Petition — United Air Lines, Inc. v. Division of Industrial Safety of the Department of Industrial Relations

Supreme Court brief1981

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80-1494

Office-Supreme Court, U.S.

No. EF | 12 E D

MAR 2 1981

IN THE ALEXANDER !.. STEVAS,

CLERK

Supreme Court of the Anited States

OcTOBER TERM, 1980

UNITED AIR LINES, INC.,

Petitioner,

VS.

THE DIVISION OF INDUSTRIAL SAFETY OF THE

DEPARTMENT OF INDUSTRIAL RELATIONS OF THE

STATE OF CALIFORNIA and THE OCCUPATIONAL

SAFETY & HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendant.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARNOLD T. AIKENS

PAUL M. TSCHIRHART

P. O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

Attorneys for Petitioner,

United Air Lines, Inc.

Pandick Press Midwest, Inc., Chicago © 454-7600

Petitioner United Air Lines, Inc. (hereinafter, “United”’)

respectfully petitions that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth

Circuit entered on December 2, 1980, in Case No. 79-4489,

United Air Lines, Inc. v. The Division of Industrial Safety of the

Department of Industrial Relations of the State of California

and the Occupational Safety and Health Appeals Board for the

State of California.'

QUESTION PRESENTED FOR REVIEW

Whether the U. S. Court of Appeals erred in reversing the

U. S. District Court and in denying jurisdiction notwithstanding

the federal question explicitly stated in United’s complaint for

declaratory and injunctive relief from pervasive and unlawful

regulation of its operations and maintenance facilities by a

California state agency when jurisdiction over the same facil-

ities is actively exercised by the Federal Aviation Adminis-

tration.2

1 The Division of Industrial Safety will hereinafter be referred to

as the “Division,” and the Occupational Safety and Health Appeals

Board will be referred to as the “Board.” Collectively, these agencies

will be referred to as “CAL/OSHA.”

2The only party to the proceeding before the Ninth Circuit

which is not revealed by the caption is the International Association of

Machinists, District 141, which union filed a brief in the Court of

Appeals as amicus curiae.

TABLE OF CONTENTS

PAGE

Question Presented for Review.............:cccssscccsssecessseseesees i

We MII ach cis cctbccdclsitandiceddhubedincattohiovednnyetoosenebsonees ii

I oi su ek ead banccnundapsapdimnpoubakalabnanbe iii

Son ha censisdshivhscrenuclinegnatashutessocngesagnineses snenentadieibaens l

PIII CII soc cccthansientadsenpohencdbiaosobseducneoocebbos 2

Statutes and Regulations Involved ..............cccceesceeseeesees 2

I NIT II ids aise cctnicnbesnosoutbilsbeasdebooedinvenes 3

IIE ecictidinnsbicnsssbnsnndinnconteppojabcastbesnbacsensucpcebateunbsevvsenees 5

I. The Measure of CAL/OSHA’s Jurisdiction De-

pends Entirely on Federal Law...............cccccssceseeeeeee 6

A. CAL/OSHA’s Jurisdictional Limits Cannot

OE BMT RIIEIE B idstercreticitasctscncstsnecscceseses 7

B. Both FED/OSHA and CAL/OSHA Only

Have Jurisdiction Over Safety and Health

Matters Which Are Not Regulated by Other

Pe aii tensciitnabtiinitieaniionbannteslbinenssoepbeotysosctonce 8

C. The Scope of FAA Regulation Is Deter-

mined by the Interpretation of the Federal

Aviation Act and Its Implementing Regu-

WII iid nctukhialh be ccgdkttcee gustusepiehpasisbdientiabseivpences 10

D. The Court of Appeals’ Failure to Find a

Federal Question as to the Scope and Ex-

ercise of FAA Jurisdiction in Matters of

Safety and Health Encourages Inconsistent

Federal/State Adjudication of the Same

See ecbitesibaseshitiidéhniialebishicuatinbasdeighevisavecsecqnevises 14

Il. The Court of Appeals Simply Ignored United’s

I aco a cabibigeuabgebsioneossnce 16

EERE CSS ASAE SRE TS aR Ee OEE Ce 20

Appendix

iil

TABLE OF AUTHORITIES

Court Cases

American Federation of Labor et al. v. Marshall,

570 F. 2d 1030 (D. C. Cir. 1978) .....ccceecccepeeeeseees

Baltimore and Ohio R.R. Co. v. Occupational Sa-

fety and Health Review Commission, 548 F. 2d

ee Se ag Gaels BPP I cc cciosscnebehnncdpidnisicenscbordeboeue

Continental Can Co. v. Marshall, 603 F. 2d 590

CF AG. OPE F cisccinccsimininssanslliaovetdbipiciveesianneoes

Gomillion v. Lightfoot, 36% 1). S. 339 (1960) ..........

Marshall v. Barlows, Inc., 436 U.S. 307 (1978) .....

Moore v. Sims, 442 U.S. 415 (1979) ...cccccccccceeeeeeeees

Southern Ry. Co. v. Occupational Safety and

Health Review Commission, 539 F. 2d 335 (4th

SA EOF OAD D sisntieabdasialaigheconiinstieaideniadduboendeinabdiadanacieton

Southern Pacific Transportation Co. v. Usery, 539

he oe ky | IE) eR

Stoie of South Carolina v. Katzenbach, 383 UV. S.

EE i. ebissiscianesinds otihnsabindiheniieitanitiinigencpes

United Air Lines, Inc. v. The Occupational Safety

and Health Appeals Board, et al., Docket No.

749-454, Calif. Supreme Court, Judgment en-

OPRNE CHUIIIOE Sy. BN sccccisnseicnnissttibsieinsibihaciesedcesy

Weyerhaeuser Co. v. Marshall, 592 F. 2d 373

Cea CPP P cachasebeadbcrsescssnabiasisdialiccttvecsermsihe

Administrative Cases

Mushroom Transportation Co., 1973-74 CCH

CUSED ete. BG, BET CT9TE) ccccssssescscrcresssscondecrseess

Northwest Airlines, Inc., 1980 CCH OSHD para.

24,751 (appeal Pending ) ..........c.cccrrcccssrsscsesrseesees

PAGE

6, 17, 18

PAGE

Secretary of Labor v. American Airlines, 1975-76

CCH OSHD para. 20.129 (1975)... ccecessseeseeees 16

Secretary of Labor v. American Airlines, OSHRC

Docket No. 78-0918 ( pending review )................ 16

Secretary of Labor vy. Consolidated Rail Corp..

CCH OSHD para. 23,363 (1979).....cscscecssereees 16

Legislative Materials

De eR SET paiknibcesnesnisevetbtiasucieniivencsicine 4

GNM EMIT tctichentbtsccstslsladnctisscesabieqsedicipscs 4

Federal Aviation Act Of 1958...........:csssscsscesssssseneees 5

OOP Matty Gre PRE OT D scdhscnsechcssccqsssscvdsoncsonsoscctess 11

RUN ere ie URSECIP FIN Gasisherdblsioncetensbocesngentnosetsctedschapane 11

Py ie Mek DRA ECRY vsthiccesstscarnscndnbotesecsonisionons 3, 11, 14-

15,

BF ia es PNM Rs donen bined dedihantestensacnivininscssebosee 12

Federal Aviation Regulation

Ris Fe ED occas inrsnvidecqnceabliininnoeeetachbianse 12, 13

Pere Ee. Wi aE Pe ricseipsesinsne cdudibeacsneseiuleegeses 12

Be Ea Bic WE A a Ei sochatatcndvesiacdetatdtabnacesdeceychees 13

Occupational Safety and Health Act of 1970........... 5,7

PEs Ia DU Didincesscvesccseinnipicencvipaseinstensios 7,8

Os Bea es ME PCE Ppnstncssdctochescorneitiinonszevens 7, 8,9, 15

SPP RS Mees, NET aabiiinsnsteenbncinciinna teeddsdnaddbapscicitces a, 7,8 9,

U. S. Code Cong. & Admin. News 1970, p. 5177..... 7

U. S. Supreme Court Rules, Rule 17 .................00000. 6

California Labor Code § 6307 .......cccccsssssseseeseeenenees 9

California Labor Code § 6303( a) ......:ccccccseeseeseerees 5,10

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1980

UNITED AIR LINES, INC.,

Petitioner,

vs.

THE DIVISION OF INDUSTRIAL SAFETY OF THE

DEPARTMENT OF INDUSTRIAL RELATIONS OF THE

STATE OF CALIFORNIA and THE OCCUPATIONAL

SAFETY & HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendant.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

The order of the United States District Court for the

Northern District of California ( Williams, J.) granting United's

motion for a preliminary injunction on July 26, 1979, is not

officially reported. A copy appears in the Appendix at page

43a. The Opinion of the United States Court of Appeals for the

Ninth Circuit, dated December 2, 1980, is reported at 633 F. 2d

814. A copy appears in the Appendix at page 48a.

JURISDICTION

The judgment of the U. S. Court of Appeals was entered

December 2, 1980. Jurisdiction is conferred on this Court by 28

U.S. C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

Federal Aviation Administration (FAA)

Federal Aviation Act of 1958, as amended

49 U.S. C. § 1421(a)

49 U.S. C. § 1425

Federal Aviation Regulations

14C. F. R. § 43.13(a)

14C. F. R. § 121.133

14C. F. R. § 121.135

Federal Occupational Safety and Health Administration

(FED/OSHA)

Federal Occupational Safety and Health Act of 1970

29 U.S.C. § 651(b)

29 U.S. C. § 653(b)(1)

29 U.S. C. § 667

California Division of Industrial Safety and Occupational

Safety and Health Appeals Board (CAL/OSHA)

California Labor Code § 6303(a)

California Labor Code § 6307

STATEMENT OF THE CASE

This civil action involves United’s challenge to

CAL/OSHA’s pervasive inspection, regulation and enforcement

of occupational safety and health standards in a manner which

usurps the jurisdiction of the Federal Aviation Administration

(FAA). CAL/OSHA’s authority is limited, not only by its

derivation from FED/OSHA’s? basic statutory grant, but also,

under the terms of its own organic statute, by the FAA’s

exercise of its statutory authority in the same place of employ-

ment.

On May 9, 1979, United filed a complaint (Appendix p.

14a) and a motion for a preliminary injunction (Appendix p.

25a) prohibiting the Division from inspecting, regulating or

enforcing any jurisdiction over United’s San Francisco oper-

ations and maintenance facilities.4 United also filed a motion

for a preliminary injunction to enjoin the Board from contin-

uing its administrative proceedings related to the enforcement

of citations issued by the Division at United’s operations and

maintenance facilities (Jd). On July 26, 1979, the U. S. District

Court granted United’s motion and entered the preliminary

injunction. (Appendix page 43a). CAL/OSHA noticed its

appeal on August 6, 1979 and filed a motion for a stay of the

preliminary injunction on October 29, 1979. The U. S. Court of

Appeals for the Ninth Circuit granted the stay on January 25,

1980, and after briefs and oral argument, reversed the District

3 Federal Occupational Safety and Health Administration.

4 United’s San Francisco operations and maintenance facilities

include only those areas at San Francisco International Airport and

United’s Maintenance Operation Center at the airport where in-

spection, servicing and overhaul of aircraft, aircraft engines, propel-

lers and appliances take place. See 49 U.S. C. § 1421(a)(3).

Court on December 2, 1980 (633 F. 2d 814, Appendix p. 48a)

holding that the District Court lacked subject matter jurisdic-

tion under 28 U.S C. § 1331 for want of a federal question.5

United asserts chat the federal questions presented in the

complaint are not only the primary issues to be resolved but in

addition so dominate the entire action as to require a federal

court to hear them. Indeed, the Court of Appeals acknowl-

edged the existence of a federal issue as to the scope of FAA

authority but held that the issue is merely “tangential to the

task of construing the state statute.” 633 F. 2d at 816, Appendix

p. 5la. Basic principles of federal jurisdiction vis-a-vis a state

agency should not be so readily discarded.

5 The Court of Appeals failed even to discuss whether jurisdiction

might be found under 28 U. S. C. § 1337 also relied upon by United in

paragraph 2 of the complaint (Appendix p. 15a).

ARGUMENT

By the Federal Aviation Act of 4958, Congress conferred

upon the FAA exclusive authority over safety in air commerce.

That authority has always been used by the FAA to require,

inter alia, that airline personnel perform maintenance on

aircraft and aircraft components safely and in accordance with

FAA approved manuals of procedures and safeguards. United

is subject to the Federal Aviation Act.

In the Occupational Safety and Health Act of 1970,

Congress gave pre-emptive authority over employee safety and

health to FED/OSHA except for those working conditions over

which another federal agency has and exercises safety and

health jurisdiction. In Northwest Airlines, Inc., 1980 CCH

OSHD. para. 24.751 (appeal pending) (Appendix p. 54a), the

FED/OSHA Review Commission held that FED/OSHA

lacked safety and health jurisdiction to regulate an airline’s

employees performing maintenance On an aircraft engine be-

cause the FAA has and exercises that authority.

One section of the Occupational Safety and Health Act

authorizes FED/OSHA to delegate to a state its safety and

health jurisdiction under a plan approved by FED/OSHA. 29

U. S. C. § 667. CAL/OSHA operates under such a plan.

CAL/OSHA’s authority is, therefore, wholly derived from

FED/OSHA’s ‘delegation and, in accordance with the federal

statutory scheme, cannot exceed FED/OSHA’s own jurisdic-

tion. Under its own organic statute, CAL/OSHA’s jurisdiction

over places of employment in California does not extend to

places of employment which are regulated in matters of safety

and health by a federal agency much as the FAA. California

Labor Code § 6303(a). Nevertheless, CAL/OSHA has contin-

ually asserted its safety and health jurisdiction over United's

operations and maintenance facilities.

United brought this action for declaratory and injunctive

relief against CAL/OSHA'’s usurpation of FAA authority. The

District Court ordered preliminary injunctive relief; however,

the Court of Appeals dismissed the action stating there was no

federal question. In doing so, the Court of Appeals so far

departed from the accepted and usual course of judicial pro-

ceedings as to call for an exercise of this Court’s power of

supervision. Rule 17 of the U. S. Supreme Court Rules.

Moreover, the Court ignored United’s allegation that its right to

due process was unconstitutionally violated by illegal inspection

and regulation in conflict with the Seventh Circuit’s decision in

Weyerhaeuser Co. v. Marshall, 592 F. 2d 373, 376 n.2 (7th Cir.

1979). The Court’s decision would compel United to bear the

heavy burden of unlawful regulation while pursuing piecemeal

review of individual citations in the state courts. That decision

would likewise leave to the California state courts the obliga-

tion to measure the competing jurisdictions of federal agencies

and CAL/OSHA at the same time other federal courts will be

considering the identical issue of jurisdictional boundaries

between other federal agencies and FED/OSHA. Inconsistent

adjudication of this important question is inevitable. The Court

of Appeals has thus wrongly denied United access to the federal

court for comprehensive declaratory and injunctive relief based

on federal law.

THE MEASURE OF CAL/OSHA’S JURISDICTION

DEPENDS ENTIRELY ON FEDERAL LAW

The Court of Appeals’ holding that United’s complaint

fails to state a federal question is directly contradicted by the

nature of the controversy between United and the state agency

and the need to resolve that controversy in accordance with the

federal statutory scheme.

A. CAL/OSHA’s Jurisdictional Limits Cannot Exceed

FED/OSHA’s

In enacting the Occupational Safety and Health Act of

1970 (OSH Act), Congress intended to provide a com-

prehensive, nationwide approach to matters of employee safety

and health. 29 U. S. C. § 651(b); S. Rep. No. 91-1282, 91st

Cong., 2d Sess. 18 (1970) printed in U. S. Code Cong. &

Admin. News 1970, pp. 5177, 5180. Nevertheless, Congress

also expressed concern that the OSH Act not result in the

complete federalization of occupational safety but that the

states have the option to “reassume responsibility” for

occupational safety and health through the submission of an

accpetable plan to the Secretary of Labor. 29 U.S. C. § 667;

American Federation of Labor et al. v. Marshall, 570 F. 2d

1030, 1033 (D. C. Cir. 1978). In other words, after finding that

the nation’s workforce in general was not adequately protected,

Congress assigned the role of comprehensive regulation of

safety and health standards to the federal government in the

form of the Occupational Safety and Health Administration

(FED/OSHA]. States were permitted to reassume responsi-

bility only under the careful scrutiny of FED/OSHA.

Since the Congressional purpose and policy of the OSH

Act is to protect every working man and woman in the nation

within the constitutional limits of interstate commerce, 29

U.S. C. § 651, not already protected by other federal agencies,

29 U. S. C. § 653(b)(1), the jurisdictional reach of the OSH

Act into the interstate commerce of United and other employers

cannot be exceeded by the jurisdictional reach of an approved

state plan.6 Accordingly, any jurisdictional limitations placed

6 United is not unmindful of the mandate of 29 U. S. C.

§ 667(c)(2) that state plans require standards which are or will be at

least as effective in providing safe and healthful employment and

places of employment as federal standards. Authorization to impose

more demanding standards, however, does not suggest any broad-

ening of jurisdiction.

on FED/OSHA in its own enabling legislation must likewise

apply to any state agency which derives its authority in this

federally pre-empted field of occupational safety and health

entirely from the approval of the federal agency. CAL/OSHA’s

jurisdictional limitation in the face of the FAA’s exercised

jurisdiction is therefore mandated by CAL/OSHA’s charter

under 29 U. S. C. § 667.

