Emery Air Freight Corporation

Plain-English summary

Emery cargo handlers rode unguarded elevator platforms on K-Loader trucks to reach aircraft cargo doors, exposing them to falls of more than 4 feet and as much as 13 feet. Emery argued that Federal Aviation Administration oversight displaced OSHA jurisdiction because the FAA had approved an airline loading manual. The Commission rejected that defense because the approval and incorporation cited by Emery occurred after the February 2000 violations. The parties agreed on review that Emery's later procedure was a feasible way to protect employees from the fall hazard. The Commission affirmed the serious general-duty-clause violations and assessed the agreed $7,000 penalty.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: The serious K-Loader fall-hazard violations were affirmed with a $7,000 penalty.
• Key point: Another agency's action does not preempt OSHA jurisdiction when the claimed exercise of authority occurred after the cited working conditions.

Full text (OSHRC public release)

Emery Air Freight Corporation, Docket No. 00-1475

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EN-US
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SECRETARY OF
LABOR,

Complainant,

v.

OSHRC
Docket No. 00-1475

EMERY AIR
FREIGHT CORPORATION,

Respondent.

DECISION

Before: RAILTON, Chairman; ROGERS and STEPHENS,
Commissioners.

BY THE COMMISSION:

Emery
Air Freight Corporation (“EAF”) operates a facility at the Dayton International
Airport in Vandalia, Ohio where it handles and sorts freight. Following an inspection
of EAF’s facility, the Occupational Safety and Health Administration (“OSHA”)
issued citations alleging several violations of the Occupational Safety and
Health Act (“the Act”). Most of the citation items were settled prior to the
hearing. At issue on review in Citation 2, Item 1a, instances (g) and (h), is
the allegation that Respondent violated section 5(a)(1) of the Act by exposing cargo handlers to fall hazards
when they use the elevator platforms on “K-Loader” industrial trucks to load
and unload freight from aircraft.

Before
the judge, EAF argued that under section 4(b)(1) of the Act, it was exempt from the Act’s
requirements here, specifically those of section 5(a)(1), because the Federal
Aviation Administration (“FAA”) exercised its authority over the cited working
conditions by formally approving the Aircraft Loading Manual of Emery Worldwide
Airlines (“EWA”), a separate business entity, and by incorporating the manual
into EWA’s operations specifications on June 20, 2000. The judge rejected EAF’s
preemption argument.

We
agree with the judge that preemption is not established. The Commission
evaluates an employer’s section 4(b)(1) argument “by considering (1) whether
the other federal agency has the statutory authority to regulate the cited
working conditions, and (2) if that agency has that authority, whether the
agency has exercised it over the cited conditions by issuing regulations having
the force and effect of law.” MEI Holdings, Inc., 18 BNA OSHC 2025,
2025, 1999 CCH OSHD ¶ 32,011, p.47,759 (No. 96-740, 2000), aff’d without
published opinion , 247 F.3d 247 (11th Cir. 2001). Here, there is no dispute
that the FAA has the statutory authority to regulate the cited working
conditions. The record, however, does not show that there was any preemptive
exercise of authority in effect at the time these alleged violations occurred,
the critical time for determining jurisdiction. See Joel Yandell ,
18 BNA OSHC 1623, 1999 CCH OSHD ¶31,782 (No. 94-3080, 1999). Instead, the
record establishes the opposite. The violations alleged in items (g) and (h)
occurred on February 23, 2000. Yet, the “exercise” EAF points to, the FAA’s
formal approval of EWA’s Aircraft Loading Manual and incorporation into EWA’s
operations specifications on June 20, 2000, took place after the cited conduct
occurred. We therefore find no basis for EAF’s section 4(b)(1) claim. Nor do we
see any reason to consider whether the FAA’s approval would have any future
effect. Our opinion on such matters would be an advisory one, which we decline
to give. See Secretary of Labor v. Contractors Welding of Western New York,
Inc. , 996 F.2d 1409, 1412 (2d Cir. 1993).

The
parties have resolved the other issue directed for review: whether the
Secretary met her burden under section 5(a)(1) of the Act of showing that there
was a feasible means of protecting employees working on the K-Loader from fall
hazards alleged in instances (g) and (h) of Citation 2, Item 1a. In their
briefs on review, they now agree that the procedure adopted by EAF after the
OSHA inspection is a feasible method of abatement. Because there is no longer any dispute
that there was a feasible means to abate the cited fall hazard, we affirm
instances (g) and (h).

ORDER

Accordingly, we affirm the judge’s rejection of EAF’s
section 4(b)(1) preemption argument. We affirm instances (a), (c), (g), (h),
(k), (l) and (n) of Citation No. 2, Item 1a, as

serious violations of section 5(a)(1) of the Act. A penalty of $7,000, as agreed upon in
the parties’ November 20, 2001 settlement agreement, is assessed.

/s/___

W.
Scott Railton

Chairman

/s/_____

Thomasina
V. Rogers

Commissioner

/s/____

James
M. Stephens

Dated:
September 14,
2004                                                      Commissioner

Secretary of Labor,

Complainant,

v.

OSHRC Docket No. 00-1475

Emery Air Freight Corporation,

Respondent.

APPEARANCES

Kevin
Koplin, Esq.                                                       William
K. Principe, Esq.

Office
of the Solicitor                                     
          Constangy, Brooks
& Smith, LLC

U.
S. Department of
Labor                                           Atlanta,
Georgia

Chicago,
Illinois                                                                          For
Respondent

For
Complainant

Before: Administrative Law Judge Ken S. Welsch

DECISION AND
ORDER

Emery
Air Freight Corporation (Emery) operates freight handling and sorting services
for Emery Worldwide Airlines at a facility adjacent to the Dayton International
Airport, inVandalia, Ohio. In January, 2000, the Occupational Safety and Health
Administration (OSHA) inspected Emery’s operation. As a result of the
inspection, Emery received citations on July 19, 2000, which were timely
contested.

Prior
to hearing, the parties filed partial settlement agreements dated November 20
and October 5, 2001, settling most of the citations, which are approved and
incorporated into this decision. The unresolved issues were heard on November
20, 2001, in Dayton, Ohio. Emery stipulated that it is an employer engaged in a
business affecting commerce within the meaning of the Occupational Safety and
Health Act (Act) (Tr. 6).

