parties have now filed aStipulation and Settlement Agreement.Having reviewed the record, and based upon the representationsappearing in the Stipulation and Settlement Agreement, we conclude that this case raisesno matters warranting further review by the Commission. The terms of the Stipulation andSettlement Agreement do not appear to be contrary to the Occupational Safety and HealthAct and are in compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation andSettlement Agreement into this order, and we set aside the Administrative Law Judge’sDecision and Order to the extent that it is inconsistent with the Stipulation andSettlement Agreement. This is the final order of the Commission in this case. See 29U.S.C. ?? 659(c), 660(a), and (b).Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: July 24, 1992\u00a0\u00a0SECRETARY 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 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 ORDERBRADY, Judge: AMR Services Company, Inc., (\”AMR\”) andAmerican Airlines are sister corporations and wholly-owned subsidiaries of AMR Corporation(Tr. 131). American Airlines employs approximately 78,000 employees (Tr. 126, 147). AMRemploys more than 3,000 employees (Tr. 20).AMR contracts with various airlines to provide certain groundsupport services (Tr. 69). In November of 1988, AMR was under contract to Midway Airlinesat Hartsfield International Airport in Atlanta. AMR provided ground services, includingfreight and baggage handling, fueling, and guiding aircraft into and back from gates (Tr.21, 69). Midway held a Federal Aviation Administration (\”FAA\”) certificate, andhad developed an FAA-approved safety manual (Tr.134-135,162-163).AMR did not hold an FAA certificate. It had a contractualagreement to comply with Midway’s safety manual (Tr. 162).When guiding aircraft to and from the gates, AMR used a crew offive people: the supervisor, the marshaller, the driver of the pushout tractor, and twowingwalkers. The supervisor oversees the operation. The marshaller stands on the ground atthe front of the plane and is in contact by headset with the pilot. The driver operatesthe pushout tractor which actually pushes the aircraft into place. The wingwalkers standon the ground at the rear of the plane and on either side of the wings. It in thewingwalkers’ responsibility to escort the aircraft back from the gate to its position onthe ramps where it is released for take-off. The wingwalkers use wands to signal themarshaller at the front of the plane, who in turn communicates with the pilot (Tr. 72).At the time in question, AMR’s employees wore uniformsconsisting of dark blue shirts and blue jeans. In inclement weather, employees worestandard yellow rain gear (Tr. 52, 61). None of these garments bore reflective material(Tr. 52, 62).AMR employees working for Midway at Hartsfield worked onConcourse 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 whichconsisted of flashlights with yellow cone extensions covering the ends. There wasundisputed evidence that \”with some frequency,\” these wingwalkers were unable tolocate the night wands from the previous shift, or the night wands were found to containdead batteries (Tr. 52, 54, 62-64). At times when night wands could not be located, daywands 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 wingwalkerfor AMR, was struck and killed by a fuel truck driven by AMR employee James Darrell Brownas she was signaling an aircraft. On November 7, Robert Harrison, a safety complianceofficer for the Occupational Safety and Health Administration (\”OSHA\”), wasassigned 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 crucialsignificance 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 Governmentagencies to see if they had any regulations that might assist me in understanding what thecompany needed to be doing. And eventual contact was made with the FAA, who expressed aninterest in the case.And after talking with my supervisors and other people, it was determined that sincethe 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 haveregulations dealing with the safety of the wingwalkers as far as being seen by vehiculartraffic.So, I was instructed to go back and complete the investigation. I went back out onsite, had some more discussions with the company, had a closing conference with thecompany and discussed abatement methods and eventually a citation was hand-delivered bymyself to the company.The citation issued respondent alleged a serious violation of29 C.F.R. ? 1910.132(a) for failure to provide employees with reflective clothing.