United States. Congress. Senate. Committee on Labo.

OSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of online

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4(b)(1) of the OSHAct.

Prepared Statement of Marv Griswold, Director, AmuNE Division

Mr. Chairman and Members of the Subcommittee:

The Airline Division of the International Brotherhood of Teamsters represents ap-
proximately 20,000 airline workers in the United States. Our membership includes,
ni^t deck and cabin crewmembers, aircraft mechanics, fuelers, and other workers
involved in air transportation. We thank the Subcommittee for the opportunity to
present our views on OSHA Reform legislation, most especiallv with the respect to
addressing the need for change in Section 4(b) (1) of the OSHAct. Our comments
address the plight of the many thousands of American workers who do not have the
benefit of OStDv protection in their workplaces. Our remarks will specifically dis-
cuss the concerns of aviation workers, including flieht crew, cabin crew (flight at-
tendants), and mechanics, who have been exempted from OSHA coverage because



77-070 0-94-3



62

of intcrpretationfl of Section 4 (b) (1) of the Occupational Safety and Health Act of

1970.

We would like to emphasize that the predicament of these aviation employees is
not unlike that of thousands of other 4(b) (1) exempted workers, including truck
drivers, rail employees, and highway workers. Almost 500,000 Teamster members,
or 35 percent of our entire membership, are not covered by OSHA. For inore than
twenty years now, these workers have not been afforded the same level of job safety
and health protection provided to most Americans. S. 575, the Comprehensive Occu-
pational Safety & Heedth Reform Act, under consideration today, includes language
that would aiford workers who are currently exempted equal protection under the
law. The International Brotherhood of Teamsters supports this language, and other
changes included in the OSHA Reform package.

We will focus our comments on four major points. The first concerns a review of
the respective missions of OSHA and the FAA. The second concerns the OSHAct's
40)) (1) language, and \he resultant iurisdictional confusion. The third point con-
cerns a general comparison of health smd safety protections provided by the
OSHAct, but lacking under FAA jurisdiction. Finally, we will use two hazard exam-
ples to illustrate the differences between these two agencies' approaches to occupa-
tional health and safety.

OSHA HAS A DISTmCT MISSION

The Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et sea.) was
designed to "ensure so far as possible every working man and woman in the Nation
safe and healthful woiking conditions." OSHA's enabling legislation established only
one statutory aim for this agency, i.e. to protect the safety and health of American
workers. OSHA's job is to solely improve occupational safety and health conditions.

The FAA, on the other hand, has a dual mandate: to promote safety of flight and
to promote air commerce. The Federal Aviation Act of 1958 (49 U.S.C. Sec. 1301 et
seq.), is composed of fourteen subchapters. It regulates air carriers with resect to
safety of the flying public, national defense, accident investigation, air traffic re-
quirements, insurance, etc. Nowhere in the entire Federal Aviation Act is there aiw
specific mention of the occupational safety or health of aviation employees. Indeed,
working conditions of employees are only mentioned as a function of insuring the
safety of the flying public. Additionally, there is no statement of policy whatsoever
in the Federal Aviation Act which relates to employee occupational health and safe-
ty such as exists in the OSHAct. There are no references to the duties of employers
or the rights of employees with respect to employee safety and health; there are no
specific occupational health and safety standards to be followed by enaployers, nor
provisions for inspections, investigations, or enforcement of such standards.

Instead, Section 601 of the Federal Aviation Act (49U.S.C. Sec. 1421(a) and (b))
authorizes and requires the Administrator of the FAA "to promote safety of fli^t
of civil aircraft in air commerce" by establishing standards, rules, and regulations
as enumerated in subsections (1) through (6) of this same section. A straightforward
reading of this language clearly denotes that the word "safety" is modified and lirn-
ited by the phrase "of flight". The subiect matter and the words contained in this
section of the Federal Aviation Act make it clear that this Act is aimed not at em-
ployee safety, but at aircraft safety. In fact, the only part of ^1421 which even men-
tions employees applies to maximum hours of work, again in the context of "safety
of flight". .^ „ ,. .^ ^^