The
unresolved issues involve willful Citation No. 2, item 1a, instances (a), (c),
(g), (h), (k), (l), and (n), which allege a violation of § 5(a)(1) of the Act
for exposing cargo handlers to fall hazards while using a K-Loader in loading
and unloading freight from aircraft. The specific instances contested by Emery
allege in instance (a) that cargo handlers standing on the fold-down front
platform flaps on the bridge were exposed to falls in excess of 10 feet; in
instance (c) that cargo handlers unloading cargo onto a K-Loader were exposed
to 15-foot fall because of a 12-inch gap between the bridge and cargo door; in
instance (g) that cargo handlers riding the elevator platform down without
standard guardrails on all open sides were exposed to a fall hazard in excess of
4 feet; in instance (h) that cargo handlers riding the elevator platform up
without standard guardrails on all open sides were exposed to a fall hazard in
excess of 13 feet; in instance (k) that cargo handlers were exposed to a fall
of 15 feet because the standard guardrail on the left side of the loader did
not extend to protect the 25-inch opening between the rail and left side of the
plane; in instance (l) that cargo handlers removing freight were exposed to a
15-foot fall without guardrails; and in instance (n) that cargo handlers were
exposed to a 15-foot fall while loading freight without standard guardrails.

Emery
asserts that OSHA’s jurisdiction over the use of K-Loaders is preempted by the
Federal Aviation Administration (FAA), pursuant to § 4(b)(1) of the Act. If
found not preempted, Emery also argues that instances (g) and (h) of Citation
No. 2, item 1a, regarding cargo handlers riding the elevator platform on the
K-Loader to access the aircraft’s cargo area, do not violate § 5(a)(1) of
the Act because the abatement measures recommended by OSHA are not feasible.

According
to the parties’ settlement agreement dated November 20, 2001, if instances (a),
(c), (g), (h), (k), (l) and (n) are not found preempted by FAA’s jurisdiction,
and instances (g) and (h) are found to be violations of § 5(a)(1) of the Act,
the parties agree that Citation No. 2, item 1a, is reclassified to a serious
violation with a penalty of $7,000 (Tr. 4-5).

For
the reasons discussed, OSHA’s jurisdiction is not preempted by the FAA and
instances (g) and (h) are violations of § 5(a)(1) of the Act.

The K-Loader
Operation

Emery
handles and sorts freight for Emery Worldwide Airlines at a facility adjacent
to the Dayton International Airport in Vandalia, Ohio. Emery Worldwide is the
FAA certificate aircraft carrier. Freight arriving at the Dayton facility is
unloaded, sorted, and reloaded by Emery onto aircraft for distribution
throughout the United States. The Dayton facility operates 24 hours a day, 7
days a week (Tr. 22, 55, 87-88, 191).

Emery
employs approximately 2,500 cargo handlers. On average, 55-60 aircraft pass
through the Dayton facility daily. The majority of the loading and unloading
activities occur during “prime time,” which is between midnight and 5:30 a.m.
(Tr. 61-62, 145, 190-191).

Freight
carried by aircraft is in standardized containers referred to as unit loading
devices (ULDs). To load and unload the ULDs from aircraft, Emery uses an
industrial truck referred to as a K-Loader. Emery has approximately 38
K-Loaders at the facility. The K-Loader is approximately 8-10 feet wide and
24-36 feet long. The K-Loader has two adjacent, independently controlled
platforms referred to as the “bridge,” which is positioned at the aircraft’s
cargo door, and the “elevator,” which is behind the bridge, used to raise and
lower ULDs from the ground to the bridge. The floor of the platforms has
powered bi-directional conveyor rollers which mechanically move the ULDs across
the platforms. The ULDs are then moved into or from the aircraft’s cargo area.
Both platforms can be raised to a height of 15 feet (Exhs. C-1, C-4, C-5, R-19;
Tr. 22-23, 55-56, 97, 99-100, 189-190).

The
ULDs are loaded or unloaded from the K-Loader, 2 to 4 at a time, depending on
the size of the K-Loader. Tug trucks, typically with 3-5 dollies, transport the
ULDs to and from the K-Loader to or from the sorting center. The ULDs are
loaded onto or unloaded from the K-Loader’s elevator platform, which can be
lowered close to the ground (Tr. 69-71).

Moving
the ULDs to and from the aircraft’s cargo area is performed by a crew of
approximately 5 cargo handlers and 2 supervisors on the ground. A crew
typically loads and unloads a total of 7 aircraft per shift (Tr. 37, 201-202).

The
operation of the K-Loader, including raising or lowering the elevator and
bridge platforms, is performed from the operator’s control panel located on the
bridge, which at its lowest level is approximately 6 feet above the ground. The
bridge platform contains a fixed, telescoping metal ladder on the side where
the operator’s station is located. The K-loader operator climbs the ladder to
access the operator’s station and then drives the K-loader into position at the
aircraft. Opposite the operator’s station, there is a guardrail along the
bridge platform which extends toward the aircraft’s fuselage. There are no
guardrails along the sides of the elevator platform (Tr. 59-60, 81, 83-84, 90).

Once
the K-loader is positioned next to the aircraft’s cargo door, Emery’s cargo
handlers accessed the cargo area by standing on the unguarded elevator
platform, which raised them approximately 13 feet, level with the bridge
platform and cargo door. After OSHA’s inspection, the cargo handlers were
raised on the elevator platform to the level of the bridge platform at its
lowest point (approximately 6 feet above the ground). The cargo handlers then
crossed to the bridge platform, which was raised to the level of the cargo door
(Exh. C-9A; Tr. 35-36, 82-83).

OSHA
initiated its inspection of Emery’s operation on January 19, 2000, after
receiving a referral complaint. OSHA safety and health compliance officer Gaye Johnson observed
Emery’s cargo handling operation with the K-Loader on January 23, 2000, for
approximately 2 hours (Exh. C-8; Tr. 22, 33-34). Johnson observed on two
occasions 4 cargo handlers ride the elevator platform (Tr. 34-35). On one
occasion, Johnson saw 4 cargo handlers ride the elevator up to a height of 13
feet (Exh. C-9a; Tr. 35-36). On another occasion, she observed cargo handlers
standing at the edge of the elevator platform at a height in excess of 5 feet
as the platform was lowered to the ground (Exh. C-9e; Tr. 37-38). In both
situations, the elevator platform was unguarded and the cargo handlers were not
protected by any form of fall protection (Tr. 38-39). Based on her
observations, Johnson recommended a citation for violation of § 5(a)(1) of
the Act, referred to as the general duty clause, for failing to provide fall
protection.

