ALLEGHENY AIRLINES, INC.  

OSHRC Docket Nos. 14291; 14345

Occupational Safety and Health Review Commission

April 24, 1981

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Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.  

COUNSEL:

Counsel for Regional Litigation, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

E. Carl Uehliein, Jr., for the employer

Charles C. High, Jr. for the employer

Philip A. LaCovara, for the employer

Janet R. Stenborg, Corporation Counsel, Northwest Orient Airlines, Inc.

W. Lawrence Holler, Office of the Assistant General, Counsel for Operations & Legal Counsel, TG-C-10, Department of Transportation

J. A. DePeter, Recording Secretary, International Association of Machinists and Aerospace Workers-Local 1894

Linda Heller Kamm, Federal Aviation Administration

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Edward V. Alfieri is before the Commission under section 12(j), 29 U.S.C. §   661(1), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   Judge Alfieri vacated item 9 of the citation in Docket No. 14345, which alleged that Respondent, Allegheny Airlines, Inc. ("Allegheny"), violated section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), by failing to comply with the fire safety standard at 29 C.F.R. §   1910.37(k)(2).   The judge affirmed item 1 of [*2]   the citation in Docket No. 14291 and item 5 of the citation in Docket No. 14345, both of which alleged that Allegheny did not comply with the protective equipment standard at 29 C.F.R. §   1910.132(a).

Both Allegheny and the Secretary of Labor ("the Secretary") filed petitions for discretionary review of the judge's decision.   Commissioner Cleary granted the Secretary's petition.   Although Allegheny's petition was not granted, former Commissioner Moran issued a "for error" direction for review, and Allegheny filed a brief in response to that direction.   In accordance with our policy statement at 41 Fed. Reg. 53015 (1976), we will review Allegheny's objections. n1

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n1 The Department of Transportation ("DOT") has appeared as an amicus curiae, has filed briefs, and has orally argued the matter before the Commission.

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In Part I of this decision, we consider the merits of the alleged fire safety violation and conclude that Allegheny failed to comply with 29 C.F.R. §   1910.37(k)(2).   In Parts II, III and IV, we discuss, with [*3]   respect to the fire safety violation, Allegheny's affirmative defense that the cited working condition is exempt under section 4(b)(1) of the Act, 29 U.S.C. §   653(b)(1).   We conclude in Part IV that Allegheny did not prove that the working condition is exempt. In Part V we consider the merits of the alleged protective equipment violations and conclude that Allegheny failed to comply with 29 C.F.R. §   1910.132(a).   We also consider and reject in Part V Allegheny's argument that its claim of an exemption under section 4(b)(1) with respect to the protective equipment violation is timely raised. n2

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n2 This case was consolidated for oral argument with Northwest Airlines, Inc., 80 OSAHRC    , 8 BNA OSHC 1982, 1980 CCH OSHD P24,751 (No. 13649, 1980), pets. for review dismissed, Nos. 80-4218 & 80-4222 (2d Cir. Feb. 18, March 31, 1981).   Commissioner Cottine became a member of the Commission at a time after the oral argument.   He has fully reviewed the record in this case, including the verbatim transcript of the oral argument.   Accordingly, consistent with his statutory responsibilities, he is participating in this decision.   Perini Corp., 78 OSAHRC 43/C5, 6 BNA OSHC 1609, 1978 CCH OSHD P22,772 (No. 13029, 1978) (sep. opin.); see Au Yi Lau v. United States Immigration and Naturalization Serv., 555 F.2d 1036, 1042 (D.C. Cir. 1977); Gearhart & Otis, Inc. v. SEC, 348 F.2d 798, 802 & nn. 12 & 13 (D.C. Cir. 1965).

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I

Allegheny operates a departure lounge in the Pan American World Airways Building at the John F. Kennedy International Airport in Queens, New York.   Passengers wait in the lounge to board aircraft. According to the Secretary's compliance officer, Lind, on or about July 15, 1975, the date of the alleged violation, four doors in the lounge were marked "EXIT" by electrically illuminated signs.   Lind stated that two of these doors were locked at all times except when Allegheny employees opened them with keys.   He testified that the other two doors were unlocked but were obstructed by advertising signs five feet high and two feet wide that stood on metal stands less than a foot away.   In the event of an emergency, such as fire or explosion, Lind concluded, the signs would have impeded exit through these doors. He stated that the exit signs above the doors could be seen, but one could not at first glance see the doors themselves.   Lind also testified that at least two, and sometimes three, Allegheny employees regularly worked in the departure lounge, and that flight crew employees and a jetway agent sometimes [*5]   passed through the area.   Item 9 of the citation in Docket No. 14345 alleges that contrary to the fire safety standard at 29 C.F.R. §   1910.37(k)(2):

Free and un-obstructed egress from the departing area was not provided.   Of the four doors marked "EXIT", two were locked with keys.   The other two were obstructed by advertising signs on metal stands approximately 60 inches high and 23 inches wide.

