OSHA baggage handler decision may put the Administrator in a difficult position in 2017

OSHA baggage handler decision
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OSHA Agreement with United Airlines to Protect Baggage Handlers

Unnecessary Pain & Risk of Debilitating Injuries Caused by Lifting Baggage

By the Constitution, each President brings to the White House new policies, subject to checks and balances. For that reason, designated members of the Executive Branch serve at the pleasure of the President. One notable exception to this general rule is the FAA Administrator, who serves, by virtue of a specific statute, for five years from the date of Senate confirmation.

There are lots of valid reasons for this fixed term, but there are instances like this case involving an OSHA decision which show the tension of keeping a Presidential appointee past the term of the White House’s occupant. One might argue effectively that the FAA should be devoid of politics and the directions of an Administration should not impact the policies established at 800 Independence Ave. Objectively, the agency’s mission is safety and its actions should be confined to technical criteria.

The facts of this OSHA case show that the interstices of even the FAA, which is driven by engineering and by objective safety analysis, can be filled by transitory concerns.

 



Department of Labor, Occupational Safety and Health Administration

PRESS RELEASE: 12/27/2016

UNITED AIRLINES AGREES TO REMOVE HAZARDS FACED BY BAGGAGE-HANDLERS IN PRECEDENT-SETTING US LABOR DEPARTMENT SETTLEMENT

Case highlights agency’s enforcement efforts in airline baggage-handling industry

NEWARK, N.J. — For too long, a hard day’s work for United Airlines’ baggage handlers at Newark Liberty International Airport meant unnecessary pain and the risk of debilitating injuries caused by lifting customer baggage using awkward postures. From 2011 to January 2015, the airline’s baggage handlers reported at least 622.

The U.S. Department of Labor today announced a precedent-setting agreement with United to protect its employees from future injuries by improving its baggage-handling operation. The agreement settles a lawsuit filed by the department on behalf of its Occupational Safety and Health Administration to eliminate several hazardous conditions its inspectors identified in United’s baggage-handling operation at Newark.

“We are pleased that United Airlines has recognized that employers have a responsibility to protect workers from the many hazards that can cause musculoskeletal injuries,” said Robert Kulick, OSHA regional administrator in New York. “With this agreement, United will take the steps necessary to prevent its employees from suffering unnecessary injuries due to its deficient baggage-handling operation.”

The agreement settles a citation that the OSHA Parsippany Area Office issued to United Airlines following an inspection at Newark Liberty. OSHA’s inspection found five hazardous activities and conditions in United’s baggage-handling operations that contributed to the high rate of injuries. These activities and conditions included:

  • Employees exposed to repeated bending, lifting and reaching hazards due to the presence of tubular bollards in front of conveyor belts.
  • The use of dual-tier conveyor belts to transport baggage in the outbound baggage room that required employees to bend over or reach overhead to access and lift baggage.
  • Manually loading and unloading gate-checked baggage at passenger jet bridges in the regional terminal.
  • The use of hand-held scanners at the cargo bay entrance that exposed employees to the hazards of repeated twisting, pushing, pulling and lateral motions with the arm extended from the body.
  • Prolonged loading and unloading of baggage in confined areas of the aircraft cargo bay.

In its settlement, United Airlines agrees to install mechanical conveyor belts on the passenger jet bridges located throughout its regional terminal. Mechanical conveyors will reduce employee exposure to known hazards by eliminating the need for the handlers to lift and lower passenger luggage to and from the jet bridges manually. The company will also retain a qualified expert to perform an evaluation of potential repetitive stress or injury risks in baggage-handling operations at Newark Liberty and to make recommendations to improve worker safety there. Additionally, the airline must adopt the expert’s recommendations or similar measures to reduce the risk of repetitive stress injury, and form a dedicated safety committee comprised of the expert, as well as both management and employee representatives from the airline.

United Airlines has 90 days to complete the evaluation and must implement all recommendations within two years of the settlement agreement. The agreement gives OSHA authority to monitor the evaluation and abatement implementation process.

