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

No. 80-1494

In the Supreme Court —.—

OF THE

United States

Ocroser Term, 1980

Unirep Am Lives, INC.,

Petitioner,

vs.

Tue Drvision or InpustriaL SAFETY OF THE

DeparRTMENT OF INDUSTRIAL RELATIONS OF THE

Srate or CaLtrornia and THE OccUPATIONAL

Sarety & HxALrRH ArrEALS Boarp For THE

Strate or CaLirorni,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Micuart D. Mason

Chief Counsel

Division of Occupational Safety

and Health

Legal Unit Room 616

525 Golden Gate Avenue

San Francisco, CA 94132

Telephone (415) 557-2960

Attorney for Respondent

BOWNE-PERNAU WALSH © 1045 SANSOME GT. „ &.F., CA O4111 © (415) 961-7002

TABLE OF CONTENTS

Statement of the case

Argument A

1

The Ninth Circuit Court of appeals articulated well

established principles of law in its determination that

United’s complaint failed to present a Federal ques-

tion

II

United's complaint, and the articulation of that com-

plaint in its briefs, failed to set forth Federal ques-

tion jurisdiction

Conclusion

10

19

ii

TABLE OF AUTHORITIES CITED

Cases

Baltimore and Ohio Railroad Company v. Occupational

Safety and Health Review 5 548 F. 2d 1052

(DCCA 1976) 15

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

(7th Cir. 1979) 16

Eiekhof Construction Company v. Great Northern Rail-

way Company, 291 F. Supp. 44 (D. Minn. 1968) 10

Home Federal Savings and Loan Association v. Insur-

ance Department of Iowa, 571 F.2d 423 (8th Cir.

1978) 8

Louisville and Nashville Railway v. Western Union

Telegraph Company, 237 U.S. 300 (1915) .................. 9

Marshall v. Burlington Northern, Inc., 595 F.2d 511

(9th Cir. 1979) 16, 17

Marshall v. Northwest Orient Airlines, Inc., 574 F. 2d

119 (2nd Cir. 1979) 16, 17

Miller's Executor’s v. Swann, 150 U.S. 132 (1893) 9

Molton, Allen and Williams, Inc. v. Harris, 436 F.

Supp. 853 (D. D.C. 1977) 10

Moore v. Chesapeake and Ohio Railway, 291 U.S. 205

(1934) 9,11

Moore v. County of Alameda, 411 U.S. 693 (1973) ........ 11

Morse v. Danna, 411 F. Supp. 1300 (D. Minn. 1976), af-

firmed 547 F. 2d 436 (8th Cir. 1977) 9

Northwest Airlines, Inc., Docket No. 13649, CCH OSHD

124.751 (1980) 4,17

Phillips Petroleum Company v. Texaco, 415 U.S. 125

(1974) 8

Postal Telegraph Cable Company v. Alabama, 155 U.S.

482 (1894) . 11

iii

Taste or AutHorities Crrep

CAsEs

Public Service Commission of Utah v. Wycoff Com-

Page

pany, Inc., 344 U.S. 237 (1952) 8

Skelly Oil Company v. Phillips Petroleum Company,

399 U.S. 667 (1950) ... 8

Southern Pacific Transportation Company v. Usery, 539

F.2d 386 (5th Cir. 1976) 15

Southern Railway Company v. Occupational Safety and

Health Review Commission, 539 F.2d 335 (5th Cir.

1976) 15

United Airlines, Inc. v. Division of Industrial Safety

of the Department of Industrial Relations, 633 F. 2d

814 (9th Cir.) 8

Weyerhaeuser v. Marshall, 592 F.2d 373 (7th Cir. 1979) 16

Rule

United States Supreme Court Fules, Rule 19(1)(b) ...... 2

Stal utes

California Labor Code:

Section 3300 14

Section 6300 7

Section 6303(a) 6, 8, 11, 13, 17, 18

Section 6304 14

Section 6307 6

Section 6434 14

28 U.S. C.:

Section 1331 2

Section 1337 2,10, 12

iv

Taste or AutHoritres Crrep

Sratutes

29 U.S.C, (Occupational Safety and Health Act of

1970):

Section 651 et seq. 7,12

Section 652 14

Section 653(b) (1) 12, 15, 17

Section 667 14

Section 667 (a) 15

Section 667 (b) 15

Section 667 (e) (2) 13

Section 667 (e) (6) 14

49 U.S. C., Section 1301 et seq., (Federal Aviation Act

of 1958) 7,11

Stats 1917, Ch. 586, page 861, Section 33

Stats 1937, Ch. 90, page 306, Section 6303

Stats 1945, Ch. 1431, page 2699, Section 99

Stats 1973, Ch. 993, Section 46

State 1978, Ch. 1248, Section 1

— NQ RAO

Other Authorities

Fed/OSHA Program Directive No. 77-5, October 30,

1978 14

No. 80-1494

In the Supreme Court

OF THE

United States

Ooronꝝn Term, 1980

Unrrep Am Lives, Inc.,

Petitioner,

vs.

Tue Division or InpustRiAL SAFETY OF THE

DepartMENT oy INDUSTRIAL RELATIONS OF THE

Srate or Cauirornia and THe OoccuPaTIONAL

Sarety & Heaura Appeats Boarp ror THE

Strate or Cauirorni,

Respondents,

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Respondent Division of Industrial Safety (now entitled

Division of Occupational Safety and Health and herein-

after referred to as Division or Cal/OSHA) respectfully

requests that this Court deny the Petition for Writ

of Certiorari filed by Petitioner United Airlines, Inc.

