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HITCHCOCK TRANSPORTATION CO v. INDUSTRIAL WELFARE COMMISSION

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Court of Appeal, Fifth District, California.

HITCHCOCK TRANSPORTATION CO., etc., Corcoran Motor Transport, Inc., etc., and California Trucking Association, etc., Plaintiffs and Appellants, v. INDUSTRIAL WELFARE COMMISSION and Division of Industrial Welfare, Defendants and Appellants;

United Air Lines, Inc., Hanletran, Inc., and California Taxicab Owners Association, Plaintiffs in Intervention and Appellants. THEATRE PROPERTIES, INC. et al., Plaintiffs and Respondents, v. INDUSTRIAL WELFARE COMMISSION and Division of Industrial Welfare, Defendants and Appellants; Sierra Ski Areas Association, etc., Plaintiff in Intervention and Respondent.

Civ. 3678, Civ. 3679.

Decided: November 30, 1979

Law Offices of Jan L. Kahn, Jan L. Kahn, Hanford, and Richard W. Smith, Burlingame, for plaintiffs and appellants Hitchcock Transp. Co., Corcoran Motor Transport, Inc., and California Trucking Assn. Evelle J. Younger and George Deukmejian, Attys. Gen. of the State of California, and Carol Hunter, Deputy Atty. Gen., Sacramento, for defendants and appellants Industrial Welfare Commission and Division of Industrial Welfare. Brobeck, Phleger & Harrison, Jean C. Gaskill, James L. Meeder, Littler, Mendelson, Fastiff & Tichy, Robert F. Millman and Lloyd W. Aubry, Jr., San Francisco, for plaintiffs in intervention and appellants United Air Lines, Inc., Hanletran, Inc., and California Taxicab Owners Ass'n, and Sierra Ski Areas. Mitchell, Silberberg & Knupp and Richard M. Mosk, Los Angeles, for plaintiffs and respondents Theatre Properties, Inc., et al.

In these consolidated appeals we consider the judgment of the superior court issuing writs of mandate declaring certain Wage Orders of the appellant Industrial Welfare Commission (hereinafter IWC) relating to the trucking and transportation industry (Order No. 9-76) and entertainment industries (Order No. 10-76) invalid and restraining enforcement of those orders.

Order No. 9 covering the transportation industry and Order No. 10 covering the amusement and recreation industry were originally promulgated in 1943 and only governed the wages, hours and working conditions of women and minors. The California Legislature in 1972 amended the Labor Code to expand the IWC's authority to establish wages, hours and conditions of labor for All employees and directed the IWC to undertake an immediate review of all its orders pursuant to procedures outlined in the Labor Code. Pursuant to the legislative directive, at its November 1975 meeting, the IWC appointed wage boards for each industry made up of an equal number of persons representing employees and employers and a neutral chairperson representing the IWC. In December 1975, the IWC and the California Occupational Safety and Health Standards Board (hereinafter Cal/OSHA) met. Subsequently the IWC received a report from the Order 9-76 (and minority report) and 10-76 Wage Boards as a result of a two-day meeting held by each of the Wage Boards in February 1976 and March 1976, respectively.

In April 1976 the IWC met for six days in executive session to consider the Wage Boards' reports and draft proposed orders for consideration by the public. Notice of public hearings was given and eight days of public hearings in three cities followed in June in 1976. In July 1976, the IWC adopted its revised orders giving them an effective date of October 1976. A public meeting was held in September 1976 for the purpose of considering various petitions for rehearing.

On October 15, 1976, Theater Properties, et al., filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the IWC and the Division of Industrial Welfare. Other parties were granted leave to intervene.

The case proceeded to trial and the trial court issued a writ of mandate and judgment declaring the Wage Orders invalid and restraining IWC from enforcing such orders. The Wage Orders in question in this case were stayed pending the trial and have been stayed throughout this matter.

