Docket No. 89-1764

SECRETARY OF LABOR,
Complainant,

AMR SERVICES COMPANY,
Respondent.

Docket No. 89-1764

ORDER

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

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

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

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: July 24, 1992

SECRETARY OF LABOR,
Complainant,

AMR SERVICES COMPANY, INC.,
Respondent.

OSHRC Docket No. 89-1764

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

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

DECISION AND ORDER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JURISDICTION

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

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies...exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

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

The phrase "exercise statutory authority" is the key to a determination of preemption. The Review Commission stated in an early case: "Once another Federal agency exercises its authority over specific working conditions, OSHA cannot enforce its own regulations covering the same conditions. Section 4(b)(1) does not require that another agency exercise its authority in the same manner or in an equally stringent manner." Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA OSHC 1390, 1392, 1973-74 CCH OSHD І 16,881 (No. 1588, 1973).

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

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

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

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

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

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

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

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

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

ї 121.135 Contents.

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

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

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

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

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

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

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

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

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

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

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

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

PROTECTIVE CLOTHING

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

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

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

ORDER

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

PAUL L. BRADY
Judge

FOOTNOTES:

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

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