(hereinafter referred to as United) 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

Airlines, Inc. v. the Division of Industrial Safety of the

Department of Industrial Relations of the State of Cali-

2

fornia and the Occupational Safety and Health Appeals

Board for the State of California. The issue presented by

United is whether the United States Court of Appeals

properly determined that United's complaint failed to

establish subject matter jurisdiction pursuant to 28 U.S.C.

sections 1331 and 1337. The Division maintains that the

Ninth Circuit’s decision applied well established precedent

which has concluded that federal question jurisdiction is

not conferred when the federal question appears in the

complaint as an anticipation of a probable defense to state

action or there is a mere reference to federal law in a state

statute. Given that the subject decision is consistent with

prior articulation of federal question jurisdiction by this

Court and other Courts of Appeals, the Division maintains

that United has failed to fulfill the criteria expressed in

Supreme Court Rule 19(1)(b) to justify review by way of

certiorari.

STATEMENT OF THE CASE

On May 9, 1979, United filed in the United States District

Court for the Northern District of California a complaint

for declaratory and injunctive relief against the Division

and the Occupation Safety and Health Appeals Board

(hereinafter referred to as Appeals Board).

1United’s allegation in its initial statement of the case that

Cal/OSHA’s enforcement of occupational safety and health law

usurps the jurisdiction of the Federal Aviation Administration

(hereinafter referred to as FAA) is not only argumentative but

incorrect. All Division actions with reference to United have been

limited solely to the safety and health of ground employees. The

Division has never attempted to exercise any authority over flight

personnel or the airplane itself. With reference to the airline's

maintenance manuals which ostensibly in part cover safety matters,

3

The complaint requested the entry of a declaratory judg-

ment holding that United’s San Francisco Operations and

Maintenance facility was not under the jurisdiction of the

Division and the entry of a preliminary injunction restrain-

ing and enjoining (1) the Division from inspecting,

regulating or enforcing its jurisdiction over United’s San

Francisco Operations and Maintenance facility, and (2)

the Appeals Board from hearing and deciding any mat-

ters related to the enforcement of citations issued by the

Division to United at this facility. (United’s Petition,

Appendix page 22A) The complaint filed by United stated

that there was a State Court action, a Writ of Mandate,

Langhorne Bond, Administrator of the FAA, stated in writing in

response to questions presented by the Subcommittee on Govern-

ment Activities and Transportation for the House Committee on

Government Operations that:

The operations manual, the areas which must be covered

therein, and its distribution are all required by regulation.

Also, the procedures contained in the manual may not be

contrary to any FAA regulation. Apart from these requirements,

the procedures set forth in the manual are not of a regulatory

nature. Failure of an operator’s employee to follow a procedure

specified in the manual may result in company disciplinary

action against the employee but cannot serve as the basis for

FAA enforcement action unless failure to follow the procedure

specified has also resulted in a violation of a Federal Aviation

Regulation. (This material was submitted as an appendix to

the Division’s Motion for a Stay Pending Appeal to the Ninth

Circuit and appears in the appendix at pages 1-3.)

United has not pointed once in the course of either the state or

federal proceedings to one specific Federal Aviation Regulation

(hereinafter referred to as FAR) pertaining to safety requirements

for ground maintenance personnel. The reason is simple; with the

exception of rules pertaining to transportation of hazardous sub-

stances, there are none. Given the Administrator's statement that

the maintenance manuals are not considered to be of a

4

filed in the Superior Court in and for the City and County

of San Francisco, which had been proceeding since Decem-

ber 26, 1978 (United’s Petition, Appendix page 19A). It

also stated that there were two administrative hearings

concerning safety violations at United’s Operations and

Maintenance facility at the San Francisco Airport which

were then pending before the Appeals Board. (United’s

Petition, Appendix pages 19A and 20A)“

On June 4, 1979, the Division and Appeals Board, filed a

Motion to Dismiss. On July 26, 1979, the matter was heard

by the United States District Court, which granted

United’s Motion and issued a preliminary injunction.

(United’s Petition, Appendix page 43A) On August 6,

1979, the Division and Appeals Board noticed an appeal

and a motion for a stay of the preliminary injunction pend-

ing appeal. A minute order was entered on August 31, 1979

by the District Court denying the motion to stay the in-

junction pending appeal.

regulatory nature, there can hardly be an usurpation by Cal/OSHA

of FAA jurisdiction in the area of safety and health of ground

maintenance employees.

*With reference to these actions, United’s Petition for Writ of

Mandate challenging the affirmance of a Division citation by the

Appeals Board, which Petition was premised on jurisdictional

grounds, was heard in San Francisco Superior Court on June 30,

1980; subsequently on September 11, 1980, Judge Ira A. Brown Jr.

issued his decision which denied United’s Writ in challenge to

Cal/OSHA jurisdiction, (Appendix, page 4) United subsequently

sought a Motion for Reconsideration from the Order denying its

Writ of Mandate, which Motion was premised in its entirety on

the decision by the Occupational Safety and Health Review Com-

mission in Northwest Airlines, Inc., Docket No. 13649, CCH OSHD

124.751 (1980). A hearing was held in reference to this matter

5

Subsequently, the Division and Appeals Board filed for

a stay of the preliminary injunction with the Ninth Circuit

Court of Appeals on October 29, 1979. On January 25, 1980,

the Motion for a Stay Pending Appeal by the Division and

Appeals Board was granted by the Ninth Circuit. Exten-

sive briefs were filed by the parties with the Ninth Circuit

and oral argument was heard on August 12, 1980; the

Ninth Circuit on December 2, 1980, issued its decision

which determined that the District Court Order granting u

preliminary injunction must be reversed in that its suit was

plainly based on state law and that federal question juris-

diction was not established.

on October 9, 1980, and at the hearing Judge Brown from the

bench denied United’s Motion for Reconsideration of his decision.