The trial court found in favor of the various industries (hereinafter referred to collectively as Petitioners) on several grounds. IWC appeals, contending error in each of the trial court's rulings against it. A cross appeal has been filed by Petitioners from the judgment to the extent that the judgment denied relief sought by Petitioners on the grounds that the trial court erred in holding: (1) that the promulgation of the Wage Order was not in violation of the California Environmental Quality Act; and (2) that IWC did not commit fraud in the promulgation of the Wage Order. After oral argument in this case submission was deferred pending the decision of the California Supreme Court in California Hotel & Motel Assn. v. Industrial Welfare Com. (hereinafter Cal.Hotel ) (1979) 25 Cal.3d 200, 157 Cal.Rptr. 840, 599 P.2d 31. In our opinion, Cal.Hotel has basically disposed of the issues of “investigation” and “basis” which are also part of the instant case. Accordingly on those issues, we conclude, pursuant to Cal.Hotel : (1) the trial court erred in holding that the IWC violated Labor Code sections 1173 and 1178 in selecting Wage Boards without first investigating and ascertaining the wages, and hours and working conditions in the Amusement & Recreation Industry and the Transportation Industry and without finding that the wages, hours and working conditions in said industries were inadequate to supply the cost of proper living or were prejudicial to the health, safety, morals and welfare of employees in said industries. We hold that these orders were not promulgated in violation of the Labor Code (see Cal.Hotel at pp. 206-209, 157 Cal.Rptr. 840, 599 P.2d 92); (2) the trial court correctly held that the Wage Orders 9-76 and 10-76 were invalid in that each of those orders did not include an adequate statement of basis to support each of those orders (see Cal.Hotel at pp. 214-216, 157 Cal.Rptr. 840, 599 P.2d 92).

In Cal.Hotel the judgment was reversed with directions to compel the IWC to take further proceedings within 120 days. The ground for the Supreme Court's order was stated in Cal.Hotel at page 216, 157 Cal.Rptr. at page 850, 599 P.2d at page 41 as follows:

“However, the order has been in effect since 1976. The minimum wage order is of critical importance to significant numbers of employees. Those employees bear no responsibility for the deficiencies of (the Order). This court has inherent power to make an order appropriate to preserve the status quo pending correction of deficiencies. (The Order) is to remain operative pending further proceedings to be taken promptly by (IWC).”

Unlike Cal.Hotel the Wage Orders in this case have never been enforced. Orders 9-76 and 10-76 were stayed from the very beginning. Maintaining the status quo in this case does not require a remand for the IWC to take further action. Furthermore, as Petitioners have pointed out, invalidation of Wage Orders 9-76 and 10-76 did not have the effect of depriving employees of benefits which they had previously been entitled to receive. We are informed by Petitioners that since April 1, 1978, the minimum wage of all employees in California had been governed by an entirely separate IWC Order (No. MW-78) and that before April 1, 1978, most employees were protected by the federal minimum wage law (29 U.S.C. s 206). IWC argues that the determination required by Cal.Hotel, i. e., “an explanation of how and why the Commission did what it did” (Cal.Hotel at 213, 157 Cal.Rptr. at 848, 599 P.2d at 39) is possible in the instant case by reference to that which the IWC had before it when it adopted the Wage Orders. Under all the circumstances we are not persuaded that a remand should be required here. Accordingly, we decline to remand as requested by IWC. We reject any contention that the validity of these Wage Orders can be sustained under Cal.Hotel as including an adequate statement of basis in the instant case.

While we affirm the judgment issuing writs of mandate, for assistance to all concerned, we proceed to discuss the additional contentions raised by the parties.