B. Both FED/OSHA and CAL/OSHA Only Have Jurisdic-

tion Over Safety and Health Matters Which Are Not

Regulated by Other Agencies

In order to carry out its broad statutory purpose, Congress

gave FED/OSHA exceedingly broad regulatory authority in

matters of employee safety and health. 29 U.S. C. § 651. That

jurisdiction has boundaries, however, which avoid any intrusion

into areas already regulated by another federal agency:

“Nothing in this chapter shail apply to working conditions

of employees with respect to which other Federal agencies

. exercise statutory authority to prescribe or enforce

standards or regulations affecting occupational safety or

health.” 29 U.S. C. § 653(b)(1).

In 1976, three Circuit Courts considered the railroads’

charges that the authority of the Federal Railroad Adminis-

tration (FRA) pre-empted FED/OSHA from any safety and

health regulation in the entire railroad industry. In Southern

Ry. Co. v. Occupational Safety and Health Review Commission,

539 F. 2d 335 (4th Cir. 1976), the Court held that an actual

exercise of statutory authority by another federal agency is

required before the pre-emption of FED/OSHA is effected.

The Court understood, however, that the term “working condi-

tions” in the exemption refers to “the environmental area in

which an employee customarily goes about his daily tasks,” and

that “when another agency has exercised its statutory authority

to prescribe standards affecting occupational safety or health

for such an area, the authority of the Secretary of Labor is

foreclosed.” 539 F. 2d at 339.

The Fifth Circuit agreed. In Southern Pacific Trans-

portation Co. v. Usery, 539 F. 2d 386 (Sth Cir. 1976), that

Court also rejected the notion that an entire industry can be

pre-empted from FED/OSHA regulation. merely by the exis-

tence of safety and health regulatory authority in the FRA.

Once again, however, the Court acknowledged:

“Section 4(b)(1) [29 U. S. C. 53(b)(1)] means that any

FRA exercise directed at a working condition—defined

either in terms of a ‘surrounding’ or a ‘hazard’—displaces

OSHA coverage of that working condition.” 539 F. 2d at

391.

Likewise, in Baltimore and Ohio R.R. Co. v. Occupational

Safety and Health Review Commission, 548 F. 2d 1052, 1055

(D. C. Cir. 1976), the Court held that the FRA, which had only

proposed applicable rulemaking, had not yet exercised its

statuory authority with enough force to terminate

FED/OSHA's authority. But once the FRA were to do so, the

Court left no doubt that it understood Congress to intend a pre-

emption. The Court also alluded to the situation now facing

United:

“An industry caught in the middle by this approach has, at

the least, every right to expect that, until the final bound-

aries are defined, there will be sensible cooperation and

mutual adjustment between the various agencies in-

volved.”

United, caught in the middle, has not benefited from any

such cooperation or adjustment between agencies.

Simply stated, FED/OSHA has all the safety and health

regulatory jurisdiction not held and used by another federal

agency. CAL/OSHA'’s regulatory jurisdiction is similarly limit-

ed by the terms of its organic statute.? CAL/OSHA's jurisdic-

tion extends to every place of employment in California.

California Labor Code § 6307. However, “place of employ-

ment” is defined to mean:

7 This statutory limiiaiwon is compelled by CAL/OSHA's deriva-

tion of authority from FED/OSHA under 29 U. S. C. § 667. See

supra.

“|... any place and the premises appurtenant thereto,

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 [of Industrial Safety]. California Labor

Code § 6303(a) (Emphasis added. )

Thus, like its federal counterpart from which it derives its

authority, CAL/OSHA may not regulate where another federal

agency already has and exercises safety and health jurisdiction.

In this action, the District Court found that the FAA has and

exercises safety and health jurisdiction over United’s San

Francisco operations and maintenance facilities. The Court

therefore enjoined CAL/OSHA from regulating in the same

place of employment. (Appendix p. 46a) Since CAL/OSHA's

jurisdiction is derived from federal law and must be measured

by interpretation of another federal agency’s jurisdiction, its

authority was properly limited by the District Court. In

reversing the District Court, the Court of Appeals simply

ignored the federal questions of statutory construction and due

process explicitly presented in the complaint.

C. The Scope of FAA Regulation Is Determined by The

Interpretation of The Federal Aviation Act and Its

Implementing Regulations

The California statute, no less than the federal law,

effectuates the Congressional purpose of avoiding overlapping

jurisdiction over employee safety and health. Avoiding OSHA

interference, whether federal or state, depends entirely on a

measurement of the “other agency’s” authorized jurisdiction

and a determination of whether that jurisdiction is actually

exercised. For United, its regulation by either FED/OSHA or

CAL/OSHA is determined by the outer limits of the FAA's

exercised authority in the field of employee safety and health.

This is the ultimate question to be resolved by a federal court in

this action and is the essential issue on which United’s com-

plaint is based.

Moreover, based on the applicable law and recent inter-

pretation of that law, it appears that United’s position con-

cerning the effect of FAA jurisdiction is correct.

The FAA, acting through its Administrator, has been given

virtually absolute authority to carry out its responsibilities as set

forth in the Federal Aviation Act. 49 U.S.C. § 1341(a).®

Those powers and duties are described at 49 U.S. C. § 1421(a)

to include the following:

“The [Federal Aviation] Administrator is empowered and

it shall be his duty to promote safety of flight of civil

aircraft in air commerce by prescribing and revising from

time to time:

o * *

(3) Reasonable rules and regulations and minimum stan-

dards governing, in the interest of safety, (a) the inspection,

servicing, and overhaul of aircraft, aircraft engines, propel-

lers, 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 provisions for examinations and

reports by properly qualified private persons whose exam-

inations or reports the Administrator may expect in lieu of

those made by its officers and employees. . . .

* . *

(6) “Such reasonable rules and regulations, or minimum

standards, governing other practices, methods, and proce-

dure, as the Administrator may find necessary to provide

adequately for national security and safety in air com-

mence.” (Emphasis added. )

United, as a domestic flag carrier, is subject to FAA

regulations, 49 U. S. C. § 1371, and, as such, is required to

8“In the exercise of his duties and the discharge of his responsi-

bilities under this chapter, the Administrator shall not submit his

decision for the approval of, nor be based on the decisions of

recommendations of any committee, board, or other organization

created by Executive Order.” 49 U. S. C. § 1341(a).

inspect, maintain, overhaul and repair its own equipment in

accordance with the Federal Aviation Act and the rules,

regulations and standards issued thereunder by the FAA. 49

U.S. C. § 1425(a). For its part, the FAA is obligated to ensure

that these things are done in a safe work environment. 49 U. S.

C. § 1425(b). Its inspectors see that this is done at United. See

Applegate and Asvitt Affidavits (Appendix pp. 280 and 41a).

In order to carry out its obligations, the FAA prescribes

and enforces safety and health standards through the promul-

gation of comprehensive Federal Aviation Regulations

(“FARs”), as explained in the FAA basic Organization Struc-

ture, Part 1, Chapter (3)(a):

“The promulgation of safety regulations is provided for

under Title VI of the (Federal Aviation) Act. These

regulations provide for the examination, inspection, certifi-

cation (including medical) and rating of airmen, and the

administration of regulations and surveillance of related

activities. Under this title, the Agency develops regulations

for promulgation by the Administrator on all safety matters

relating to manufacture, operation and maintenance of

aircraft; performs flight inspections of air navigation facil-

ities in the United States and, as required, abroad; and

provides for enforcement of the safety-regulations.” (Em-

phasis added.) 30 Federal Register 3395, March 10, 1965.

The FAA also exercises its authority by requiring that each

air carrier develop extensive and detailed manuals “for the use

of its flight and grounds operation personnel in the perform-

ance of their duties.” 14 C. F. R. Part 121, Subpart G. The

FAA specifically requires that:

“(a) Each domestic flag air carrier shall prepare and keep

current a manual for the use and guidance of flight and

ground operations personnel in conducting its operations.”

(Emphasis added.) 14 C. F. R. § 121.133.

The safety and health requirements found in the manuals

must meet the FAA regulatory standards and must be “accept-

able to the administrator.” See, 14 C. F. R. § 43.13(a). The

FAA specifies that each manual must include:

“(1) Instructions and information necessary to allow the

personnel concerned to perform their duties and responsi-

bilities with a high degree of safety:

(b) (16) Instructions and procedures for maintenance,

preventive maintenance, and servicing.

(24) Other information or instructions relating to safety.”

(Emphasis added.) 14 C. F. R. § 121.135.

The submission of these manuals by the air carrier and the

acceptance of them by the FAA constitutes compliance with the

FAA requirements:

“(c) Special provisions for air carriers and commercial

operations. Unless otherwise notified by the Adminis-

trator, the methods, techniques and practices contained in

the maintenance manual or the maintenance part of the air

carrier manual or a certificated air carrier or commercial

operator ... constitute acceptable means of compliance

with this section.” (Emphasis added.} 14 C. F. R.

§ 43.13(c).

United complies with these FAA safety regulations by

developing and submitting, in accordance with the foregoing

authorities, its manuals to the FAA and by enforcing the

provisions contained therein (see Afficavit of Willson C. Apple-

gate, Appendix, p. 29a). The breadth and scope of those

manuals, all of which have been accepted by the FAA (see

Applegate Affidavit, Appendix, p. 29a), are illustrated by the

Safety Index taken from United’s Regulation 5-12, a copy of

which is attached as Exhibit A to the Applegate Affidavit.

(Appendix p. 33a). In summary form, this Index shows that

the manuals cover virtually every item of workplace safety

which can possibly affect the employees at United's operations

and maintenance facilities.

Not only does United’s own safety staff monitor com-

pliance with the safety and health standards contained in the

manuals (Applegate Affidavit, Appendix p. 29a), but also the

FAA has assigned two principal maintenance operations in-

spectors and a staff of eight other inspectors to United’s San

Francisco facilities to enforce the standards contained in

United’s manuals (Affidavit of Clifford Asvitt, Appendix, p.

4la).® The FAA's close involvement with the safety and health

of United's ground employees is an obvious corollary to its

concern for the safety of passengers and crews on aircraft in

flight. It is inherently contradictory and fraught with risk to

hold—as does the CAL/OSHA Board—that a ground em-

ployee performing a maintenance task on an airplane or one of

its components should face regulation by the FAA for the effect

of that maintenance procedure on the airplane or component

and regulation by CAL/OSHA (or in_ other states

FED/OSHA) for the effect of that same maintenance proce-

dure on his own safety. Congress did not intend such a split of

regulatory authority over a single task. To the contrary,

Congress plainly intended that FAA regulation such as is

present here would foreclose FED/OSHA jurisdiction.

The jurisdictional reach of CAL/OSHA is no different. It

derives its jurisdiction solely from FED/OSHA (29 U. S. C.

§ 667) and its organic statute similarly claims only residual

statutory authority over places of employment not regulated by

another agency such as the FAA.

D. The Court of Appeals’ Failure to Find a Federal

Question as to the Scope and Exercise of FAA

Jurisdiction in Matters of Safety and Health Encour-

ages Inconsistent Federal/State Adjudication of the

Same Issue

The Occupational Safety and Health Review Commission

(“OSHRC” or “Commission”) has recently considered the

question of FAA pre-emptive jurisdiction. In Northwest Air-

lines, 1980 CCH Employment Safety and Health Guide para.

24,751 (Appeal pending) (See Appendix p. 54a), the Commis-

sion ruled that a reasonable interpretation of 49 U.S.C.

® Respondent Division has never challenged the accuracy of

United's affidavits submitted in support of United’s motion for a

preliminary injunction. Nor could they.

§ 1421(a) would render it applicable to working conditions of

an airline’s maintenance personnel to ensure their safety as an

integral part of the FAA’s obligation to ensure “safety of air

commerce” (Appendix p. 70a). The Commission then summa-

rized its well-reasoned opinion:

“In summary, we conclude that the FAA possesses the

statutory authority to regulate the health and safety of

airline maintenance personnel and that the FAA has

validly exercised this authority, through duly promulgated

rules that require airlines to develop, subject to FAA

disapproval, manuals that include provisions designed to

further the safety of such personnel. Since Northwest’s

manual requires the airline to comply with a procedure to

lock out the wing flaps while an employee is changing the

landing lights on a Boeing 747, then section 4(b)(1) of the

Act precludes the Secretary from citing Northwest with

respect to any hazards allegedly arising out of such activi-

ties.” (Appendix p. 80a)

In virtually an identical situation, United sought review by

the CAL/OSHA Board of a citation issued to United for failure

to use a guardrail on a platform while performing maintenance

on the tail engine of a DC-10 aircraft.1° A safety harness or

guardrail was required by United’s manual. Yet, United’s

argument that the FAA has pre-emptive jurisdiction has been

rejected both by the Board and by the reviewing Superior Court

for the City and County of San Francisco."'

Each and every time the issue of the FAA’s active exercise

of jurisdiction over the safety and health of ground employees

has been considered by the OSHRC, either the full Commission

or its administrative law judge has found that FED/OSHA

lacked jurisdiction because of the pre-emptive effect of the

10 This proceeding is described in para. 12 of United’s complaint

(Appendix pp. 18a-19a).

11 United Air Lines, Inc. v. The Occupational Safety and Health

Appeals Board, et al, Docket No. 747-454, Judgment entered October

27, 1980 (Appeal to the California Court of Appeal pending).

active exercise of FAA jurisdiction.12 Yet, because of the

CAL/OSHA Board’s refusal to reach the same result, United

continues to be faced with repeated inspections and regulation

by CAL/OSHA at its San Francisco operations and mainte-

nance facilities at the same time the FAA inspects and regulates

the same facilities. It was to obtain a comprehensive and

definitive federa) ruling as to the pre-emptive effect of FAA

jurisdiction that United brought its action in the District Court.

The Court of Appeals frustrated that effort by its failure to find

a federal question.

THE COURT OF APPEALS SIMPLY

IGNORED UNITED’S COMPLAINT

The U.S. Court of Appeals failed to consider the federal

issues alleged in United’s complaint when it held that: “Juris-

diction does not appear in plaintiff's complaint in this case.”

633 F. 2d at 815 (Appendix p. 50a). In its complaint, United

set forth the statutory pattern described supra. United then

alleged that dual, confusing and conflicting regulation sub-

jected United to unlawful regulation by CAL/OSHA. United

further alleged that such unlawful regulation of the conduct of

its business as an air carrier deprives United of its property

rights without due process of law. Complaint, para. 15-20,

(Appendix pp. 20a-21la). If United is correct that the FAA’s

exercise of its authority in matters of safety and health denies

CAL/OSHA of such jurisdiction, the Circuit Court’s ruling that

no federal question of due process is raised by the complaint is

clearly wrong.

12 See Northwest Airlines, supra; Secretary of Labor v. American

Airlines, 1975-76 CCH OSHD para. 20,129 (1975); Secretary of

Labor v. American Airlines, OSHRC Docket No. 78-0918 (pending

review); Cf. Secretary of Labor v. Consolidated Rail Corp., CCH

OSHD para. 23,363 (1979); Mushroom Transportation Co., 1973-74

CCH OSHD para. 16,281 (1974).

Moreover, the Circuit Court’s exclusive focus on the al-

leged defensive nature of this action is misdirected. This action

is not so narrowly limited to defending against CAL/OSHA’s

citations.'3 As stated in the complaint, it is the entire regulatory

process of CAL/OSHA to which United objects as beyond legal

limits.14 United sought to have the federal question resolved |

once and for all in the context of its ongoing dispute with

CAL/OSHA. At bottom, it is the need for declaratory and

injunctive relief from regulation, not defenses to citations,

which has occasioned this suit.

The U. S. Court of Appeals for the Seventh Circuit has

twice recognized that abuse of regulatory power by

FED/OSHA can and shouid be enjoined by a federal court. In

Weyerhaeuser Co. v. Marshall, 592 F. 2d 373 (7th Cir. 1979),

the Court looked beyond the customary need to exhaust

administrative remedies before ordering relief from unlawful

regulation. The Court expressly distinguished between injuries

to the employer resulting from illegal inspections and injuries

resulting from citations for violations of the Act. It concluded

that the employer had a fourth amendment right to conduct its

business free of unreasonable administrative inspections. 592

13 The Court’s reference to cases in which the federal question

appears in the complaint only as an anticipated reply to a defense or

as a defense to an impending action is clearly misplaced. Those cases

involve basic state contract or insurance law, but allege federal issues

in the complaint only as to the anticipated defenses. In the instant

case, the basic jurisdictional conflict between a federal and a state

agency needs to be resolved by a federal court, and it is that federal

issue which United has presented in its complaint.

14 The Court held that United’s effort to obtain comprehensive

relief beyond that available in the state court was without merit, 633

F. 2d at 817 (Appendix p. 53a). It relied on Moore v. Sims, 442

U. S. 415, 424-27 (1979), an abstention decision. What may be

appropriate reasoning for judicial abstention, however, does not

provide support for refusing to find jurisdiction based on a federal

question. Moreover, at another part of the opinion, the Court

expressly declined to consider the issue of abstention. Jd.

F. 2d at 376 n. 2.15 It is that same right to be free of unlawful

regulation by CAL/OSHA which United seeks to enforce in this

action.

The Court in Continental Can Co. v. Marshall, 603 F. 2d

590 (7th Cir. 1979), also set aside the usual requirement that

plaintiff first exhaust administrative remedies because of the

repetitive and harassing nature of FED/OSHA’s actions in

compelling the employer into numerous administrative hear-

ings. Here too, the injury of repetitive litigation suffered by the

employer was distinct and apart from the effect of the citations

themselves. Accordingly, the Court held that it had jurisdiction

to act to prevent the constitutional injury from continuing. 603

F. 3d at 597 and 597 n. 12.

In Weyerhaeuser and Continental Can, the Seventh Circuit

acted to prevent a continuation of abuses of the regulatory

process. In the case presented herein, the Ninth Circuit refused

to act despite a demonstrated jurisdictional overlap contrary to

federal law.