Discussion

Preemption - § 4(b)(1) of the Act

Emery
argues, pursuant to § 4(b)(1) of the Act, that OSHA’s jurisdiction is preempted
by the FAA because the safe use of the K-Loader is addressed in an “Aircraft
Loading Manual,” which was “accepted” and later “approved” by the FAA. Emery
asserts that the Manual regulates the safety and health, including fall
protection, of its cargo handlers involved in using the K-Loaders when loading
and unloading freight.

The
“Aircraft Loading Manual” prepared by Emery Worldwide Airlines contains a
single reference, pertinent in this case, to K-Loaders. It states:

No GSE [ground service equipment] should touch the aircraft. All
beltloaders, stairs, racks/K-Loaders should be positioned 2 inches from the
fuselage--no more, no less. The loading/offloading operation will be much more
efficient/expeditious/safe if the GSE is positioned according to the above
procedure.

(Exhs.
R-1 and R-1a, Ch. 11, p. 11-8).

The Manual does not specifically address fall
protection or the use of the elevator platform to access the aircraft’s cargo
hold.

Section
4(b)(1) of the Act provides:

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 and health.

To
preempt OSHA’s jurisdiction by another Federal agency’s authority, an employer,
as an affirmative defense, must show that (1) the other Federal agency
possesses the statutory authority to regulate the working conditions cited by
OSHA, and (2) that agency has exercised its authority over the cited conditions
by issuing regulations having the force and effect of law. MEI Holdings,
Inc., d/b/a Martin Electronics, Inc., 18 BNA OSHC 2025 (No. 96-740, 2000), aff’d .
without published opinion (11th Cir. 2001).

FAA’s Statutory Authority

The
FAA’s authority to regulate airline practices, methods, and procedures, including
ground services such as Emery, is derived from § 44701(a)(5) of the Federal
Aviation Act of 1958, 49 U.S.C. § 44701(a)(5), which allows the FAA
Administrator to issue regulations and minimum standards necessary “for safety
in air commerce and national security.” The Review Commission recognizes that
“safety in air commerce” includes the authority to regulate “the ground safety
of airline personnel who are an integral part of air commerce.” Northwest
Airlines, Inc ., 8 BNA OSHC 1982, 1989 (No. 13649, 1980) (OSHA regulations
do not apply to working conditions of maintenance employees involved in
servicing aircraft landing lights because of FAA’s approval of a maintenance
manual pursuant to its authority to promulgate rules governing “safety in air
commerce”).

By
regulation, the FAA requires that “[e]ach certificate holder shall prepare and
keep current a manual for the use and guidance of flight, ground operations,
and management personnel in conducting its operations.” 14 C.F.R. § 121.133(a).
Emery Worldwide Airlines is the certificate holder (Exh. R-1B). The manual
required by § 121.133(a) must meet the requirements of § 121.135, which
“include instructions and information necessary to allow the personnel
concerned to perform their duties and responsibilities with a high degree of
safety” and is to include “other information or instruction relating to
safety.” Section 121.137(a) provides that copies of the manual required by §
121.133 are to be provided by the certificate holder to “[i]ts appropriate
ground operations and maintenance personnel.” Emery performs ground freight
handling operations for Emery Worldwide Airlines.

The
“Aircraft Loading Manual” was prepared by Emery Worldwide Airlines pursuant to
this authority. The unresolved issues involve the Manual’s force and effect in
law and the working conditions covered.

The Manual’s Force and Effect in Law

A
manual prepared by an employer, to preempt OSHA’s jurisdiction, must have the
force and effect of law and must cover the same working conditions as addressed
by OSHA. The Review Commission has found that in order to have sufficient force
and effect of law to preempt OSHA jurisdiction, the manual must be required and
approved by the FAA. In Northwest Airlines, Inc., supra , the
Review Commission concluded that a maintenance manual, which established a
procedure for locking out wing flaps while an employee is changing the landing
lights, has the force and effect of law because the manual was required by the
FAA, “subject to FAA disapproval,” and included provisions designed to further
the safety of personnel. Id . at 1993. In an interpretation letter to
Senator Arlen Specter, dated November 14, 1990 (Attach. G to Emery’s Motion for
Partial Summary Judgment), OSHA acknowledged that its jurisdiction is limited
to a significant degree by the regulatory authority of the FAA and notes that
because the Review Commission ruled “OSHA may not enforce its standards for
airline ground crews, such as baggage handlers, mechanics, and others, if the
working conditions in question are addressed in an FAA-approved maintenance or
operations manual,” OSHA “may issue citations only for those hazards which are
not addressed in an FAA-approved manual.” Also, see American
Airlines, Inc. , 9 BNA OSHC 1415 (No. 78-918, 1981) (OSHA precluded from
citing the same working conditions which are contained in an FAA-approved
maintenance manual dealing with identical hazards).

Other
manuals prepared by airline employers have not been found to have the force and
effect of law. In American Airlines, Inc ., 17 BNA OSHC 1552, 1554 (No.
93-1817 and 93-1965, 1996), the Review Commission concluded that American’s
“General Procedures Manual” did not have the force and effect of law required
to preempt OSHA. The Commission stated:

In sum, the FAA only requires the airlines to prepare ground operations
manuals. As these manuals are not subject to FAA approval or disapproval, their
safety provisions lack the force and effect of law necessary to constitute an
exercise of regulatory authority preempting OSHA.

It is noted that American’s “General Procedures
Manual” required, among other things, that “platform safety rails are in place”
on mobile work platforms used by aircraft maintenance crews. As in this case,
American argued that its Manual is the equivalent of an FAA requirement. The
Review Commission rejected American’s argument. The FAA, in an amicus brief ,
stated that “ground operations manuals do not have acceptable or approved
status pursuant to the pertinent FAA regulations; only maintenance manuals have
such status.” The FAA informed the Commission that:

[A]n air carrier has complied with FARs 121.133 and 121.135 by having
the required manual(s) and the proper operating procedures in the manual(s).
These FARs [Federal aviation regulations] do not contain a federal regulatory
requirement that air carrier personnel conduct their operations according to
the personnel safety procedures in the manual(s).