Section 1910.37(k)(2) states:

§   1910.37 Means of egress, general.

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(k) Maintenance and workmanship.

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(2) Means of egress shall be continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency.

In his decision, the judge vacated the item.   He found that under section 4(b)(1) of the Act the cited working conditions were exempt.

On review Allegheny does not dispute the existence of the conditions described in the citation, but it argues that the Secretary failed to demonstrate that a hazard exists.   It contends that because its employees could exit the area through a separate unobstructed passageway, could unlock the locked doors and could easily move the stanchions in front of the unlocked doors, the exits [*6]   were not obstructed. Allegheny also argues as an affirmative defense that the conditions are exempt under section 4(b)(1) from regulation under the Act.

On review the Secretary argues that he has shown that Allegheny failed to comply with 29 C.F.R. §   1910.37(k)(2).   He contends that he need not show the existence of a hazard because the standard assumes the existence of a hazard when it is violated.   Moreover, the Secretary maintains that Allegheny's employees are exposed to a hazard because the locked and obstructed exit doors would impede their escape from the passenger departure area.   The Secretary also claims that the ability of employees to unlock the doors and move the stanchions does not render the locked doors capable of "full instant use" as required by the standard.   The Secretary also maintains that availability of egress through an open passageway fails to obviate the hazard because in the panic caused by a fire or other emergency, employees may still be attracted to the obstructed doors by their electrically illuminated exit signs.

We reject Allegheny's argument that, because its employees have keys to the locked doors and may exit the departure area through an unobstructed [*7]   passageway, the "means of egress" from the lounge are not obstructed. The standard requires that the doors be "continuously" capable of "full instant use." When Allegheny locked the doors or placed metal stanchions in front of them, it destroyed the "continuous and unobstructed way of exit travel" required for means of egress. See Pratt & Whitney Aircraft, 75 OSAHRC 42/A2, 2 BNA OSHC 1713, 1974-75 CCH OSHD P19,443 (No. 510, 1975).   Allegheny's reliance upon other means of egress confuses the requirements of other standards to provide an adequate number of exits with the requirement of section 1910.37(k)(2) that, when means of egress are provided, they must be continuously available for "full instant use." Cf. Techno Products, Inc., 76 OSAHRC 13/D1, 3 BNA OSHC 2009, 2011, 1975-76 CCH OSHD P20,413 at 24,366 (No. 3624, 1976) (standard that requires some means of escape requires that exits be available for immediate use by employees).   To hold otherwise would cause employees attempting to escape from a fire to waste valuable time at locked and misleadingly labeled doors. For this reason, we hold that a door marked as an exit must comply with the standards for means   [*8]   of egress, even if it need not have been so marked.   See also sections 1910.37(q)(2) (prohibiting misleading "Exit" signs) and 1910.36(b)(2) (prevention of panic).   Cf. Schundler Co., 78 OSAHRC 9/E14, 6 BNA OSHC 1343, 1978 CCH OSHD P22,508 (No. 15548, 1978) (a discharged extinguisher need not be mounted but if it is mounted it must be charged). n3 Allegheny's argument that the Secretary must prove the existence of a hazard is also without merit.   The standard contemplates the existence of a hazard when its terms are not met.   See Vecco Concrete Construction, Inc., 77 OSAHRC 183/A2, 5 BNA OSHC 1960, 1977-78 CCH OSHD P22,247 (No. 15579, 1977).   Accordingly, we conclude that Allegheny failed to comply with 29 C.F.R. §   1910.37(k)(2).

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n3 Allegheny also argues, citing to Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1975), that by failing to define or show access to a "zone of danger" created by the alleged hazard the Secretary failed to sustain his burden of proof.   We reject this contention.   All of Allegheny's employees in the departure lounge would be affected by the fire exit violation in this case.

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II

We now turn to Allegheny's affirmative defense -- its claim of exemption. Section 4(b)(1) of the Act, 29 U.S.C. §   653(b)(1), states:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and state agencies acting under section 274 of the Atomic Energy Act of 1954 as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Our inquiry begins with an examination of the statutory and regulatory provisions of the other federal agency that are alleged to support exemption. See Northwest Airlines, Inc., 80 OSAHRC    , 8 BNA OSHC 1982, 1984, 1980 CCH OSHD P24,751 at p. 30,482 (No. 13649, 1980), pets. for review dismissed, Nos. 80-4218 & 80-4222 (2d Cir. Feb. 18, March 31, 1981).