An Order denying reconsideration and a judgment denying the

writ were entered on October 24, 1980. (Appendix, pages 5-8)

United subsequently noticed its intent to appeal this decision to

the First District Court of Appeal for the State of California. With

reference to the administrative actions before the Appeals Board

the first matter pertaining to a citation for failure to repair cargo

equipment came to hearing on December 2, 1980; a decision by

an administrative law judge for the Appeals Board was issued on

February 4, 1981, which upheld the citation and concluded that

there was a valid exercise of Division jurisdiction. United Airlines,

Docket No. 77-R1D3-658 (February 4, 1981) (Appendix, pages 9-

15) United subsequently filed a Petition for Reconsideration with

the Appeals Board as a whole seeking a reversal of this decision.

The second matter pertaining to a citation for failure to provide

proper foot protection for employees came to hearing initially on

February 17-20, 1981, and is scheduled to be completed in April or

May of this year.

6

ARGUMENT

I

THE NINTH CIRCUIT COURT OF APPEALS ARTIOU-

LATED WELL ESTABLISHED PRINCIPLES OF

LAW IN ITS DETERMINATION THAT UNITED'S

COMPLAINT FAILED TO PRESENT A FEDERAL

QUESTION

The decision by the Ninth Circuit that federal question

jurisdiction was not established in United’s complaint was

premised upon two lines of decisions, which will be dis-

cussed after the theory of United’s claim for injunctive

relief is briefly reviewed. United’s attempt to enjoin the

enforcement of state occupational safety and health laws

was based upon its argument that there was a statutory

preemption pursuant to the terms of state law. California

Labor Code 6307 sets forth the jurisdiction of the Division:

The division has the power, jurisdiction and super-

vision over every employment or place of employment

in this state.

The term “place of employment,” which defines the areas

over which the Division may assert jurisdiction and estab-

lishes certain exemptions from the exercise of jurisdiction,

is found in California Labor Code 6303(a) which provides:

“Place of employment” means any place and the prem-

ises appurtenant thereto, where employment is

carried on except a place the health and safety juris-

diction over which is vested by law in, and actively

exercised by, any state or federal agency other than

the division.“

*The derivation of the definition of place of employment is found

in an amendment to workers compensation and safety legislation

in Stats. 1917, Ch. 586, page 861, section 33. The definition was

7

United argued that jurisdiction was properly before the

Federal District Court because there was both a federal

question and an action arising under an Act of Congress

regulating commerce. United alleges that the federal

statute under which the so-called action arises is the Fed-

eral Aviation Act of 1958, 49 U.S.C. section 1301 et seq.

The Division has consistently maintained that this asser-

tion is completely inaccurate. The California Occupational

Safety and Health Act from which United seeks relief is a

state law set forth in the California Labor Code. Labor

Code section 6300 et seq.

In its Opposition to Motion for a Stay Pending Appeal

with the Ninth Circuit, United stated:

This action involves an analysis of the duties and

responsibilities of the Federal Aviation Administra-

tion (“FAA”) under the Federal Aviation Act of 1958,

as amended, 49 U.S.C. § 1301, et seq. (“Aviation Act”),

and the effect which the carrying out of those duties

and responsibilities has on the jurisdiction of Cal/

OSHA, under its organic statute, the California Labor

Code §§ 148-149, 6300 et seq. It is not a case of federal

preemption; it is a case of statutory preemption since

the law requires that the proper exercise of FAA

codified as former Labor Code 6302 by Stats, 1937, Ch. 90, page

306, section 6302. Beyond the minor amendments to this section

by Stats. 1945, Ch. 1431, page 2699, section 99, and the renumbering

of the section to 6303(a) by Stats. 1973, Ch. 993, section 46, the

section has remained in substantially similar form until the

amendments in Stats. 1978, Ch. 1248, section 1, in which the

words “health” and “and actively exercised” were added to the

statutory definition. As can be seen, the definition of this term

for purposes of California worker safety legislation long predated

the enactment of the federal Occupational Safety and Health Act

of 1970, 29 U.S.C, 651 et seq.

jurisdiction precludes the continuing exercise of Cal/

OSHA jurisdiction in the same “place of employment.”

(“his statement appears on page 7 at lines 6-16 of

United’s Opposition to Motion for Stay Pending Ap-

peal and at the Appendix at page 17.) (emphasis

added)

The law to which United is referring is the exemption from

Cal/OSHA jurisdiction set forth in California Labor Code

section 6303(a). “Federal” is the only word in the state

statute which is the lynchpin of United’s argument that the

case arises under federal law. Given this background, the

Court of Appeals properly concluded that federal question

jurisdiction was not created when federal law was relevant,

at most, as an affirmative defense to state law. Public

Service Commission of Utah v. Wycoff Company, Inc.,

344 U.S. 237, 248 (1952); Home Federal Savings and Loan

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

426 (8th Cir. 1978). As a corollary, subject matter jurisdic-

tion is not conveyed when the federal question appears in a

complaint in anticipation of probable defenses in an

answer. Phillips Petroleum Company v. Texaco, 415 U.S.

125, 128 (1974); Skelly Oil Company v. Phillips Petroleum

Company, 339 U.S. 667, 673-74 (1950).