(Exh.
C-14).

Also,
in an earlier case, the FAA’s Deputy Associate Administrator, by affidavit,
stated before the Review Commission that the FARs require air carriers only to
prepare and maintain operations manuals; the FARs do not require air carriers
or their personnel “to conduct their operations according to the procedures in
the manual.” He also stated that “failure to follow manual procedures relating
only to the safety of an employee engaged in ground operations is not a
violation of the FARs” (Exh. C-13).

In
this case, the “Aircraft Loading Manual” used by Emery was reviewed and
accepted by the FAA’s Flight Standards District office on August 1, 1998, with
a statement that the “instructions and information contained therein [are]
sufficiently adequate to allow affected personnel to perform their duties and
responsibilities with a high degree of safety” (Exh. R-6). On June 20, 2000,
the FAA’s Flight Standards District office approved Revision 8 of the Manual,
after the OSHA inspection, but before the issuance of the citation. The Manual was at that time incorporated into Emery Worldwide
Airlines’ Operations Specifications (Exhs. R-7, R-13B, pp. 24-27; Tr. 220-221,
224). Prior to June 20, 2000, the Manual was not part of the Operations
Specifications (Exh. R-13B, pp. 46-47). Pursuant to 14 C.F.R. § 119.5(g), air
carriers must comply with operations specifications issued to them by the FAA.

Former
FAA Principal Operations Inspector Vonderschmidt testified that the FAA had a
regular presence at Emery’s Dayton facility during the time of OSHA’s
inspection. He stated that as many as 6 FAA inspectors, both maintenance and
operations inspectors, were present on a regular basis to ensure compliance (Exh. R-13B, pp. 12, 15-16, 18). Vonderschmidt testified that there is
little difference between acceptance and approval of a manual in terms of an
airlines’ obligation to comply (Exh. R-13B, p. 45). He also testified that his review
and approval of Revision 8 on June 20, 2000, did not involve the operation of
the K-Loader (Exh. R-13B, pp. 46, 67-68). According to Vonderschmidt, if Emery
failed to comply with the “Aircraft Loading Manual,” the FAA inspector would
first discuss the non-compliant activity with the employee. If non-compliance
continued, which in his experience never happened, Vonderschmidt stated that
the certificate holder, Emery Worldwide Airlines, would have to get the
contractor to comply or find a new contractor. Also, the FAA could issue a
Letter of Investigation with proposed penalty or remove the Manual from the
Operations Specifications, which would mean cargo could not be loaded or
unloaded (Exh. R-13B, pp. 28-31, 40-41).

Vonderschmidt’s
testimony is supported by Emery Worldwide Airlines’ Director of Quality
Assurance, James Owens, who testified that Emery’s cargo handlers are required
to comply with the “Aircraft Loading Manual.” The FAA would not allow Emery’s
cargo handlers to load or unload freight contrary to the Manual (Tr. 219,
225-227, 257-258). It is Owens’ understanding that an “accepted” manual is
binding with respect to the FAA Flight District Office who has oversight
responsibility for the certificate holder and its contractors while an
“approved” manual is binding by all FAA Flight District Offices (Tr. 230-232).

The
record in this case fails to support Emery’s claim that its “Aircraft Loading
Manual” has the force and effect of law. The Manual is an operations manual similar
to the “General Procedures Manual” in American Airlines, Inc ., 17 BNA
OSHC at 1554, which the Review Commission found lacked the force and effect of
law.

FAA
Director of Flight Standards Service Nicholas Sabatini, in an affidavit, states
that the FAA has no enforceable regulations pertaining to ground cargo handling
personnel involving “[g]uard rails or fall protection on conveyor belt loaders
and K-Loaders” when loading or unloading aircraft. He also states that “[t]he
FAA has not issued any Administrative Procedures Act rule asserting any nexus
between the health or safety of a ground cargo holding person in the conduct of
his or her work and aviation safety.” He concludes that the FAA cannot enforce
the provisions in the air carrier loading manual dealing with “guard rails or
fall protection on conveyor belt loaders and K-Loaders” (Exh. C-11).

The
Review Commission “gives considerable weight to a Federal agency’s
representation as to its authority to regulate cited working conditions.
However, the Commission independently reviews the statutory and regulatory
provisions at issue, as well as the evidence, to determine whether that view is
reasonably supported by the record.” JTM Industries, Inc ., 19 BNA OSHC
1697, 1699 (No. 98-0030, 2001).

The
acceptance and approval of an “Aircraft Loading Manual” by an FAA Flight
Standards District office does not independently confer legal status on the
Manual that is not otherwise enforceable. American Airlines, Inc. , 17
BNA OSHC at 1554, n. 2 (evidence “regarding the FAA’s treatment of the manual
during investigations and enforcement activities” need not be addressed because
the manual lacks force and effect of law). “The Commission does not oversee the
adequacy of another agency’s enforcement efforts.” Northwest Airlines, Inc .,
8 BNA OSHC at 1990. Since the FAA has not issued any rule asserting a nexus
between the health and safety of cargo handlers and aviation safety, the Manual
provisions regarding K-Loaders do not have the force and effect of law. Emery’s
interpretation of the information published by the FAA is contradicted by the
plain language of the text and has been officially repudiated by the FAA (Exh.
C-11).

Also,
the record fails to show a single instance of an FAA enforcement action for
failure to follow an operations manual, as opposed to a maintenance manual. The
one letter of FAA investigation produced by Emery relates to a failure by a
ground handling contractor to maintain a current “Aircraft Loading Manual,”
rather than a failure to follow the manual (Exh. R-11). This is consistent with
FAA regulations merely requiring that such a manual be developed and
maintained. Without a rule and an FAA finding of a nexus to aviation safety,
the FAA cannot enforce the Manual dealing with fall protection on the K-Loader.