Section 601(a), 49 U.S.C. §   1421(a), of the Federal Aviation Act of 1958, 49 U.S.C. § §   1301-1542 ("the Federal Aviation Act"), requires the Administrator of the Federal Aviation Administration ("the FAA") to "promote safety of flight of civil aircraft in air commerce"   [*10]   by issuing "rules and regulations, or minimum safety standards, . . . as the Administrator may find necessary to provide adequately for national security and safety in air commerce." The FAA Administrator is empowered to establish minimum safety standards for the operation of a certificated air carrier.   Section 604 of the Federal Aviation Act, 49 U.S.C. §   1424. See also section 313(a) of the Federal Aviation Act, 49 U.S.C. §   1354(a) (general rulemaking authority).   To prevent aircraft piracy, bomb threats, and other crimes aboard aircraft, the FAA proposed and adopted regulations under these provisions requiring certificated air carriers to "adopt and put into use a screening system, acceptable to the Administrator, that is designed to prevent or deter the carriage aboard its aircraft of any explosive or incendiary device or weapon . . . ." 37 Fed. Reg. 4904 (1972), adopting 14 C.F.R. §   121.538; 36 Fed. Reg. 19173 (1971) (proposal).   Sections 315(a) and 316(a) of the Federal Aviation Act, 49 U.S.C. § §   1356(a) and 1357(a), which were added to the Federal Aviation Act by the Air Transportation Security Act of 1974, Pub. L. 93-366, §   202, 88 Stat. 415 (1974), respectively [*11]   required the FAA Administrator to "prescribe or continue in effect reasonable regulations requiring that all passengers and all property intended to be carried in the aircraft cabin . . . be screened by weapon-detecting procedures or facilities," and to prescribe rules and regulations requiring "uniform procedures for the inspection, detention, and search of persons and property in air transportation."

At the time of the alleged violation, the FAA screening regulation, 14 C.F.R. §   121.538, stated in part as follows:

§   121.538 Aircraft security.

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(b) Each certificate holder shall adopt and put into use a screening system, acceptable to the Administrator, that is designed to prevent or deter the carriage aboard its aircraft of any weapon or incendiary device or weapon in carry-on baggage or on or about the persons of passengers . . . .   Each certificate holder shall immediately adopt and put into use its security program prescribed in paragraph (c) of this section.

(c) Each certificate holder shall prepare in writing and submit for approval by the Administrator its security program including the screening system prescribed by paragraph (b) of this section, and showing   [*12]   the procedures, facilities, or a combination thereof, that it uses or intends to use to support that program and that are designed to --

(1) Prevent or deter unauthorized access to its aircraft;

(2) Assure that baggage is checked in by a responsible agent or representative of the certificate holder;

(3) Prevent cargo and checked baggage from being loaded aboard its aircraft unless handled in accordance with the certificate holder's security procedures.

(4) Assure that only persons authorized under §   121.585(a) are permitted to have on or about their persons or property a deadly or dangerous weapon accessible to them while aboard any of its aircraft.

(d) Each certificate holder shall submit its security program to the Administrator. . . .

(e) Within 60 days after receipt of the program, the Administrator approves the program or notifies the certificate holder to modify the program to comply with the applicable requirements of this section.   The certificate holder may petition the Administrator to reconsider the notice to modify. . . .

(g) The Administrator may amend any screening system or any security program approved under this section upon his own initiative if he determines [*13]   that safety in air transportation (or in air commerce, in the case of a commercial operator) and the public interest require the amendment, or upon application by the certificate holder if the Administrator determines that the same considerations allow the amendment. . . .

(h) Each certificate holder shall at all times maintain and carry out the screening system prescribed by paragraph (b) of this section and the security program approved under paragraph (c) of this section. n4

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n4 37 Fed. Reg. at 4905; 37 Fed. Reg. 5254 (1972) (amendment of paragraph (b)); 37 Fed. Reg. 7150, 7151 (1972) (amendment of paragraph (g)); and 40 Fed. Reg. 17551, 17552 (1975) (addition of subparagraph (c)(4)).

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In accordance with this regulation, Allegheny submitted and received FAA approval of a security program.   Although the record does not contain the approved security program that was in effect at the time of the alleged violation, counsel for Allegheny represented to the judge that it was to the same effect as its security program   [*14]   that was approved on January 1, 1976.   That program calls for the establishment of a "sterile area." To be "sterile," an area must be free of "weapons, explosives or unidentified foreign objects," and persons entering the area must be "screened to preclude the introduction of weapons, explosives or other dangerous objects." The program also states:

1.   Sterile areas shall be properly controlled against unauthorized entrance.

2.   Persons in the area shall be physically separated from all others in a manner to prevent or deter the unauthorized entry or passage of any weapon or other dangerous device.

3.   Anyone who was screened and entered the sterile area but then exited from it to a public area for any reason shall be rescreened upon reentry.

4.   Inspection is required to reasonably ascertain that a sterile area is cleared of unauthorized personnel and dangerous objects each time it is put into operation following a period of noncontrol.