The Division argued and the Court of Appeals concluded

that the facts presented in the present case were extremely

similar to the factual pattern in the Eighth Cireuit decision

in Home Federal Savings and Loan Association v. Insur-

ance Department of Iowa, supra, United Airlines, Inc. v. Di-

vision of Industrial Safety of the Department of Industrial

Relations, 633 F. 2d 814, 817 (9th Cir. 1980). In that case the

plaintiff alleged as a matter of federal preemption that the

9

State of Iowa could not exert jurisdiction over its opera-

tions; in this case United similarly argues that as a result

of statutory preemption the state may not assert jurisdic-

tion over its operations. In both cases the federal question

was raised only in the context of a defense which could be

brought up at enforcement proceedings. The determination

by the Ninth Circuit in its United decision, supra, is con-

sistent with prior precedents of this Court and the Eighth

Cireuit Court of Appeals that federal question jurisdiction

cannot be established in the context of federal law appear-

ing as a defense to the application of state law.

The second major premise relied upon by the Court of

Appeals in deciding that federal question jurisdiction was

not conferred was the conclusion that a state statute’s

reference to a federal statute as prescribing the rule and

measure of the rights granted by the State does not make

the determination of such rights a federal question. The

definition of place of employment, which exempts from

Cal/OSHA jurisdiction those places in which another fed-

eral agency is both vested by law with safety and health

jurisdiction and actively exercises that jurisdiction, at

most references federal law. However, the reference and

possible incorporation of federal law would not spring-

board the California statutory provision to the status of a

federal question sufficient to establish subject matter juris-

diction. Moore v. Chesapeake and Ohio Railway, 291 U.S.

205 (1934), Louisville and Nashville Railway v. Western

Union Telegraph Company, 237 U.S. 300, 303 (1915),

Miller's Executor’s v. Swann, 150 U.S. 132, 136-137 (1893),

Morse v. Danna, 411 F. Supp. 1300, 1305-1306 (D.Minn.

1976), affirmed 547 F. 2d 436 (8th Cir. 1977).

10

The tests for determining jurisdiction pursuant to 28

U.S.C. section 1337, cases arising under any Act of Con-

gress regulating commerce, are the same as those for de-

termining jurisdiction under 28 U.S.C. section 1331. Thus,

United’s attempt to invoke federal question jurisdiction

under section 1337 was also improper because the only

legal construction which can either support or adversely

impact United’s claim is the construction of.a state law,

not the Federal Aviation Act. The fact that the Federal

Aviation Act is indirectly involved is not sufficient to raise

federal subject matter jurisdiction. Molton, Allen and

Williams, Inc. v. Harris, 436 F. Supp. 853 (D. D.C. 1977);

Eichhof Construction Company v. Great Northern Railway

Company, 291 F. Supp. 44, 47 (D.Minn. 1968).

In conclusion, the decision by the Ninth Circuit in the

United case, supra, articulates well established rationales

for its determination that federal question jurisdiction

was not established in the complaint and is consistent with

relevant decisions of this Court and other Courts of

Appeals.

II

UNITED'S COMPLAINT, AND THE ARTICULATION

OF THAT COMPLAINT IN ITS BRIEFS, FAILED TO

SET FORTH FEDERAL QUESTION JURISDICTION

Throughout its complaint, most notably in paragraphs 6,

11 and 15, and in paragraph A of its prayer for relief,

(United’s Writ, Appendix, pages 14A and following),

United makes clear that its complaint for declaratory and

injunctive relief is premised upon its belief that the Di-

11

vision is precluded from exercising jurisdiction over its

facilities based upon the definition of place of employment

in California Labor Code 6303(a) and United’s corollary

argument that the Federal Aviation Act of 1958, 49 U.S.C.

section 1301 et seq., constitutes legal authority for an ex-

emption from Cal/OSHA jurisd'ction pursuant to the

terms of the subject Labor Code section. The Ninth Circuit

Court of Appeals concluded that “jurisdiction does not ap-

pear in plaintiff’s complaint in this case.” United Airlines,

supra, 633 F.2d at 815. United in turn argues that “the

Court of Appeals simply ignored United’s complaint.”

(United’s Writ, page 16) We would urge, however, that

United itself ignored and subsequently limited its state-

ment of jurisdictional grounds set forth in the complaint.

In paragraph 2 of its complaint United claims that juris-

dicion is based

on the federal question raised by the matters alleged

in this complaint, 28 U.S.C. section 1331; diversity of

citizenship, 28 U.S.C. section 1332; and the federal

preemption which arises by virtue of an Act of Con-

gress regulating commerce, 28 U.S.C. section 1337.

(United’s Writ, Appendix, page 15A)

With reference to its alleged claim of diversity jurisdic-

tion, after we pointed out in our opening brief that this

proposition was untenable, citing Moore v. County of Ala-

meda, 411 U.S. 693 (1973) and Postal Telegraph Cable

Company v. Alabama, 155 U.S. 482, 487 (1894) (emphasis

added), United admitted in its responsive brief before the

Ninth Circuit that it ‘mistakenly asserted jurisdiction

under 28 U.S.C. section 1332.” (This statement appears

in Footnote 5 on page 8 of United’s brief and in Appen-

12

dix at page 19.) Similarly, with reference to United’s

claim that there was federal preemption which arose by

virtue of an Act of Congress regulating commerce pursu-

ant to 28 U.S.C. section 1337, United subsequently in its

Opposition to Motion for a Stay Pending Appeal with the

Ninth Cireuit stated

It is not a case of federal preemption; it is a case of

statutory preemption since the law requires that the

proper exercise of FAA jurisdiction precludes the

continuing exercise of Cal/OSHA jurisdiction in the

same “place of employment”. (This statement, pre-

viously referred to, appears on page 7 at lines 12-16

of United’s Opposition to Motion for Stay Pending

Appeal and in Appendix at page 17.) (Emphasis

added.)