The Supreme Court has specifically held that rights to due

process are to be protected by federal courts. In State of South

Carolina v. Katzenbach, 383 U. S. 301, 325 (1966), the Court

reiterated the rule of Gomillion v. Lightfoot, 364 U. S. 339, 347

(1960):

‘““When a State exercises power wholly within the domain

of state interest, it is insulated from federal judicial review.

But such insulation is not carried over when state power is

used as an instrument for circumventing a federally pro-

tected right.” (Emphasis added. )

Congress has granted the FAA plenary authority to regu-

late safety of air commerce interpreted by the FAA to include

the safety and health of airline employees who perform mainte-

nance functions on aircraft and aircraft components. United

has a federally protected right to rely on that regulation by the

18 Citing Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978).

FAA at its San Francisco operations and maintenance facilities

as intended by Congress. United also has a federally protected

right to be free from the unlawful regulation over certain of its

facilities by CAL/OSHA. United’s rights to federal protection

were ignored by the Ninth Circuit.

The federal statutory scheme enacted by Congress care-

fully distributed authority over employee safety and health

between FED/OSHA and other federal agencies. Since

CAL/OSHA’S authority is solely derived from that of

FED/OSHA, any dispute as to the scope of that authority

clearly presents a federal question.

This Court can and should reverse the Court of Appeals.

CONCLUSION

For all the above reasons, petitioner United Air Lines, Inc.,

respectfully prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth

Circuit in this action.

ARNOLD T. AIKENS

PAUL M. TSCHIRHART

P. O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

Attorneys for Petitioner,

United Air Lines, Inc.

APPENDIX

APPENDIX CONTENTS

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Verified Complaint for Declaratory and Injunctive

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Notice of Motion and Motion of United Air Lines

For a Preliminary Injunction. ...................ccccccceeeeeeees

Affidavit of Willson C. Applegate ..............:cccccceseeees

Affidavit of Clifford Asvitt.............cccccccscsssesssesseeseeseseess

Order, Findings and Preliminary Injunction of the

Se IID silk centastsitstacnmsnicceienigiesnteidsepnicnbenenses

Opinion of the U.S. Court of Appeals for the Ninth

i tcascestececseiieteenticcdiscdanisiaeavnisedaneataibalabisiiadandibicwstassbiiies

Text of Opinion in Northwest Airlines, INC. ......ccccc00000

54a

STATUTES AND REGULATIONS

14 C.F.R. § 43.13(a)

(a) Each person maintaining or altering, or performing

preventive maintenance, shall use methods, techniques, and

practices acceptable to the Administrator. He shall use the

tools, equipment, and test apparatus necessary to assure com-

pletion of the work in accordance with accepted industry

practices. If special equipment or test apparatus is recommend-

ed by the manufacturer involved, he must use that equipment

or apparatus or its equivalent acceptable to the Administrator.

14 C.F.R. § 121.133

(a) Each domestic and flag air carrier shall prepare and

keep current a manual for the use and guidance of flight and

ground operations personnel in conducting its operations.

(b) Each supplemental air carrier and commercial oper-

ator shall prepare and keep current a manual for the use and

guidance of flight, ground operations, and management person-

nel in conducting its operations.

may prepare that part of the manual containing maintenance

information and instructions, in whole or in part, in printed

page form or microfilm.

14 C.F.R. § 121.135

(a) Each manual required by § 121.133 must—

(1) Include instructions and information necessary to

allow the personnel concerned to perform their duties and

responsibilites with a high degree of safety;

(2) Be in a form that is easy to revise;

(3) Have the date of last revision on each page

concerned; and

(4) Not be contrary to any applicable Federal regu-

lation and, in the case of a flag or supplemental air carrier,

any applicable foreign regulation, or the certificate holder's

operations specifications or operating certificate.

(b) The manual may be in two or more separate parts,

containing together all of the following information, but each

part must contain that part of the information that is appropri-

ate for each group of personnel;

(1) General policies.

(2) Duties and responsibilities of each crewmember

and appropriate members of the ground organization and

in the case of supplemental air carriers and commercial

operators, management personnel.

(3) Reference to appropriate Federal Aviation Regu-

lations.

(4) Flight dispatching and operational control, in-

cluding procedures for coordinated dispatch or flight con-

trol or flight following procedures, as applicable.

(5) En route flight, navigation, and communication

procedures, including procedures for the dispatch or re-

lease or continuance of flight if any item of equipment

required for the particular type of operation becomes

inoperative or unserviceable en route.

(6) For domestic or flag air carriers, appropriate

information from the en route operations specifications,

including for each approved route the types of aircraft

authorized, the type of operation such as VFR, IFR, day,

night, etc., and any other pertinent information.

(7) For supplemental air carriers or commercial oper-

ators, appropriate information from the operations specifi-

cations, including the area of operations authorized, the

types of aircraft authorized, the type of operation such as

VFR, IFR, day, night, etc., and any other pertinent

information.

(8) Appropriate information from the airport oper-

ations specifications, including for each airport—

(i) Its location (domestic and flag air carrier

operations only);

(ii) Its designation (regular, alternate, provision-

al, etc.) (domestic and flag air carrier operations

only);

(iii) The types of aircraft authorized (domestic

and flag air carrier operations only);

(iv) Instrument approach procedures;

(v) Landing and takeoff minimums; and

(vi) Any other pertinent information.

(9) Takeoff, en route, and landing weight limitations.

(10) Procedures for familiarizing passengers with the

use of emergency equipment, during flight.

(11) Emergency equipment and procedures.

(12) The method of designating succession of com-

mand of flight crewmembers.

(13) Procedures for determining the usability of

landing and takeoff areas, and for disseminating pertinent

information thereon to operations personnel.

(14) Procedures for operating in periods of ice, hail,

thunderstorms, turbulence, or any potentially hazardous

meteorological condition.

(15) Airman training programs, including appro-

priate ground, flight, and emergency phases.

(16) Instructions and procedures for maintenance,

preventive maintenance, and servicing.

(17) Time limitations, or standards for determining

time limitations, for overhauls, inspections, and checks of

airframes, engines, propellers, appliances and emergency

equipment.

(18) Procedures for refueling aircraft, eliminating fuel

contamination, protection from fire (including electrostatic

protection), and supervising and protecting passengers

during refueling.

(19) Airworthiness inspections, including instructions

covering procedures, standards, responsibilities, and au-

thority of inspection personnel.

(20) Methods and procedures for maintaining the

aircraft weight and center of gravity within approved

limits.

(21) Where applicable, pilot and dispatcher route

and airport qualification procedures.

(22) Accident notification procedures.

(23) Procedures and instructions relating to the hand-

ling of dangerous articles and magnetized materials, if

these materials are to be carried, stored, or handled,

including:

(i) Procedures for determining the proper ship-

per certification required by § 103.3 of this chapter,

proper packaging, marking, labeling, shipping docu

ments, compatibility of articles, and instructions on

the loading, storage, and handling thereof.

(ii) Notification procedures for reporting dan-

gerous article incidents as required by § 103.28 of this

chapter.

(iii) Instructions and procedures for the notifica-

tion of the pilot in command when there are dan-

gerous articles aboard, as required by § 103.25 of this

chapter.

(24) Other information or instructions relating to

safety.

complete copy of the manual at its principal operations base.

29 U.S.C. § 651(b)

(b) The Congress declares it to be its purpose and policy,

through the exercise of its powers to regulate commerce among

the several States and with foreign nations and to provide for

the general welfare, 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—

(1) by encouraging employers and employees in their

efforts to reduce the number of occupational safety and

health hazards at their places of employment, and to

stimulate employers and employees to institute new and to

perfect existing programs for providing safe and healthful

working conditions;

(2) by providing that employers and employees have

separate but dependent responsibilities and rights with

respect to achieving safe and healthful working conditions;

(3) by authorizing the Secretary of Labor to set

mandatory occupational safety and health standards appli-

cable to businesses affecting interstate commerce, and by

creating an Occupational Safety and Health Review Com-

mission for carrying out adjudicatory functions under this

chapter;

(4) by building upon advances already made through

employer and employee initiative for providing safe and

healthful working conditions;

(5) by providing for research in the field of

occupational safety and health, including the psychological

factors involved, and by developing innovative methods,

techniques, and approaches for dealing with occupational

safety and health problems;

(6) by exploring ways to discover latent diseases,

establishing causal connections between diseases and work

in environmental conditions, and conducting other re-

search relating to health problems, in recognition of the

fact that occupational health standards present problems

often different from those involved in occupational safety;

(7) by providing medical criteria which will assure

insofar as practicable that no employee will suffer dimin-

ished health, functional capacity, or life expectancy as a

result of his work experience;

(8) by providing for training programs to increase the

number and competence of personnel engaged in the field

of occupational safety and health;

(9) by providing for the development and promulga-

tion of occupational safety and health standards;

(10) by providing an effective enforcement program

which shall include a prohibition against giving advance

notice of any inspection and sanctions for any individual

violating this prohibition;

(11) by encouraging the States to assume the fullest

responsibility for the administration and enforcement of

their occupational safety and health laws by providing

grants to the States to assist in identifying their needs and

responsibilities in the area of occupational safety and

health, to develop plans in accordance with the provisions

of this chapter, to improve the administration and enforce-

ment of State occupational safety and health laws, and to

conduct experimental and demonstration projects in con-

nection therewith;

(12) by providing for appropriate reporting proce-

dures with respect to occupational safety and health which

procedures will help achieve the objectives of this chapter

and accurately describe the nature of the occupational

safety and health problems;

(13) by encouraging joint labor-management efforts

to reduce injuries and disease arising out of employment.

49 U. S. C. § 1421(a)

(a) The Administrator is empowered and it shall be his

duty to promote safety of flight of civil aircraft in air commerce

by prescribing and revising from time to time:

(1) Such minimum standards governing the design,

materials, workmanship, construction, and performance of

aircraft, aircraft engines, and propellers as may be required

in the interest of safety;

(2) Such minimum standards governing appliances as

may be required in the interest of safety;

(3) Reasonable rules and regulations and minimum

standards governing, in the interest of safety, (A) the

inspection, servicing, and overhaul of air craft, 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 exam-

inations 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;

(4) Reasonable rules and regulations governing the

res.cve supply of aircraft, aircraft engines, propellers,

appliances, and aircraft fuel and oil, required in the

interests of safety, including the reserve supply of aircraft

fuel and oil which shall be carried in flight;

(5) Reasonable rules and regulations governing, in

the interest of safety, the maximum hours or periods of

service of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or min-

imum 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. § 1425

(a) It shall be the duty of each air carrier to make, or cause

to be made, such inspection, maintenance, overhaul, and repair

of all equipment used in air transportation as may be required

by this chapter, or the orders, rules, and regulations of the

Administrator issued thereunder. And it shall be the duty of

every person engaged in operating, inspecting, maintaining, or

overhauling equipment to observe and comply with the require-

ments of this chapter relating thereto, and the orders, rules, and

regulations issued thereunder.

(b) The Administrator shall employ inspectors who shall

be charged with the duty (1) of making such inspections of

aircraft, aircraft engines, propellers, and appliances designed

for use in air transportation, during manufacture, and while

used by an air carrier in air transportation, as may be necessary

to enable the Administrator to determine that such aircraft,

aircraft engines, propellers, and appliances are in safe condition

and are properly :naintained for operation in air transportation;

and (2) of advising and cooperating with each air carrier in the

inspection and maintenance thereof by the air carrier. Whene-

ver any inspector shall, in the performance of his duty, find that

any aircraft, aircraft engine, propeller, or appliance, used or

intended to be used by any air carrier in air transportation, is

not in condition for safe operation, he shall so notify the carrier,

in such form and manner as the Administrator may prescribe;

and, for a period of five days thereafter, such aircraft, aircraft

engine, propeller, or appliance shall not be used in air trans-

portation, or in such manner as to endanger air transportation,

unless found by the Administrator or his inspector to be in

condition for safe operation.

29 U. S. C. § 653(b)(1)

(b)(1) 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. § 667

(a) Nothing in this chapter shall prevent any State agency

or court from asserting jurisdiction under State law over any

occupational safety or health issue with respect to which no

standard is in effect under section 655 of this title.

(b) Any State which, at any time, desires to assume

responsibility for development and enforcement therein of

occupational safety and health standards relating to any

occupational safety or health issue with respect to which a

Federal standard has been promulgated under section 655 of

this title shall submit a State plan for the development of such

standards and their enforcement.

State under subsection (b) of this section, or any modification

thereof, if such plan in his judgment—

(1) designates a State agency or agencies as the

agency or agencies responsible for administering the plan

throughout the State,

(2) provides for the development and enforcement of

safety and health standards relating to one or more safety

or health issues, which standards (and the enforcement of

which standards) are or will be at least as effective in

10a

providing safe and healthful employment and places of

employment as the standards promulgated under section

655 of this title which relate to the same issues, and which

standards, when applicable to products which are dis-

tributed or used in interstate commerce, are required by

compelling local conditions and do not unduly burden

interstate commerce,

(3) provides for a right of entry and inspection of all

workplaces subject to this chapter which is at least as

effective as that provided in section 657 of this title, and

includes a prohibition on advance notice of inspections,

(4) contains satisfactory assurances that such agency

or agencies have or will have the legal authority and

qualified personnel necessary for the enforcement of such

standards,

(5) gives satisfactory assurances that such State will

devote adequate funds to the administration and enforce-

ment of such standards,

(6) contains satisfactory assurances that such State

will, to the extent permitted by its law, establish and

maintain an effective and comprehensive occupational

safety and health program applicable to all employees of

public agencies of the State and its political subdivisions,

which program is as effective as the standards contained in

an approved plan,

(7) requires employers in the State to make reports to

the Secretary in the same manner and to the same extent as

if the plan were not in effect, and

(8) provides that the State agency will make such

reports to the Secretary in such form and containing such

information, as the Secretary shall from time to time

require.

lla

(d) If the Secretary rejects a plan submitted under subsec-

tion (b) of this section, he shall afford the State submitting the

plan due notice and opportunity for a hearing before so doing.

(e) After the Secretary approves a State plan submitted

“under subsection (b) of this section, he may, but shall not be

required to, exercise his authority under sections 657, 658, 659,

662, and 666 of this title with respect to comparable standards

promulgated under section 655 of this title, for the period

specified in the next sentence. The Secretary may exercise the

authority referred to above until he determines, on the basis of

actual operations under the State plan, that the criteria set forth

in subsection (c) of this section are being applied, but he shall

not make such determination for at least three years after the

plan’s approval under subsection (c) of this section. Upon

making the determination referred to in the preceding sentence,

the provisions of sections 654(a)(2), 657 (except for the

purpose of carrying out subsection (f) of this section), 658, 659,

662, and 666 of this title, and standards promulgated under

section 655 of this title, shall not apply with respect to any

occupational safety or health issues covered under the plan, but

the Secretary may retain jurisdiction under the above provisions

in any proceeding commenced under section 658 or 659 of this

title before the date of determination.

(f) The Secretary shall, on the basis of reports submitted

by the State agency and his own inspections make a continuing

evaluation of the manner in which each State having a plan

approved under this section is carrying out such plan. When-

ever the Secretary finds, after affording due notice and opportu-

nity for a hearing, that in the administration of the State plan

there is a failure to comply substantially with any provision of

the State plan (or any assurance contained therein), he shall

notify the State agency of his withdrawal of approval of such

plan and upon receipt of such notice such plan shall cease to be

in effect, but the State may retain jurisdiction in any case

12a

commenced before the withdrawal of the plan in order to

enforce standards under the plan whenever the issues involved

do not relate to the reasons for the withdrawal of the plan.

(g) The State may obtain a review of a decision of the

Secretary withdrawing approval of or rejecting its plan by the

United States court of appeals for the circuit in which the State

is located by filing in such court within thirty days following

receipt of notice of such decision a petition to modify or set

aside in whole or in part the action of the Secretary. A copy of

such petition shall forthwith be served upon the Secretary, and

thereupon the Secretary shall certify and file in the court the

record upon which the decision complained of was issued as

provided in section 2112 of Title 28. Unless the court finds that

the Secretary’s decision in rejecting a proposed State plan or

withdrawing his approval of such a plan is not supported by

substantial evidence the court shall affirm the Secretary’s

decision. The judgment of the court shall be subject to review

by the Supreme Court of the United States upon certiorari or

certification as provided in section 1254 of Title 28.

(h) The Secretary may enter into an agreement with a

State under which the State will be permitted to continue to

enforce one or more occupational health and safety standards

in effect in such State until final action is taken by the Secretary

with respect to a plan submitted by a State under subsection

(b) of this section, or two years from December 29, 1970,

whichever is earlier.

California Labor Code § 6303(a)

(a) “Place of employment” means 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.

California Labor Code § 6307

The division has the power, jurisdiction, and supervision

over every employment and place of employment in this state,

13a

which is necessary to adequately enforce and administer all

laws and !awful standards and orders, or special orders requir-

ing 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.

l4a

PauL M. Tscurenar;

RoBert 1i. BROWN

UNiTeD Air Lines. INC.

P.O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

JEAN C. GASKiLL

KATHLEEN LUCAS-WALLACE

BROBECK, PHLEGER & HARRISON

One Market Plaza

Spear Street Tower

San Francisco, California 94105

(415) 442-0900

Attorneys for Plaintiff,

United Air Lines, Inc.

In THe UNiteD States District Court

For the Northern District of California

UNITED AiR LINES, INC., )

Plaintiff,

vs.