III

Judge Alfieri concluded that the doors of the passenger departure area, which he characterized as "working conditions," were exempt and vacated the item.   The judge found that FAA regulations covered the cited working conditions and that   [*15]   the regulations had a fundamental, not incidental, effect on the safety of Allegheny's employees.   He concluded that the FAA had the "authority to regulate safety and health working conditions in the subject departure area and does exercise that authority."

On review the Secretary argues that Judge Alfieri erred in several respects.   First, the Secretary submits that although the FAA regulation and security program protect Allegheny's employees against criminal violence, they were not intended as occupational safety and health measures, and therefore do not "affect" occupational safety or health within the meaning of section 4(b)(1).   He cites Fineberg Packing Co., 74 OSAHRC 14/E12, 1 BNA OSHC 1598, 1973-74 CCH OSHD P17,518 (No. 61, 1974). n5 Second, citing to Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 391 (5th Cir. 1976) ("Southern Pacific"), cert. denied, 434 U.S. 874 (1977), he argues that the FAA regulation and the security program do not apply to the cited working conditions because they do not address fire protection.   Third, the Secretary argues that the FAA regulation does not cover the cited working conditions (even if defined only in geographical [*16]   terms) and that if the security program does cover them, it is, for various reasons, not a "standard or regulation" within the meaning of section 4(b)(1).

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n5 In Fineberg Packing, the Department of Agriculture exercised its authority to assure the purity of meat produced in a packing facility by regulating sanitary conditions in the plant.   These regulations "affected" the conditions under which the packing plant employees worked.   The Commission denied the §   4(b)(1) exemption on the basis that any benefit to the employees' safety and health was purely fortuitous because the Department of Agriculture regulations did not address that objective.

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Allegheny contends that working conditions are exempt under section 4(b)(1) of the Act when another agency has issued regulations affecting those working conditions.   Citing to Southern Pacific and Southern Railway Co. v. OSHRC, 539 F.2d 335 (4th Cir.) ("Southern Railway"), cert. denied, 429 U.S. 999 (1976), Allegheny argues that "working conditions" is the [*17]   geographic or environmental area in which an employee works.   Allegheny also argues, citing to Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1973-74 CCH OSHD P16,881 (No. 1588, 1973), that to pre-empt the enforcement of the Act another agency need not exercise its authority over the working conditions at issue in the same manner that the Secretary has exercised his authority.   Addressing the Secretary's argument that the term "working conditions" includes the hazard encountered as well as the work location, Allegheny cites to the Fourth Circuit's Southern Railway decision and maintains that the Court rejected the Secretary's argument and found that the term "working conditions" was not limited to "particular, discrete hazards encountered by an employee in the course of his job activities." 539 F.2d at 339. Allegheny contends that it has proven a section 4(b)(1) exemption here because the FAA regulation and approved security program cover the cited working conditions, which it defines as the passenger departure area.

In its brief DOT contends that the FAA's approval of a security program it requires an airline to prepare constitutes an "exercise" of statutory [*18]   authority within the meaning of section 4(b)(1).   DOT does not argue whether the security program covers the same working conditions covered by the citation.

IV

To make out an exemption under section 4(b)(1) of the Act, an employer must demonstrate that (1) another federal agency has the requisite statutory authority to regulate the cited working conditions, and (2) the agency has exercised its statutory authority to regulate the cited working condition by issuing regulations that have the force and effect of law, are associated with some statutory mechanism for enforcement, and have the protection of occupational safety and health as a policy or purpose.   Northwest Airlines, 8 BNA OSHC at 1986, 1989, 1990, 1980 CCH OSHD P24,751 at pp. 30,485, 30,487. We hold, for the reasons that follow, that the FAA's regulations and Allegheny's security program do not cover the same working conditions as the cited occupational safety and health standard.   In light of our resolution of the "working conditions" issue, we do not address the other aspects of the section 4(b)(1) exemption.

The term "working conditions" must be construed in light of the purpose of the Act in general and of section [*19]   4(b)(1) in particular.   The purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" by, among other things, "encouraging employers . . . in their efforts to reduce the number of occupational safety and health hazards at their places of employment . . . ." Section 2(b)(1) of the Act, 29 U.S.C. §   651(1).   The purpose of the narrow exemption granted by section 4(b)(1) is to prevent duplication of, and yet leave no gaps in, federal regulation of occupational hazards. See Southern Railway, 539 F.2d at 339; Northwest Airlines, 8 BNA OSHC at 1990, 1980 CCH OSHD at p. 30,488, and cases cited therein.   No industry, including the air transport industry, is automatically exempt from the Act.   See Southern Pacific Transportation Co., 74 OSAHRC 83/A2, 2 BNA OSHC 1313, 1314-1315, 1974-75 CCH OSHD P19,054 at p. 22,786 (No. 1348, 1974), aff'd, 539 F.2d 386, 391 (5th Cir. 1975), cert. denied, 434 U.S. 874 (1977).