The
testimony of Vonderschmidt regarding an airline’s legal obligations under the
Manual is given little weight. His testimony is confusing as to the FAA’s
responsibility with regard to the safety of cargo handlers and the operation of
the K-Loader. Vonderschmidt had worked for the FAA as an inspector for less
than 4 years, and he personally did not conduct ramp inspections (Exh. R-13B,
pp. 6, 69-70). He made clear that the FAA’s primary responsibility was the
safety of the aircraft, and only secondarily the safety of cargo handlers
entering and exiting the aircraft (Exh. R-13B, p. 49). Further, it is noted
that the FAA enforces its regulations by inspecting FAA certified air carriers.
Emery did not hold the FAA certificate, was not an air carrier, and was not the
subject of FAA enforcement activity. Emery Worldwide Airlines held the FAA
certificate and was subject to FAA jurisdiction and enforcement action (Exh.
R-13B, p. 48; Tr. 252-253).

Working Conditions

Even
if the “Aircraft Loading Manual” has the force and effect of law, the Manual
fails to cover the same working conditions addressed by the OSHA citation.
Preemption from OSHA jurisdiction is found only if the working conditions at
issue are covered by the other agency. The other agency’s safety standards need
not be similar or as equally stringent in order to preempt OSHA. The Review Commission
stated in Consolidated Rail Corp ., 16 BNA OSHC 1033, 1035 (Nos. 91-3133
and 91-3134, 1993), that word-for-word similarity between the OSHA requirements
and the requirements by another agency is not required.

The
other agency’s standards must be shown to affect the safety of employees. The
Supreme Court in Secretary of Labor v. Mallard Bay Drilling, Inc ., 122
S.Ct. 738, 19 BNA OSHC 1721 (No. 00-927, 2202), states:

Congress’ use of the word ‘exercise’ makes clear that . . . mere
possession by another federal agency of unexercised authority to regulate
certain working conditions is insufficient to displace OSHA’s jurisdiction.
Furthermore, another federal agency’s minimal exercise of some authority over
certain conditions . . . does not result in complete pre-emption of OSHA
jurisdiction, because the statute also makes clear that OSHA is only pre-empted
if the working conditions at issue are the particular ones ‘with respect to
which’ another federal agency has regulated, and if such regulations ‘affect
occupational safety or health.’

The
issue, in this case, is whether OSHA’s general duty clause violation for lack
of guardrails to prevent falls is preempted by the requirement in the “Aircraft
Loading Manual” used by Emery to locate the K-Loader no more, or less, than 2
inches from the aircraft’s fuselage. In essence, are the same working
conditions cited by OSHA covered by the Manual?

The
Supreme Court in Mallard Bay Drilling Inc. , id. at 1723 fn. 7,
recognizes at least two approaches used by courts in defining “working
conditions” -- a “hazard-based” approach and an “area-based” approach.

A “hazard-based” approach, which the Secretary of Labor endorses,
focuses on “the particular physical and environmental hazards encountered by an
employee” on the job. Brief of Petitioner 24; see, e.g. Donovan v. Red Star
Marine Services, Inc. , 739 F.2d 774, 779-780 (CA 2 1984). In
contrast, an “area-based” approach defines “working conditions” as the “area in
which an employee customarily goes about his daily tasks.” Southern R. Co.
v. Occupational Safety and Health Review Comm’n , 539 F.2d 335, 339 (CA 4
1876).

Although
the Supreme Court did not have to choose between the approaches in the Mallard
Bay Drilling case, it is clear that if the “Aircraft Loading Manual” used
by Emery is directed at the employee’s surroundings or hazards, expressed
either as a location or a specific item, OSHA coverage may be displaced. The
Commission defines working conditions “in terms of the environmental area in
which -- employees go about their work, their surroundings, or the hazards to
which they may be exposed. Consolidated Rail Corp ., 16 BNA OSHC at
1036-1037.

The
“Aircraft Loading Manual” is used by Emery’s cargo handlers when loading or
unloading freight from aircraft. As noted previously, in accepting the Manual
on August 1, 1998, the FAA described the manual as providing “instructions and
information contained therein sufficiently adequate to allow affected personnel
to perform their duties and responsibilities with a high degree of safety”
(Exh. R-6).

With
regard to the operation of the K-Loader, the Manual, in pertinent part, states
that when an aircraft lands and is ready to be off loaded:

No ground support equipment should touch the aircraft. All beltloaders,
stairs, racks/K-Loaders should be positioned 2 inches from the fuselage--no
more, no less. The loading/offloading operations will be much more efficient,
expeditious, safe if the ground support equipment or GSE is positioned
according to the above procedure.

(Exh.
R-1; Chapter 11, p. 11-8)

The
Manual’s principal concern involves maintaining the integrity of the aircraft’s
fuselage, not the safety of cargo handlers. The working conditions preempted by
the FAA is the aircraft’s safety and integrity, which includes the proper
weight and balancing of cargo in the cargo hold and the entering and exiting of
the aircraft. Such working conditions do not extend to the use and operation of
the K-Loader, except as to its location at the aircraft. The Manual does not
describe the procedure cargo handlers use to access the cargo hold to load and
unload freight. It is silent and thus not approved by the FAA. The Manual does
not address riding the elevator platform, the bridge platform, or the use of
fall protection. The FAA inspections did involve the use of the elevator
platform by cargo handlers to access the cargo hold. The inspections were to
assure that the K-Loader was positioned to avoid damaging the aircraft’s
fuselage (Exh. R-13; Tr. 246-247, 250). Vonderschmidt explained that the
Manual’s 2-inch provision was intended primarily to protect the aircraft. The
safety of employees in crossing from the bridge platform to the aircraft’s
cargo area was only incidental and secondary to the FAA’s primary concern of
maintaining aircraft integrity (Exh. R-13B, pp. 49, 52, 62). Although he stated
that Emery was required to comply with the 2-inch provision (Exh. R-13B, pp.
18-19), Vonderschmidt also stated that:

An accepted manual has a little leeway inasmuch as what they can say. As
we’re looking in this -- this thing that I was handed, where the guardrails or
fall protection or conveyor belt, K-loaders, machine guards or conveyor belt
K-loaders, we have nothing to do with that as far as the FARs are concerned.

These are -- this -- this is wording; not this is wording, but -- but
wording can put -- be put in there by the -- operator themselves on how the
K-loader can be used, how it’s -- how fast it’s to be driven and so forth and
so on. That has nothing to do with the FAA.

Our--our main thrust is the safety of the aircraft, so--so when the
airplane takes off there--there’s no problem.

(Exh.
R-13B, pp. 63-64).