I. PREEMPTION.

The trial court concluded that the Wage Orders violated and conflicted with the National Labor Relations Act (hereinafter NLRA), 29 U.S.C. section 151, et seq., the Railway Labor Act (hereinafter RLA), 45 U.S.C. section 151, et seq., and the Fair Labor Standards Act (hereinafter FLSA), 29 U.S.C. section 201, et seq. We disagree. The Orders relate to wages, hours and working conditions promoting health and safety. Such matters may be regulated by the state and the Orders are not preempted by federal labor law. States may regulate wages, hours and working conditions related to health and safety even if a collective bargaining agreement exists in the same area, but may not regulate areas outside of health and safety if the areas are subject to collective bargaining (United Air Lines, Inc. v. Industrial Welfare Com. (1963) 211 Cal.App.2d 729, 744, 28 Cal.Rptr. 238; see also Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25, et al. (1977) 430 U.S. 290, 296-302, 97 S.Ct. 1056, 51 L.Ed.2d 338; De Canas v. Bica (1976) 424 U.S. 351, 357-358, 96 S.Ct. 933, 47 L.Ed.2d 43).

Petitioner United Air Lines' particular insistence that RLA employees may not be regulated is to no avail. All United Air Lines employees who have entered into collective bargaining agreements under the RLA are exempted from Order 9-76. As to those employees, if any, who have not entered into such agreements, there is no preemption (United Air Lines, Inc. v. Industrial Welfare Com., supra, 211 Cal.App.2d 729, 749, 28 Cal.Rptr. 238).

Petitioners also assert that exempting certain collective bargaining agreements from the effect of the orders will promote and encourage organizing among non-union employees. This may be so. However, as a reviewing court we examine the legality of the rules and not the effect of the rules (Morris v. Williams (1967) 67 Cal.2d 733, 737, 63 Cal.Rptr. 689, 433 P.2d 697.

All Petitioners are exempt from the FLSA (29 U.S.C. s 213). The assertion that the exemption immunizes Petitioners from state law is without merit. The thrust of the Petitioners' argument is that if the states had the right to regulate the wages and hours in the industries exempted under the act, the exemptions would be meaningless. This argument is faulty for several reasons. First, the act specifically permits state regulation of minimum wages and maximum hours as long as the state standards exceed the federal standards (29 U.S.C. s 218(a)). The exemptions do not extend to state regulation (see A. H. Phillips, Inc. v. Walling (1945) 324 U.S. 490, 496-497, 65 S.Ct. 807, 89 L.Ed. 1095). Thus, the states have specific congressional authority to regulate minimum wage laws (see Maldonado v. IBM Corp. (D.C.Puerto Rico 1972) 56 F.R.D. 452, 455). Second, there is no indication from the act itself or its legislative history (see 1966 U.S.Code Cong. & Admin.News at p. 3002) that Congress, by providing exemptions, intended to prevent the states from regulating in the same area. In the absence of that indication, the Supreme Court has been unwilling to apply the preemption doctrine (see Catz & Leonard, The Demise of the Federal Preemption Doctrine (1977) 4 Hastings Const.L.Q. 295). Petitioners' reliance on United Air Lines, supra, 211 Cal.App.2d 729, 28 Cal.Rptr. 238, is misplaced because the law permits state regulation of health and safety matters. Minimum wages and overtime provisions are health and safety matters within those federal statutes.

The contention that state record-keeping and reporting requirements are preempted by federal requirements is also without merit. Since the state has the right to regulate, it has the implied power to do what is necessary to enforce the regulations. Record-keeping and reporting requirements clearly fall within that incidental power.

Our independent review does not reveal any indication in either the wording or legislative history of the NLRA, RLA or FLSA that Congress intended to preclude state regulation here. In addition we note that Order 10-76 employees are Not covered by the RLA. We find no preemption by federal labor laws.

II. DUE PROCESS AND EQUAL PROTECTION.

The trial court held that the action of the IWC in adopting Wage Orders 9-76 and 10-76 denied the transportation and amusement/recreation industries equal protection and due process rights under the United States and California Constitutions. We disagree.