THE DiviISION OF INDUSTRIAL SAFETY

OF THE DEPARTMENT OF INDUSTRIAL No. C 79-1107 (SW)

RELATIONS, OF THE STATE OF CALI- q —

FORNIA, VERIFIED COMPLAINT

and FOR DECLARATORY AND

INJUNCTIVE RELIEF

THE OCCUPATIONAL SAFETY AND

HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendants. .

Plaintiff United Air Lines, Inc. (hereinafter “United”’) as

and for its complaint, respectfully alleges the following:

15a

1. This is an action for declaratory judgment under the

Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and an

action for preliminary and permanent injunctive relief. Plaintiff

United alleges herein that the actions of the defendants are

beyond their jurisdictional authority, interfere with and disrupt

the federal statutory scheme with respect to safety at United’s

operations and maintenance facilities et San Francisco Inter-

national Airport, and violate United’s right to due process of

law.

2. The jurisdiction of this Court is based on the Federal

question raised by the matters alleged in this complaint, 28

U.S. C. § 1331; diversity of citizenship, 28 U. S. C. § 1332; and

the Federal preemption which arises by virtue of an Act of

Congress regulating commerce, 28 U. S. C. § 1337. The matter

in controversy, exclusive of interest and costs, exceeds

$10,000.00.

THE PARTIES

3. Plaintiff United is a corporation organized and existing

under the laws of the State of Delaware with its principal place

of business in the State of Illinois. United is qualified to do

business within the State of California. United is an air carrier

within the meaning of the Federal Aviation Act, 49 U. S. C.

§ 1301(3).

4. Detendant Division of Industrial Safety of the Depart-

ment of Industrial Relations of the State of California (here-

inafter the “Division’”’), is now, and at all times relevant hereto

has been, the California state agency responsible for enforcing

compliance with the California Occupational Safety and Health

Act of 1973, enacted as part of the California Labor Code,

§§ 148-49, 6300 ef seg. (hereinafter the “Act”).

5. Defendant Occupational Safety and Health Appeals

Board for the State of California (hereinafter the “Board”’), is

l6a

now, and at all times relevant has been, the agency charged

with adjudicating and rendering final administrative decisions

in disputes arising under the Act.

THE STATUTORY SCHEME OF REGULATION

6. Under the Act, the Division has safety jurisdiction over

places of employment as defined therein. The term “place of

employment” is defined in Labor Code Section 6303(a) as

follows:

6303(a) ‘Place of employment’ means any place, and the

premises appurtenant thereto, where employment is car-

ried 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.

7. Section 601 of the Federal Aviation Act of 1958, as

amended, 49 U. S. C. § 1412(a), states in pertinent part:

The Administrator is empowered and it shall be his duty to

promote safety of flight of civil aircraft in air commerce by

prescribing and revising from time to time:

* * * +

(1) Such minimum standards governing the design, mate-

rials, workmanship, construction, and performance of air-

craft, aircraft engines, and propellers as may be required in

the interest of safety;

(2) Such minimum standards governing appliances as may

be required in the interest of safety;

(3) Reasonable rules and regulations and minimum stan-

dards governing, in the interest of safety, (A) the in-

spection, servicing, and overhaul of aircraft, aircraft en-

gines, propellers, and appliances; (B) the equipment and

facilities for such inspection, servicing, and overhaul; and

and the manner in, which such inspection, servicing, and

overhaul shall be made, including provision for exam-

inations 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;

17a

(4) Reasonable rules and regulations governing the re-

serve supply of aircraft, aircraft engines, propellers, appli-

ances, and aircraft fuel and oil, required in the interest of

safety, including the reserve supply of aircraft fuel and oil

which shall be carried in ftight;

(5) Reasonable rules and regulations governing, in the

interest of safety, the maximum hours or periods of service

of airmen, and other employees, or air carriers; and

(6) Such reasonable rules and regulations, or minimum

standards, governing other practices, methods, and proce-

dure, as the Administrator may find necessary to provide

adequately for national security and safety in air com-

merce.

8. Section 605(a) of the Federal Aviation Act, 49 U.S.C.

§ 1425(a) sets forth the duties of each air carrier to inspect,

maintain, overhaul and repair its equipment. It states:

605(a) It shall be the duty of each air carrier to make, or

cause to be made, such inspection, maintenance, overhaul,

and repair of all equipment used in air transportation as

may be required by this Act, or the orders, rules and

regulations of the Secretary of Transportation issued there-

under. And it shall be the duty of every person engaged in

operating, inspecting, maintaining, or overhauling equip-

ment to observe and comply with the requirements of this

Act relating thereto, and the orders, rules, and regulations

issued thereunder.

9. For its part, the Federal Aviation Administration

(hereinafter the “FAA”’) has the responsibility for inspecting

air carrier’s facilities to insure that inspections and maintenance

required under Section 605(a) are properly carried out. Sec-

tion 605(b), 49 U.S.C. § 1425(b) specifically sets forth that

duty. It reads, in pertinent part:

605(b). The Administrator shall employ inspectors who

shall be charged with the duty (1) of making such

inspections of aircraft, aircraft engines, propellers, and

appliances designed for use in air transportation, during

manufacture, and while used by an air carrier in air

transportation, as may be necessary to enable the Secretary

of Transportation to determine that such aircraft, aircraft

engines, propellers, and appliances are in safe condition

and are properly maintained for operation in air trans-

portation; and (2) of advising and cooperating with each

air carrier in the inspection and maintenance thereof by air

carrier.

10. Pursuant to its statutory mandate, the FAA promul-

gated in Volume 14 of the Code of Federal Regulations a

comprehensive code of regulations known as the Federal

Aviation Regulations (““FARs”). The FARs require, inter alia,

that inspection and maintenance on aircraft and aircraft en-

gines, parts and components shall be performed with a high

degree of safety in accordance with manuals prepared and kept

current by the air carrier and submitted to the FAA. 14 C.F.R.

§§ 121.131 et seg. The methods, techniques and practices

included in the manual and used for such maintenance must be

acceptable to the FAA. 14 C.F.R. §§ 43.13; 121.361 ef seg.

Through these implementing regulations, the FAA actively

exercises its jurisdiction over the safety of workers at United's

aircraft maintenance facilities.

THE CONTROVERSY

11. Notwithstanding the FAA’s exercise of its statutory

jurisdiction at United’s “place of employment” within the

meaning of Section 6303(a) of the Labor Code, the Division

regularly and repeatedly inspects, regulates and attempts to

enforce its alleged jurisdiction over the safety of workers at

United’s San Francisco operations and maintenance facilities.

12. On June 16 and 17, 1976, a representative of the

Division conducted an inspection at United’s facility at San

Francisco International Airport. As a result of this inspection, a

citation was issued which alleged that United’s employees were

performing maintenance on the number 2 or tail engine of a

19a

DC-10 aircraft from a platform not properly equipped with

guardrails in violation of a standard issued under the Act.

United contested the issuance of the citation, inter alia, on the

grounds that aircraft maintenance falls within the actively

exercised jurisdiction of the FAA thereby preempting the

Division’s jurisdiction. Nevertheless, both the Board’s Admin-

istrative Law Judge and the reviewing Board held that the

Division had properly exercised its safety jurisdiction. United

has taken an appeal by way of a petition for an alternative writ

of mandate filed in the Superior Court of the City and County

of San Francisco, which was duly issued on December 26, 1978.

In that proceeding, United is challenging the jurisdiction of the

Division and the Board. Briefing is now scheduled to be

completed by June 8, 1979.

13. On June 27, 1977, the Division issued a citation at

United’s operations facility at San Francisco International

Airport for an alleged violation of a standard issued under the

Act in that a number of Phillippine Airlines LD-3 cargo

containers being serviced by United pursuant to contract were

damaged and posed a hazard to employees. On July 15, 1977,

FAA personnel inspected the same operation and ordered

United to correct the problem of damaged containers as being

contrary to FAA safety rules. Notwithstanding the exercise of

FAA jurisdiction over the same problem, and United’s con-

tention that the Division lacks jurisdiction, United’s protest to

the Division citation will be set for a hearing before a Board

Administrative Law Judge.

14. As a result of inspections conducted by the Division on

July 14, 21, 24-28, 31, 1978 and August 1-4, 1978, a citation

was issued against United by the Division for an alleged

violation of foot protection standards at United’s Maintenance

Operations Center at the San Francisco International Airport.

The FAA, however, in accepting the manuals required to be

filed with it by United, also regulates the type of footwear to be

worn by United’s personnel. Although the FAA has never

20a

charged United with any violation of safety requirements with

regard to footwear, the Division’s citation involves standards

which are within the actively exercised jurisdiction of the FAA.

A hearing before a Board Administrative Law Judge on the

Division’s foot protection citation was scheduled to begin on

April 25, 1979, but has been continued. The jurisdiction of

Cal/OSHA will be addressed at the hearing along with the

specific challenge to Cal/OSHA’s analysis of hazards, if any, to

the feet of employees working at 211 separate job functions at

United’s San Francisco operations and maintenance facilities.

Extensive discovery and other preparation will be required of

the parties for the hearing, which itself is estimated to last five

to ten daysaem¢t preparation will include a major utilization of

legal and staff personnel as well as the investment of other

resources.

VIOLATIONS OF LAW

15. The instances cited in Paragraphs 12-14 of this

complaint are illustrative examples and are not all-inclusive.

The Division’s regular and repeated inspection, regulation and

attempts at enforcement under the Act at United’s San Fran-

cisco operations and maintenance facilities are beyond its

jurisdiction and subject United to dual, confusing and conflict-

ing state and Federal regulation over the safety of its workers

contrary to the statutory scheme and in violation of United’s

rights to due process of law.

16. The Board’s decisions which confirm the Division’s

assertion of safety jurisdiction over United’s San Francisco

operations and maintenance facilities are contrary to the Act

and encourage the continued exercise of jurisdiction by the

Division over United’s facilities in violation of the Act.

17. The continued exercise by the Division of jurisdiction

over the safety of workers at United’s San Francisco operations

and maintenance facilities subjects United to multiple and

2la

excessive litigation before the Board, a State of California

administrative agency, involving a Federal question, to wit, the

extent of FAA jurisdiction and its preemptive effect under the

Act. This unnecessary involvement in litigation constitutes

undue harassment in United’s conduct of its business as an air

carrier and deprives United of its property rights without due

process of law.

18. The violations of law described in Paragraphs 15

through 17 of the Complaint have caused, and, unless enjoined,

will continue to cause United to suffer ‘mmediate and irrepa-

rable injury for which there is no adequate remedy at law

because of the enormous expenditure of resources required to

comply with or defend against the unlawful inspection, regu-

lation and enforcement of the Division’s asserted safety

jurisdiction over the San Francisco operations and maintenance

facilities in addition to the properly exercised and conflicting

safety jurisdiction of the FAA over the same facilities.

19. The violations of law described in Paragraphs 15

through 17 of this Complaint have caused, and, unless en-

joined, will continue to cause United to suffer immediate and

irreparable injury for which there is no adequate remedy at law

because of the enormous expenditure of resources required to

participate in individual inspeciions by the Division and to

litigate the individual citations issued by the Division and heard

by the Board.

20. The matters raised in this Complaint involve questions

of statutory interpretation of Federal and state laws for which

there is no adequate administrative remedy. Moreover, no

particular administrative expertise or further development of an

administrative record is necessary to resolve either the statutory

questions or the constitutional issue as to whether the Division’s

and Board’s exercise of their alleged jurisdiction violates

United’s rights to due process under the law.

22a

PRAYER FOR RELIEF

WHEREFORE, plaintiff United Air Lines, Inc. prays that

the Court:

a. Enter a declaratory judgment holding that United’s San

Francisco operations and maintenance facilities are not places

of employment within the meaning of the California Occupa-

tional Safety and Health Act of 1973, as amended, Labor Code

Section 6303(a) by virtue of the safety jurisdiction actively

exercised by the Federal Aviation Administration pursuant to

Sections 601 and 605 of the Federal Aviation Act of 1958, as

amended, 49 U. S. C. §§ 1421(a) and 1425.

b. Enter a preliminary injunction until a full hearing on

this cause can be held, and thereafter, enter a permanent

injunction restraining and enjoining defendant, the Division of

Industrial Safety of the Department of Industrial Relations of

the State of California, its officers, employees and agents, from

inspecting, regulating or enforcing any jurisdiction over

United’s San Francisco operations and maintenance facilities.

c. Enter a preliminary injunction until a full hearing on

this cause can be held, and thereafter, enter a permanent

injunction restraining and enjoining defendant Occupational

Safety and Health Appeals Board of the State of California, its

officers, employees and agents, from continuing any proceed-

ings related to the enforcement of citations issued by the

Division for safety violations at United’s San Francisco oper-

ations and maintenance facilities.

23a

d. Enter an order awarding plaintiff United Air Lines, Inc.

its costs of this suit pursuant to 28 U.S.C. §2412; and for such

other and further relief as the Court shall deem appropriate in

the premises.

Paul M. Tschirhart

Robert H. Brown

Jean C. Gaskill

Kathleen Lucas-Wallace

Brobeck, Phleger & Harrison

Attorneys for Plaintiff,

United Air Lines, Inc.

Of Counsel:

Philip J. Hogan

General Counsel

United Air Lines, Inc.

24a

VERIFICATION

STATE OF CALIFORNIA

COUNTY OF SAN MATEO

Ralph T. Glasson, being first duly sworn, deposes and says

that he is an officer, to wit: Vice President of Maintenance

Administration, United Air Lines, Inc., a corporation organized

and existing under the laws of the State of Delaware and duly

qualified to do business in California and the plaintiff herein;

that he has read the foregoing complaint of plaintiff United Air

Lines and that he is informed and believes the matters stated

therein to be true and on that ground alleges that the matters

stated therein are true.

Executed this 7th day of May, 1979, in the County of San

Mateo, State of California.

Ralph T. Glasson

Subscribed and sworn to before me

this 7th day of May, 1979.

Rodger E. Simonian

Notary Public— State of California

25a

PAUL M. TSCHIRHART

Rosert H. BROWN

UNITED AiR LINES, INC.

P. O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

JEAN C. GASKILL

KATHLEEN LUCAS-WALLACE

BROBECK, PHLEGER & HARRISON

One Market Plaza

Spear Street Tower

San Francisco, California 94105

(415) 442-0900

Attorneys for Plaintiff,

United Air Lines, Inc.

IN THE UNITED States District Court

For the Northern District of California

UNITED Air Lines, INC.,

Plaintiff,

vs.

THE DIVISION OF INDUSTRIAL SAFETY

OF THE DEPARTMENT OF INDUSTRIAL

RELATIONS, OF THE STATE OF CALI-

FORNIA,

and

THE OCCUPATIONAL SAFETY AND

HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendants.

STATE OF CALIFORNIA a:

CouNnTY OF SAN MATEO

}

No. C 79-1107 (SW)

NOTICE OF MOTION

AND MOTION OF

UNITED AIR LINES

FOR A PRELIMIN-

ARY INJUNCTION

26a

TO: DEFENDANTS THE DIVISION OF INDUSTRIAL

SAFETY OF THE DEPARTMENT OF INDUSTRIAL

RELATIONS OF THE STATE OF CALIFORNIA AND

THE OCCUPATIONAL SAFETY AND HEALTH AP-

PEALS BOARD FOR THE STATE OF CALIFORNIA

AND THEIR ATTORNEYS:

PLEASE TAKE NOTICE that on June 1, 1979, at 10 a.m.,

or as soon thereafter as counsel can be heard, plaintiff United

Air Lines (“United”) through counsel, and pursuant to Rule

65(a) of the Federal Rules of Civil Procedure, will and does

hereby move this Court for an order:

(a) restraining and enjoining, pendente lite, defendant, the

Division of Industrial Safety of the Department of Industrial

Relations of the State of California, its officers, employees and

agents, from inspecting, regulating or enforcing any jurisdiction

over United’s San Francisco operations and maintenance facil-

ities.

(b) restraining and enjoining, pendente lite, defendant

Occupational Safety and Health Appeals Board of the State of

California, its officers, employees and agents, from continuing

any proceedings related to the enforcement of citations issued

by the Division of Industrial Safety for safety violations at

United’s San Francisco operations and maintenance facilities;

and

appropriate.

This Motion is based on the Notice of Motion, the attached

affidavits and all the pleadings and papers on file in this action.

27a

This Motion is made on the grounds that the relief sought

is proper and plaintiff has no other speedy or effective remedy.

Paul M. Tschirhari

Paul M. Tschirhart

Robert H. Brown

Jean C. Gaskill

Kathleen Lucas-Wallace

Brobeck, Phieger & Harrison

Attorneys for Plaintiff,

United Air Lines, Inc.

Of Counsel:

Philip J. Hogan

General Counsel

United Air Lines, Inc.

28a

PauL M. TSCHIRHART

Rosert H. BROWN

UNITED Air Lines, INC.

P. O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

JEAN C. GASKILL

KATHLEEN LUCAS-WALLACE

BROBECK, PHLEGER & HARRISON

One Market Plaza

Spear Street Tower

San Francisco, California 94105

(415) 442-0900

Attorneys for Plaintiff,

United Air Lines, Inc.

In THe United States District Court

For the Northern District of California

UNiTeED Air Lines, INC., 7

Plaintiff,

vs.

THE Division OF INDUSTRIAL SAFETY

OF THE DEPARTMENT OF INDUSTRIAL No. C 79-1107 (SW)

RELATIONS, OF THE STATE OF CALI- ona

FORNIA, + AFFIDAVIT OF

and WILLSON C.

THE OCCUPATIONAL SAFETY AND APPLEGATE

HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendants.

STATE OF CALIFORNIA

COUNTY OF SAN MATEO

29a

Willson C. Applegate, being duly sworn, states as follows:

1. I have been employed by United Air Lines, Inc.

(hereinafter “United”), as Director of Ground Safety since

June, 1971. I am authorized to execute this affidavit on behalf

of United.