It would be illogical and inconsistent with Congress' intent to regulate all employment hazards to conclude that federal regulations directed at different occupational safety and health [*20]   hazards or problems, but which apply to the same workplace or equipment, are duplicative; this is particularly so if the other federal agency has not addressed or otherwise regulated the occupational hazard or problem that the citation issued by the Occupational Safety and Health Administration ("OSHA") addresses.   For example, OSHA standards requiring that toxic substances in ambient air not exceed certain levels cannot be said to be duplicative of regulations of another federal agency regulating machine guarding in the same room.

Although both the OSHA standard and the FAA regulatory scheme deal with the doors of this airport departure lounge, it cannot be said that they are in any sense duplicative.   The OSHA standard regulates fire protection; the FAA regulatory program regulates criminal violence.   Although FAA's regulatory program may literally "affect" the fire protection problem that the OSHA standard regulates, there is no evidence whatever that the FAA regulatory program was fashioned with the purpose of affecting fire protection. n6 To affirm this citation would create no duplication in federal regulation; to vacate the citation would create an unintended gap in fire safety [*21]   regulation through what may be no more than mere coincidence.

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n6 Amendments of and rulemaking proceedings relating to 14 C.F.R. §   121.538 that occurred after the alleged violation are not directly relevant here.   We nevertheless examined them to determine if the FAA Administrator considered fire safety matters when the regulation was subsequently amended.   We found no evidence that he had.   See 41 Fed. Reg. 10911 (1976); 41 Fed. Reg. 30106 (1976); 41 Fed. Reg. 47229 (1976); 41 Fed. Reg. 53777 (1976); 43 Fed. Reg. 24829 (1978). Had we found such evidence, we might have considered it more likely that the FAA Administrator had determined before the inspection in this case that fire safety conditions should go unregulated.

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Our view that the term "working conditions" includes a "hazards" or "problems" component is also consistent with the usual meaning of that term in other federal labor laws.   In Corning Glass Works v. Brennan, 417 U.S. 188 (1974), the Supreme Court construed the term "working conditions" as it was [*22]   used in section 3 of the Equal Pay Act of 1963, 29 U.S.C. §   206(d)(1). n7 Although the Court's discussion was premised largely on the legislative history and purpose of that statute (417 U.S. at 198), it is nevertheless instructive here.   The Court stated:

[T]he element of working conditions encompasses two subfactors: "surroundings" and "hazards".   "Surroundings" measures the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity, and their frequency.   "Hazards" takes into account the physical hazards regularly encountered, their frequency, and the severity of injury they can cause.   This definition of "working conditions" is . . . well accepted across a wide range of American industry.   [Footnotes omitted.]

417 U.S. at 202.

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n7 Section 3 of the Equal Pay Act states in part:

No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .

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Although we reject Allegheny's exclusive focus upon location (the passenger departure area), we also do not share the Secretary's narrow view that a section 4(b)(1) exemption exists only where a federal agency other than OSHA has affirmatively regulated the particular occupational safety or health hazard or problem.   In Consolidated Rail Corp., 81 OSAHRC    , 9 BNA OSHC 1258, 1262, 1981 CCH OSHD P25,172 at p. 31,081 (No. 78-3100, 78-4881 & 78-5805, 1981), the Commission held that another federal agency may preempt OSHA regulation by issuing a rule stating that particular working conditions should not be regulated. n8 This holding recognizes that because another federal agency may strike a different balance between various competing regulatory considerations, it may decide that an occupational safety or health hazard that it has statutory authority to regulate should go unregulated not only by it but also by the Secretary of Labor.   Our consistent position since Mushroom Transportation, that the stringency of the other agency's regulations is immaterial, is a corollary of this general principle.   [*24]   Inasmuch as the matter is one of the intent of the sister agency (Southern Pacific, 539 F.2d at 392), and inasmuch as there is no evidence here that the FAA intended to address fire safety at all, we cannot conclude that the FAA determined that fire safety should be subordinated to other considerations and go unregulated by the Secretary of Labor.

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n8 In Commissioner Cleary's view, the substance and not the form of what the agency has done is decisive.   He would find that another agency preempts OSHA when that agency articulates a formal position -- not necessarily in a formal rule -- that particular working conditions should not be regulated. See Consolidated Rail Corp., 81 OSAHRC    , 9 BNA OSHC 1258, 1262, 1981 CCH OSHD P25,172 at p. 31,081 - 31,082 (No. 78-3100, 78-4881, 78-5805, 1981) (dissenting opinion).

