The Cleveland Airport Snow Case now involves OSHA & its duplication of jurisdiction may hurt SMS

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Cleveland Airport Snow Case

Duplicative Powers Between the FAA Administrator & OSHA

OSHA Assistant Regional Director Cleveland Airport Snow CaseIn a letter from OSHA’s Assistant Regional Director to Cleveland Hopkins International Airport’s lawyer, the Occupational Safety authority made the following findings:

Respondent is the 49 C.F.R. Part 139 certificate holder of Cleveland Hopkins International Airport (CLE), within the meaning of 49 U.S.C. §40102(a)(2) in that it undertakes by any means, directly or indirectly, to provide air transportation. Respondent, as a Part 139 certified airport, is required to participate in yearly, along with unannounced, FAA inspections, and to implement FAA-mandated plans relating to air carrier safety. Airport Operating Certificates serve to ensure safety in air transportation. To obtain a certificate, an airport must agree to certain operational and safety standards and provide for such things as firefighting and rescue equipment, along with airfield maintenance standards, such as clean and slip-free runways. Respondent additionally serves in a contractor status with the various air carriers that operate flights out of its airport. Respondent is an air carrier and contractor within the meaning of 49 U.S.C. §40102(a)(2).

This case poses many of the duplicative powers created by the agreement between the FAA Administrator and OSHA. The overlap of their authority and the different perspectives of the same workplace were guarantees of future issues.

Here, OSHA found that the Airport demoted (“he was reassigned to a demeaning and menial job on February 19, 2015, had his benefits reduced, and was officially accused of being drunk”) Abdul-Malik Ali in reprisal for his continual objections to violations of Air Carrier Safety regulations that culminated in his email to his new supervisor and subsequent interview with a Federal Aviation Administration (FAA) inspector, both on February 18, 2015.”

As to the factual determinations, without a copy of the investigation files, it is impossible to comment on the allegations. Assuming that the statements are correct, this appears to be egregious actions by CLE. It appears that the discipline employed by the airport is precisely the type of behavior the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. §42121 was intended to address.

Unfortunately, the OSHA decision is directed at an airport, which 49 U.S.C. §42121 does not appear to include!

The letter includes excellent examples of why OSHA’s exercise of coordinate jurisdiction is problematic. OSHA’s analysis of the entities subject to the Wendell H. Ford AIRA21 is superficial and inadequate, at best:

  • CLE is not an air carrier as stated in the first line of the OSHA letter;
  • To reach the airport under the “Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 V.S.C. §42121” [the citation is flawed it’s “49 USC”] the respondent must be an “air carrier or contractor or subcontractor of an air carrier”.
  • CLE, as the OSHA letter acknowledges, is the holder of a Part 139 certificate (see 49 U.S.C § 40102 (a)(9) –“‘airport’ means a landing area used regularly by aircraft for receiving or discharging passengers or cargo.”)
  • There may have been an interesting argument made to qualify CLE as an air carrier; there is none articulated by OSHA
  • By ignoring such an important predicate, the Assistant Regional Director creates the impression that OSHA’s goal is to assert authority without regard to the statutory basis.

Equally disturbing is that OSHA is reviewing an incident previously reviewed and decided by the FAA. The policy used to administer the civil penalty is no longer being followed. Prospectively, the FAA will utilize SMS and that regimen relies on the Certificate Holder disclosing the incident at issue. Honesty, full disclosure, cooperation, collaboration and developing solutions jointly are critical principles for this successful safety technique.

The OSHA duplicative approach to investigations is likely to deter any certificate holder from disclosing exactly what happened. The potential that the statements made under SMS will be used against the carrier by OSHA may cripple or defeat this important aviation safety advance.

The Administrator who signed the agreement with OSHA and new Assistant Administrator for Aviation Safety, Ali Bahrami, should review this case and might consider revising the Agreement to protect SMS.

 


The city of Cleveland ignored airport safety in demoting Abdul-Malik Ali: editorial
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