2. The FAA regulations require United to prepare and

keep current manuals for the use and guidance of flight and

ground operations personnel in conducting its operations safely.

These manuals have been developed and submitted to the FAA

as required by FAA regulations found at 14 C.F.R. § 121.131 e¢

seq. Such manuals must be acceptable to the Administrator and

to the best of my knowledge and experience, United’s current

manuals have been fully accepted by the Administrator.

3. There are over 1,000 separate written specifications

each on a different subject which cover the full gamut of safety

practices and the use of safety gear for flight and ground

personnel. These specifications contain detailed descriptions of

ground and flight procedures involving the inspection and

maintenance of aircraft and aircraft engines, parts and com-

ponents, of fueling, overhauling, servicing, repairing and

maintaining the aircraft at the O and M facilities as well as

other related procedures necessary to provide for employee

safety at United’s San Francisco Maintenance Operations Cen-

ter and United’s facilities at San Francisco International Air-

port. The aforesaid specifications, safety rules procedures and

warnings are enforced by United subject to inspection, review

and further enforcement by the FAA. Because the manuals are

too extensive to be attached, the Safety Index from United

Regulation 5-12, “Ground Safety and Health” is attached as

Exhibit A. This index indicates the broad scope of United's

manuals with regard to safety at United’s facilities.

4. On June 16 and 17, 1976, a representative of

Cal/OSHA conducted an inspection at United’s facility at San

Francisco International Airport. As a result of this inspection, a

citation was issued which alleged that United’s employees were

30a

performing maintenance on the tail engine of a DC-10 aircraft

from a hi-lift platform not properly equipped with guardrails in

violation of a standard issued under the Cal/OSHA statute. (A

copy of the citation is attached as Exhibit B).

5. In United’s FAA-accepted manual which is enforced at

United's facility, different safety requirements are specifically

imposed on United personnel who use the platforms referenced

in paragraph 4 above. These practices are designed to protect

employees from the potential hazard over which Cal/OSHA

seeks to assert its jurisdiction [A copy of these regulations are

attached as Exhibit C: “Maintenance Manual, Maintenance

Specifications” (various pages relating to B-747 and DC-10

Safety and Harness Kit). The attached manual sections set

forth in narrative and pictorial forms the safety practices which

must be used in wearing the harnesses. The FAA has accepted

our manuals and this practice. These safety practices are

actively enforced at United’s O and M facilities.

6. On June 27, 1977, Cal/OSHA issued a citation at

United’s operations facility at San Francisco International

Airport for alleged violation of a standard issued under the Act

in that a number of Phillippine Airlines LD-3 cargo containers

being serviced by United pursuant to contract were damaged

and posed a hazard to employees. (A copy of the citation is

attached as Exhibit D).

7. On July 15, 1977, FAA personnel inspected the same

cargo operation referenced in paragraph 6 above, and found

United to be in violation of FAA safety rules [A copy of these

regulations are attached as Exhibit E: “Overhaul Manual,

Equipment/Furnishings” (pp. 1, 2, October 7, 1974) and

“Maintenance Manual, Maintenance Specifications” (p. 1, Jan-

uary 21, 1976) (paragraph 13 of the Complaint) ] and ordered

United to correct the hazard caused by the daniaged containers.

[FAA letter is attached as Exhibit F].

3la

8. As a result of inspections conducted by the Division on

July 14, 21, 24-28, 31, 1978 and August 1-4, 1978, a citation

was issued against United by Cal/OSHA for alleged violations

of foot protection standards at United’s Maintenance Oper-

ations Center at the San Francisco International Airport. (A

copy of the citation is attached as Exhibit G).

9. The FAA, however, in accepting United’s required

manuals, also regulates the type of footwear to be worn by

United’s personnel. [A copy of the regulations are attached as

Exhibit H: “Administrative and Operating Procedures Manual-

Operations” (p. 1, February, 1977) and “Airframe Mainte-

nance Operating Procedures-Safety and Housekeeping” (p. 3,

December 1, 1977)].

10. On January 10, 1979, an accident occurred at United’s

Operations Maintenance Center. Although we knew that the

FAA had jurisdiction we were confused and uncertain about

Cal/OSHA’s jurisdiction. Therefore, the accident was reported

to both Cal/OSHA and the FAA for their respective and most

likely duplicative investigations. The FAA has conducted its

investigation but Cal/OSHA has not.

11. Because of the Division’s attempts to regulate ground

safety, United has incurred and will continue to incur, substan-

tial costs it would not otherwise have suffered at its San

Francisco facilities. These costs are in addition to United’s

substantial and necessary expenditures for employee ground

safety provisions which are required by the FAA. The addi-

tional costs include: administrative and legal costs in relation to

contested cases over the same question, namely the jurisdiction

of Cal/OSHA; personnel costs relating to management and

union participation in the duplicative interviews, investigations

and inspections; personnel costs relating to safety staff in-

volvement with the inspections; costs related to duplicative

reporting and recordkeeping requirements; and costs for lost

32a

production and other disruptions of the business due to the

Division’s extensive interviewing of employees during in-

spections and investigations.

12. I have personal knowledge of the foregoing matters

and if called upon to testify, would testify accordingly.

Willson C. Applegate

SUBSCRIBED AND SWORN to be-

fore me on this 7th day of May, 1979.

Rodger E. Simonian

Notary Public

33a

INTRODUCTION

1. REGULATIONS 5-12

A. Purpose and Scope Chapter 5-12 provides policies and

procedures that apply to all UA organizations on the subject of

safety and health in UA’s ground operations. The chapter does

not include procedures for doing a specific task safely; such

procedures are included in the functional regulations or instruc-

tions for the job.

B. Index The chapter also provides an index to safety

and health references that appear in other company regu-

lations, manuals, and informational bulletins.

2. SUPPLEMENT TO REGULATIONS 5-12

A. Ground Safety and Health Bulletins SFOSY distributes

supplemental information about safety, health, and fire protec-

tion in the form of Ground Safety and Health Bulletins.

Employees concerned with the subject matter in these bulletins

must be made aware of this information. See the index of this

chapter for a list of Bulletins in the supplement. Direct spare

page requests to SFOSY.

B. Distribution and Location The supplement is dis-

tributed to the Chapter 5-12 mail list and is to be inserted at the

back of the chapter.

34a

SAFETY INDEX

REFERENCE SOURCES

Ground

Equip-

Other Aircraft ment

Reg. Regs. Main- Mainte-

5-12 (Series- tenance nance

SUBJECT (Page #) cha.) Manual Manual AOP#

Abatement Dates, Contesting 14

Abrasion 22

Accessories, Raft 30-4

Accident Report Distribution 29

ACCIDENT(S)

Aircraft. Ground Equipment.

Facilities 23

Investigation and Reporting 19 55-10-00-01

Manual 110-4

Not Involving Injury 65-2

Potential 26

Report Distribution 29

we ts UA (US 1845 and USY

961) 20,21,24,

Acids 26.31.32

Aerostretcher Installation 65-2 2-0-9-1

Aerotitis 22

AIRCRAFT

Accidents, Incidents 23

Doorway Safety Bar 20-5

Fuel Handling Precautions 20-5

Fuel Spills 26 46-20-5 20-5

Sabotage Threats 40-2

Airplane Emergency Cards 30-4

Airport Field Conditions 40-2

Alocholic Beverages 15-1

Alcoholism 15-3

Alerts, Amber/Red 40-2

Alkali Washing

Amber Alerts 40-2

Animal Bites 21

Animals, Poisonous 1-2

Assigned Exits 30-4

20-5

AUTOMOTIVE

Fueling and Oiling 20-90

Fuel Handling Precautions 20-5

Fuel Spills 26 46-20-5 20-5

SUBJECT

Bacterial Food Poisoning

Battery Maintenance

Beryllium

Bites, Animal

Blind Passengers

Blowgun—Air

Bonding and Grounding

Brake/Clutch Pedal Pad

EARMUFFS, SOUND PROTEC-

TORS

Communications Type

Non-Communications Type

EAR PLUGS

Carrying Case

Electric Devices, Psgr-Owned

EMERGENCY(S)

Cards, Airplane

Flight

Lightning

Oxygen

Planned

Qualifications

Signals

Unplanned

Employee Injury or Illness

Em Injury or Iliness—

ransportation

Emulsion Cleaning

Enclosed Area Entry

Enteritis

Entry to Tanks, Enclosed Areas

Epoxy Resins

Evacuation

Evacuation, Land/ Water

Examinations, Medical

Exits

35a

SAFETY INDEX

REFERENCE SOURCES

Ground

Equip-

Other Aircraft ment

~~ Regs. Main- Mainte- Industrial

5-12 ( tenance mance Hygiene

(Page #) chap.) Manual Manual AOP# Bitn.#

1-2

8-3, 24-6

65-2

6-18

20-10

99-1

45-2

56 26-2

57 45-2;88-30 26-2

26-2

65-2

30-4

40-2

30-4 30-20-02-01

30-4

wW-4

30-4

20 15-3 55-10-00-01

55-10-00-03

65-2

30-4

15-3

0-4

SUBJECT

Exits, Assigned

Explosives

Extinguisher, Fire, Operation

Extinguishers, Fire (UA Standard

Purchase )

Eye Protection, Welding, Brazing

Facilities Accidents, Incidents

Federal OSHA Inspections & Cita-

tions

Final Reports

Firearms, Sporting

FIRE(S)

Brigades and Fire Drills

Classes of

Extinguisher Operation

Extinguisher Maintenance

Extinguishers

Drills

Protection (Self Inspecting )

Protection System Shutdown

First Aid Oxygen

Fixed Fire Protection System Shut-

down

Flammable Fluids

Flammable and Toxic Material

Selection Policy

Flammable Liquid Spill

Flammable Material C!ass I, II, Il

Flash Bulbs

GROUND SAFETY & HEALTH

BULLETINS

8 Handling of Acids & Caus-

tics

9 The Health Hazards of

elding

10 Eye Protection Lens Shades

for Welding and Brazing

Operations

11 Cadmium—“A Hazard in

Some Silver Solder”

12 Threshold Limit Values

13 Diisocyanates and Polyiso-

cyanates

36a

SAFETY INDEX

REFERENCE SOURCES

Ground

Equip-

Other Aircraft ment

Regs. Regs. Main- Mainte- Industrial

5-12 (Series- tenance nance Hygiene

(Page #) chap.) Manual Manual AOP# Bltn.#

30-4

15-1

30-4

88-30

65-16

30-4

45-60-00-05

30-4

28-2

79 88-30

30-4

60-10-42-02

26 20-5

60-10-42-03

65-2

SUBJECT

100 Respiratory Protection Air

Purifying Devices—Half

Mask Type

101 Res iratory Protection

ble” Type

Respirators

Guard Light— Wing Tip Flasher

Guard Rails—Chain Type

Guideman Signals

Handling Radioactive Articles

Hazardous Material

Hazardous Materials Manifest

HEALTH

Occupational

Service ( USPHS )

State Standards

HEARING CONSERVATION

Earmuffs, with Communications

Earmuffs, Non-Communication

Earplugs

Earplug Carrying Case

Hoisting Fixtures and Sling

ILLNESS(S)

Employee

Passenger

Recordable

Reporting

Transportation

Incidents, Aircraft, Ground Equip-

ment, Facilities

Incompatible Chemicals, Table

Industrial Dermatitis

Inflight Safety

Inflight Services, Safety

INJURY(S)

37a

SAFETY INDEX

REFERENCE SOURCES

Ground

Equip-

Other Aircraft ment

Regs. Regs. Main- Mainte- Industrial

$-12 (Series- tenance mance Hy;

(Page #) chap.) Manual Manual AOP# Bitn.#

26-8

28-27

89 45-2

60-50-10-03

103 65-16

40-4

1-2

56 26-2

57 26-2

26-2

1-0-1-60

3-0-4-2 8-5 30-72-00-02

15-3;16-4

20 15-3

30-4;65-2

19 55-10-00-1

55-10-00-1

23 55-10-00-1

30-4

15-3

20 15-3

65-2

19 55-10-00-1

9 55-10-00-1

SUBJECT

NITROGEN

Air Chucks

Handling Precautions

Non-Skid Paint

OCCUPATIONAL

Health

Illness & Injury, Recordable

Safety & Heaith Act (OSHA)

State Safety Standards

OSHA

Area Offices

Inspections, Citations

Inspections, Pay Practices

Posters

OXYGEN

Emergency

First Aid

Handling Precautions

Psgr.-Owned Equipment

Oysters

Pad, Clutch/Brake Pedal

PAINTING

Compressed Gases Colors

Identification and Colors

Line Striper

Materials—Ordering,

Description & Use

Non-Skid Paint

Safety Colors

Safety Precautions

Scotchlite Reflective Tape

Spray Painting Precautions

PASSENGER

Illness

38a

SAFETY INDEX

REFERENCE SOURCES

Regs.

5-12

(Page #)

chap.)

Ground

Aircraft

Main-

tenance

Manual

ment

Mainte-

nance

Manual

AOP#

Stet

26-5

45-60-00-XX

39a

SAFETY INDEX

REFERENCE SOURCES

Ground

Equip-

Other Aircraft ment

res] R Main- Mainte- Industrial

5-12 ( tenance mance eee

SUBJECT (Page #) chap.) Manual Manual AOP# len.#

Glasses 57 88-30

Hames/Lanyard 28-27

Inflight 30-4

Inflight Services 30-4

Meetings 45-60-00-06

Philosophy & Policy 3

Patrolman $5-10-20-01

Precautions

Battery Maintenance 24-6

Fuel Handling 20-5

Nitrogen Handling 14-6

Oxygen Handling 14-7

Painting 10-0

Passenger 30-4

Rules 45-60-00-03

Sanitation 1-2

Slings & Hoisting Fixtures 30-71-00-02

Solvents, Trade Name 5

Shoe Program 60-10-42-01

State Standards 7

Treads for Ladders 14-19,

28-40

Safety and Health Memos 1-2

Sanitation 1-2

Seat Belts 28-27

Seat Locations, Protective 30-4

Shades, Lens, Eye Protection 10

Shoes, Safety Program 60-10-42-01

Shutdown, Fire Protection System 69

Signals, Emergency 30-4

Silver Solder, Cadmium Hazard 12

Sling & Hoisting Fixture Safety 3-0-4-2

1-0-1-80 8-5 30-72-00-02

Smoking 15-1

Smoking in Planes 65-2

Smuggling 15-1;45-2

Solder, Silver, Cadmium Hazard 12

Solvents, Safety, Trade Name 5

Spill, Flammable Liquid 26 20-5

Spill, Chemical 45-60-00-07

40a

SAFETY INDEX

REFERENCE SOURCES

Ground

Equip-

Other Aircraft ment

R Main- Mainte- Industrial

5-12 (Serles- tenance nance H

SUBJECT (Page #) chap.) Manual Manual AOP# ltn.#

Sporting Firearms 65-16

Sprain 22

Sprinkler Shutdown 69

Stands and Ladders, Safe Use of 14-19

State Occupational Safety &

Health Standards

State OSHA Inspections & Cita-

tions

Stowaways 65-2

Strain 22

Suspected Enteritis 65-2

Suspected Food Contamination 1-2

4la

Pau. M. TSCHIRHART

Rosert H. BROWN

UNITED AIR LINES, INC.

P. O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

JEAN C. GASKILL

KATHLEEN LUCAS-WALLACE

BROBECK, PHLEGER & HARRISON

One Market Plaza

Spear Street Tower

San Francisco, California 94105

(415) 442-0900

Attorneys for Plaintiff,

United Air Lines, Inc.

In THe UNiTeED States District Court

For the Northern District of California

UNITED Aire Lines, INC., \

Plaintiff,

VS.

THE Division OF INDUSTRIAL SAFETY

or THé DEPARTMENT OF INDUSTRIAL

RELATIONS, OF THE STATE OF CALI-

FORNIA, » AFFIDAVIT OF

CLIFFORD ASVITT

No. C 79-1107 (SW)

and

THE OCCUPATIONAL SAFETY AND

HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendants. j

42a

Clifford Asvitt, being duly sworn, states as follows:

1. I am employed by United Air Lines, Inc. (hereinafter

United”) as the Director of United's Quality Assurance. I am

preparing this on behalf of United.

2. I am the primary contact for quality and maintenance

between the inspectors from the Federsi Aviation Adminis-

tration (“FAA”) and United’s facilities at the San Francisco

International Airport.

3. The FAA has two Principal Maintenance Operations

Inspectors assigned to United’s O and M facilities at San

Francisco. Their staff of eight inspectors audits the facilities

and operations on a regular basis. On a daily basis, approxi-

mately three or four inspectors are on the site. They inspect for

violations of the FAA’s and United's manual requirements.

United’s manuals contain separate written specifications and

requirements which are enforced by the FAA inspectors. These

manuals which contain in excess of 1,000 separate written

specifications also contain detailed descriptions of safety gear

and of the safety practices and procedures which must be

followed by United’s O and M facilities’ personnel.

4. I have personal knowledge of the foregoing matters and

if called upon to testify, would testify accordingly.

Clifford Asvitt

SUBSCRIBED AND SWORN to be-

fore me on this 7th day of May, 1979.

Rodger E. Simonian

Notary Public

43a

Pau. M. TSCHIRHART

Rosert H. BROWN

UNitTeD Air Lines, INC.

P. O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

JEAN C. GASKILL

KATHLEEN LUCAS-WALLACE

BrosBeck, PHLEGER & HARRISON

One Market Plaza

Spear Street Tower

San Francisco, California 94105

(415) 442-0900

Attorneys for Plaintiff,

United Air Lines, Inc.