In
other words, an airline employer is permitted to freely establish its own
working instructions for employees handling cargo, and as long as it does not
affect the safety of the aircraft, the FAA is not involved. The principal
purpose of the 2-inch provision is to prevent damaging the aircraft. The
working conditions addressed in the Manual involve the aircraft, not the safety
of cargo handlers on the K-Loader.

In
Citation No. 2, item 1a, the various instances involve alleged failure to
protect employees from fall hazards resulting from employees’ use of K-Loaders.
The Manual does not address the safety of cargo handlers except as incidental
to the 2-inch provision. The unsafe conditions cited and abatement differ from
the placement of the K-Loader. The placement of the bridge 2-inches from the
airplane does not protect employees who are riding on the elevator platform
without fall protection

Emery’s
§ 4(b)(1) preemption argument is rejected.

ALLEGED
VIOLATIONS

Section 5(a)(1) - General Duty Clause
Violation

To
establish a violation of § 5(a)(1) of the Act, the Secretary must prove that
(1) there was an activity or condition in the employer’s workplace that
constituted a hazard to employees, (2) either the cited employer or its
industry recognized that the condition or activity was hazardous, (3) the
hazard was causing or likely to cause death or serious physical harm, and (4)
there were feasible means to eliminate the hazard or materially reduce it. Beverly
Enterprises, Inc., 19 BNA OSHC 1161, 1168 (Nos. 91-3144, 92-238, 92-819,
92-1257, 2000).

Instances
(g) and (h) of the citation allege that cargo handlers were riding the elevator
platform without fall protection. The facts are undisputed. Four cargo handlers
were observed riding the unguarded elevator platform of the K-Loader to
approximately 13 feet, level with the cargo door, and riding it down to the
approximate 5-foot level (Exhs. C-8, C-9). The cargo handlers were standing
near the unguarded edge of the platform and exposed to a fall hazard. The cargo
handlers were not protected by any form of fall protection.

Emery
Worldwide Airlines’ corporate safety and health director John Butler testified
that Emery has used the K-Loader for 14 years without an accident as a result
of an employee’s fall (Tr. 78). CO Johnson confirmed that in reviewing
hundreds of Emery’s accident reports for a 2-year period, she did not find any
accidents involving the use of the elevator platform to access the bridge (Tr.
130-131).

Despite
the lack of accidents, a fall in excess of 13 feet to a concrete runway from an
open-sided platform is clearly a hazard that could cause serious injury. There
is no dispute that a fall from heights in excess of 5 feet is likely to cause
serious physical harm. Emery Worldwide’s safety director admits that a fall
from the elevator platform at a height of even 6 to 7 feet constitutes a
serious hazard (Tr. 92-93). Also, it is noted that the elevator platform is
uneven with rollers and contains numerous pinch points which could cause injury
to employees riding on the platform (Exh. C-1, warning in Emery’s safety
video). The lack of injuries is not dispositive of whether employees are exposed
to an unsafe condition. ConAgra Flour Milling Co., 16 BNA OSHC 1137,
1150 (No 88-1250, 1993), rev’d. in part on unrelated grounds , 25 F.3d
653 (8th Cir. 1994).

A
recognized hazard, as required by § 5(a)(1), is defined in terms of preventable
consequence of the work operation. Morrisson-Knudson Co./Yonkers Contracting
Co., A Joint Venture, 16 BNA OSHC 1105, 1121-22 (No. 88-572, 1993). The
fall hazard involving the K-Loader is recognized by Emery in its “Your Safety”
video prepared prior to the OSHA inspection (Exh. C-1). The training
instruction with “Your Safety” video specifically prohibits riding the elevator
platform. It states that “[n]o one may ride the elevator of a K-Loader, riding
the elevator is prohibited and as a K-Loader operator it’s your responsibility
to make sure there are no passengers on the elevator of the machine you are
operating” (Exh. C-2). Also, written safety materials prepared by Emery
prohibit employees from riding the elevator platform (Exhs. C-3, C-4). Emery’s
“K-Loader Operations Facilitator’s Guide,” in a test given to trainees, states
as true that “ramp workers must never ride the elevator of the K-Loader” (Exh.
C-3, p. 2 of 3). The training materials on the safe operation of the K-Loader
were developed in 1999 and new cargo handlers were trained with the material in
early 2000 (Tr. 57, 59).

Also,
the manufacturer’s manual for the K-Loader warns that “[t]he Commander 15 is
not designed for use as a transporting vehicle. Any attempt to use it for operations
other than cargo transfer may result in injury to personnel or damage to
equipment.” It cautions employees when walking on the platforms at all times to
“avoid stepping on rollers or cluster roller assemblies” (Exh. C-6). The
warning indicates that injury to personnel could cause death. The FMC “Service
Bulletin” states:

Personnel should NEVER walk on the platform or ride the platform when
the engine is running. All operators must train personnel not to use the rear
platform as an elevator to access the bridge. Bridge access should be by the
ladder only.

(Exh.
C-7, p. 2).

Based
on these facts, Emery’s cargo handlers were exposed to a recognized fall hazard
that could result in serious injury or death.

The
issue in dispute is whether the Secretary’s proposed abatement measures are
feasible. As an element of a § 5(a)(1) violation, the Secretary must show that
her proposed abatement method would materially reduce the hazard, not that it
would necessarily eliminate the hazard. The Act requires that the proposed
abatement will “eliminate or materially reduce the hazard.” Also, see
Cardinal Operating Company, 11 BNA OSHC 1675, 1677 (No. 80-1500, 1983).

As
a means of abating the fall hazard in accessing the aircraft’s cargo hold, the
Secretary recommends that the cargo handlers, instead of using the elevator
platform, use (1) crew stairs, (2) other vertical lifting devices, or (3) the
stationary ladder at the K-Loader’s bridge.

Crew Stairs

There
is no dispute that Emery’s cargo handlers could use crew stairs to access the
cargo area through the aircraft’s cabin area on certain wide-body planes. The
crew stairs have full length railings on either side to prevent falls. On some
wide-body aircraft, a narrow access door in the cabin area allows entry into
the cargo area from the cockpit. These wide-body aircraft, however, comprise
very few of the aircraft flying in and out of the Dayton facility. The record
does not indicate the number or percentage of such wide-body aircraft.

