An OSH Review Commission Judge recently upheld a General Duty Clause (GDC) citation issued to United Airlines after an employee’s foot was crushed by the wheel of an aircraft being repositioned with a tow. Secretary of Labor v. United Airlines, Inc., OSHRC Docket No. 22-0744. The citation alleged that United had not implemented all feasible measures, including measures (e.g., crew briefings, designating a safety guide, and using a task-based checklist before beginning a tow movement) specified in United’s written standard operating procedures (Tow Safety SOPs). United contested the citation and raised three defenses: (1) the application of the GDC was preempted by the applicability of a specific OSHA standard to the hazard and by FAA requirements; (2) United’s collective bargaining agreement (CBA) and memorandum of understanding (MOU) with the FAA precluded it from enforcing the measures required by its Tow Safety SOPs; and (3) unpreventable employee misconduct. 

Regulatory Preemption 

The judge’s decision states that “[GDC] citations can be defended against on the basis that there is a more specifically applicable [OSHA] standard. 29 C.F.R. § 1910.5(c)(1).” The judge rejected United’s assertion that the OSHA Powered Industrial Truck Standard applied because the standard does not address the hazards of harmful contact with towed equipment. United did not identify any other applicable OSHA standards on which to base the regulatory preemption defense. Potentially applicable standards would appear to be the Control of Hazardous Energy Sources (Lockout/Tagout)[1] standard (1910.147) and/or the general Machine Guarding standard (1910.212). Identifying those standards as applicable would have significantly complicated the OSHA inspection and contest, and potentially created “new” compliance obligations for United and the industry. Counsel for United cautiously attempted to gain OSHA’s assistance in this inquiry by asking the OSHA inspector, on cross-examination, to identify the standards OSHA considered but rejected in issuing the GDC citation. Counsel for OSHA objected to the question on the grounds of deliberative privilege, and the judge sustained that objection. 

In any event, it appears that a more accurate statement of the law of regulatory preemption would be that GDC citations can be defended against when there is: (1) a more specifically applicable OSHA standard; and (2) recognition that compliance with that standard would provide employees with effective protection against the hazard. Int. Un. U.A.W. v. Gen. Dynamics Land Sys, 815 F.2d 1570 (D.C. Cir. 1987). In General Dynamics, the D.C. Circuit held that Congress did not give OSHA the authority to narrow the scope of the GDC by adopting standards that are less protective than the GDC in addressing recognized hazards, and that employers may not avoid liability under the GDC by asserting compliance with an applicable standard known to be inadequate to control the recognized hazard.

Statutory Preemption 

Under Section 4(b)(1) of the OSH Act, OSHA's authority to regulate workplace safety is preempted if another federal agency has the statutory authority to regulate the safety of the cited working conditions and exercises that authority. To clarify uncertainty in this area of overlapping jurisdiction, OSHA and the FAA entered into a memorandum of understanding (MOU). The MOU explains that OSHA will enforce OSH Act requirements for maintenance and ground support personnel, and the FAA will enforce safety requirements for civilian aircraft “in operation,” which refers to the time between when the aircraft is first boarded by a member of the flight crew in preparation for a flight until completion of the flight. 

Prior to the incident, United and the FAA entered into a Safety Action Program (SAP) MOU, to which OSHA is not a party, designed to encourage voluntary employee reporting of violations of FAA regulations or general safety concerns. Under the MOU, assuming an employee filed a SAP report in good faith and it was accepted by the committee reviewing the SAP reports, the FAA agreed to limit potential FAA enforcement actions, and United agreed it would not discipline a person for filing a SAP Report. While United apparently did not agree to forego disciplinary action for any employee behavior described in the SAP reports, the judge’s summary of the events surrounding the incident suggests that was the general practice. 

In any event, the judge held that a voluntary MOU of the type described between United and the FAA did not establish FAA preemption of the GDC because: (1) the aircraft was not “in operation” at the time of the incident; and (2) the MOU did not prohibit United from taking disciplinary action for violations of safety requirements. 

Impact of Collective Bargaining Agreement (CBA)

According to the judge, while United agreed (in the CBA) to provide various procedural safeguards before imposing the harshest discipline, it retained the ability to implement policy and utilize an array of work rule enforcement tools, including termination of employment, for safety violations. The judge held: “United’s claim that the Secretary could not show inadequate abatement because of the CBA is rejected.” 

Given the judge’s findings, there was no need to address the issue of how inadequate abatement would be addressed in a case where a CBA, as written, effectively eliminated the employer’s ability to abate non-compliant conditions. However, from a public policy perspective, it arguably would have been more appropriate to hold that the abatement was inadequate, and the potential impact of the CBA was irrelevant to the violation. Simply put, the OSH Act is designed to provide sufficient flexibility for innovation and advances in technology, but it does not authorize employers to contract or delegate their OSH Act responsibilities to their employees or a third party and relieve themselves of liability for failure to perform those responsibilities. In other words, an employer that chooses to “tie its hands behind its back” with respect to employee discipline cannot rely on that self-imposed limitation to be relieved of its liability under the OSH Act. 

The case should serve as a warning to employers who might be inclined to enter into a CBA with a union that limits the employer’s use of disciplinary procedures in a way that effectively ties the employer’s hands behind its back and precludes it from effectively enforcing applicable safety requirements and qualifying for the employee misconduct defense. 

The ALJ’s decision became a final order of the Review Commission without formal review. Review Commission decisions generally state that “unreviewed administrative law judge decisions have no precedential value.” See, for example, Secretary of Labor v. Home Rubber Company, LP., OSHRC Docket No. 17-0138 (August 26, 2021). The basis for this position was questioned by dissenting Commissioner Moran in Leone Construction Company, OSHRC Docket No. 4090 (February 10, 1976).

In theory, an ALJ decision should have some precedential value because the ALJs have substantial knowledge and expertise in their arena, and because the Review Commission would be expected to oversee ALJ decisions and direct an ALJ’s decision for review if it raised a concern. However, due to the failure of our political process, the Review Commission has frequently lacked a quorum, and frequently had a two-person quorum, which inevitably results in the appeals of some deadlocked cases being dismissed. Given that history, one can understand why the Review Commission has maintained its position that unreviewed ALJ decisions have no precedential value while practitioners rely on them to the extent of their persuasive value. 

[1] A January 11, 1996, OSHA Letter of Interpretation to J.A. Hoeh includes the following Q&A:

Q: Does 1910.147 apply to trucks, tractors and trailers in a garage when vehicle maintenance is performed?
A: Yes, the 1910.147 standard applies to trucks, tractors, and trailers (which are considered "machines and equipment") on which employees perform service and maintenance and there is potential exposure to harmful energy. 
https://www.osha.gov/laws-regs/standardinterpretations/1996-01-11-1