Certainly at this juncture United cannot be heard to recant

its own limitations on the jurisdictional theories initially

enunciated in its complaint.

In any event, United articulates an argument that pur-

suant to the terms of the Federal Occupational Safety

and Health Act, 29 U.S.C. 651 et seq., Cal/OSHA is feder-

ally preempted from exceeding the bounds of subject mat-

ter jurisdiction as articulated in section 4(b)(1) of the

Act, 29 U.S.C. section 653(b)(1). United’s apparent ra-

tionale is that since the California Occupational Safety

and Health Act is authorized by the Federal Occupational

Safety and Health Act and since there are some adminis-

trative decisions rendered by the Federal Occupational

Safety and Health Review Commission which hold that

section.4(b)(1) of the Federal Act requires Federal OSHA

to defer health and safety jurisdiction to other federal

13

agencies under certain circumstances, that therefore, the

Division must defer jurisdiction under the same cireum-

stances. United asserts, without any authority being cited,

that “the jurisdictional reach of the OSHA Act into the

interstate commerce of United and other employers can-

not be exceeded by the jurisdictional reach of an approved

state plan.” (United’s Writ, page 7.) United’s contention

is completely unmeritorious for several reasons. To begin

with, the theory of the provision in the Federal Occupa-

tional Safety and Health Act which permits state plans

and the assumption of state jurisdiction is premised upon

only minimum standards being fulfilled. The most signifi-

cant part of Section 18, which authorizes state plans, with

respect to this argument is the requirement that the state

statutory scheme “for the development and enforcement of

safety and health standards relating to one or more safety

or health issues. . . will be at least as effective in providing

safe and healthful employment and places of employment”

as the federal program. 29 U.S.C. 667 (e) (2). (Emphasis

added.) The law does not say “the same say as” or “as

restrictive as.” The statute sets only a minimum standard;

nothing in the federal law requires regulations and the

enforcement of regulations in state plans to be uniform

with one another or with federal law. As stated earlier, the

derivation of the definition of place of employment in Cali-

fornia Labor Code 6303(a), which establishes the confines

of Cal/OSHA jurisdiction, extends back to the year 1917.

When California submitted a state plan, which was ap-

proved in 1972, and adopted the California Occupational

Safety and Health Act in 1973, the only requirement was

that the coverage of the Cal/OSHA program would be at

14

least as effective in providing safety and health protection

as would be accorded under the federal Act.

The Federal Occupational Safety and Health Adminis-

tration (hereinafter referred to as Fed/OSHA), which is

responsible for administering and enforcing State Plan

requirements has interpreted the permissible jurisdictional

scope of State Plans pursuant to Section 18, 29 U.S.C. 667,

in accord with the Division. In Fed/OSHA Program Direc-

tive No. 77-5, dated October 30, 1978, pertaining to the

Reference Book on Jurisdictional Issues, the following

statement is made:

However, Section 4(b) (1) limitations are strictly bind-

ing only on the Federal program. Therefore, a State

may choose to exercise greater jurisdiction under its

own law than is allowed to Federal OSHA. Any maxi-

mum limitation on State jurisdiction would be de-

termined under the State law and other Federal law

and applicable court decisions. (Appendix, page 21)

Moreover, the term “employer” in the federal Act is de-

fined to exclude the United States or any state or political

subdivision of the state, 29 U.S.C. 652 (5). Whereas the

federal program is thus precluded from exercising » \bject

matter jurisdiction over public employers, Section 18 of

the federal Act requires that state plans to the extent per-

mitted by state law provide effective and comprehensive

coverage to all employees of public agencies, 29 U.S.C.

667(c)(6). To that end, the California program, with the

exception of the assessment of civil penalties, California

Labor Code 6434, applies equally to both public and private

employers. California Labor Code 6304 (in which “em-

ployer” is defined to have the same meaning as California

Labor Code 3300 which includes both public and private

15

employers.) In this manner, Cal/OSHA’s jurisdiction ex-

tends to a subject matter not covered by the Federal Act.

Section 18(a) of the federal Act provides that a state

may exercise jurisdiction carte blanche over any occupa-

tional safety or health issue with respect to which no

standard is in effect under section 6. 29 U.S.C. 667(a).

Thus, California has the prerogative of enforcing outside

the confines of an approved state plan, if it so desired, reg-

ulations pertaining to safety and health issues which were

not subject to coverage by a federal standard. Assuming

arguendo that section 18(b) were not applicable and that

Federal OSHA did not have jurisdiction over a particular

place of employment, a state would not be precluded from

exercising jurisdiction over such a place of employment to

the extent that there was no federal standard in effect.

We find it curious that United cites as authority for

resolution of the jurisdictional question the three leading

Courts of Appeals decisions which analyzed OSHA juris-

diction over railroad operations. Southern Railway Com-

pany v. Occupational Safety and Health Review Com-

mission, 539 F.2d 335 (5th Cir. 1976), Southern Pacific

Transportation Company v. Usery, 539 F.2d 386 (5th Cir.

