UNITED AIR LINES INC v. DIVISION OF OCCUPATIONAL SAFETY AND HEALTH

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Court of Appeal, First District, Division 3, California.

UNITED AIR LINES, INC., Plaintiff and Appellant, v. The OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; The DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.

Civ. 52911.

Decided: December 17, 1981

Paul M. Tschirhart, Chicago, Ill., Jean C. Gaskill, Kathleen Lucas-Wallace, Brobeck, Phleger & Harrison, San Francisco, for plaintiff and appellant. Michael D. Mason, Chief Counsel, Division of Occupational Safety and Health, San Francisco, for real party in interest and respondent.

In this appeal from the denial of a petition for writ of mandate, the question presented is whether the state's Division of Occupational Safety and Health has jurisdiction over the occupational safety of employees at United Air Lines' ground maintenance facility at San Francisco Airport. To answer that question, we must determine what the Legislature meant when it excepted from Division jurisdiction places of employment “... the health and safety jurisdiction over which is vested by law in, and actively exercised by, any state or federal agency other than the division.” (Labor Code, s 6303, subd. (a).) More precisely, we must decide whether another agency is required not only to promulgate safety regulations, but also to enforce those regulations to the satisfaction of the Division in order to be actively exercising safety jurisdiction within the meaning of section 6303, subdivision (a).

I

In June 1976, an inspector from the state's Division of Occupational Safety and Health (Division) inspected United's maintenance facility at San Francisco International Airport and observed employees working on the centerline engine attached to a DC-10 aircraft. United was cited and fined by the Division for failing to provide a guardrail to protect those employees, who were working on a platform elevated to heights of up to 26 feet.1

United appealed the citation to the Division's Appeals Board and filed a motion to dismiss, arguing inter alia that the Federal Aviation Administration (FAA) had exclusive occupational safety jurisdiction over the maintenance facility, thereby exempting it from the jurisdiction of the Division. At a hearing before an administrative law judge, the evidence was that FAA regulations require air carriers to submit maintenance manuals for FAA approval, that such manuals include employee safety instructions, and that United's maintenance manual includes a provision requiring employees to wear safety harnesses when working on the centerline engine of a DC-10. There was also testimony that FAA inspectors visit United's maintenance facility frequently to determine worker compliance with manual-required maintenance procedures. However, no one who testified was aware of any FAA action to enforce the manual's employee safety requirements, except for provisions relating to the shipment of hazardous materials. The administrative law judge denied the motion to dismiss, and upheld the citation. The Appeals Board affirmed, finding that the Division properly issued the citation, “based on the lack of evidence that the FAA actually exercised employee safety jurisdiction in such circumstances.” Pursuant to Labor Code sections 6627-6633, United petitioned to the superior court for a writ of mandate, seeking to have the Board's decision set aside.2 The petition was denied, and this appeal followed.

II

While our resolution of this controversy depends on our interpretation of state law, a preliminary discussion of the relationship between federal and state regulation of occupational health and safety is necessary.

The federal Occupational Safety and Health Act (the Act) (29 U.S.C.A. s 651 et seq.) was enacted by Congress in 1970 to “... assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources-” (29 U.S.C.A. s 651(b)). The Act authorized the Secretary of Labor to promulgate occupational safety and health standards, and established procedures for their enforcement by inspection, the issuance of citations, and the assessment of penalties. (See id., at ss 665-669.) The Occupational Safety and Health Administration of the U. S. Department of Labor (OSHA) is charged with administration of the Act. (See 29 C.F.R. s 1903.1 et seq.)

Despite its broad sweep, the Act does not foreclose the exercise of safety and health jurisdiction either by other federal agencies or by states. Section 653(b)(1) of the Act provides: “Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.” (29 U.S.C.A. s 653(b)(1).) (Emphasis added.) The purpose of this section is to eliminate any wasteful duplication in the efforts of federal agencies. (Columbia Gas of Pennsylvania, Inc. v. Marshall (D.C.Cir.1980) 636 F.2d 913, 915; Marshall v. Northwest Orient Airlines, Inc., 574 F.2d 119, 122 (2nd Cir.).) As construed, section 653(b)(1) preemption requires that a coordinate federal agency has “exercised” authority by promulgating regulations in the area, and that these concurrent regulations cover the specific “working conditions” purportedly within OSHA's jurisdiction. (Columbia Gas of Pennsylvania, Inc. v. Marshall, supra, 636 F.2d at pp. 915-916.) In addition, section 667 of the Act provides that a state may continue enforcement of its own standards if no pertinent federal standard is in effect, or if the state has submitted an acceptable plan for the development and enforcement of standards. (29 U.S.C.A. s 667.) To be approved by the Secretary of Labor, the state's plan must provide for standards “at least as effective in providing safe and healthful employment and places of employment” as the federal standards. (Id., at s 667(c)(2).)