It
is undisputed that on the vast majority of aircraft handled by Emery, access to
the cargo area from the cockpit is blocked. If the cargo area is full of ULDs,
there is no space in which to enter. The first cargo position nearest the
cockpit is left in place until all of the other cargo is removed to prevent the
aircraft from tipping onto its tail. The first cargo position acts as a
counterweight. Also, separating the cargo area from the cockpit may be either a
solid metal wall with a narrow access door to one side or a 9G net. The 9G net
is used to protect the flight crew from cargo that could inadvertently move
forward into the cockpit during flight. According to Emery, the 9G netting
cannot be removed by cargo handlers, per FAA regulations. With the 9G netting
in place, cargo handlers cannot access the cargo area by using the crew stairs
to the cockpit.

CO
Johnson agreed that the 9G netting could not be removed. She did not know
whether the cargo handlers could access the cargo hold through the 9G net.
Johnson also testified that even at the end of the shift when the aircraft is
empty and is to be loaded, she did not know if employees could access to the
cargo area through the 9G net (Exh. C-9c; Tr. 42, 60, 62-64, 112-114).

Also,
the record indicates that a number of different employees use the crew stairs
into the cockpit, including maintenance employees, sanitation workers, and
others with various flight-related paperwork (Tr. 104-105). The FAA requires
that any time the cockpit door is open, the crew stairs must be in place “to
avoid having someone step out of an airplane mistakenly” (Tr. 104).

Based
on these problems, CO Johnson concedes that for the vast majority of aircraft,
the cargo handlers could not use the crew stairs at the cockpit (Tr. 44,
112-113). She testified that the stairs could not have been used during her
inspection on February 23, 2000 (Tr. 44).

Therefore,
the Secretary proposes the use of a second set of crew stairs at the cargo
door. The Secretary proposes that when an aircraft is fully loaded, the
K-Loader operator could remove the first ULD from the cargo hold and move the
K-Loader back from the door, allowing a single ground crew member to position
crew stairs in front of the cargo door. Cargo handlers would then climb the
stairs and enter the cargo area to begin unloading while the K-Loader is
re-positioned at the cargo door. After the aircraft is unloaded, the K-Loader
would be driven away and the crew stairs moved back to the cargo door to allow
the cargo handlers to exit the aircraft. When loading an aircraft, the
procedure could be reversed (Tr. 44-45).

Like
the use of crew stairs, the record does not show the feasibility of a second
set of stairs. As discussed, when the cargo handlers first arrive at a fully
loaded aircraft, all of the freight positions in the cargo area are full. The
K-Loader must still unload the first ULD and a cargo handler would still have
to access the cargo door to remove the ULD unless the K-Loader operator is able
to leave his control panel to unload the ULD. This is not shown by the
Secretary.

Also,
Emery would be required to purchase a significant number of additional crew
stairs, making its operation much less efficient by taking longer to perform,
and multiplying the opportunities to damage aircraft. OSHA did not show how
many additional crew stairs would be needed and the cost of the stairs (Tr.
120-122, 128). Currently, Emery has an estimated 35-40 crew stairs, including
2-3 spare crew stairs (Tr. 180). The record also fails to show that other
freight handling employers use stairs for the purpose of accessing the cargo
area.

The
use of crew stairs is not shown feasible, except in limited situations
involving certain wide-body aircraft where the crew stairs could be used.

Vertical lift devices

OSHA
also recommends the use of vehicles with hydraulic lifts designed for ground
support crews. The platform on vertical lifts is guarded to prevent falls. OSHA
claims that such lift devices could be used in the same manner as crew stairs
(Exh. C-10; Tr. 50-52).

Emery
objects to vehicle-mounted vertical lift devices, as illustrated in ANSI
A92.7-1990, for “Airline Ground Support Vehicle-Mounted Vertical Lift Devices,”
on the same basis as the additional crew stairs. The record supports Emery’s
objection. As in the case of crew stairs, when the cargo area is full, there is
no space in which to enter the aircraft (Tr. 114). Thus, the K-Loader would
have to remove the first ULD. The Secretary fails to explain how the first ULD
could be removed without the cargo handler using the K-Loader.

Also,
Emery would be required to purchase a significant number of new pieces of
equipment, the cargo handling operation would be much less efficient and take
longer, and the opportunities for damage to the aircraft’s fuselage would
increase. There is no evidence that other freight handling employers use
lifting devices for employees to access the cargo area for loading/unloading
purposes (Tr. 66).

OSHA
fails to show how many vertical lifting devices would be needed, their costs,
where the devices would be located, or whether they would be acceptable to the
FAA (Tr. 120-122, 128). Emery estimates that it would need to purchase about
30-40 lifting devices at a cost of about $60,000 each (Tr. 76, 179-180).

CO
Johnson did not identify where such additional equipment would be kept on the
ramp except to state “towards the nose of the plane” (Tr. 115-116). It is noted
that an OSHA citation issued on July 8, 1998, cited Emery at the Dayton
facility for violation of 29 C.F.R. § 1910.176(a) for congestion around
the crew stairs (Exh. R-20; Tr. 116-117). There are already 14 different pieces
of equipment in the area of an aircraft, including a fuel tanker, crew van,
supervisor vehicle, cargo handler vehicle, K-Loader, belt loader, and a tug
with 4 dollies (Tr. 74, 177).

CO
Johnson testified that ANSI A92.7-1990 was promulgated under the auspices of
the Scaffold Industry Association, Inc., and neither Emery, its competitors,
trade associations, nor manufacturers of K-Loaders were represented on the ANSI
committee (Exh. C-10). She has never seen vertical lift devices used for the
purpose of accessing a cargo area for loading/unloading purposes (Tr. 145).
Johnson could not testify how the cargo handlers would access the platforms in
these vehicles (Tr. 128).

The
record fails to show that vertical lifting devices are feasible.

Ladder on K-Loader

Lastly,
the Secretary asserts that cargo handlers could access the cargo area by
climbing the stationary ladder on the K-Loader at the bridge platform and
riding the bridge platform next to the guardrail to the height of the
aircraft’s cargo door (Tr. 141-142). The side rails on the ladder extend above
the bridge platform approximately 3 feet. The bridge platform has a guardrail
on one side that extends the length of the bridge (Tr. 46-47). In addition to
the side guardrail, one of the K-Loaders observed by CO Johnson also had a
front guardrail (Tr. 49). Where both side and front guardrails are present, the
Secretary concludes that the cargo handlers would be fully protected from fall
hazards while riding the bridge (Tr. 46, 49). On loaders equipped with only the
side guardrail, cargo handlers may have to tie off to the guardrail (Tr.
47-48).