1976), Baltimore and Ohio Railroad Company v. Occupa-

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

(DCCA 1976). In each of these decisions, in which chal-

lenges to OSHA jurisdiction over railroad operations pur-

suant to Section 4(b)(1) of the Act, 29 U.S.C. 653 (b) (1),

were rejected, the Courts of Appeals unanimously con-

cluded that there was no industry-wide exemption from

OSHA jurisdiction. (In each of these decisions, the Courts

also rejected the railroad’s argument that the Federal Rail-

16

road Administration’s notice of intended rule making con-

stituted an exercise of jurisdiction.) Of course, what

United sought through its complaint for injunctive relief

amounted to an industry-wide exemption over its entire

operations and maintenance facilities at San Francisco

International Airport. With reference to a similar attempt

by another airline to obtain an industry-wide exemption,

the Second Circuit Court of Appeals stated:

The airline asks this Court to conclude that an entire

hanger, and the multitude of possible hazards within it,

are excluded from OSHA protection. Given the breath

of the problem, our inquiry would of necessity be

amorphous, unwieldy and lacking of expertise. In con-

trast, following an OSHA inspection and its adminis-

trative review, the issues will be greatly refined, and

we will be made aware of the specific types of hazards

that OSHA officials believe that are regulated by the

FAA, Marshall v. Northwest Orient Airlines, Inc., 574

F.2d 119, 122 (2nd Cir. 1979).

Thus in all relevant cases dealing with OSHA jurisdic-

tion, no Court of Appeals has seen fit to grant an industry-

wide exemption from OSHA jurisdiction.‘

*United’s reliance upon Weyerhaeuser v. Marshall, 592 F.2d 373

(7th Cir. 1979) and Continental Can Company v. Marshall, 603

F.2d 590 (7th Cir. 1979) is misplaced. The former case dealt with

a challenge to an inspection warrant which the court ultimately

concluded did not set forth sufficient probable cause to permit an

inspection; the second case dealt with OSHA’s continuing efforts

to enforce noise citations at Continental's facilities, which were

similar with respect to noise problems, after OSHA had already

lost before the Federal Occupational Safety and Health Review

Commission a prior case concerning the same issue. Neither case

cited by United dealt with the jurisdictional issue. However, both

Marshall v. Northwest Orient Airlines, supra, and Marshall v. Bur-

17

Lastly, United argues that a recent decision by the Fed-

eral Occupational Safety and Health Review Commission,

Northwest Airlines, Inc., supra, which vacated an OSHA

citation requiring modification of the wing flaps of an air-

plane, on jurisdictional grounds pursuant to Section 4(b)

(1), 29 U.S.C. 653 (b) (1), constitutes a binding interpreta-

tion on Cal/OSHA jurisdiction pursuant to California

Labor Code 6303(a). The Division maintains that this con-

tention is incorrect for several reasons. The facts in the

federal case differ substantially from those raised in the

state proceedings. But most importantly, the statutory

language creating exemptions from Cal/OSHA jurisdiction

in California Labor Code 6303(a) differs from the terms of

the comparable federal provision in Section 4(b)(1) of the

Act, 29 U.S.C. 653 (b) (1). The California statute requires

that there not only be vesting of safety and health jurisdic-

tion in another agency but there must also be an active

exercise of that jurisdiction to preclude Cal/OSHA cover-

age.

lington Northern, Inc., 595 F.2d 511 (9th Cir. 1979) stand for the

proposition that administrative remedies must be exhausted before

the federal court considers the question of an agency’s jurisdiction.

United contended that pursuant to its affidavits the FAA could

be said to have actively exercised jurisdiction at its facilities.

United also claimed that the Division has never challenged this

contention, nor could it. This allegation is incorrect. Because of

what we perceived to be the glaring procedural infirmities of

United’s complaint for preliminary injunction and declaratory re-

lief, the Division and Appeals Board did not respond to the com-

plaint on the merits but instead filed a motion to dismiss, which

argued among other things that there was no federal question

jurisdiction, that there was a failure to exhaust administrative rem-

edies, and that the court should abstain to permit California courts

to first interpret a relevant state statute. These arguments were

reiterated subsequently in the appeal to the Ninth Circuit. How-

18

In any event United will have the opportunity to raise its

contention concerning the impact of this case in the forth-

coming appeal before the California First District Court of

Appeal, which will have the opportunity to construe the

breadth and reach of this critical California Labor Code

provision.

ever, in reference to the issue of the exercise of FAA jurisdiction

in the administrative proceedings which have heretofore been held

before the Appeals Board, United has not once been able to point

to an enforcement action undertaken by the FAA prior to an oc-

cupational safety and health issue being addressed by the Division.

The absence of any past history of FAA involvement with safety

and health issues was one of the primary reasons relied upon by

the Appeals Board in its Decision after Reconsideration which

upheld the citation issued to United Airlines. United Airlines—

SFOCG, Docket No. 76-R1D3-878 (November 27, 1978) (This

decision appears in the Appendix at pages 24-28.) [This decision

was the subject of the petition for writ of mandate in San Francisco

Superior Court, in which the Appeals Board’s decision was upheld.

The case has been noticed for appeal by United Airlines in the

California First District Court of Appeal.] In the most recent de-

cision involving United by an administrative law judge, which

upheld the Division citation for failure to repair cargo equipment,

the Division produced evidence that an employee had submitted

a formal complaint concerning this condition in December 1975,

that nothing was done to eliminate the hazard until after the Di-

vision’s inspection in June 1977, and only after the Division cita-

tion did United Airlines itself request that the FAA conduct an

United Airlines, Docket No. 77-R1D3-658 (February

4, 1981), appeal pending on reconsideration before the Appeals

Board. (This decision appears in the Appendix at pages 9-15)

The Division would suggest that there is a difference concerning

the weight to be accorded affidavits not subject to cross-examina-

tion and testimony at an administrative proceeding subject to the

rigors of the adversarial process.