In 1973, in order to assume responsibility for development and enforcement of occupational safety and health standards pursuant to section 667 of the federal Act, California's Legislature enacted the California Occupational Safety and Health Act of 1973 (Cal/OSHA). (Lab.Code, s 6300 et seq.; see Stats. 1973, ch. 993, s 107, pp. 1954-1955; see also Division of Industrial Safety v. Municipal Court (1976) 61 Cal.App.3d 696, 701-702, 132 Cal.Rptr. 573.)3

Cal/OSHA authorizes the adoption of standards at least as effective as the federal standards, and provides for the enforcement of those standards by the Division of Occupational Safety and Health. (Lab.Code, ss 140, 142.3, 6307, 6317.) However, like the federal Act, Cal/OSHA does not foreclose the exercise of health and safety jurisdiction by other agencies. Labor Code section 6307 provides in part: “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....” At the time of the Division's inspection of United, Labor Code section 6303, subdivision (a), defined place of employment as “... any place, and the premises appurtenant thereto, where employment is carried on, except a place the safety jurisdiction over which is vested by law in any state or federal agency other than the division.” (Emphasis added.) In 1978 the section was amended to read, “... except a place the health and safety jurisdiction over which is vested by law in, and actively exercised by, any state or federal agency other than the division.” (Stats. 1978, ch. 1248, s 1.) (Emphasis added.) With this change, the language of the section more closely parallels that of section 653(b)(1) of the federal Act.

III

With the above discussion as background, we turn to appellant's contention that the Federal Aviation Administration (FAA) was actively exercising health and safety jurisdiction over its maintenance facility within the meaning of Labor Code section 6303, subdivision (a).4 Appellant urges that the Federal Aviation Act (49 U.S.C. s 1301 et seq.) authorizes the FAA to exercise occupational safety jurisdiction over its maintenance workers, and that the FAA has exercised that authority by promulgating enforceable safety regulations which require airlines to develop manuals which include provisions designed to further the safety of maintenance personnel.

In particular, appellant points out that the Federal Aviation Act requires the FAA Administrator to “promote safety of flight of civil aircraft in air commerce” by promulgating, among other standards, rules, and regulations: “(3) Reasonable rules and regulations and minimum standards governing, in the interest of safety, (A) the inspection, servicing, and overhaul of aircraft, aircraft engines, propellers, and appliances; (B) the equipment and facilities for such inspection, servicing, and overhaul; and (C) in the discretion of the Administrator, the periods for, and the manner in, which such inspection, servicing, and overhaul shall be made, including provision for examinations and reports by properly qualified private persons whose examinations or reports the Administrator may accept in lieu of those made by its officers and employees; ... (P) Such reasonable rules and regulations, or minimum standards, governing other practices, methods, and procedure, as the Administrator may find necessary to provide adequately for national security and safety in air commerce.” (49 U.S.C.A. s 1421(a)(3), (6).)

Among the regulations promulgated by the Administrator pursuant to section 1421 is a requirement that each domestic and flag air carrier prepare and keep current a manual for the use and guidance of light and ground operations personnel in conducting its operations. (14 C.F.R. s 121.133(a).) Among many other requirements, each such manual must “(1) Include instructions and information necessary to allow the personnel concerned to perform their duties and responsibilities with a high degree of safety; ...” (Id., at s 121.135(a) (1).) In addition, the manual must contain instructions and procedures for maintenance, preventive maintenance, and servicing, and other information or instructions relating to safety. (Id., at s 121.135(b)(16), (24).) 14 Code of Federal Regulations section 43.13(a) requires that each person performing maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual. Subdivision (c) of that regulation provides that unless otherwise notified by the Administrator, the methods, techniques, and practices contained in the maintenance manual constitute acceptable compliance with the section.

The Federal Aviation Act also provides for the enforcement of its regulations and the assessment of civil penalties for violations. (49 U.S.C.A. s 1471.) Investigation and enforcement procedures are detailed in Part 13 of the Federal Aviation Administration regulations. (14 C.F.R. s 13.)

As required by 14 Code of Federal Regulations section 121.133, United has manuals which mandate procedures to be followed in maintaining its aircraft; those manuals also include provisions directed at the safety of maintenance workers. As already mentioned, one provision in the manual which was introduced into evidence at the hearing in this case requires that employees wear safety harnesses when working on the centerline engine of a DC-10.