In regard to our function on judicial review we are mindful of the statements of the California Supreme Court:

“At the outset we take note of certain principles which govern our consideration of the matter; although these rules have been often restated, it would be well to remember that they are not merely empty rhetoric. First, our task is to inquire into the legality of the challenged regulation, not its wisdom. (Citation.) Second, in reviewing the legality of a regulation adopted pursuant to a delegation of legislative power, the judicial function is limited to determining whether the regulation (1) is ‘within the scope of authority conferred’ (Gov.Code, s 11373) and (2) is ‘reasonably necessary to effectuate the purpose of the statute’ (Gov.Code, s 11374). Moreover, ‘these issues do not present a matter for the independent judgment of an appellate tribunal; rather, both come to this court freighted with the strong presumption of regularity accorded administrative rules and regulations.’ (Citation.) And in considering whether the regulation is ‘reasonably necessary’ under the foregoing standards, the court will defer to the agency's expertise and will not ‘superimpose its own policy judgment upon the agency in the absence of its arbitrary and capricious decision.’ (Citation.)” (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 411, 128 Cal.Rptr. 183, 195, 546 P.2d 687, 699.)

Applying these rules to the instant case we cannot say that the Wage Orders were the result of an arbitrary and capricious decision. The decision of IWC was adequately supported by the record.

The trial court's reasoning was that the IWC exempted industries subject to Order No. 9-76 from its regulation covering hours and wages of work where the industry has a collective bargaining agreement but failed to exempt industries subject to Order No. 10-76 even though the industries subject to both orders have employees covered by collective bargaining agreements. The trial court concluded that not exempting the ski industry and the for-hire trucking industry were arbitrary acts.

Order 9-76 specifically exempts industries subject to collective bargaining agreements under the Railway Labor Act (45 U.S.C., s 151 et seq.) and Order 10-76 exempts full-time ride operators employed by traveling carnivals. Petitioners contend that these exemptions are discriminatory because they too should have been exempted. In effect, Petitioners are asking the courts to usurp the IWC's function by issuing a decree exempting them as well. Thus, they would have the court rewrite the orders so that they will not be subject to them.

It appears that there is a rational basis for the exemptions. The agreements under the RLA protect employee rights more than the Order does and imposition of overtime provisions on traveling carnivals might jeopardize an already endangered species the traveling carnival. Appellants have not carried their burden of showing that there exists no rational basis for this legislative classification and therefore the contention that the equal protection clause has been transgressed is without merit. Nor do we find, as did the trial court, that there was a due-process violation.

The trial court determined that the ski industry was effectively denied due process because (1) the ski industry was not represented on the Amusement and Recreation Wage Board, (2) the ski industry did not receive notice of the public hearings even though it was an industry likely to be affected by the IWC's order, and (3) the ski industry, not being a statewide industry, was entitled to have a hearing in its locality. We cannot agree.

The ski industry contends that the uniqueness of that industry required that it be represented. This contention is wrong for several reasons. First, the Amusement and Recreation Wage Board was composed of employee representatives from hotel and lodging unions, theatrical workers unions, and service unions; there were employer representatives from theaters, amusement parks, carnivals, race tracks, and public agencies. While the ski industry is unique in certain ways, its labor pool, seasonal business, weekend orientation, and business practices are similar to amusement parks and movie theaters. It employs many young people during the winter months and is busiest on weekends and holidays. The typical ski area operates during daylight hours, and except for slope maintenance crews, no employees work much later than 5:00 p. m. Consequently, it is a fairly typical California amusement industry and was therefore adequately represented on the Wage Board. Second, even if the ski industry is unique, the Labor Code does not require the IWC to assure its specific representation. The selection of the Wage Board members is within the discretion of the IWC, and no abuse of discretion has been shown in this case. The Wage Board was broadly representative of the amusement and recreation industry and the trial court erred in ruling to the contrary.

The IWC was not required to hold public hearings in the mountainous regions of the state. The ski industry is state-wide in nature ranging generally from the San Bernardino area north to the Mt. Shasta area. Furthermore, the Sierra Ski Areas Association's office is located in San Francisco where hearings were held.