Thus, with respect to "safety", the Federal Aviation Act specifically hmits the
FAA's jurisdiction to the "safety of flight of civil aircraft". The California Supreme
Court reached this very conclusion in its decision in a case involving United Airlines
and the California Division of Occupational Safety and Health. (United Airlines v.
Occupational Safety and Health Appeals Board & Division of Occupational Safety
and Health, S.F. 24396, Superior Court, 747454, Ca. Supreme Court, Filed 11/29/
82). The court further found that this interpretation of the FAA's mandate "com-
ports with the purpose of the act as stated by the federal courts: to assure the safety
of passengers, crew members and those on the ground who might be endangered by
accidents from unsafe flying conditions. (Rauch v. United Instruments, Inc. (548
F.2d 452 (3d Cir. 1976).)' . , . ^

Nowhere in the Federal Aviation Act is there any reference to occupational safety,
except by implication as a necessary concomitant of passenger safety in flight. No-
where is there a reference to occupational health. Nor does the legislative history
of this Act indicate that Congress intended to confer on the FAA any jurisdiction
in this area. The purpose of the Federal Aviation Act was clearly stated by Senator
Monroney, who introduced in the bill the Senate:

The principal purpose of this legislation is to establish a new Federal agency
with powers adequate to enable it to provide for the safe and efficient use of navi-



63

gable airspace by both civil and military operations." (1958, U.S. Code Cong, and

Ad. News, 3741.) , r.. . r.

We must conclude then that the Federal Aviation Act does not give the FAA the
statutory authority to regulate in the area of occupational health and safety. Why
then does the question of OSHA v. FAA jurisdiction continue to sunse?

OSHA 4(b) (1) LANGUAGE and AGENCY JURISDICTION

The jurisdictional debate stems from Section 4(b) (1) of the OSHAct, which states:

"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 aiTecting occupational safety or health. (Emphasis added)

Air carriers claim that aviation employees are exempt from OSHA iurisdiction be-
cause the aviation industry is regulated by the Federal Aviation Administration.
The FAA has agreed with this interoretation of Section 4(b) (1).

The Teamsters Airline Division believes that this claim is spurious. We believe
that the language of 4(b) (1) clearly indicates that "working conations of employees"
are only exempt from OSHA jurisdiction when they are the subject of regulation by
an agency which has "statutory authority" to regulate occupational safety and
health. This is not the case with the FAA. Further, with respect to agencies that
do have the authority to regulate occupational safety and health, we assert that only
those "working conditions" which are actually regulated by that agency are exempt
from OSHA jurisdiction. Section 4(b) (1) does not prevent OSHA from protecting em-
ployees with respect to nonre^lated working conditions. There are many, many
working conditions in the aviation industry which are not regulated by FAA.

In fashioning the 4(b) (1) language, Congress clearly sought to reduce the confu-
sion and duplication that might result were employers required to comply both with
OSHA requirements and those promulgated by another agency seeking to regulate
the same working condition. Within this context, this was a wise and necessary pro-
vision. We do not believe, however, that it was the intent of Congress to bestow a
blanket exemption from occupational safety and health regulation merely because
an employer was otherwise regulated in some fashion by another Federal agency.

Nothing in the OSHAct legislative history suggests that4(b) (1) was designed to
offer less job safety and health protection to certain types of workers than others.
In practice, however, this is just what has happened. Airline employees eryoy less
job safety and health protection than the majority of American workers. And while
Congress may have intended to prevent confusion over jurisdiction by including Sec-
tion 4(b) (1) in the OSHAct, the result has been just the opposite in the aviation
industry.

In spite of the fact that the FAA does not have the statutory authority to regulate
occupational health and safety, they have nonetheless asserted a jurisdictional claim
over the occupational safety and health of air crews, and in many instances, over
aircraft mechanics as well. Seizing upon the language in Section 4(b) (1) of the Oc-
cupational Safety and Health Act, J.W. Cochran, FAA Acting Administrator, issued
a policy statement regarding occupational safety or health standards for aircraft
crewmembers on July 10, 1975. It reads in part:

"Pursuant to its complete and exclusive responsibility for the regulation of the
safety of civil aircraft operation under the Federal Aviation Act of 1958 (49 U.S.C.
Sec. 1301 et seq.), herein called "the Act," the FAA prescribes and enforces stand-
ards and regulations affecting occupational safety or health with respect to U.S. reg-
istered civil aircraft in operation"