Appellant relies on a recent decision by the federal Occupational Safety and Health Review Commission to urge that this statutory and regulatory scheme exempts its maintenance facility from Cal/OSHA's reach. (Northwest Airlines, Inc. (1980) - OSHD No. 13649, p. - (CCC1980 OSHD P 24,751, p. 30,481).) The facts in Northwest parallel those in the instant case, except that the jurisdictional clash was between two federal agencies, OSHA and the FAA. OSHA cited Northwest Airlines for not adequately safeguarding its maintenance employees when they entered the flap cavity of an aircraft wing to service the plane's landing lights. It was alleged that Northwest had not taken certain steps to protect against the flaps accidentally closing and crushing the mechanics. However, Northwest's maintenance manual, which had been submitted to the FAA for approval, contained a provision directed at that hazard. Northwest and the FAA claimed that because the airline was regulated by the FAA, it was exempt from regulation by OSHA pursuant to section 653(b)(1) of the Occupational Safety and Health Act. OSHA's Review Commission agreed, and vacated the citation.

First, the Commission interpreted those portions of the Federal Aviation Act relied upon by appellant in this case to authorize FAA regulation of working conditions of an airline's maintenance personnel in order to assure their safety. Giving considerable weight to the FAA's interpretation of its own enabling legislation, the Commission found it reasonable to conclude that the prevention of air crashes was not Congress' sole concern in enacting the legislation in question, and that the phrase “safety in air commerce” in 49 U.S.C. section 1421(a)(6) encompasses more than safety of flight, and includes the ground safety of airline personnel who are an integral part of air commerce. (Id., at p.-; (at p. 30,487).)

The Commission then held that the FAA had validly exercised that authority by promulgating rules requiring the development of manuals which include employee safety provisions. Such provisions, the Commission concluded, have the force and effect of law and are legally binding on the airline.5 Finally, the Commission stated that its inquiry ended with the determination that another agency had validly promulgated applicable rules, and recognized that it was without authority to oversee the adequacy of another agency's enforcement efforts. (Id., at p.- (at p. 30,489).)

First, respondent simply disagrees with the Commission's analysis of the FAA's authority to regulate. However, we find that analysis persuasive. Respondent then makes some attempt to distinguish Northwest on its facts, but those differences are without significance. More important is respondent's argument that Northwest is irrelevant because California is free to exercise broader jurisdiction than can OSHA. Respondent calls our attention to an amicus curiae brief filed by the Solicitor General of the United States in conjunction with appellant United's petition for a writ of certiorari from the U.S. Supreme Court, after the dismissal of its complaint for injunctive relief against the Division in United Air Lines v. Division of Indus. Safety, etc., supra, 633 F.2d 814. In that brief the Solicitor General expressed the view that a state can provide an exemption from coverage narrower than that permitted by federal law and that a state program need not have any exemption analogous to that provided by section 653(b)(1). We need not express any view as to the merits of the Solicitor General's opinion, however, as our task here is only to determine what the California Legislature has done, not what it could have done.

We return to Labor Code section 6303, subdivision (a), which now defines a place of employment over which the Division has jurisdiction as “any place ... where employment is carried on, except a place the health and safety jurisdiction over which is vested by law in, and actively exercised by, any state or federal agency other than the division.” Respondent interprets section 6303, subdivision (a), to mean that in California, a place of employment is subject to Cal/OSHA jurisdiction unless another agency not only has promulgated applicable standards and regulations, but also is actively enforcing those standards and regulations.

We are aware of the deference usually given to an administrative agency's interpretation of its enabling legislation. (Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d 35, 45, 136 Cal.Rptr. 854, 560 P.2d 743.) We are also mindful that the terms of Cal/OSHA are to be given a liberal interpretation for the purpose of achieving a safe working environment. (Bendix Forest Products Corp. v. Division of Occupational Saf. & Health (1975) 25 Cal.3d 465, 470, 158 Cal.Rptr. 882, 600 P.2d 1339.) However, our analysis of the plain language of Labor Code section 6303, subdivision (a), and its legislative history, and our assessment of the practical implications of respondent's reading of the statute, persuade us that respondent's interpretation is clearly erroneous.