[[1]]The circumstances regarding OSHA’s withdrawal from theinvestigation and its 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 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 tobe doing?A. The information I was given was that the extent of the FAA investigation was to checkthe 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 thedeceased person?A. No.Q. Isn’t that what initiated it?A. We were contacted by a — an investigator representing himself as working for a lawfirm that was representing the family of the deceased.Because of his contact with us, we got in touch with the FAA to determine what theyhad done. Q.Uh-huh (affirmative).A. And that was when it was determined that they had gone out to the site, inspected thecompany’s manuals and seen if people were doing what the manuals said.Because the company had not investigated specifically whether there were additionalsafety 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 hadjurisdiction over that safety matter and that the FAA had not investigated that. So, theOSHA investigation was reopened to investigate that one matter and to close out on that.No one directly involved in the discussions between OSHA andthe FAA testified at the hearing and no documentary evidence of these discussions or thediscussions’ conclusions was offered into evidence. No evidence was presented regardingthe 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 theOccupational 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 towhich other Federal agencies…exercise statutory authority to prescribe or enforcestandards or regulations affecting occupational safety or health.\”Preemption as mandated by Section 4(b)(1) is not anaffirmative defense but is a jurisdictional limitation upon OSHA’S authority to issue acitation.\” U. S. Air v. OSHRC, 689 F.2d 1191, 1195 (4th Cir. 1982). The Secretary hasthe burden of proof on the issue of jurisdiction.The phrase \”exercise statutory authority\” is the keyto a determination of preemption. The Review Commission stated in an early case:\”Once another Federal agency exercises its authority over specific workingconditions, OSHA cannot enforce its own regulations covering the same conditions. Section4(b)(1) does not require that another agency exercise its authority in the same manner orin an equally stringent manner.\” Mushroom Transportation Co., 73 OSAHRC 51\/E10, 1 BNAOSHC 1390, 1392, 1973-74 CCH OSHD ? 16,881 (No. 1588, 1973).It is clear that the FAA did have statutory authority, byvirtue of the Federal Aviation Act of 1958 (49 U.S.C. ?? 1301 et seq.), over MidwayAirlines, a certificated carrier. AMR had a contractual obligation to comply with Midway’sFAA-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 ofwhether the FAA had jurisdiction over Fortec, a construction contractor. Fortec was thegeneral contractor for the expansion of a building for the FAA. Judge Burroughs found inthat case that contractual provisions of a construction contract which made an FAA safetymanual applicable to construction work performed for the FAA was not statutory authorityto prevent OSHA jurisdiction. Judge Burroughs held \”[t]he regulation of workingconditions relating to construction operations are not within the ambit of statutoryauthority 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, anendeavor clearly not related to the promotion of \”safety of flight of civil aircraftin 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 groundoperations are subject to the statutory authority of the FAA was answered affirmatively inNorthwest 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 regulate the health andsafety of airline maintenance personnel, we must give considerable weight to the fact thatthe FAA interprets its enabling legislation to give it such authority. . . . Even ifanother agency claims authority not explicitly granted by the statute the agency’sinterpretation is nonetheless controlling if the authority can be reasonably implied fromthe statute. (Emphasis added.)In Northwest, the ground operations employees found to be underthe 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 theAdministrator may regulate. Subsection (6) which is the provision pertinent to this caseis a \”catchall\” provision that gives the Administrator general authority toissue rules and regulations promoting \”national security and safety in aircommerce.\”The Administrator has promulgated a number of standards and regulations pursuant tosection 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 theuse and guidance of flight and ground personnel in conducting its operations.\” 14C.F.R. ? 121.133(a). Such a manual must meet the following requirements that arepertinent to this case:? 121.135\u00a0\u00a0 Contents.(a) Each manual required by ? 