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This conclusion is reached against a backdrop of two distinct definitions of working conditions.   The Third Circuit in Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913 (3d Cir.   [*25]   1980) ("Columbia Gas") and the Fourth Circuit in Southern Railway held "working conditions" to mean the "environmental area in which an employee goes about his daily tasks." Southern Railway, 539 F.2d at 339; Columbia Gas, 636 F.2d at 916. The Fifth Circuit in Southern Pacific and the First Circuit in PBR, Inc. v. Secretary of Labor, No. 80-1376 (1st Cir. March 11, 1981 ("PBR"), have taken a different approach.   They viewed "working conditions" as including "both a worker's 'surroundings' and the 'hazards' incident to his work." Southern Pacific, 539 F.2d at 390; PBR, slip. op. at 10.

Our interpretation of "working conditions" is consistent with that in Southern Pacific and PBR.   A definition of working conditions must include a "hazards" component.   The purposes of the Act are best served by an approach that places emphasis on what the Act seeks to accomplish: "to reduce the number of occupational safety and health hazards at . . . places of employment. . . ." Section 2(b)(1) of the Act; 29 U.S.C. §   651(1).   See Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975). An interpretation of "working [*26]   conditions" that focuses on whether another agency has adopted a standard or regulation affecting the same place regulated by OSHA without inquiring into whether the same hazard or problem is regulated would not serve the congressional purpose.

While we disagree with the Fourth Circuit's view of the term "working conditions," we do not necessarily disagree with all aspects of the court's decision.   Our decision here and the court's decision have very different regulatory backgrounds.   The Southern Railway court considered the exemptive effect of the possible adoption by the Federal Railroad Administration of comprehensive regulations for railroad workplaces.   The court indicated that an exemption should be found when another agency's regulation of an area is so pervasive and intensive that the other agency's failure to regulate a hazard or problem indicates that the agency has determined that the hazard should go unregulated.   If there were a scheme of comprehensive regulation from which a decision not to regulate may be implied from the omission of a standard or regulation addressing a hazard or problem, we might well apply our holding in Consolidated Rail and conclude [*27]   that such an implied determination would be exemptive.   There is no such scheme here, however. n9

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n9 Because we hold that the FAA regulations do not apply to the cited working conditions, we need not reach the other issues raised by the parties, including the Secretary's contention that regulations designed to prevent hijacking are not occupational safety and health standards.

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Finally, some discussion is in order to respond to Allegheny's claim that there is an exemption here because the OSHA standard and the FAA-approved security program "are in direct conflict." First, this case does not present the conflict that Allegheny fears.   As our discussion of the standard's requirements indicates, and as the Secretary represents in his brief on review, there are steps that Allegheny could take to bring itself into compliance with this standard that do not require it to unlock the doors. Second, the Occupational Safety and Health Act provides a mechanism to resolve problems of "conflicting" federal regulations. Employers [*28]   may file with the Secrecary petitions for variances under section 6(d) of the Act, 29 U.S.C. §   655(d).

Accordingly, Allegheny has failed to carry its burden of establishing an exemption under section 4(b)(1).

V

We now turn to the alleged protective equipment violations.   Allegheny operates an air freight facility in a hangar at JFK airport.   According to a report made by a safety expert hired by Allegheny, freight weighing up to 50 pounds is stacked to heights of up to four feet.   Compliance officer Lind stated that Allegheny's customer service agent, MacVicar, told him that employees carry by hand cargo weighing up to 250 pounds. MacVicar testified that the cargo may be packaged in wood crates, metal containers or drums.   Lind testified that the freight area employees wore soft leather shoes that did not contain special toe protection.

Allegheny also employs at its JFK passenger terminal "ramp service" employees to load and unload its aircraft with baggage and freight that is stored at the freight facility.   Cordo, Allegheny's assistant customer service manager, testified that baggage and freight weigh up to 250 pounds and may be hand-carried by one or more ramp service employees.   [*29]   He also testified that when freight is to be loaded onto an aircraft, it is transported by vehicles and loaded with the assistance of a conveyor belt.   Ramp service employees lift the freight from the vehicle to the conveyor belt, a distance of one to two feet.   An employee in the three foot high cargo area of an aircraft stacks the freight while kneeling.   The unloading process is the exact reverse.   The compliance officer, Lind, testified that all but one of the ramp service employees wore shoes without special toe protection.   He also testified that Allegheny's injury records show that two ramp service employees suffered foot injuries when freight fell onto their feet; one of these employees suffered an injured toe.

In item 1 of the citation in Docket No. 14291, Allegheny was cited for failing to comply with 29 C.F.R. §   1910.132(a) n10 in that foot protection was not worn by its employees in the air freight department, where pieces of freight weighing up to 250 pounds were loaded.   Item 5 of the citation in Docket No. 14345 alleges that, contrary to section 1910.132(a), "personal protective equipment for the toes was not provided or used by ramp service employees" exposed to   [*30]   hazards that could cause injury to their toes.