In THe United States District Court

For the Northern District of California

UNITED Air Lines, INC., 4

Plaintiff,

vs.

THE Division OF INDUSTRIAL SAFETY

OF THE DEPARTMENT OF INDUSTRIAL No. C 79-1107 (SW)

RELATIONS, OF THE STATE OF CALI- ' diiniiaa

FORNIA, ORDER, FINDINGS,

NARY INJUNCTION

THE OCCUPATIONAL SAFETY AND

HEALTH APPEALS BOARD FOR THE

STATE OF CALIFORNIA,

Defendants.

The Motion of United Air Lines, Inc. for a Preliminary

Injunction and the Motion of defendants to dismiss the cause

44a

came on for hearing on July 20, 1979. Plaintiff appeared

through Paul M. Tschirhart, Esq., admitted pro hac vice, Jean

C. Gaskill, Esq., Kathleen Lucas-Wallace, Esq. and Brobeck,

Phleger & Harrison, and defendants Division of Industrial

Safety of the Department of Industriai Relations of the State of

California and Occupational Safety and Health Appeals Board

for the State of California having appeared through Matthew P.

Boyle, Esq., Deputy Attorney General, State of California. The

Court, having considered the evidence, both oral and documen-

tary, and the arguments and memoranda of counsel, and being

otherwise fully informed, makes the following:

FINDINGS

1. This court has jurisdiction under 28 U.S.C. §1331 and

1337.

2. Plaintiff United Air Lines, Inc. (“United”’) is a corpo-

ration organized and existing under the laws of the State of

Delaware with its principal place of business in the State of

Illinois. United is qualified to do business within the State of

California and within the geographic boundaries of the North-

ern District of California. United is an air carrier within the

meaning of the Federal Aviation Act, 49 U.S.C. §1301(3).

3. Defendant Division of Industrial Safety of the Depart-

ment of Industrial Relations of the State of California (here-

inafter “Cal/OSHA”’), is now, and at all times relevant hereto

has been, the California state agency responsible for enforcing

compliance with the California Occupational Safety and Health

Act of 1973, California Labor Code §§50.7, 114.5, 148-49, 6300

et seq. (hereinafter the “State Act”).

4. Defendant Occupational Safety and Health Appeals

Board for the State of California (hereinafter “Appeals

Board”), is now, and at all times relevant has been, the agency

charged with adjudicating and rendering final administrative

decisions in disputes arising under the State Act.

45a

5. The Federal Aviation Administration (hereinafter

“FAA”) has and exercises jurisdiction over plaintiff United’s

Operations and Maintenance facilities at the San Francisco

International Airport (hereinafter “O and M facilities”).

6. Cal/OSHA inspects, regulates and has consistently

asserted jurisdiction over safety and health matters at the

plaintiff's O and M facilities.

7. The Appeals Boa:d continues to adjudicate matters

relating to citations issued by Cal/OSHA ui United’s O and M

facilities. United has exhausted all administrative remedies.

8. It appears at the present stage of these proceedings that

the Federal Aviation Administration is vested by law with and

exercises health and safety jurisdiction over plaintiff United’s O

and M facilities. 49 U.S.C. §§ 1341 ef seg., 1421 ef seqg., 14

C.F.R. §§ 121.131 et seg. and 121.361 et seg.

9. Under the State Act, Cal/OSHA has safety and health

jurisdiction over places of employment within the State of

California except those places of employment where health and

safety jurisdiction is vested by law in, and exercised by, a

federal agency.

10. It appears at the present stage of these proceedings

that the continued assertion of jurisdiction by Cal/OSHA and

the Appeals Board is contrary to law and in violation of

United’s rights in that it subjects United to dual, conflicting and

overlapping regulation.

11. It appears, and the Court concludes, that plaintiff

United has suffered irreparable injury from said continued

assertion of jurisdiction and unless enjoined, defendants will

continue to cause United to suffer immediate and irreparable

injury for which there is no adequate remedy at law.

12. Plaintiff United has demonstrated a likelihood of

success on the merits of the case.

46a

13. It appears that the granting of a preliminary injunction

will not adversely affect any third party or the public interest in

matters of health and safety since the FAA will continue to

exercise jurisdiction over the health and safety of employees at

the O and M facilities.

NOW, THEREFORE, IT IS HEREBY ORDERED that:

Plaintiff's Motion for a Preliminary Injunction be, and the

same hereby is, GRANTED;

IT IS FURTHER ORDERED that defendants’ Motion to

Dismiss be, and hereby is, DENIED;

IT IS FURTHER ORDERED that defendant Division of

Industrial Safety of the Department of Industrial Relations of

the State of California, its officers, employees and agents, and

persons acting with said defendant, be, and hereby are, re-

strained and enjoined pendente lite, from making any inspection

of, or in any manner attempting to regulate safety and health

matters at United’s O and M facilities; from enforcing or

attempting to enforce any provision of the State Act at United’s

O and M facilities; and from asserting or in any manner

attempting to assert jurisdiction over safety and health matters

at United’s O and M facilities;

IT IS FURTHER ORDERED that defendant Occupa-

tional Safety and Health Appeals Board of the State of

California, its officers, employees and agents, and persons

acting on behalf or in concert with said defendant, be, and

hereby are, restrained and enjoined, pendente lite, from com-

mencing or continuing any proceedings relating to the enforce-

ment of citations issued by the Division of Industrial Safety for

Nothing herein shall be construed to prevent either party

from continuing to pursue the now pending proceeding in

United Air Lines, Inc. v. The Occupational Safety and Health

47a

Appeals Board, Civil No. 747-454, Superior Court of California

in and for the City and County of San Francisco (pending).

Pursuant to Federal Rules of Civil Procedure, Rule 65(c),

plaintiff shall file and serve upon defendants an undertaking

approved by the court in the sum of —__.

Spencer Williams

United States District Court Judge

48a

UNITED AIR LINES, INC.,

Plaintiff-Appellee,

The DIVISION OF INDUSTRIAL SAFETY OF THE

DEPARTMENT OF INDUSTRIAL RELATIONS of the

State of California and the Occupational Safety & Health

Appeals Board for the State of California, Defendants-

Appellants.

No. 79-4489,

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 12, 1980.

Decided Dec. 2, 1980.

The Division of Industrial Safety of the Department of

Industrial Relations of the State of California and the

Occupational Safety and Health Appeals Board for the State of

California appealed from order of the United States District

Court for the Northern District of California, Spencer Williams,

J., granting airline’s motion for preliminary injunction pre-

venting the Division and the Board from enforcing, or attempt-

ing to enforce, California’s health and safety laws at airline’s

operation and maintenance facilities. The Court of Appeals,

Halbert, Senior District Judge, sitting by designation, held that

district court had no federal question jurisdiction.

Reversed.

Federal jurisdiction must affirmatively appear in the com-

plaint. 28 U.S. C.A. §§ 1331, 1337.

District court had no federal question jurisdiction over

airline’s action seeking to restrain Division of Industrial Safety

of the Department of Industrial Relations of the State of

49a

California from enforcing, or attempting to enforce, California’s

health and safety laws at airline’s operation and maintenance

facilities, since airline’s allegation of federal preemption as a

defense to Division’s attempted enforcement of its citations was

insufficient to support federal jurisdiction. 28 U.S.C.A. §§ 1331,

1337; West’s Ann.Cal. Labor Code, §§ 6303( a), 6307; Federal

Aviation Act of 1958, § 101 et seq., 49 U.S.C.A. § 1301 et seq.

Mere adoption by a state law of a United States law as

criterion or test, when law of United States has no force proprio

vigore, does not cause case under state law to be also a case

under the law of the United States. 28 U.S.C.A. §§ 1331, 1337.

It is not enough that federal question appear in complaint

as anticipation of or reply to probable defense, or that claim

asserted is in nature of defense to threatened or pending action;

rather right or immunity created by Constitution or laws of

United States be essential element of plaintiffs claim. 28

U.S.C.A. § 1331.

On Appeal From the United States District Court For the

Northern District of California.

Before ELY and FLETCHER, Circuit Judges, and HAL-

BERT,* District Judge.

HALBERT, Senior District Judge:

The Division of Industrial Safety of the Department of

Industrial Relations of the State of California (“Division”) and

the Occupational Safety and Health Appeals Board for the

State of California (“Board”) appeal from the district court’s

order granting United Air Lines’ (“United”) motion for a

preliminary injunction preventing the Division and the Board

* Hon. Sherrill Halbert, Senior District Judge, United States

District Court for the District of Eastern California, sitting by

designation.

50a

from enforcing, or attempting to enforce, California’s health

and safety laws at United’s operation and maintenance facilities

at the San Francisco International Airport.’

[1] It is Hornbook Law that federal jurisdiction must

affirmatively appear in the complaint. Phillips Petroleum Co. v.

Texaco, 415 U.S. 125, 127-28, 94 S.Ct. 1002, 1003-04, 39

L.Ed.2d 209, 212 (1974); Pan American Petroleum Corp. v.

Superior Court, 366 U.S. 656, 662, 81 S.Ct. 1303, 1307, 6

L.Ed.2d 584, 589 (1961); Home Federal Savings & Loan Ass’n

v. Insurance Dep’t of Iowa, 571 F.2d 423, 425-26 (8th Cir.

1978). Jurisdiction does not appear in plaintiff's complaint in

this case.2 We reverse.

United asserts federal question jurisdiction founded on 28

U.S.C. §§ 1331, 1337. It argues that the provision in the

California Labor Code setting the Division’s jurisdiction to

enforce California’s occupational health and safety laws de-

pends entirely on an interpretation of federal law. California

Labor Code § 6307 provides that:

The Division has the power, jurisdiction and supervision

over every employment or place of employment in this

state.

California Labor Code § 6303(a) defines “place of employ-

ment” as

any place, and the premises appurtenant thereto, 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.

(emphasis added).

1 The order granting the Preliminary injunction has heretofore

been stayed by this court pending the disposition of this appeal.

2 United has abandoned its earlier assertion of diversity jurisdic-

tion; therefore, federal question jurisdiction is the sole basis upon

which it relies in this appeal.

5la

United contends that the Federal Aviation Act of 1958, 49

U.S.C. § 1301 ef seg., provides that the Federal Aviation

Agency ( FAA) shall exercise health and safety jurisdiction over

United’s operation and maintenance facilities, and that the

FAA “actively exercises” that jurisdiction. United argues that

the federal question as to the scope of FAA authority is

decisive, and therefore that the requirements of federal question

jurisdiction are satisfied.

[2] This suit is plainly based on state law. The relief

requested by United is that a federal court restrain the Division

from enforcing state statutory law. Although it appears impos-

sible to state with precision the test to be applied in determining

whether an action arises under federal law, see Town of

Greenhorn v. Baker County, Oregon, 596 F.2d 349, 351-53 (9th

Cir. 1979); Keaukaha-Panaewa Community Ass'n v. Hawaiian

Homes Comm’n, 588 F.2d 1216, 1224-27 (9th Cir. 1979), cert.

denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1980);

Smith v. Grimm, 534 F.2d 1346, 1349-50 (9th Cir. 1976), cert.

denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976)

regardless of the formulation used, no federal question is

present here. The controversy is based in state law, and

United’s argument primarily involves the interpretation of the

state jurisdictional statute, California Labor Code § 6303(a).

The federal issue of the scope of FAA authority is tangential to

the task of construing the state statute and may not even be

conclusive, since a state court could construe the “actively

exercised by” language in section 6303(a) to mean something

different from the limits of FAA jurisdiction.

[3] In defining the Division’s jurisdiction in section

6303(a), California has incorporated a body of federal law.

We agree with the sentiments expressed by Justice Holmes’

dissent in Smith v. Kansas City Title Co., 255 U.S. 180, 215, 41

S.Ct. 243, 250, 65 L.Ed. 577, 591 (1921):

52a

The mere adoption by a state law of a United States law as

a criterion or test, when the law of the United States has no

force proprio vigore, does not cause a case under the State

law to be also a case under the law of the United States,

and so it has been decided by this Court again and again.

See also Moore v. Chesapeake & Ohio Ry., 291 U.S. 205, 54

S.Ct. 402, 78 L.Ed. 755 (1934); Morris v. Danna, 411 F.Supp.

1300, 1305-07 (D.Minn.1976), aff'd 547 F.2d 436 (8th Cir.

1977); 13 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 3563 at 417-18 (1975).

[4] Federal question jurisdiction under 28 U.S.C. § 1331

requires that a right or immunity created by the Constitution or

the laws of the United States be an essential element of the

plaintiffs claim. Gully v. First Nat’l Bank in Meridian, 299 US.

109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70, 72 (1936). See also

Powell v. McCormack, 395 U.S. 486, 516, 89 S.Ct. 1944, 1961,

23 L.Ed.2d 491, 513 (1969); King County v. Seattle School

Dist., 263 U.S. 361, 363, 44 S.Ct. 127, 68 L.Ed. 339, 341

(1923); Starin v. Mayor of New York, 115 U.S. 248, 257, 6 S.Ct.

28, 31, 29 L.Ed. 388, 390 (1885). It is not enough that a

federal question appears in the complaint as an anticipation of

or reply to a probable defense. Phillips Petroleum Co. v.

Texaco, 415 U.S. 125, 128, 94 S.Ct. 1002, 1004, 39 L.Ed.2d

209, 212 (1974); Skelly Oil Co. v. Phillips Petroleum Co., 339

U.S. 667, 673-74, 70 S.Ct. 876, 880, 94 L.Ed. 1194, 1200-01

(1950), or that the claim asserted is in the nature of a defense

to a threatened or pending action. Public Service Comm’n of

Utah v. Wycoff Co., Inc., 344 U.S. 237, 248, 73 S.Ct. 236, 242,

97 L.Ed. 291, 298 (1952); Home Federal Savings and Loan

Ass'n v. Insurance Dep't of lowa, 571 F.2d 423, 426 (8th Cir.

1978). In the instant case, United is a defendant in the state

court action to enforce citations issued by the Division, and has

stated that it has asserted and will continue to assert jurisdic-

tional defenses in that action. Therefore, United’s allegations

of federal question jurisdiction in this appeal remain defensive

in nature, and it cannot assert its jurisdictional objections to the

state court action as a basis for jurisdiction in the federal courts.

53a

Under facts similar to those present in this appeal, the

Eighth Circuit found in Home Federal Savings and Loan

Association v. Insurance Department of lowa, 571 F.2d 423

(8th Cir. 1978) that an action for declaratory relief did not

state a federal question when the allegations of federal jurisdic-

tion merely reiterated defenses brought up at prior adminis-

trative proceedings. Jd. at 426. United's jurisdictional allega-

tion of federal preemption was first raised as a defense to the

Division's attempted enforcement of its citations; therefore,

under the rationale of Home Federal, these allegations are

insufficient to support jurisdiction in this court. Accord, State of

Washington v. American League of Professional Baseball C!s:+-,

460 F.2d 654, 660 (9th Cir. 1972).

United's secondary allegation that the relief it seeks is too

comprehensive to be granted in state court is without merit.

Moore v. Sims, 442 U.S. 415, 424-27, 99 S.Ct. 2371, 2378-79, 60

L.Ed.2d 994, 1004-05 (1979).

Since there is no federal jurisdiction upon which this case

can be bottomed, there is no reason for us to consider, and we

do not consider, the issue of abstention extensively discussed by

both parties.

The order of the district court granting a preliminary

injunction in this case is reversed.

54a

[1 24,751] Northwest Airlines, Inc.

Text of Review Commission decision dated September 3,

1980. OSHRC Docket No. 13649. The Judge's decision

appears at 1976-1977 OSHD 4 21,225.

OSHA Jurisdiction— Airplane Ground Maintenance Per-

sonnel—Federal Aviation Administration Rules—Employee

Safety Manuals as “Regulations.” A Judge correctly vacated

for lack of jurisdiction a charge that an airline violated the

general duty clause by not providing a means of protecting

ground maintenance employees from the hazard of being

crushed by the flaps of certain 747’s while servicing their

landing lights. Section 4(b)(1) of the Act precluded OSHA

enforcement because the FAA possessed the statutory authority

to regulate the health and safety of such employees, and the

FAA validly exercised this authority through duly promulgated

rules that require airlines to develop, subject to FAA dis-

approval, manuals that include provisions designed to further

employee safety. The manual of the cited employer required

compliance with a procedure to lock out the wing flaps while

changing landing lights.

The Secretary argued unsuccessfully that the FAA’s en-

abling legislation is not directed to occupationa! safety or health

of ground maintenance personnel, but to the safety of aircraft in

flight. However, the FAA's interpretation that it is not pre-

cluded from regulating ground personnel safety because the

statute speaks of “safety of flight in air commerce” is to be

given great weight; it was not unreasonable for the FAA to

conclude that this phrase encompassed more than safety in

flight. The provisions of the employer's maintenance manual

fulfilled the preemption that another agency must issue stan-

dards or regulations, in that the FAA manual procedures permit

each airline to benefit from its experience with a plane in actual

service and to quickly implement the changes it thinks are

55a

necessary. Thus the regulation was reasonable and practical in

substituting a carrier's procedures for the minutiae of individual

FAA approval.

Back reference: 9 516.

David M. Becker, Charles C. High, James A. Abbott, Janet

R. Stenborg and E. Carl Uehlein for the employer. Baruch A.

Feliner and Francis V. LaRuffa for the Secretary.

[Text of Review Commission Decision}

Before CLeary, Chairman; BARNAKO and Cottine, Com-

missioners.