The ski industry's contention concerning lack of notice flies in the face of the statute. Labor Code section 1181, subdivision (b), states that failure to mail a notice to any of the required parties does not invalidate any order of the IWC.1

There is no constitutional requirement for any hearing or notice of hearing in a quasi-legislative proceeding. The procedural requirements for conduct of the agency hearings stem from the statute rather than from the due process clause. (Rivera v. Division of Industrial Welfare (1968) 265 Cal.App.2d 576, 587, 71 Cal.Rptr. 739; see also City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 703, 125 Cal.Rptr. 779, 542 P.2d 1371).

III. INTERSTATE COMMERCE.

The trial court found, in addition to preemption, that Order 9-76 impermissibly burdened interstate commerce because it affected United Air Lines' non-union California employees. United Air Lines (hereinafter United) contends that the order prevents it from uniformly administering personnel policies throughout its nationwide operation; hence, it burdens United and thereby impedes interstate commerce. We disagree.

Not every exercise of state authority imposing a burden on the free flow of commerce is invalid. As the United States Supreme Court stated in Hunt v. Washington State Apple Advertising Com'n. (1977) 432 U.S. 333, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383:

“Although the Commerce Clause acts as a limitation upon state power even without congressional implementation, (citations) our opinions have long recognized that, ‘in the absence of conflicting legislation by Congress, there is a residuum of powers in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’ Southern Pacific v. Arizona, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945).”

The court must make a delicate adjustment of conflicting state and federal claims. (See Raymond Motor Transp., Inc. v. Rice (1978) 434 U.S. 429, 98 S.Ct. 787, 793-794, 54 L.Ed.2d 664.)

There is no evidence in the record showing that the non-union California employees of United Airlines will be regulated in a more burdensome manner than non-union employees in other states. Thus, there is no basis upon which to conclude that there was an impermissible burden on interstate commerce.

IV. THE OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD.

The trial court found that the IWC was required to consult properly with Cal/OSHA; that the IWC adopted health and safety regulations and standards which are within the exclusive jurisdiction of Cal/OSHA and therefore the Orders are invalid.

The IWC and Cal/OSHA are required to confer on potential areas of overlapping jurisdiction (Labor Code s 1173). IWC argues that Cal/OSHA has Primary jurisdiction in industrial health and safety regulation and that those areas that Cal/OSHA leaves unregulated may be regulated by the IWC. Petitioners contend that Cal/OSHA has Exclusive jurisdiction over industrial health and safety. We agree with Petitioners and hold that Cal/OSHA has exclusive jurisdiction. There is no room for regulatory intrusion in the industrial health and safety area by the IWC (Labor Code s 142.3, subdivision (a)).

In this case the evidence is undisputed that the two agencies met on December 9, 1975, for the express purpose of determining potential overlaps in regulations. Petitioners contend that this meeting did not meet the statutory requirements because the discussion concerned general policy considerations rather than specific areas of conflict and that permitting staff workers to analyze and resolve the specifics for final agency approval was insufficient. We are not persuaded. The record shows that a Cal/OSHA officer sent a memorandum to the IWC indicating areas of overlap; that the two agencies met to prevent unnecessary duplication of regulations; and that the Orders were modified as a result of the conference. The trial court erred in concluding that the requirements of Labor Code section 1173 were not met.

The IWC attempted to limit itself to wages and hours and general working conditions affecting the comfort of the worker. Unfortunately the line between health and safety matters and other matters is often fuzzy and depends upon the particular statute. The agencies themselves in this case had tremendous difficulty defining the overlap. The problem areas here are basically sections 11 through 17 of the Orders. These sections cover certain matters which might be construed as health and safety related: section 11 (meal periods), section 12 (rest periods), section 13 (change rooms and resting facilities), section 14 (seats), section 15 (temperature), section 16 (elevators), and section 17 (lifting).