"Title VI of the Act (49 U.S.C. Chapter 20, Subchapter VI) contains the principal
substantive provisions that authorize and require the FAA to promote the safety of
civil aircraft operations by prescribing and revising standards and regulations"

What the FAA has done, in the case of aircrew, is assert a jurisdictional claim
based on its own interpretation of its enabling legislation. In essence, they have
made a major policy decision regarding the occupational health and safety of avia-
tion aircrew employees. We believe that the FAA's interpretation of its mandate is
in error. The FAA's statutory authority cannot be expanded by that agency, by indi-
vidual air carriers, or by the ATA. We further believe that a policy decision regard-
ing the occupational health and safety of any group of workers properly rests with

the U.S. Congress. j ,. i i. r •

Recognizing OSHA jurisdiction over the occupational safety and health of air
crews would in no way diminish the FAA's authority to regulate conditions affecting
the safety of flight. Under uaditional supremacy clause principles, any safety regu-
lation promulgated by the FAA concerning inflight safety would take precedence
over a conflicting OSHA regulation. We do not know of any existing OSHA i ogula-
tion that would create such a conflict.

The FAA, to our knowledge, has not issued a similar policy statement with re-
spect to the occupational safety and health of aircraft mechanics. However, on sev-



64

eral occasions they have asserted a jurisdictional claim over this class of workers
by taking a position before the Occupational Safety and Health Review Commission,
and in Federal and State court, sidmg with employers in opposing OSHA citations
issued against air carriers. (Cf. Northwest Airlines. Inc. OSHRC Docket No. 13649;
Allegheny Airlines, OSHRC Dockets No. 14291 and 14345; United Airlines v. Occu-

Sational Safety and Health Anneals Board & Division of Occupational Safety and
[ealth, S.F. 24396, Superior Court, 747454, Ca. Supreme Court, Filed 11/29/82)

In these instances, the FAA and individual air carriers, have primarily relied on
the argument that the FAA does in fact exercise jurisdiction over ground mainte-
nance workers because the work activities of these employees are governed in laree
part by FAA required maintenance manuals. The pertinent FAA regulation reads:
%adi domestic and flag air carrier shall prepare and keep current a manual for
the use and guidance of flight and ground operations personnel in conducting its op-
eration." (14 CFR, Subpart G. 121. f33 (a))

Part 121.135 of this subpart goes on to list the required contents for such manu-
als. The first requirement speciTied is that the manual include instructions and in-
formation necessary to allow the personnel concerned to perform their duties and
responsibilities with a high degree of safety. The use of the word "safety" in this
context refers to assuring safety of flight, as is consistent with the FAA's mandate.
Additional contents required in the manuals include items such as:

— General policies

— Duties and responsibilities of each crew member and appropriate members of
the ground organization

—References to appropriate Federal Air Regulations

— Flight disoatchmg and operational control

— ^En route night, navigation, and communication procedures

— Takeoff, en route, and landing weight information

— Procedures for refueling

— Procedures for operations in potentially hazardous meteorological conditions

— ^Airman Training progrtuns

— Instructions and procedures for maintenance, preventive maintenance, and
servicing

Nowhere in the list of required contents is there a reference to employee safety

or health.

Requiring maintenance and operations manuals is not quite the same as promul-
gating health and safety standards. The FAA's and industry's argument is further
weakened when one considers that these manuals are written by aircraft manufac-
turers and air carriers. The manuals become effective when they are submitted by
the carrier to the FAA. If the FAA does not disapprove the manual provisions, they
are ipso facto aoproved. This is hardly a normal regulatory process or active exercise
of occupational nealth and safety jurisdiction.

Even the FAA itself, in a statement by the Administrator to a Subcommittee of
the House Committee on Government Operations, has expressed doubt that manual
procedures were of a regulatory nature. (Cf. Appendix 3 of Hearings on the Subject
of Airline Deregulation and Aviation Safety Before a Subcommittee of the House
Committee on Gavemment Operations, 95th Congress, First Session, pages 262-263,
1977) In this same document, the Adnainistrator goes on to state that failure to fol-
low the procedures would not serve as a basis for FAA enforcement action unless
a Federal Aviation Regulation had also been violated. We wish to point out that
there are no FAR's which address the occupational safety and health of ground em-
ployees. (There are some FARs which do affect the occupational health and safety
of aircrew, however their primary purpose has to do with flight safety. Again, where
these exist they would remain in effect, and would not be replaced with an OSHA
requirement even if OSHA were to exercise jurisdiction over aircrew.)