The fundamental rule of statutory construction is that in ascertaining the intent of the Legislature, we must begin by looking at the words of the enactment itself. (Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 132, 142 Cal.Rptr. 325.) We first note the differences between the words of section 653 of the federal Act and Labor Code section 6303, subdivision (a). The federal law provides that nothing therein shall apply to working conditions of employees with respect to which “other Federal agencies ... exercise statutory authority to prescribe or enforce standards....” (19 U.S.C.A. 653(b)(1).) (Emphasis added.) In contrast, prior to its 1978 amendment, Labor Code section 6303, subdivision (a), excepted from Division jurisdiction a place “the safety jurisdiction over which is vested by law in any state or federal agency....” (Emphasis added.) On its face, that version of section 6303 appeared to require only that another agency have the power to regulate in order to create an exemption, not that it actually use that power.

The Legislative Counsel's Digest to the 1978 amendment explains that the amendment will “redefine” the term, “place of employment.” (4 Stats. 1978 (Reg. Sess.) Summary Digest, p. 348.) The amendment originated as Assembly Bill No. 3282 and was referred to the Assembly Committee on Labor, Employment, and Consumer Affairs. (6 Assem.J. (1977-78 Reg.Sess.) p. 12121.) The analysis of that bill prepared by the committee consultant verifies that the amendment was intended to make California law consistent with federal law by creating an exemption if another agency had actually exercised the jurisdiction with which it was vested by promulgating a body of safety and health regulations. Furthermore, federal courts have consistently construed the requirement that another agency exercise its regulatory authority to mean no more than the promulgation of regulations, and have rejected the argument that the effectiveness of enforcement is a factor to be considered in determining preemption. (Columbia Gas of Pennsylvania, Inc., supra, 636 F.2d at p. 918; Southern Ry. Co. v. Occupational Saf. H. Review Comm. (1976 4th Cir.) 539 F.2d 335, 339; Organized Migrants in Commun. Action, Inc. v. Brennan (1975 D.C.Cir.) 520 F.2d 1161, 1169.) Where a statute is patterned after federal legislation which has been judicially construed, there is a strong presumption that the Legislature intended to adopt that construction. (Union Oil Associates v. Johnson (1935) 2 Cal.2d 727, 735, 43 P.2d 291.) We find nothing in either version of section 6303, in the Legislative Counsel's Digest and committee consultant's analysis, or in the rules of statutory construction to support a conclusion that the Legislature meant “enforcing” when it added the words “actively exercising” to Labor Code section 6303, subdivision (a).

Finally, respondent's reading of Labor Code section 6303, subdivision (a), would require that the Division conduct inspections not only to enforce its own standards, but also to assess the enforcement effectiveness of other agencies as well. The result would be chronic uncertainty for employers and employees as to which safety regulations command compliance. An employer who thought his place of employment was subject only to another agency's regulations might still find himself cited for violation of a Cal/OSHA regulation, because a Division inspector concluded that the other agency's enforcement was too lax. We are not persuaded that the Legislature intended to create a regulatory mechanism of such uncertain scope.

Judgment is reversed, and the trial court directed to enter a peremptory writ of mandate vacating the decision of the Occupational Safety and Health Appeals Board.

FOOTNOTES

1.  Among the General Industry Safety Orders of the state's Division of Industrial Safety is a requirement that guardrails shall be provided on all open sides of unenclosed platforms or working levels more than 30 inches above the floor, ground, or other working area. (Cal.Admin.Code, tit. 8, s 3210, subd. (a).)

2.  United also sought an injunction in federal court to prevent the Division from enforcing the state's occupational safety laws at its maintenance facility. The trial court's order granting a preliminary injunction was reversed for lack of federal jurisdiction after the court concluded that the controversy was based in state law. (United Air Lines v. Division of Indus. Safety, etc. (1980 9th Cir.) 633 F.2d 814, 817.)

3.  For an overview of state legislation relative to worker safety prior to the enactment of Cal/OSHA, see Hunter, The California Occupational Safety and Health Act: An Overview (1975) 50 L.A. Bar Bull. 303.

4.  As our resolution of this dispute hinges on our interpretation of this statute, the question is one of law, not of fact, and we are not concerned with the sufficiency of the evidence to support findings. (Cf. Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd. (1979) 89 Cal.App.3d 590, 594-595, 152 Cal.Rptr. 510.)

5.  In the instant case, the trial court took judicial notice of a 1977 exchange of letters between Congressman John Burton and the Administrator of the Federal Aviation Agency at that time, Langhorne Bond, in which Bond expressed doubt that procedures set forth in maintenance manuals were of regulatory force. We have not overlooked that exchange, but note that Bond's view is inconsistent with the position subsequently taken by the FAA in the Northwest case.

SCOTT, Acting Presiding Justice.

BARRY-DEAL and ANELLO,* JJ., concur.