By THE COMMISSION:

This is a case under the Occupational Safety and Health

Act of 1970, 29 U. S. C. §§ 651-678 (“the Act”). A decision of

Administrative Law Judge Jerome C. Ditore is before the

Commission for review pursuant to section 12(j) of the Act, 29

U. S. C. § 661(i). The issue is whether Judge Ditore correctly

vacated a citation issued by the Secretary of Labor (“Secre-

tary’) to Respondent, Northwest Airlines, Inc. (“ Northwest’),

on the basis that the working condition encompassed in the

citation is exempt from the requirements of the Act pursuant to

section 4(b)(1) of the Act, 29 U. S. C. § 653(b)(1)." We

affirm the judge's decision.

Respondent employs ground mechanics at John F, Ken-

nedy International Airport in Queens, New York, to service and

maintain its Boeing 747 aircraft. When landing lights in the

‘Section 4(b)( 1) provides:

Nothing in this Act shall apply to working conditions of employ-

ees with respect to which other Federal agencies, and State agencies

acting under section 274 of the Atomic Energy Act of 1954, as

amended (42 U. S. C. 2021), exercise statutory authority to prescribe

or enforce standards or regulations affecting occupational safety or

health.

56a

wing of some Boeing 747's are to be serviced or changed, the

leading edge or “Krueger” flaps are extended to give the

mechanic access to the lights through the flap cavity. If the

electro-pneumatically controlled flaps are activated, they quick-

ly retract and, if the mechanic is in the cavity, the flaps may

crush and kill or seriously injure him. A citation issued by the

Secretary alleged that Northwest had violated section 5(a)(1)

of the Act, 29 U.S. C. § 654(a)(1),* by not providing adequate

means to protect its ground maintenance employees from this

hazard. The Secretary alleged that the proper use of a lock-

out/tag-out procedure and the installation of access panels in

the wings of “old” 747 aircraft to give direct access to the

landing lights® are feasible and useful steps that Northwest

could but did not take to eliminate the hazard. Access panel

kits, approved by the Federal Aviation Administration

(“FAA”), are available from Boeing. The lock-out/tag-out

procedure is prescribed by Northwest's maintenance manual,

but the Secretary alleges that Northwest did not adequately

implement the procedure.

Northwest denied that it had violated section 5(a)(1) and

also claimed an exemption under section 4(b)(1).4 Judge

Ditore found that the cited working condition was exempt and

vacated the citation. The Secretary's petition for review of this

ruling was granted by Chairman Cleary and submissions were

invited on the question of Judge Ditore had erred.5 The

2 Section 5(a)(1) provides:

Sec. 5 (a) Each employer—

(1) shall furnish to each of his employees employment and a

place of employment which are free from recognized hazards that are

causing or are likely to cause death or serious physical harm to his

employees.

3 Boeing equips new 747 aircraft with such panels.

4See note | supra

5 Former Commissioner Moran also directed review but did not

state any issue. We reject Northwest's contention that the judge's

decision was not timely directed for review by either Commissioner.

Judge Ditore did not “make” his report under section 12(j) until it

Footnote continued on next page.

57a

Department of Transportation (““DOT”’) has joined the parties

in filing briefs and orally arguing the matter before the

Commission.®

Section 4(b)(1) provides that working conditions for

which federal agencies other than the Department of Labor

“exercise statutory authority to prescribe or enforce standards

or regulations affecting occupational safety or health” are

Footnote continued from previous page.

was received by the Commission. Gurney Indus., 74 OSAHRC 8/A2,

IBNA OSHC 1376, 1973-74 CCH OSHD 4 16,805 (No. 722, 1973).

It is immaterial that he mailed it to the parties or anyone else at an

earlier date. Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4

BNA OSHC 1214, 1975-76 CCH OSHD 4 20,682 (No. 7377, 1976);

Gulf & Western Food Prod. Co., 77 OSAHRC 72/A2, 4 BNA OSCH

1436, 1976-77 CCH OSHD 20,886 (Nos. 6804 & 6805, 1976).

6 Oral argument was heard on February 16, 1978. This case was

consolidated for his purpose with Allegheny Airlines, Inc., OSHRC

Docket Nos. 14291 & 14345. Commissioner Cottine became a

Member of the Commission subsequent to that date. He has fully

reviewed the record in this case, including the verbatim transcript of

the oral argument. Accordingly, consistent with his statutory responsi-

bilities, he is participating in this decision. Perini Corp., 78 OSAHRC

43/C5, 6 BNA OSHC 1609, 1978 CCH OSHD 4 22,772 (No. 13029,

1978) (sep. opin.); see Au Yi Lau v. U. S. Immigration and

Naturalization Serv., 555 F. 2d 1036, 1042 (D. C. Cir. 1977);

Gearhart & Otis, Inc. v. SEC, 348 F. 2d 798, 802 & nn. 12 & 13 (D.C.

Cir. 1965).

58a

exempt from the Act.” Accordingly, when a section 4(b)(1)

exemption is claimed, our inquiry must begin with an exam-

ination of the relevant statutory and regulatory provisions of the

other agency that allegedly support exemption under the Act.

Section 601(a) of the Federal Aviation Act of 1958, 49

U. S. C. § 1421(a), requires the Administrator of the FAA to

“promote safety of flight of civil aircraft in air commerce” by

issuing:

(1) Such minimum standards governing the design,

materials, workmanship, construction, and performance of

aircraft, aircraft engines, and propellers as may be required

in the interest of safety;

(2) Such minimum standards governing appliances as

may be required in the interest of safety;

(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 exam-

inations 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;

(4) Reasonable rules and regulations governing the

reserve supply of aircraft, aircraft engines, propellers,

appliances and aircraft fuel and oil, required in the interest

7 It is well established that the burden cf proving that a particular

working condition is exempt from the Act pursuant to § 4(b)(1) rests

with the employer claiming the exemption. IJdaho Travertine Corp.,

77 OSAHRC 57/C9, 3 BNA OSHC 1535, 1975-76 CCH OSHD

4 20,013 (No. 1134, 1975), and cases cited therein.

849 U.S. C. §§ 1301-1542.

59a

of safety, including the reserve supply of aircraft fuel and

oil which shall be carried in flight;

(5) Reasonable rules and regulations governing, in

the interest of safety, the maximum hours or periods or

service of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or min-

imum standards, governing other practices, methods, and

procedure, as the Administrator may find necessary to

provide adequately for national security and safety in air

commerce.

Subsections (1) through (5) of section 601(a) enumerate

specific subjects the Administrator may regulate. Subsection

(6), which is the provision pertinent to this case, is a “catchall”

provision that gives the Administrator general authority to issue

rules and regulations promoting “national security and safety in

air commerce.”

The Administrator has promulgated a number of stan-

dards and regulations pursuant to section 601(a) and other

statutes not relevant here. Among these is a requirement that

“{ejach domestic and flag air carrier shall prepare and keep

current a manual for the use and guidance of flight and ground

operations personnel in conducting its operations.” 14 C. F. R.

§ 121.133(a). Such a manual must meet the following require-

ments that are pertinent to this case:

§ 121.135 Contents.

(a) Each manual required by § 121.133 must—

(1) Include instructions and information necessary to

allow the personnel concerned to perform their duties and

responsibilities with a high degree of safety;

* * *

(b) The manual may be in two or more separate

parts, containing together all of the following information,

but each part must contain that part of the information that

is appropriate for each group of personnel:

60a

* . *

(16) Instructions and procedures for maintenance,

preventive maintenance, and servicing.

The Administrator has also adopted rules that generally

apply to maintenance work performed on aircraft. Insofar as

relevant to this case, 14 C. F. R. § 43.13 provides:

§ 43.13 Performance rules (general).

(a) Each person maintaining or altering, or per-

forming preventive maintenance, shall use methods, tech-

niques, and practices acceptable to the Administrator. He

shall use the tools, equipment, and test apparatus necessary

to assure completion of the work in accordance with

accepted industrial practices. If special equipment or test

apparatus is recommended by the manufacturer involved,

he must use that equipment or apparatus or its equivalent

acceptable to the Administrator.

operators. Unless otherwise notified by the Administrator,

the methods, techniques, and practices contained in the

maintenance manual or the maintenance part of the air

carrier manual of a certificated air carrier or commercial

operator (that is required by its operating certificate or

approved operating specifications to provide a continuous

airworthiness maintenance and inspection program) con-

stitute acceptable means of compliance ‘vith this section.

As part of the manual required by 14 C. F. R.

§ 121.133(a), Northwest prepares maintenance manuals for

each type of aircraft that it operates. These individual manuals

are largely derived from manuals prepared by the manufacturer

of the aircraft. FAA employees present in a manufacturer's

plant during the manufacture of a particular aircraft oversee the

development of the maintenance manual for that type of plane.

6la

When Northwest purchased its 747’s, it received mainte-

nance manuals from Boeing, which it reviewed prior to placing

the planes in service. If it wanted to follow a procedure

different from one specified in the manual, Northwest would

notify the FAA of the proposed change and would, pursuant to

14C. F. R. § 43.13, submit the entire manual with its proposed

changes to the FAA. Unless notified by the FAA, Northwest

could assume that its procedures were approved. Subsequently,

Northwest could submit additional changes to the FAA, and

these aiso would become effective unless specifically dis-

approved.

The primary purpose of the manual is to assure that the

aircraft is properly maintained so as to preserve its air-

worthiness. However, the manual also contains some provi-

sions for the safety of maintenance employees. Among the

provisions directed at the safety of maintenance workers is a

lockout procedure dealing with the possibility that the leading

edge flaps could retract and injure an employee who is

changing the landing lights.

The FAA monitors air carrier operations and has employ-

ees assigned to Northwest on a permanent basis. Among other

things, the FAA employees conduct inspections to determine if

the airline is complying with the provisions of its maintenance

manual. The FAA can and has issued disciplinary notices,

some of which carry monetary fines, to both the airline itself

and to individual mechanics. Although the FAA’s inspections

have encompassed procedures dealing with the safety of

maintenance personnel, neither Northwest nor any of its me-

chanics have been cited by the FAA for violating any rules

dealing solely with the safety of such personnel with respect to

the airline’s operations at John F. Kennedy Airport. Addition-

®The manufacturer might, from time to time, recommend

changes in the procedures prescribed in a manual. It would notify all

purchasers of the aircraft of such recommendations, and the individ-

ual purchasers would then decide whether to propose the change to

the FAA.

62a

ally, although Northwest’s maintenance employees at JFK have

suffered some injuries (of unspecified severity), the FAA has

not investigated such incidents.

The Secretary argues, first, that the FAA’s enabling legisla-

tion is not directed to the occupational safety or health of

ground maintenance personnel, but to the safety of aircraft in

flight. In his view, the test of Fineberg Packing Co., 74

OSAHRC 14/E12, 1 BNA OSHC 1598, 1973-74 CCH OSHD

917,518 (No. 61, 1974) has not been met with respect to

ground maintenance personnel.'9 Second, the Secretary argues

that 14 C. F. R. § 43.13 is not directed to the occupational

safety and health of ground maintenance personnel, but to the

safety of aircraft in flight. Third, he submits that the noted

regulations do not speak to the cited working condition, the

servicing of the landing lights. Fourth, he maintains that the

lock-out/tag-out instruction in Northwest’s approved mainte-

nance manual, which does speak to the cited working condition,

is not a standard or regulation within the contemplation of

section 4(b)(1). Finally, the Secretary argues that the man-

ual’s lock-out/tag-out instructions were neither “prescribed”

nor “enforced” by FAA.

Northwest argues that the FAA has statutory authority to

regulate the occupational safety and health of ground mainte-

nance personnel, and that the FAA has exercised that authority

in such a way as to create a section 4(b)(1) exemption in this

case. It first maintains that the Secretary’s reliance upon

Fineberg is misplaced because the FAA’s enabling legislation

10 In Fineberg the Commission held that to be exemptive under

§ 4(b)(1), the statutory scheme of another federal agency, and

standards or regulations prescribed or enforced under it, must have as

a policy or purpose the inclusion of employees in the class of persons

to be protected. It is not enough, the Commission added, that the

statutory scheme have an incidental effect on employee safety or

health.

63a

does give the FAA authority to protect ground maintenance

personnel, thus meeting the test of Fineberg. Northwest next

argues that the FAA has sufficiently exercised its authority. It

contends that Congress authorized the FAA to regulate all

aspects of the airline industry and the FAA has exercised that

authority through a comprehensive system of regulation, there-

by leaving no room for the Secretary to enforce the Act’s

requirements in areas touched by the FAA’s regulations. More-

over, according to Northwest, the FAA’s comprehensive regu-

lation of the industry demonstrates a decision by the FAA that

conditions it has not regulated should remain unregulated. In

support of its arguments, Northwest cites Southern Railway Co.

v. OSHRC, 539 F. 2d 335, 339 (4th Cir.), cert. denied, 429

U. S. 999 (1976), in which the court interpreted the phrase

“working conditions” in section 4(b)(1) to refer to the

environmental area in which an employee works, and stated

that once another agency exercises its authority to prescribe

standards for such an area, the Act is preempted throughout

that area. Northwest also cites Southern Pacific Transportation

Co. v. Usery, 539 F. 2d 386, 391-92 (Sth Cir. 1976), cert.

denied, 434 U. S. 874 (1977), in which the court stated that

another agency can preempt the Act by reaching and arti-

culating a formal decision that a particular condition within its

authority to regulate should be left unregulated.

Northwest also contends that the FAA’s requirement that

it develop and submit a maintenance manual for FAA approval

is an exercise by the FAA of authority to prescribe or enforce

the safety requirements contained in the manual. Because the

manual contains provisions regulating the environmental area

in which Northwest's maintenance employees work, then under

its suggested interpretation of “working condition” discussed

above, Northwest contends that the Secretary is preempted

from citing for violations of the Act in such areas. Northwest

further argues that, even under the narrowest approach to the

term “working conditions,” which it refers to as the “nook and

64a

cranny” approach, an exemption exists in this case because its

manual contains a provision directed at the very hazard cited

by the Secretary: the possibility of inadvertent closure of the

leading edge flaps during landing light maintenance.

The Department of Transportation argues that section

601(a) of the Federal Aviation Act, 49 U. S. C. § 1421(a),

provides the FAA with the statutory basis for regulating all

aspects of aviation safety, including the occupational safety and

health of ground maintenance personnel, and therefore meets

the test of Fineberg. DOT also maintains that 14 C. F. R.

§§ 43.13 and 121.135 are valid regulations, and that the

provisions of Northwest’s maintenance manual are standards or

regulations “prescribed pursuant to FAA regulatory require-

ments [14 C. F. R. §§ 43.13, 121.135 and 121.367] and

enforced by FAA’s statutory and regulatory authority over air

carriers.”” Inasmuch as the cited working condition is dealt with

in the manual, the FAA concludes that the cited working

condition is exempt under section 4(b)(1).

Judge Ditore accepted Northwest’s claim of an exemption

but only with respect to the working condition cited here. He

rejected what he viewed to be an attack by the Secretary upon

the legal authority of the FAA to regulate as it has. He held

that “[t]he authority conferred on the FAA in matters of safety

encompasses ... not only the work of ground maintenance

crews as it relates to airworthiness of aircraft, but includes the

safe working conditions of the ground crews when performing

aircraft maintenance work (49 U. S. C. § 1421).” The judge

went on to hold that this authority had been lawfully exercised

by the adoption of 14 C. F. R. §§ 43.13 and 121.135, among

other regulations.

The fundamental dispute in this case is twofold. First, the

parties disagree as to whether the FAA possesses “statutory

authority” within the meaning of section 4(b)(1) to regulate

the health and safety of airline ground maintenance workers.

65a

Second is the question whether, if such authority exists, the

FAA’s rule requiring airlines to submit and comply with

maintenance manuals is a sufficient exercise of that authority to

give rise to a section 4(b)(1) exemption. For the reasons that

follow, we agree with the judge’s resolution of these issues.

We consider first whether the FAA has the requisite

statutory authority to regulate the working condition that is the

subject of the citation at issue.

Section 4(b)(1) cases concerned with a sister agency’s

statutory purpose have fallen into four categories. First are

those cases involving statutes that are concerned solely with the

safety and health of particular employees. See Idaho Trav-

ertine Corp., 77 OSAHRC 57/C9, 3 BNA OSHC 1535, 1975-76

CCH OSHD 420,013 (No. 1134, 1975) (Department of

Interior—mine safety ). The second category involves situations

in which another agency acts to regulate employee safety and

health, but the statutory authority serving as the basis of the

agency’s actions pertains to matters other than safety or health.

See Haas & Haynie Corp., 74 OSAHRC 144/E1, 4 BNA OSHC

1911, 1976-77 CCH OSHD § 21,351 (No. 11127, 1976) (Gen-

eral Services Administration—procurement statute ); Gearhart-

Owen Industries, Inc., 2 BNA OSHC 1568, 1974-75 CCH

OSHD 4 19,329 (No. 4263, 1975) (Department of Defense

—procurement statute). Third are situations in which an

agency is empowered by statute to regulate an aspect of public

safety and health, and its regulations directed toward that end

incidentally affect the working conditions of employees in a

manner unrelated to the statutory purpose. See Fineberg

Packing Co., supra, (Department of Agriculture— Wholesome

Meat Act). Fourth are cases in which a statute authorizes an

agency to regulate an aspect of public safety or health, and

certain employees directly receive the protection the statute is

66a

intended to provide. See Organized Migrants in Community

Action, Inc. v. Brennan, 520 F. 2d 1161 (D. C. Cir. 1975)

(Environmental Protection Agency—Federal Environmental

Pesticide Control Act of 1972); Texas Eastern Transmission

Corp., 75 OSAHRC 88/D9, 3 BNA OSHC 1601, 1975-76 CCH

OSHD 20,092 (No. 4091, 1975) (Department of Trans-

portation Office of Pipeline Safety—Pipeline Safety Act);

Mushroom Transportation Co., 73 OSAHRC 51/E10, 1 BNA

OSHC 1390, 1973-74 CCH OSHD { 16,881 (No. 1588, 1973)

(Department of Transportation—Motor Carrier Safety Regu-

lations); Southern Pacific Transportation Co., 74 OSAHRC

83/A2, 2 BNA OSHC 1313, 1974-75 CCH OSHD 19,054

(No. 1348, 1974), aff'd, 539 F. 2d 386 (Sth Cir. 1975), cert.

denied, 434 U. S. 874 (1977) (Department of Trans-

portation—Federal Railway Safety Act); American Airlines,

Inc., 75 OSAHRC 2/C13, 3 BNA OSHC 1624, 1975-76 CCH

OSHD 4 20,129 (No. 9392, 1975) (Federal Aviation Adminis-

tration—packaging standards for radio-active material);"'

Magnus Firearms, 75 OSAHRC 44/B11, 3 BNA OSHC 1214,

1974-75 CCH OSHD { 19,381 (No. 9342, 1975) (ALJ) (Bu-

reau of Alcohol, Tobacco, and Firearms—regulation of sale

and storage of explosives).