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n10 The standard states:

§   1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

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The judge affirmed item 1 of the citation in Docket No. 14291.   In concluding that Allegheny recognized the hazardous condition the judge considered the weight of the freight to be loaded and unloaded and the fact that prior to being cited Allegheny suggested that work shoes be used and actually required their use.   The judge rejected Allegheny's [*31]   argument that it had no history of prior injuries that would have indicated a need for personal protective equipment.   Citing to Arkansas-Best Freight System, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976), he held that the presence of past injuries was unnecessary for a finding of noncompliance with 29 C.F.R. §   1910.132(a).   He found that Allegheny's efforts to require its employees to use work shoes did not support its case, and that it instead pointed up Allegheny's misconception of the proper type of foot protection.

In item 5 of the citation in Docket No. 14345, the judge, citing to The Budd Co., 74 OSAHRC 12/A2, 1 BNA OSHC 1548, 1973-74 CCH OSHD P17,387 (Nos. 199 & 255, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975), vacated that part of the item that would have required Allegheny to "provide" personal protective footwear, but he affirmed that part of the item alleging that protective footwear was not "used by Allegheny's ramp service employees who were exposed to hazards capable of causing injuries to their toes." The judge rejected Allegheny's contention that two recorded injuries is not sufficient to put an employer on notice of the existence of a hazard.

On the same [*32]   day that his decision was issued, Judge Alfieri received from Allegheny a motion to re-open the record to receive additional evidence regarding the foot protection items.   The motion asserted that the working conditions cited in those items were exempt under section 4(b)(1).   The judge subsequently denied the motion on the ground that Allegheny had not shown that the evidence it sought to introduce was newly discovered evidence that Allegheny could not have discovered earlier with the exercise of due diligence.

On review, Allegheny contends that the Secretary failed to make out a prima facie case because he did not demonstrate that the conditions in any of the three cited areas presented a hazard. Allegheny points to the lack of proof of recorded foot injuries resulting from the cited conditions and maintains that when the only evidence introduced by the Secretary is the testimony of the compliance officer, who was not familiar with airline freight operations and did not observe the facility in operation, the Secretary has failed to establish the existence of "hazard of processes." It cites Grayson Lumber Co., 73 OSAHRC 24/A11, 1 BNA OSHC 1234, 1971-73 CCH OSHD P16,171 (No.   [*33]   793, 1973).   Allegheny, citing to Cape & Vineyard Div. of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975) ("Cape & Vineyard"), argues that in order to make out a violation of 29 C.F.R. §   1910.132(a) the Secretary is required to show that a reasonably prudent person familiar with the circumstances of the airline industry would have protected against the hazard by requiring the use of special footwear. Allegheny also argues that the cited working conditions are exempt under section 4(b)(1) and that its argument, raised for the first time after the hearing, is timely because issues raised under section 4(b)(1) are jurisdictional and may be raised at any time.

In applying 29 C.F.R. §   1910.132(a), we inquire whether a reasonable person familiar with the circumstances surrounding an allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of protective equipment.   Owens Corning Fiberglas Corp., 79 OSAHRC 26/D6, 7 BNA OSHC 1291, 1295, 1979 CCH OSHD P23,509 at p. 28,491 (No. 76-4990, 1979), appeal filed, No. 79-2516 (5th Cir. June 26, 1979); OSCO Industries, Inc., 80 [*34]   OSAHRC    , 8 BNA OSHC 1799, 1980 CCH OSHD P24,689 (No. 76-2383, 1980).   Although industry custom and practice will aid in determining whether a reasonable person familiar with the circumstances and with any facts unique to the industry would perceive a hazard, they are not necessarily dispositive.   Owens Corning Fiberglas Corp., 7 BNA OSHC at 1295, 1979 CCH OSHD at p. 28,491; OSCO Industries, Inc., supra.

We find that evidence regarding the hazard of toe injuries while employees are in the cargo compartment of the aircraft is insufficient to establish the existence of a hazard to employees.   Inasmuch as Allegheny's employees stock freight in cargo holds while they are in a kneeling position, their toes are not vulnerable to falling freight. To the extent item 5 of the citation in No. 14345 applies to employees performing this task, it is vacated.

As to the remaining parts of the two items before us, we adopt the judge's findings and conclude that a person familiar with the unloading of freight in Allegheny's air freight facility would recognize that the hazard presented to both air freight and ramp service employees requires protective footwear.