121.133 must–(1) Include instructions and information necessary to allow the personal concerned toperform their duties and responsibilities with a high degree of safety; (emphasis added.)Applying Northwest’s reasoning, this court finds that authorityover ground operations personnel, who are employed by a contractor and not an airline, isnot explicitly granted by the statute. It can be reasonably inferred; however, that whenthe statute provides for a manual for the use of ground operations personnel whichincludes instructions on how to perform their duties with a high degree of safety, thestatute is implicitly granting authority over ground operations personnel, regardless oftheir employer. This authority would be in keeping with the FAA’s goal of promoting safetyin air commerce.Having determined that the FAA’s authority over AMR can bereasonably implied from the statute, it must now be determined whether the FAA did, infact, 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 theFAA had statutory authority over AMR.The record establishes that the FAA considered itself to havejurisdiction over the matter. OSHA had already commenced investigating the accident whenthe FAA asserted authority.Harrison \”was specifically told by [his] supervisor tobreak off the investigation\” (Tr. 25). This indicates that not only the FAA, butOSHA, 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 privateinvestigator representing Taylor’s family. There in no evidence that the FAA everrenounced its claim of authority. The FAA did not contact OSHA after its investigation, aswould be expected if the FAA had determined that it had overstepped its authority.Paul Erickson is a Regional Office Staff Specialist for the FAAand was the only representative of the agency who testified at the hearing. He was notinvolved in the investigation of Taylor’s death, nor in any of the discussions betweenOSHA and the FAA regarding jurisdiction. His testimony proved inconclusive.Erickson first stated that the FAA would exercise jurisdictionover the certificate holder and not a contractor such as AMR. He said that the FAA had nojurisdiction over a wingwalker exposed to the hazards of vehicular traffic (Tr. 42).Under cross-examination, Erickson backed off of his earlierstatements, 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 compliancewith FAA regulations by anyone who’s performing work on its behalf, whether it be anemployee or a contractor or otherwise?A. Yes; that’s true.Q. So, in that sense of the word, you would indirectly exercise jurisdiction over thecontractor 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, ifyou’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. Ifit 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 atnight. 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 tojolt 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 orcouldn’t; do you? You’d just…A. That’s correct; that’s correct. Yeah.The absence of evidence regarding the FAA’s investigation andthe FAA\/OSHA discussions is deemed fatal to the Secretary’s case. In Northwest, theCommission stated that, \”another agency preempts the Act only by issuing standards orregulations having the force and effect of law,\” and found that the FAA had exercisedits authority \”[b]ecause the [safety] manual addresses the specific hazard for whichNorthwest was cited . . .\” 8 BNA OSHC at 1989.In the case at bar, Harrison stated that the FAA \”had notinvestigated specifically whether there were additional safety measures that needed to betaken to protect the wingwalkers from vehicular traffic,…. and it was determined thatOSHA 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. InBurlington 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 29U.S.C. ? 653(b)(1) involves another agency’s exercise of statutory authority, anyauthoritative statements by that agency will greatly assist the Commission in deciding thepreemption issue.\” Such is the case here. The record begs for authoritativestatements 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 recordestablishes that the FAA reasonably interpreted the Federal Aviation Act to give itjurisdiction over AMR’s employees. It exercised this authority by stepping in duringOSHA’s investigation and asserting its claim. OSHA recognized this claim by agreeing todiscontinue its investigation. There was no evidence that the FAA renounced its claim ofauthority, or that it had not investigated the specific hazard at issue. OSHA waspreempted in its jurisdiction over AMR by the FAA.PROTECTIVE CLOTHINGAssuming that OSHA had had jurisdiction over the matter, AMRwould have been in violation of 29 C.F.R. ? 