Labor Code section 6306, subdivision (a), provides: “(a) ‘Safe,’ ‘safety,’ and ‘health’ as applied to an employment or a place of employment means such freedom from danger to the life, safety, or health of employees as the nature of the employment reasonably permits.” “Health and safety” insofar as the overlap which might exist between IWC and Cal/OSHA (as contrasted with the broad definition found in many instances in the law where constitutionality is involved) refers basically to physical hazards and the like with potentially dangerous exposure to risk of injury or illness to a person which could reduce the optimum flow of work obtainable from an employee consistent with modern business labor practices.

Sections 11 through 16 are primarily concerned with Creature comforts designed basically to keep morale high, possibly increase productivity and promote employee welfare and only marginally related to industrial health and safety.

The employer's obligation under Cal/OSHA is to furnish devices and processes of operation which are reasonably adequate to render the employment and place of employment safe and healthful (Labor Code ss 6401, 6402, 6403).

The regulations under consideration here are far different from “. . . regulations prescribing specifications for all varieties of tools and industrial machinery” (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 306-307, 118 Cal.Rptr. 473, 475, 530 P.2d 161, 163) promulgated under Cal/OSHA.

Rather than regulations protecting workers from specific risks to health or safety as do those promulgated by Cal/OSHA, the IWC regulations here place a value on a person's productive labor and general welfare. This is in full accord with the constitutional provision from which the legislature derived its authority to establish the IWC.2

Sections 11 through 16 fall within the jurisdiction of the IWC and should be ruled valid.

S ection 17 on lifting appears to fall within the health and safety category and was properly ruled invalid by the trial court. However, all remaining provisions of the respective Wage Orders are within the jurisdiction of the IWC and the trial court erred in invalidating the entire order on this ground.

1H V. UNDUE HARDSHIP AND LOSS OF EMPLOYMENT.

T he trial court found that the orders were promulgated in violation of a specific legislative mandate, section 11, California Statutes, 1973, chapter 1007. That section was a postscript to the legislation amending Labor Code sections 1173, et seq., which expanded the IWC authority to establish wages and conditions of labor for all employees rather than just women and children. It reads:

11 “It is the intent of the Legislature in enacting this act that the Industrial Welfare Commission interpret these provisions in a manner which does not cause undue hardship and loss of employment opportunities in any segment of industry in California.”

“ Undue” in that section means excessive or extreme. What is undue hardship is a judgmental as well as a factual decision. Any raising of the minimum wage may create hardship on employers but not necessarily “undue” hardship. The IWC is required to consider the interests of both employer and employee (see California Grape Etc. League v. Industrial Welfare Com. (1969) 268 Cal.App.2d 692, 701, 74 Cal.Rptr. 313).

The record in the instant case discloses strenuous opposition from the involved industries to the proposed orders and equally vigorous opposition from employees and their representatives to a minimum wage less than three dollars. The final product was the result of the IWC considering all matters presented. If reasonable minds may differ as to the wisdom of a specific administrative agency action, the action is conclusive (see Action Trailer Sales, Inc. v. State Bd. of Equalization (1975) 54 Cal.App.3d 125, 133, 126 Cal.Rptr. 339). The decision of the IWC in the instant case as to what was “ undue” and whether there would be a loss in employment was in an area of reasonable administrative discretion. The decision was not arbitrary or lacking in evidentiary support. The finding by the trial court that the Wage Orders would have possible prospective adverse effects on employment was speculative. The record shows that employee representatives suggested that the overtime premium after 40 hours would provide additional jobs. Industry representatives suggested the same result would take place from a limitation on hours coupled with the overtime premium. The IWC properly considered loss of employment opportunities. Special needs of employers such as flexibility and scheduling of hours, exemptions from overtime requirements under certain conditions, and special consideration for certain types of employees were taken into account by, and provided for, in the Wage Orders. Petitioners have not met their burden of demonstrating undue hardship and employment loss.

1 The trial court erred in finding that the Wage Orders were promulgated in violation of the legislative mandate.

VI. THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND FRAUD GROUNDS FOR THE CROSS-APPEAL.

Petitioners cross-appeal contending that the IWC failed to comply with the California Environmental Quality Act (hereinafter CEQA). Under Title 14, California Administrative Code, sections 15100; 15124, the IWC has been exempted from CEQA. The issue is moot.