Claiming that maintenance manuals represent a comprehensive program to pro-
tect workers in the workplace seems ridiculous. Nonetheless, this very argument
has held sway in several poorly reasoned OSHRC cases with the end result of hav-
ing effectively prevented OSliA from exercising jurisdiction over aircraft mainte-
nance employees at many carriers.

The OSHA 4(b) (1) language has clearly not done the job of preventing confusion
over jurisdiction. Instead, the question of which agency nas jurisdiction and under
what circumstances remains an open one. As a result, aviation employees are often
subjected to unsafe working conditions and they have nowhere to take their con-
cerns. Congress must revisit this section of the OSHAct in order to make clear its
intent to protect all American workers. You can accomplish this goal by clarifying
the language in Section 4(bXl) to make OSHA jurisdiction over all places of employ-
ment a given and by allowing exemptions for specific working conditions only under
limited and clearly stated conditions.



65

THE OSHA ACT PROTECTS WORKERS

Leaving aside for the moment the issue of whether or not the FAA has smy au-
thority to regulate occupational hedth and safety, we would like to review and com-
J>are the FAA's health and safety program for aviation employees (beyond that of-
ered by the requirement to maintain maintenance and operations manuals) with
that offered by OSHA to other workers.

Under OSHA, for example, an employer must provide a workplace free from recog-
nized hazards. The Federal Aviation Act has no such language.

Under OSHA, workers have many specific rights. For example, they have the
right to:

— A safe and healthful workplace

— Point out hazardous conditions and suggest methods of correction

— Request information from their employer on safety and health hazards, on pre-
cautions to be taJten, and on procedures to be followed in the event of an accident
or ejcposure to a toxic substance

—Observe testing of hazards and examine and copy the results

—Obtain and copy Material Safety Data Sheets (MSDS) or anv other written in-
formation which reveals the identity of hazardous substances in the workplace

— Have medical records turned over to a physician of choice

— Review the Log and Summary of Occupational Injuries

— Review copies of standards, rules, etc. that the employer should have available
at the workplace

— Obtain hazard information from OSHA and NIOSH

— File a complaint if a hazard exists at their woricplace

— Have their name kept confidential if they do file a complaint

— Be advised of OSHA actions regarding their complaint

— Participate in, or have a representative participate in, an OSHA inspection

— Be provided with a copy of all OSHA citations

— Be notified if their employer contests a citation, a penalty or an abatement pe-
riod

— Object to the abatement period set by OSHA in any citation

— Elect party status to employer contested cases

— ^Receive a hearing from OSHA regarding an employer's Request for a varitmce
from a standard

—File an OSHA complaint if they believe that they've been discriminated against
for exercising their rights under OSHA

Equivalent rights are not provided by the Federal Aviation Act or by FAA regula-
tions. The FAA does not require air carriers to provide safe and health workplaces.
It does not provide a guarantee workers confidentiality in the event they do com-
plain. The FaA does not require that employers inform workers about know work-
place hazards, nor do they require that workers be given access to all records of en-
vironmental monitoring conducted to assess those hazards. The Federal Aviation
Act does no prohibit air carriers from discriminating against an employee for health
and safety activities, nor do they provide a procedure for redress should discrimina-
tion occur. .

Many of the hazards found in aviation are similar or identical to those found in
other industries. A flight attendant exposed to radiation has the same potential for
increased cancer risk as a similarly exposed worker at a nuclear power plant. An
aircraft painter exposed to paint vapors is just as likely to have lung damage as
a simileu-ly exposed woriier in an automobile plant.

OSHA has specific standards for many worKplace hazards. For example, there are
standards limiting exposure to hazardous chemicals, radiation, and noise. The FAA
has no standards for these hazards. OSHA has requirements for elevated work
areas, hazard notification, and confined space entry. Tne FAA does not have equiva-
lent standards. The FAA has no specific guidelines for employees safety orovisions
or for their enforcement. In fact, the United Airlines case cited earlier, A UAL engi-
neer testified that he was not aware of any instance in which the FAA has cited
the air carrier for a violation of any provision in the maintenance manual which
related exclusively to the safety of the employees.