It is important to distinguish between the third and fourth

categories. In Fineberg Packing, the Department of Agriculture

exercised its authority to assure the purity of meat produced in

a packing facility by regulating sanitary conditions in the plant.

11 The parties dispute whether American Airlines is precedent for

concluding that the FAA has statutory authority to regulate the health

and safety of airline ground personnel. There is no dispute, however,

that the FAA has authority to preempt the Act by regulating

conditions that affect the health and safety of airline flight crews

during flight. Thus, at least to the extent that the FAA’s standards for

packaging of radioactive materials affect flight crew safety or health.

American Airlines serves as an example of a situation in which FAA

regulation would preempt the Occupational Safety and Health Act.

We address the parties’ contentions concerning the applicability of

American Airlines to this case later in this opinion.

67a

These regulations “affected” the conditions under which the

packing plant employees worked, but whether or not the

regulations added to their health and safety was purely for-

tuitous, for the Department of Agriculture regulations did not

address that objective.

Texas Eastern Transmission is illustrative of the fourth

category. There, Congress was concerned with accidents

resulting from the transmission and storage of natural gas.

Such accidents had affected both members of the public and

employees working in the natural gas industry. Thus, in giving

the DOT authority to regulate pipeline safety, Congress in-

tended to protect both employees and the general public.

Because employees were in the class the statute intended to

benefit, the Commission concluded that DOT had the requisite

authority to give rise to a section 4(b)(1) exemption,

The Secretary argues that this case falls within the third, or

Fineberg, category. He contends that the FAA's enabling

legislation is solely concerned with safety of aircraft in flight.

The Secretary does not dispute that the FAA can regulate the

maintenance procedures used on a plane to achieve this end

and that the FAA can therefore “affect” the working conditions

of maintenance employees. However, the Secretary argues that

the FAA's statutory authority to regulate maintenance proce-

dures is limited to assuring the safety of the aircraft in flight and

does not extend to t. ¢ protection of maintenange workers while

performing maintenance activities.

Northwest, on the other hand, argues that the FAA's

statutory authority does encompass the authority to regulate the

safety and health of maintenance personnel, and the FAA also

takes this position. Northwest and the FAA contend that

American Airlines, supra, is dispositive of this issue. In that

case, an airline was cited for allegedly violating certain of the

Secretary's standards governing exposure of employees in its

cargo terminal to radiation. The FAA had promulgated

68a

standards governing the packaging of radioactive material to be

transported in air commerce. The Commission held that, as a

result of these FAA standards, the working conditions at issue

were exempt from the Act pursuant to section 4(b)(1). The

Commission reasoned that the FAA's packaging standards

were intended to protect all persons who might come near

packaged radioactive material and thus directly affected the

safety and health of the employees in the airline's cargo facility,

The Commission did not, however, address the particular issue

involved here of whether ground employees were within the

class of persons the FAA's enabiing legislation intended to

protect. The Secretary had not raised or argued that issue,

essentially conceding it for purposes of that case.

Inasmuch as the FAA's statutory authority was not dis-

puted in American Airlines, the Commission decision cannot be

considered binding precedent on that point. In general, the

Commission relies on a party that has been aggrieved by an

administrative law judge's decision to present its exceptions to

the Commission and, with rare exceptions, the Commission

addresses only those issues raised by a party. This policy is now

codified in Rule 92 of our Rules of Procedure.'? But even

before that rule became effective, the Commission had an-

nounced that issues decided by an administrative law judge but

not explicitly addressed by the Commission could not be

considered binding precedent. Leone Construction Co., 76

OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD

4 20,387 (No. 4090, 1976)."9

12 Rule 92 was originally designated Rule 91a and codified in 29

C. F. R. § 2200.91(a). It was redesignated Rule 92 at 44 Fed. Reg.

70,106, 70,111 (1979), and will be codified in 29 C, F. R. § 2200.92.

9We also note that the facts of American Airlines did not

present the issue of the FAA's statutory authority as sharply as does

the present case. In American Airlines, the FAA regulations, if

complied with, would protect any persons who came into proximity

with packaged radioactive material. Thus, passengers, flight crews,

and ground employees would receive similar protection. Here,

Footnote continued on next page.

69a

In determining whether the FAA has the statutory author-

ity to regulate the health and safety of airline maintenance

personnel, we must give considerable weight to the fact that the

FAA interprets its enabling legislation to give it such authority.

See NLRB vy. Hearst Publications, Inc., 322 U. S. 111, 131

(1944). Even if another agency claims authority not explicitly

granted by statute, the agency's interpretation is nonetheless

controlling if the authority can be reasonably implied from the

statute. See Chrysler Corp. v. Brown, 441 U. S. 281, 99S. Ct.

1705, 1721 (1979), citing National Broadcasting Co. v. U. S.,

319 U.S. 190 (1954). See Batterton v. Francis, 432 U.S. 416

(1977). Thus, our task is not to determine de novo the proper

scope of the FAA’s enabling legislation, but to determine

whether the FAA's conclusion that it has authority to regulate

the health and safety of airline maintenance personnel is

reasonably supported by its enabling legislation. '4

The Secretary argues, in effect, that the FAA's inter-

pretation is not reasonable because its enabling legislation

clearly limits the FAA to regulating “safety of flight."" We do

not agree that the Federal Aviation Act precludes the FAA

from regulating the safety of ground personnel. Undoubtedly,

prevention of airplane crashes was Congress’ primary consid-

Footnote continued from previous page.

however, the provisions in the Northwest maintenance manual gov-

erning the working condition cited by the Secretary are expressly

designed to protect maintenance employees; passengers and flight

crew members will not be endangered by premature retraction of the

leading edge flaps during maintenance. Since the FAA's regulations

in American Airlines were not directed explicitly at maintenance

workers, the parties may well have overlooked the issue of whether

the FAA's statutory authority encompasses the safety and health of

maintenance workers.

4 The deference shown by the Supreme Court to an agency's

interpretation of its enabling legislation, see Udall v. Tallman, 380

U. S. 1 (1965), is rightfully extended by another administrative

agency as well.

18 The relevant parts of 49 U. S. C. § 1421(a) are quoted supra.

70a

eration in enacting the legislation in question. But to recognize

that prevention of crashes was Congress’ primary concern does

not mean that it was Congress’ sole concern. The statute

reflects the other concerns of Congress. While section 1421(a)

speaks of “safety of flight in air commerce,” subsection 6 of

section 1421(a) authorizes the FAA to establish standards and

regulations “as the Administrator may find necessary to provide

adequately for national security and safety in air commerce.” If,

as the Secretary argues, the scope of section 1421(a)(6) is

limited to “safety of flight in air commerce,” this reads out of

the statute entirely the reference to national security. Rather

than adopt such an interpretation, the FAA concluded that

Congress did not intend section 1421(a)(6) to be limited to

safety of flight. This interpretation is consistent with “the well-

settled rule of statutory construction that al! parts of a statute if

at all possible, are to be given effect.”"® Moreover, it was not

unreasonable for the FAA to conclude that the phrase “safety

in air commerce” in 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. We

therefore accept the FAA's interpretation that section

1421(a)(6) authorizes it to regulate the working conditions of

an airline’s maintenance personnel to assure their safety.

Vv.

The next question is whether the FAA has exercised its

statutory authority in such a manner as to exempt the cited

working condition from the Act. For the reasons stated below,

we conclude that another agency preempts the Act only by

issuing standards or regulations having the force and effect of

16 Weinberger v. Hynson, Westcott, and Dunning, Inc., 412 U. S.

609, 633 (1973).

Tila

law.'7 We further conclude that the provisions of Northwest’s

maintenance manual fulfill this criterion. Because the manual

addresses the specific hazard for which Northwest was cited, we

conclude that the Act does not apply to that working condi-

tion. 18

Not all requirements that administrative agencies impose

under the guise of standards or regulations have the force and

effect of law. To have the force and effect of law, a rule’? must

have two characteristics: there must be statutory authority for

the agency to regulate the subject and, in adopting the rule, the

agency must follow whatever procedural requirements Con-

gress has imposed by statute. Chrysler Corp. v. Brown, supra, 99

S. Ct. at 1718.

The Occupational Safety and Health Act authorizes the

Secretary to promulgate rules affecting occupational safety and

health, specifies procedures for the promulgation of such rules,

17 The standards or regulations must also meet the Fineberg

criterion of having the protection of occupational safety and health as

a policy or purpose. We reject the Secretary’s argument that 14

C. F. R. § 43.13 does not evidence such a policy or purpose. Section

43.13, which requires an airline to comply with the manual it has

developed, must be read in conjunction with 14 C. F. R. § 121.135,

which provides that a manual must contain provisions to enable

personnel to perform their work with a high degree of safety. This

clearly reflects an intent to protect workers while they are performing

maintenance work, and this intent is further demonstrated by the

inclusion in Northwest’s manual of a number of provisions directed

exclusively at the safety of maintenance workers.

18 Because of this conclusion, we do not address Northwest's

broader arguments to the effect that the cited working condition

would be preempted even in the absence of a provision in its manual

directed at the cited hazard.

1%9As used in the Act, a “standard” is a substantive rule

containing a requirement “reasonably necessary or appropriate to

provide safe or healthful employment.” 29 U. S. C. §652(8). A

“regulation” is a rule governing matters such as posting of notices,

recordkeeping, and conduct of inspections. E. g. 29 U. S. C.

§§ 657(c)(1)-(3), 657(e), and 657(g)(2). We shall use the word

“rule” to refer to both “standards” and “regulations.”

72a

and provides for penalties for employers who violate the rules.

29 U. S. C. §§ 654(a)(2), 655(a) and (b), and 666(a)-(d).

Standards that are properly promulgated under the Act there-

fore have the force and effect of law. Thus, when Congress

used the words “standards” and “regulations” in the Act, it

meant rules having the force and effect of law. As words used

in a statute normally should be read to have the same meaning

throughout,?° this strongly suggests that, in using “standards or

regulations” in seciton 4(b)(1), Congress contemplated only

rules having the force and effect of law. Indeed, since only rules

issued pursuant to appropriate statutory authority have the

force and effect of law, Congress’ very use of the phrase

“statutory authority” in section 4(b)( 1) suggests it intended

that only rules having the force and effect of law could preempt

the Act under section 4(b)( 1).

The same conclusion follows from an examination of the

purposes of the Act. The Act represents Congress’ first attempt

to comprehensively regulate the entire field of occupational

safety and health.2’ Congress provided that employers general-

ly would have to eomply with mandatory rules issued by the

Secretary of Labor. Congress was also aware that other

agencies had already issued, or had authority to issue, rules

governing limited areas of occupational safety and health and,

in enacting section 4(b)(1), Congress obviously intended to

leave such rules in place and to give them priority over OSHA

regulation. ‘It would be inconsistent with this carefully wrought

system to conclude that binding rules issued under the Act

20 United States v. Cooper Corp., 312 U. S. 600, 606-7, (1941).

21116 Cong. Rec. 37325 (1970) (remarks of Sen. Williams),

reprinted in Legislative History of the Occupational Safety and Health

Act of 1970 at 414 (1971) [hereinafter cited as Legislative History ]:

see also 116 Cong. Rec. 41762 (1970) (remarks of Sen. Williams),

reprinted in Legislative History at 1146 (Act provides. first com-

prehensive program); S. Rep. No. 91-1282, 9ist Cong., 2d Sess. 4

(1970), reprinted in [1970] U. S. Code Cong. & Ad. News 5177,

5180; H. R. Rep. No. 91-1291, 91st Cong., 2d Sess. 15-16, reprinted in

Legislative History at 831, 845-846.

73a

could be preempted by provisions of other agencies lacking the

force and effect of law. It is more reasonable to assume that

Congress intended that provisions having no leagl effect would

not operate to preempt mandatory rules pursuant to section

4(b)(1).

By the same token, however, if another agency’s rule

having the force and effect of law does regulate a particular

working condition, then it preempts regulation of that condition

under the Act. Although Congress intended to com-

prehensively regulate occupational safety and health, Congress

enacted section 4(b)(1) to avoid having the Secretary dupli-

cate work that was being done by other agencies. Taylor v.

Moore-McCormack Lines, Inc., 8 BNA OSHC 1277, 1279 (4th

Cir. May 1, 1980); American Petroleum Institute v. OSHA, 581

F. 2a 493, 510 (Sth Cir. 1978), aff'd sub nom. Industrial Union

Department v. American Petroleum Institute, 48 U. S. L. W.

5022 (U. S. July 2, 1980); Marshall v. Northwest Orient

Airlines, Inc., 574 F. 2d 119, 122 (2d Cir. 1978); Organized

Migrants in Community Action, supra, 520 F. 2d at 1167; see

also 29 U.S. C. § 653(b)(3). Just as it would be unreasonable

to conclude that Congress intended to leave gaps in coverage, it

would be similarly unreasonable to conclude that section

4(b)(1) permits the Act to apply to a working condition which

is governed by the rules of another agency issued pursuant to

statutory authority having the purpose of protecting employees.

That is the exact situation that section 4(b)(1) seeks to avoid.

The Secretary argues, however that despite the language of

section 4(b)(1), which says that the Act is preempted if

another agency “prescribes or enforces” rules affecting

occupational safety and health, and exemption only arises if the

other agency both prescribes and enforces such rules. Thus, in

the Secretary’s view, regardless of the legal effect of the other

agency’s regulations, the Commission must determine that the

other agency is actively enforcing its rules — it can find a

section 4(b)(1) exemption.

74a

This Argument niust be addressed in the context of our

conclusion that the Act is only preempted by rules of another

agency that have the force and effect of law. Such rules must

necessarily be associated with some mechanism for enforce-

ment, whether by the promulgating agency or dy other

means.22 Thus, once such rules have been issued, for the

Commission to base a section 4(b)(1) exemption on the

manner in which the rules are enforced would necessarily

involve the Commission’s passing judgment either on the

efficacy of the enforcement mechanism Congress has provided

or on the adequacy with which another agency is using the

enforcement powers at its disposal. As to the former, section

4(b)(1) does not permit an inquiry into the stringency of the

enforcement powers that Congress has established for enforcing

the rules of another agency. Organized Migrants in Community

Action, supra, 520 F. 2d at 1169-70. Concerning the latter,

section 4(b)( 1) does not permit the Commission to oversee the

adequacy of another agency’s enforcement efforts. Pennsuco

Cement and Aggregates, Inc., 80 OSAHRC, 8 BNA OSHC

22 The Federal Aviation Act provides several mechanisms by

which rules issued by the Administrator pursuant to 49 U. S. C.

§ 1421(a) may be either directly or indirectly enforced. The Secre-

tary of Transportation is given the authority to assess civil penalties

for violation of the rules. 49 U.S. C. § 1471. See U. S. v. Garrett, 296

F. Supp. 1302 (N. D. Ga. 1969), aff'd. 418 F. 2d 1250 (Sth Cir.

1969), cert. denied, 300 U. S. 927 (1970). The Administrator of the

FAA is authorized to modify, suspend, or revoke an air carrier’s

operating certificate if he determines that such action is required by

“safety in air commerce or air transportation and the public interest.”

49 U.S. C. § 1429. Furthermore, whenever “an emergency requiring

immediate action exists in respect of safety in air commerce,” the

Administrator may, without notice or hearing, issue such orders, rules,

or regulations, “as may be essential in the interest of safety in air

commerce to meet such emergency.” 49 U. S. C. § 1485(a).

The Federal Aviation Act also provides for criminal penalties for

violations of the Administrator’s rules, 49 U. S. C. § 1472, an

enforcement mechanism that is outside the control of the DOT or

FAA.

75a

1378, 1381, 1980 CCH OSHD § 24,478 at 29,890 (No. 15642,

May 8, 1980). Accordingly, once the Commission determines

that a rule promulgated by another agency has the force and

effect of law, we need not inquire further into the manner in

which that rule is enforced.

Our inquity thus reduces to whether the provisions in

Northwest’s maintenance manual have the force and efleet of

law. As discussed above, to have the force and effext of law, an

agency rule must meet two requirements: the agency must have

Statutory authority to regulate the particular subject, and the

rule must be issued in accordance with congressionally estab-

lished procedures. As we have concluded that the FAA has

statutory authority to regulate the safety of airline ground

personnel, the remaining question is whether the FAA complied

with proper procedures.

The FAA’s enabling legislation involved in this case, 49

U. S. C. § 1421, does noi specify procedures by which the

regulations authorized in the statute must be promulgated.

Therefore, the rulemaking provisions of the Administrative

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