Furthermore, we do not believe that promulgation of IWC orders was a project within the meaning of CEQA (see Simi Valley Recreation and Park Dist. v. Local Agency Formation Com. (1975) 51 Cal.App.3d 648, 663-664, 124 Cal.Rptr. 635).

We note in passing that the IWC did file a Negative Declaration on July 26, 1976, and that a Notice of Determination was filed on August 5, 1976, while the present suit was not filed until October 14 and 15, 1976. Arguably Public Resources Code section 21167, subdivisions (b) and (e) (providing for 30-day statute of limitation) applies as the trial court held. Under the circumstances indicated above, we need not decide which statute of limitations under CEQA applied.

Although the cross-appeal was also grounded on alleged error in the trial court adjudging that IWC did not commit fraud in the promulgation of the Wage Orders, no argument was made thereon. The cross-appeal to that extent appears to have been abandoned. Nevertheless, we have examined the record and we agree with the trial court that there was no evidence of fraud upon the part of the IWC or any of its members. The contention of fraud is not well taken.

In view of our conclusions hereinbefore set forth, we find it unnecessary to discuss the IWC's contention of error by the trial court in admitting evidence extrinsic to the administrative record.

The judgment for respondents on the appeal by IWC is affirmed. As to the cross-appeal the judgment is affirmed.

I concur in the principal opinion except with respect to some of the language and the ultimate conclusion reached with regard to the characterization of sections 11 to 16 of the Orders as not relating to health and safety standards within the exclusive jurisdiction of Cal/OSHA.1 Further, even if the principal opinion is correct with respect to its definition of the rather limited types of health and safety regulations that are within the exclusive jurisdiction of Cal/OSHA, it is apparent from the record that the Industrial Safety Board and the IWC did not apply the proper standard in determining what IWC was authorized to regulate.

Taking the last point first, Labor Code section 1173 in pertinent part provides:

“Before adopting any new rules, regulations, or policies, the commission shall consult with the Industrial Safety Board to determine those areas and subject matters where the respective jurisdiction of the commission and the Industrial Safety Board overlap. In the case of such overlapping jurisdiction, the Industrial Safety Board shall have exclusive jurisdiction, and rules, regulations, or policies of the commission on the same subject have no force or effect.”

Contrary to appellants' contention the principal opinion correctly concludes that the jurisdiction of the Industrial Safety Board is exclusive in the field of health and safety. (See ss 142.3, 1173.) Thus the IWC does not have authority to regulate in an area of health and safety merely because the Industrial Safety Board has not done so. In other words, the IWC does not exercise a residuum of power to regulate areas within the exclusive jurisdiction of the Industrial Safety Board even though that board has not occupied the field. It is apparent, however, from the record that in the meeting held to determine the jurisdiction of the two bodies the commission members, without exception, took the approach that the regulations of the IWC were valid in those areas which the Industrial Safety Board had not actually regulated. Thus the wrong standard was applied and the trial court's invalidation of sections 11 through 17 of the regulation should be affirmed on this ground.

In addition, I do not agree that the regulations (ss 11-16) are not regulations pertaining to “occupational safety and health standards,” exclusive jurisdiction over which is vested in Cal/OSHA. (See s 142.3.)

Cal/OSHA was passed in 1973 (s 6300 et seq.) to assure “. . . safe and healthful working conditions for all California working men and women . . . .” (s 6300.) The Division of Industrial Safety within Cal/OSHA was granted exclusive authority to enforce and administer all relevant laws, standards and orders pertaining to health and safety. Thus, section 6307 states:

“The division has the power, jurisdiction, and supervision over every employment and place of employment in this state, which is necessary to adequately enforce and administer all laws and lawful standards and orders, or special orders requiring such employment and place of employment to be safe, and requiring the protection of the life, safety, and health of every employee in such employment or place of employment.”