1910.132(a). AMR argued that the failure torequire wingwalkers to wear reflective clothing was not a recognized hazard in the airlineindustry.Before Harrison worked for OSHA, he had been a senior safetyofficer for Federal Express for two and a half years (Tr. 12). He testified that FederalExpress required wingwalkers to wear reflective vests at all times, night and day (Tr. 18,30-31).William Martinez, Supervisor of Customer Service for UnitedAirlines, testified that United requires all personnel who are directly involved with rampoperations to wear uniforms having reflective stripes. United has enforced this policysince the late 1970’s (Tr. 45-47).AMR argues that no other airline, apart from Federal Expressand United, recognized the need for wingwalkers to wear reflective clothing. JohnMontgomery is the Corporate Manager for Environmental Safety and Health for AmericanAirlines. He stated that as a member of the American Transportation Association(\”ATA\”) and the International Air Transportation Executive Committee that he wasin constant communication with his counterparts at other airlines. Montgomery testifiedthat the subject of reflective clothing had \”never come up\” (Tr. 150). As theSecretary points out in her brief, this is not the same as testifying that other membersof the ATA do not recognize it as an industry hazard, only that the subject had notarisen.When Montgomery was asked about his personal knowledge of thepractices 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 lookedat their reflectorized clothing\” (Tr. 150).Dr. Montgomery’s testimony does not, as AMR claims, establishthat the airline industry does not recognize a need for wingwalkers to wear reflectiveclothing.The hazard of not requiring wingwalkers to wear reflectiveclothing is obvious. In the present case, Taylor was required to stand on a roadway atnight, wearing dark blue clothing. Vehicular traffic is not halted during the pushbackprocedure.AMR argues that the light from the wands provides sufficientillumination. The purpose of the wands is to signal the marshaller, not to providevisibility. Evidence also shows that, when night wands with working batteries could not befound, the wingwalkers would use day wands, or night wands with dead batteries.Paula Boyd, a former wingwalker for AMR, stated that whenworking night wands were not used at night, the wingwalkers were \”not very visiblethen\” (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 forAMR, stated that in inclement weather \”visibility was drastically reduced. . . . Youcould 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 histruck on the night of the fatality. That defense goes to the actions of employeesregarding the cited violation. AMR offered no evidence and did not allege that the failureof its wingwalkers to wear reflective clothing was a violation of a company rule orpolicy. The unpreventable employee misconduct defense would fail for AMR.FINDINGS OF FACT1. AMR contracts with airlines to provide ground supportservices. AMR was under contract to Midway Airlines in November 1988 at HartsfieldInternational Airport in Atlanta.2. Midway Airlines held an FAA certificate and had developed an FAA-approved safetymanual. AMR did not hold an FAA certificate but was contractually bound to comply withMidway’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 standat 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 blueshirt and blue jeans. In inclement weather, employees wore standard yellow rain gear. Noneof the garments bore reflective material.5. Night shift wingwalkers were supposed to use night wands, which were flashlightswith yellow cone extensions covering the ends. Often, wingwalkers were unable to locate the night wands from thepervious shift, or the night wands they located contained dead batteries. The wingwalkerswould then use day wands, which do not light up.6. During inclement weather, visibility of the concourse on which the wingwalkersworked was drastically reduced.7. On November 7, 1988, OSHA Compliance Officer Robert Harrison, was assigned toinvestigate a fatality that occurred on November 4, when an AMR wingwalker was struck andkilled by a fuel truck driven by another AMR employee. Harrison visited the site and tookseveral witness statements.8. Harrison was told by his supervisor to discontinue his investigation of theaccident, because the FAA had jurisdiction over the case. Harrison did so. Several monthslater, 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 LAW1. AMR, at all times material to this proceeding, was engagedin 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 ofthe Act and the standards promulgated thereunder. The Commission has jurisdiction of theparties and of the subject matter.3. AMR was not in violation of 29 C.F.R. ? 1910.132(a) for failing to providereflective clothing to employees. OSHA’s jurisdiction was preempted by the FAA’s exerciseof statutory authority.ORDERBased upon the foregoing findings of fact and conclusions oflaw, it is hereby ORDERED:The citation issued to AMR on May 3, 1989, is vacated. Dated this 9th day of July, 1990.PAUL L. BRADYJudge\u00a0FOOTNOTES:[[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 byreason of hazards of processes or environment. . . . “