19

CONCLUSION

For the reasons stated, Respondent Division of Occupa-

tional Safety and Health respectfully prays that the Peti-

tion for Writ of Certiorari to review the Ninth Circuit

Court of Appeals’ decision not be granted.

The Division’s opposition to the Petition for Writ of

Certiorari has been discussed with the Occupational Safety

and Health Appeals Board and its attorney, Robert Heron,

who has represented the Appeals Board in prior proceed-

ings pertaining to this case. The positions and arguments

herein set forth have been fully concurred in by authoriza-

tion of the Appeals Board.

Micnaet D. Mason

Chief Counsel f

Division of Occupational Safety

and Health

Legal Unit Room 616

525 Golden Gate Avenue

San Francisco, CA 94132

Telephone (415) 557-2960

Attorney for Respondent

(Appendix A follows)

A-l

APPENDIX A

Airline Deregulation and Aviation Safety

Hearings

Before a

Subcommittee of the

Committee on

Government Operations

House of Representatives

Ninety-Fifth Congress

First Session

, * September 8 and 9, 1977

Printed for the use of the Committee

on Government Operations

A-2

Operator’s Manuals

Operator’s manuals are required by section 121.133 of

Part 121 of the FARs.

The required contents for these manuals are set forth in

section 121.135, and the required distribution of these

manuals is specified in section 121.137.

Generally it is a requirement that an operator must have

a manual available for every person connected with the

operation of aircraft. This includes crewmembers, ap-

propriate ground operations and maintenance personnel

and representatives of FAA assigned to the operator for

certificate surveillance duties.

Mandatory topics for manual inclusion are outlined in

the regulations. However, operators usually have added

other items that their operating experience has shown to

be useful for their specific operations.

The operations manual may be modified by the operator

without prior FAA review and approval. However, a copy

of the operations manual as well as any changes thereto

must be furnished the FAA certificate holding office. If any

phase of the manual does not meet regulatory standards,

this is brought to the attention of the operator and a solu-

tion is worked out. If the FAA does not contact the

operator relative to a change, this indicates tacit approval.

It is important to note, however, that, in actual practice,

for any substantive change in policy, an operator with a

good working relationship with the FAA certificate holding

office will obtain FAA suggestions about the change prior

to publication.

A-3

The operations manual, the areas which must be covered

therein, and its distribution are all required by regule on.

Also, the procedures contained in the manual may not be

contrary to any FAA regulation. Apart from these require-

ments, the procedures set forth in the manual are not of a

regulatory nature. Failure of an operator’s employee to

follow a procedure specified in the manual may result in

company disciplinary action against the employee but

cannot serve as the basis for FAA enforcement action

unless failure to follow the procedure specified has aiso

resulted in a violation of a Federal Aviation Regulation.

There would be no basis to deny a modificatian to an

operations manual if the proposed procedures were con-

sistent with FAA regulations. If a proposed change were

to make a procedure less stringent than required by regula-

tions, however, the operator would be advised that oper-

ation under the provision would result in regulatory

enforcement action.

Monitoring to ensure compliance with procedures out-

lined in an operator’s operations manual is a part of an

inspector’s surveillance responsibility. Since any inspector

assigned surveillance duty on a carrier must have access to

that operator’s manual, he is familiar with the company

procedures outlined therein. Any person who operates in

nonconformance with those procedures will be reported

to POI and company management will be advised by the

POI.

A4

Superior Court of the State of California

for the City and County of San Francisco

Department 9

In Open Court

September 11, 1980

No. 747-454

.

United Air Lines, Inc.

Plaintiff.

vs.

The Occupational Safety Board and

Health Appeals Board,

Defendant.

A

Petitioner United Air Lines’ petition for writ of man-

date, heretofore submitted, is denied.

Costs to respondent.

/s/ IRA A. BROWN, JR.

Judge of the Superior Court

A-5

Robert A. Heron

Linda A. Clevenger

Office of the Chief Counsel

Occupational Safety and

Health Appeals Board

1006 Fourth Street, Fourth F!oor

Sacramento, California 95814

Telephone: (916) 322-3645

Attorneys for Respondent

Superior Court of California

City and County of San Francisco

No. 747-454

United Air Lines, Inc.

Petitioner,

vs.

The Occupational Safety and

Health Appeals Board, 4

Respondent,

The Division of Occupational

Safety and Health,

Real Party in Interest.

=a

[Filed October 31, 1980]

ORDER DENYING MOTION FOR

RECONSIDERATION OF ORDER

DENYING WRIT OF MANDATE

The motion of petitioner, United Air Lines, Inc., for

reconsideration of the Order of September 11, 1980, deny-

A-6

ing a petition for writ of mandate in the above-entitled

matter, having been heard on October 9, 1980, the parties

being represented by counsel, and good not cause having

been shown,

II IS HEREBY ORDERED that the Motion for Recon-

sideration of Order Denying Writ of Mandate be, and the

same hereby is, denied in all respects.

Dated: October 24, 1980.

IRA A. BROWN, JR.

Judge of the Superior Court

A-7

Robert A. Heron

Linda A. Clevenger

Office of the Chief Counsel

Occupational Safety and

Health Appeals Board

1006 Fourth Street, Fourth Floor

Sacramento, California 95814

Telephone: (916) 322-3645

Attorneys for Respondent —

Superior Court of California

City and County of San Francisco

No. 747-454

United Air Lines, Inc. ]

Petitioner,

vs.