Cal/OSHA was passed pursuant to section 18 of the federal OSHA (29 U.S.C. s 667) which authorizes the states to submit plans of their own. It establishes criteria for such state plans, requires the designation of a state agency or agencies responsible for administering and enforcing the plan and requires the standards promulgated to be at least as effective in providing safe and healthy employment and places of employment as the standards promulgated under federal OSHA. California's application for the approval of its plan stated:

“Standards are promulgated by the Occupational Safety and Health Standards Board which is created under the Plan in the Department of Industrial Relations (Lab.C. s 140). It is the only agency in the state authorized to adopt occupational safety and health standards (Lab.C. s 142.3).”

It should also be noted that Cal/OSHA parallels the federal scheme. Under the Fair Labor Standards Act (29 U.S.C. s 201 et seq.) the Wage and Hour Division, the federal equivalent to California's Division of Labor Standards Enforcement, regulates only wages and hours. Under the Occupational Safety and Health Act of 1970 (29 U.S.C. s 651 et seq.) federal OSHA, Cal/OSHA's counterpart, regulates all health and safety standards.

In view of this legislative background and history, I cannot agree with the rather narrow interpretation of the principal opinion restricting the jurisdiction of Cal/OSHA in safety and health matters “to physical hazards and the like with potentially dangerous exposure to risk of injury or illness to a person which could reduce the optimum flow of work obtainable from an employee consistent with modern business labor practices.”

Such a narrow view is inconsistent with and contrary to the obvious intent of the Legislature in passing Cal/OSHA.

Accordingly, I would affirm the trial court's judgment invalidating sections 11-17 of the orders, on these grounds.

I concur in the affirmance of the judgment. My only question is whether the Legislature intended Cal/OSHA to have exclusive jurisdiction over health and safety standards. This question arises from the language of Labor Code section 1173, as amended in 1973, which mandates the commission to consult with the Industrial Safety Board “to determine those areas and subject matters where the respective jurisdiction of the commission and the Industrial Safety Board overlap” and, “In the case of Such overlapping jurisdiction, the Industrial Safety Board shall have exclusive jurisdiction, . . .” (Emphasis added.) If the Legislature did not intend for the commission to have jurisdiction in some areas affecting the health and safety of workers, it would not have restricted the Industrial Safety Board's exclusive jurisdiction to the “overlapping” areas but would have excluded the commission's jurisdiction to All areas affecting health and safety.

Furthermore, the assumption that exclusive jurisdiction over health and safety matters is vested in Cal/OSHA renders meaningless the Legislature's express grant of authority to the commission in section 1173 “to Investigate the comfort, health, safety, and welfare of such employees.” (Emphasis added.) The language of Labor Code section 142.3, subdivision (a), which provides that “. . . The board shall be the only agency . . . authorized to adopt occupational safety and health standards . . .” does not foreclose the commission's right to investigate the comfort, health, safety and welfare of employees provided it is related to hours and conditions of employment.

Although I am not prepared to dissent from the principal opinion's holding that the commission and the Industrial Safety Board did not properly determine those areas and subject matters where the jurisdiction of the commission and the board overlapped, I would point out that the Legislature may well have intended to leave these matters to the expert administrative discretion of the commission and the board. If this be so, then the commission would be free to investigate and regulate areas within the parameters of health and safety provided, of course, that the board has not occupied the field.

FOOTNOTES

1.  In fact the Ski Association Director was present and was permitted to submit written material but not to speak.

2.  . California Constitution, article 14, section 1, provides as follows:32 “The Legislature may provide for minimum wages and For the general welfare of employees and for those purposes may confer on a commission legislative, executive and judicial powers.” (Emphasis added.)

1.  These sections cover matters which relate to health and safety. They are section 11 (meal periods), section 12 (rest periods), section 13 (change rooms and resting facilities), section 14 (seats), section 15 (temperature), section 16 (elevators), and section 17 (lifting).

HOPPER, Associate Justice.

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