It appears that the FAA's only interest in employee safety and health lies in as-
serting its claim to jurisdiction. In the twenty-three years since OSHA was enacted,
the FAA has done little to protect worker safety and health. After twenty-three
years it is time for a change.

MANY HAZARDS REMAIN UNREGULATED BY THE FAA

To illustrate the need for change, we would like to review two examples of occupa-
tional hazards that are not addressed by the FAA, but which are regulated by exist-
ing OSHA standards.



66

Example 1

The FAA has acknowledged in two reports published by their OfTice of Aviation
Medicine that aircrews are occupationally exposed to ionizing radiation, a well-
known physical hazard. By the FAA's own estimates, the added risk of cancer from
this occupational exposure range from 1 in 2,800 to 1 in 77, depending on the routes
flown, the amount of flying done per year, and the total number of years of flyiM.
In the context of an occupational exposure, these are not insignificant risks. In addi-
tion, the FAA reports highlight a very real concern about pregnant flight attendants
(and fetuses) exceeding recommended exposures over a nine month gestation period.

Remember that OSHA law requires that employees be informed of all known
workplace hazards by their employer. Ionizing radiation is known hazard, therefore,
employees (in this instance aircrews) must be given appropriate information about
ra(fiation exposure in the workplace. OSHA also has exposure limits and monitoring
requirements for radiation exposed workers.

On May 3, 1993, more than three years after the first report was issued, the FAA
took action. They published a proposed Advisory Circular. An Advisory Circular does
not carry the force of law. Instead of rec|uiring that air carriers inform their aircrew
employees of this known hazard by issumg a rule, the FAA proposes issuing a docu-
ment that does nothing more than suggest topics for a radiation training program
in the event "an air carrier chooses to inform flight attendants and other crew-
members concerning radiation exposure." (Emphasis added) The FAA's response to
this serious occupational hazard is completely inadequate.

The IBT Airline Division, in comments submitted by a coalition of unions, urged
the FAA to reconsider its position and to take the following actions:

1. Issue a Notice of Proposed Rulemaking (NPRM) which will require a radiation
training program for all aircrews. ^ , , . , i i *u

2. As an interim measure, issue an Advisory Circular which states clearly the
need for training and which includes a list of reouired topics.

3. Issue an Advanced Notice of Proposed Rulemaking, (ANPRM) to address the
issues of radiation exposure limits and monitoring requirements for crewmembers
which conform to those protections afforded other occupationally exposed workers.

We also recommended that the list of topics "suggested" in the Advisoiy Ciroilar
be expanded to include information that would be more consistent with hazard in-
formation requirements under OSHA. The comment period on the proposed Advi-
sory Circular closed on August 17, 1993. The FAA anticipates final action on the
AC in approximately 6 months. There is no question that under OSHA, aircrews
would be much better informed about and protected from radiation exposure.

Aircrews, and flight attendants in particular, have many other occupational
health and safety concerns, which are largely ignored by the FAA, but which we feel
would receive appropriate attention from OSHA. Additional examples of hazards
and issues will be provided to the subcommittee in separate comments submitted
by the Independent Federation of Fli^t Attendants. The Airline Division of the
Teamsters supports these comments on behalf of our members.

Example 2

Earlier this year, our organization submitted comments and testimomr on the
FAA's Drug and Alcohol Testing Program. Without going into the specifics about
testing requirements and protocols, we would like to share part of our comments
with you because we believe that they further illustrate the FAA's lack of concern
for employee safety and health.

Aircraft mechanics routinely use many hazardous chemicals in the performance
of their jobs. Among these chemicals are a number of solvents, for example, methyl
ethyl keytone or MEK, methylene chloride, and trichloroethane. Solvents are
neurotoxms, i.e. they are chemicals that damage the nervous system. The most com-


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Online LibraryUnited States. Congress. Senate. Committee on LaboOSHA reform : coverage and enforcement : hearing before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred Third Congress, first session, on examining the scope of coverage and enforcement of the Occupational Safety and Health Administration of → online text (page 11 of 17)