K-Loader
operators regularly use the ladder attached to the side of the K-Loader to
access the operator’s station (Tr. 90). Operators use 3-point positioning (both
hands and one foot at all times on the ladder) to climb the ladder (Tr. 50,
90). Of the 250 qualified K-Loader operators, Emery uses approximately 38-40
operators per shift (Tr. 191). There is no documented instances of operator
injuries while using the ladder to access the K-Loader (Tr. 185).

If
OSHA demonstrates that abatement methods exist, Emery must show that those
means “will cause consequences so adverse as to render their use infeasible.” Royal
Logging Company , 7 BNA OSHC 1744, 1751 (No. 15169, 1979). Emery Worldwide
Airline’s safety director Rusk testified that after starting employment at the
Dayton facility in September, 2000, a number of employees approached him and
expressed concern about using the stationary ladder to access K-Loaders (Tr.
148-149). Their concerns included using the ladder during winter months when
the cargo handlers wear bulky foul-weather boots and snow suits (Tr. 149-150).
Also, safety director Rusk testified that because the ladder is vertical, a
person’s center of gravity is typically pulling away from the ladder (Tr.
165-166). If an employee’s hand misses the rail of the ladder, as happened to
Regina Boyd, the employee would fall backwards (Tr. 164-165). He also
identified as risk factors which make use of the ladder more dangerous than the
elevator platform, the employee’s grip strength, the varying sizes of ladders,
including the rungs, which are 1 ½ - 2 inches deep and the 16-inch width of the
rails, and the limited area on which to step on the K-Loader, particularly when
icy or wet. Rusk opined that since cargo handlers do not use the same loader
each night, the variability between models and the cargo handler’s
unfamiliarity may cause mis-steps or reaching for rails that are positioned
differently on different models (Tr. 166-174).

Frank
Baldasare, hourly employee with 20 years of experience, testified that as a
team leader for cargo handler crews, the use of the K-Loader elevator platform
to access the cargo area is “without question” safer than using the ladder (Tr.
197). He stated that the ladder is not safe because it is “very narrow,”
vertical, and requires “some physical strength to go up and down” (Tr. 197). He
personally has used both the ladder and the elevator, and he did not want his
crew to use the ladder (Tr. 198-199).

After
OSHA’s inspection, Emery required cargo handlers to use the stationary ladder.
During the period of January - October, 2000, Emery claims that 9 cargo
handlers were injured while using the ladder (Exh. R-16; Tr. 80-81, 185-188).
The accident reports show a twisted foot while stepping to the ground (Diana
Lavey), a cut shin (Charles Peters), pain in the right shoulder (Mike
McReynolds), pain in the buttock as a result of his foot touching the ground
(Lucio Tewolds), a pulled calf muscle (Talbert Gall), a leg abrasion and hurt
left ankle (Jeffrey Chrisman), a strained calf muscle with a contusion (Stephen
Dean), injury to back of right knee (Beth Laycok), and an injured tailbone
(Regina Boyd). The injury reports show that 3 cargo handlers (Tewolde, Gall,
Dean) were OSHA recordable cases which involved days off work and restricted
work activity (Tr. 163-164).

“Under
the general duty clause, if a proposed abatement method creates additional
hazards rather than reducing or eliminating the alleged hazards, the citation
must be vacated for failure to prove feasibility.” KoKosing Construction
Co., Inc. , 17 BNA OSHC 1869, 1875, fn. 19 (No. 92-2569, 1996). Emery argues
that its accident experience demonstrates that the use of the stationary ladder
on the K-Loader is more dangerous than the employees’ use of the elevator
platform as the means to access an aircraft’s cargo area.

Despite
the accidents, the record fails to support Emery’s assertion that the ladder is
more dangerous. The concerns expressed by Rusk and Baldasare are based on
speculation and a fear of change. There is no showing that cargo handlers
received any ladder safety training prior to Emery’s change in procedure.

For
the most part, the reported accidents did not involve falls. The accidents were
caused by stepping down too fast or cuts and bruises from equipment. Clearly,
none of the injuries involved a fall of 13 feet or more, as could happen from
the unguarded elevator platform. The accident in October, 2001, involving
Regina Boyd, was a fall of 6 ½ feet from the ladder. However, Boyd, who was in
training as an operator, was climbing at the top of the ladder when she reached
and missed the rail at the bridge level and fell backwards (Tr. 164-165). She
apparently did not maintain her 3-point positioning. Another documented injury
(Beth Laycok) involved the ladder, as well as the completely unrelated activity
of pushing carts. It is impossible to determine whether, and to what extent,
her injury behind her knee was related to climbing the ladder as opposed to
pushing carts (Tr. 188).

Also,
it is noted that K-Loader operators have used the ladder regularly for many
years without injury. The 10 documented injuries must be weighed against the
tens of thousands of times operators have used the ladder each year to access
the bridge without injury. Emery acknowledges that operators must use the
ladder to access the operator’s station (Emery Brief, p. 29, fn. 15).

The
use of the ladder does not involve any additional costs to Emery. The
stationary ladder is designed by the manufacturer for access to the bridge
platform. Emery does not dispute the use of the ladder. Although of concern,
the injuries reported by Emery do not establish that the cargo handler’s use of
the ladder as a method of accessing the K-Loader was infeasible.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The
foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

Based
upon the foregoing decision, it is ORDERED:

1.         The
parties’ settlement agreements dated November 20, 2001, and October 5, 2001,
are approved and incorporated as part of this decision.

2.         Emery’s
§ 4(b)(1) preemption argument as to instances (a), (c), (g), (h), (k), (l) and
(n) in Citation No. 2, item 1a, is rejected.

3.         Instances
(g) and (h) of Citation No. 2, item 1a, alleged violation of § 5(a)(1) of the
Act, is affirmed.

4.         Based
on the parties’ settlement agreement dated November 20, 2001, Citation No. 2,
item 1a, is reclassified as serious and a penalty of $7,000 is assessed.

/s/ 

KEN
S. WELSCH

Date: April 8,
2002                                        Judge