“This settlement will have long-term safety implications for the baggage-handling industry,” said Jeffrey S. Rogoff, the department’s regional solicitor in New York. “As one of the world’s leading airlines, United Airlines is setting a workplace safety standard that other airlines will be compelled to follow.”



 

A day after a federal holiday and less than a month before the Inauguration of a new President, OSHA issued a press release of an agreement with United Airlines to protect the company’s baggage handlers from musculoskeletal injuries. On the basis for the OSHA finding was 622 injuries over 4 years and approximately 120 United flights a day (or injuries on roughly 0.03% of the flights), it was agreed that United Airlines would:

  • Install mechanical conveyor belts on the passenger jet bridges located throughout its regional terminal.
  • Retain a qualified expert to perform an evaluation of potential repetitive stress or injury risks in baggage-handling operations at Newark Liberty and to make recommendations to improve worker safety there.
  • Adopt the expert’s recommendations or similar measures to reduce the risk of repetitive stress injury, and form a dedicated safety committee comprised of the expert, as well as both management and employee representatives from the airline.

The employees protected were hired to lift bags onto and off of conveyor belts and to move them within the cargo belly of aircraft.

OSHA baggage handler decision

OSHA cited the Occupational Safety and Health Act of 1970 as the basis for its action, but that 47 year old statute has not been exercised with regard to aviation workers until recently. The change can be traced to  a series of “agreements”/press releases/MoUs in which the Secretaries of Transportation and the Secretary of Labor agreed to “cede” some of the FAA’s jurisdiction over the safety of aircraft to OSHA.

OSHA baggage handler decision

The merits of the OSHA facts and the statutory basis for its action are not argued here.

The OSHA action and the agreements supporting its action are subject to the vagaries of the transition of power from President Obama and his Cabinet to the President elect’s team. Instead of Secretaries LaHood and Foxx who were the signatories to these agreement, the nominated head of the Transportation Department, Elaine Chao, is not well liked by organized labor as reflected in these quotes:

During her eight-year tenure at the Labor Department, for example, she drew fire from labor unions and liberals for doing too little to enforce existing laws on wages, overtime and workplace safety. And federal employees threw a “good riddance” party when she left.

“She was a terrible Labor Secretary,” said Ross Eisenbrey, vice president of the left-leaning Economic Policy Institute. “She cut the enforcement budgets and … OSHA protections, thereby leaving workers less safe and more likely to be cheated on their wages.”

Hal Coxson, a shareholder at the management-side law firm Ogletree Deakins, thought Secretary Chao distinguished herself. “The standard initiatives that came out of the Labor Department … were much less anti-business than they had been previously,” he said of her tenure — a sentiment that could mesh well with the seemingly pro-business administration Trump is assembling.”

OSHA baggage handler decisionIt is quite possible that the Secretary-nominee might decide to reverse the previous agreements with OSHA and such a directive, if issued, would fall on Administrator Huerta to realign the policy within the FAA.

The Administrator was nominated by President Obama, but his term is set by statute to a five year term (49 USC §106). Unlike 99% of the political appointees who serve at the pleasure of the President, Mr. Huerta is empowered to remain at 800 Independence Ave. until January 1, 2018 (his Senate confirmation was passed on January 1, 2013. He had served as acting Administrator since December 6, 2012). In that he was involved in the original agreement allowing OSHA to investigate the penumbra of the FAA’s jurisdiction, this would be a difficult and embarrassing responsibility.

This sort of policy conflict demonstrates the Hobbesian choice of Congress in passing §106. On the one hand, creating some permanency and predictability in the position of the FAA’s chief executive is a good thing. The organization recognizes that it must deal with the Administrator; delay in dealing with a difficult issue is minimized as a bureaucratic tactic. On the other hand, this fixed term places the Administrator in the difficult position of being in office in the midst of a new Administration.

If Mr. Huerta is faced with the dilemma highlighted by this hypothetical change in policy, he will have to handle the baggage of past decisions in which he was party.

 


United Airlines Agrees to Remove Hazards Faced by Baggage Handlers
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