In their testimony,   [*35]   both of Allegheny's witnesses and the compliance officer indicated that the possibility of being struck by falling freight weighing up to 250 pounds required that some form of foot protection be worn.   Allegheny's witnesses and the compliance officer differed in their perception of the type of footwear that would be required.   The record in this case, however, and Commission precedent, see McLean Trucking Co. v. OSHRC, 503 F.2d 8, 11 (4th Cir. 1974), indicate that the hazard here requires the use of safety toe footwear. Allegheny's reliance upon the absence or minimal number of recorded injuries is misplaced.   Evidence of this type has some relevance, but the Secretary is not required to prove a history of accidents in order to show that a hazard exists.   Lombard Brothers, Inc., 77 OSAHRC 155/B2, 5 BNA OSHC 1716, 1977-78 CCH OSHD P22,051 (No. 13164, 1977).   The employer's duty is to prevent the first accident.   Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d at 653. Accordingly, we hold Allegheny in violation of section 5(a)(2) of the Act for failing to comply with 29 C.F.R. §   1910.132(a). n11

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n11 Certain language in the First Circuit's Cape & Vineyard decision that is relied upon by Allegheny was applied by the United States Court of Appeals for the Second Circuit in American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978). The Second Circuit held that to find a violation of §   1910.132(a), we must find that "a reasonable man familiar with conditions in the airline industry would have instituted protective measures more elaborate than the precautions taken by [the airline]." 578 F.2d at 41. The First Circuit subsequently re-examined and clarified its Cape & Vineyard discussion in General Dynamics Corp. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979). In General Dynamics, the First Circuit, citing with approval our decision in S & H Riggers & Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir. June 7, 1979), stated that:

Cape & Vineyard must be read as holding that knowledge of the existence of a hazardous situation must be determined in light of the common experience of an industry, but that the extent of precautions to take against a known hazard is that which a conscientious safety expert would take.

General Dynamics Corp. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979). See also Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 CCH OSHD P23,860 (No. 76-2199, 1979), aff'd, 625 F.2d 1075 (3d Cir. 1980).

  [*37]  

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We decline to consider Allegheny's motion to reopen the record before the judge so that it may argue a claim of exemption under section 4(b)(1) of the Act with regard to the items alleging lack of foot protection.   We have held that section 4(b)(1) is not jurisdictional but exemptive and that the affirmative defense permitted by the section must ordinarily be raised at the hearing stage of the proceedings.   See Lombard Brothers, Inc., 5 BNA OSHC at 1717, 1977-78 CCH OSHD at p. 26,561; Crescent Wharf & Warehouse Co., 75 OSAHRC 35/E3, 2 BNA OSHC 1623, 1974-75 CCH OSHD P19,327 (No. 1672, 1975).   Allegheny has not properly raised this issue.   Although Allegheny timely and prominently raised in its answer an exemption defense with respect to the exit door violation, it did not do so with respect to the toe protection items.   Indeed, it expressly assured Judge Alfieri at the hearing that it would raise the exemption question only with respect to the exit door violation.   Moreover, not only did Allegheny fail to raise the exemption issue with respect to toe protection until after the hearing, it [*38]   raised the issue after it had filed its post-hearing brief and after the judge granted its motion to close the record to further argument before the judge "so that final disposition of this matter may proceed in a timely fashion."

It has been the consistent practice of this agency to require employers to timely raise and prove a claim that another federal agency has exercised authority over a cited condition.   The language and structure of the Act plainly support our view.   Section 4, 29 U.S.C. §   653, is entitled "Applicability of this Act." Section 4(a) contains a broad, general statement of coverage: The Act shall apply "with respect to employment performed in a workplace" in all or nearly all areas under the authority of the United States. n12 This broad statement of coverage is qualified by the language of the section immediately following, section 4(b)(1), which indicates the exceptions to the general rule of section 4(a).   Because one who claims the benefit of an exception has the burden of proving that his claim comes within it, see United States v. First City National Bank of Houston, 386 U.S. 361, 366 (1967); 2A Sutherland, Statutory Construction §   47.11   [*39]   (4th ed. 1973), we have held that an employer has the burden of proving that he is exempt from the Act.   Southern Pacific, 2 BNA OSHC at 1313 n.5, 1974-75 CCH OSHD at p. 22,785 n.5. Contra, Columbia Gas, 636 F.2d at 918.

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n12 Section 4(a) states:

Applicability of this Act.

Sec. 4 (a) This Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act, Johnston Island, and the Canal Zone.   The Secretary of the Interior shall, by regulation, provide for judicial enforcement of this Act by the courts established for areas in which there are no United States district courts having jurisdiction.

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Finally, it is not appropriate to remand this case to Judge Alfieri so that the affirmative defense (exemption) may be presented and, as Allegheny has put it,   [*40]   "a complete record may be developed for Commission review." We adopt Judge Alfieri's sound reasons for denying Allegheny's motion to re-open, and for bringing this matter to a close.

Accordingly, item 5 of the citation in Docket No. 14345 is affirmed in part and vacated in part.   Item 1 of the citation in Docket No. 14291 and item 9 of the citation in Docket No. 14345 are affirmed.

After considering the penalty factors set forth in section 17(j) of the Act, n13 we assess a penalty of $25 for item 5 and a penalty of $35 for item 9 of the citation in Docket No. 14345.

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n13 Section 17(j), 29 U.S.C. §   666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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SO ORDERED.