The Occupational Safety and

Health Appeals Board, >

Respondent,

The Division of Occupational

Safety and Health,

Real Party in apse

[Filed Oct. 27, 1980]

JUDGMENT DENYING

PEREMPTORY WRIT OF MANDAMUS

This matter came regularly before uis Court on May 19,

1980, and June 30, 1980, for hearing. Paul M. Tschirthart

A-8

appeared as attorney for Petitioner; Robert A. Heron

appeared as attorney for Respondent; and Michael D.

Mason appeared as attorney for Real Party in Interest.

The record of the administrative proceedings having been

received into evidence and examined by the Court, the

Court having taken judicial notice of the September 27,

1977, letter from the Honorable John L. Burton, Chairman,

Subcommittee of the Committee on Government Opera-

tions, House of Representatives, United States Congress,

and the October 14, 1977, response from the Honorable

Langhorne Bond, Administrator, Federal Aviation Admin-

istration, no additional evidence having been received by

the Court, arguments having been presented, and the Court

having issued its minute order, which was signed and filed

on September 11, 1980,

IT IS ORDERED that:

1. The petition filed in this action for a peremptory writ

of mandamus is denied: and

2. The alternate writ of mandamus issued in this action

on December 29, 1978, is discharged ; and

3. Petitioner shall take nothing by this action; and

4. Respondent shall recover its costs in this action in the

amount of $308.30.

Dated: October 24, 1980.

/s/ TRA A. BROWN, JR.

Judge of the Superior Court

City and County of

San Francisco

A-9.

Before the

Occupational Safety and Health Appeals Board

Department of Industrial Relations

State of California

Docket No. 77-R1D3-658

In the Matter of the Appeal of : 2

United Airlines

San Francisco International Airport N

San Francisco, California 94128

Employer. }

DECISION

JURISDICTION

I

This matter came on regularly for hearing before Robert

L. Harvey, Presiding Administrative Law Judge of the

California Occupational Safety and Health Appeals Board,

at San Francisco, California, on December 2, 1980, at 9:00

a.m. The Employer was represented by Linda S. Puvogel,

Attorney. The Division of Occupational Safety and Health

(the Division) was represented by Ruth M. Friedman,

Staff Counsel. Robert Anderson appeared on behalf of

Local 1781, International Association of Machinists. Oral

and documentary evidence was introduced at the hearing;

and the parties requested and were granted leave until

January 5, 1981, to file written briefs, at which time the

matter was submitted.

A-10

II

On June 10, 1977, and June 22, 1977, W. R. Klemens,

Compliance Safety Engineer of the Division, conducted an

inspection at the San Francisco International Airport, San

Francisco, California (the site). On June 27, 1977, the

Division issued to the Employer Citation No. 1 alleging a

general violation of Title 8, California Administrative

Code, Section 3666(a). A proposed civil penalty was not

assessed by the Division.

III

The Employer has filed a timely appeal from the Cita-

tion contesting the existence of the alleged violation and

the jurisdiction of Cal/OSHA.

LAW AND MOTION

1. At the hearing, the Division moved, without objec-

tion, to amend the charged section number from 8 Cal.

Adm. Code 3666(a) to 5 Cui. Adm. Code 3339(a). This

motion was granted.

2. At the hearing, the Employer moved, without objec-

tion, to withdraw its appeal as to the existence of the

alleged violation. This motion was granted, leaving in

issue the jurisdiction of Cal/OSHA.

JURISDICTIONAL ISSUE

Summary of Evidence

The unchallenged violation of 8 Cal. Adm. Code 3339(a)

deals with LD-3 cargo containers used to handle cargo in

aircraft. The described hazard involved damage to the

doors of the LD-3 cargo containers. The employees of the

Employer were exposed to the hazard while handling the

A-11

containers on the ground under a contract arrangement

with Philippine Airlines (PAL).

The Employer’s Director of Ground Safety, Wilson

Applegate, testified that the Employer prepares and sub-

mits manuals to the Federal Aviation Administration

(FAA), and that such manuals contain instructions and

information relating to the safety of employees. Employee

safety information in the manual relates directly to LD-3

cargo containers. Standards are established for the con-

tainers, and action is specified if a container does not meet

the standards. The manuals have been prepared and main-

tained pursuant to FAA regulations requiring the manuals,

and the FAA has reviewed and accepted the manuals. The

manuals are not given to each employee but are on micro-

film and are avaiiable to employees. Mr. Wilson testified

that there are at least two FAA inspectors assigned to

the Employer’s maintenance base and two inspectors as-

signed to the terminals.

Evidence presented described the Employer’s efforts to

correct the damaged LD-3 containers. On July 27, 1977, the

FAA issued a letter to the Employer stating that a July

15, 1977, inspection had revealed four unserviceable con-

tainers, and that corrective action was required. The

Division put into evidence a memo of a call from the Em-

ployer’s attorney to Mr. Mayfield, FAA Principal Oper-

ations Inspector, asking the FAA for help in putting pres-

sure on PAL to repair the containers. The memo states:

The main reason being that California OSHA has

issued United a citation because the LD-3s are in the

' United ramp area and OSHA considers it to be a

United Airlines’ problem. United has advised CAL/

A-12

OSHA that it falls under the jurisdiction of the FAA

because they are type certificated containers and con-

sidered part of airplane equipment, and I agree.”

The Division produced evidence that an employee had

submitted a formal complaint regarding faulty cargo

container door hinges in December, 1975, and that nothing

was done to eliminate the hazard until after the Division’s

inspection in June, 1977, although some of the containers

had been taken out of service by the Employer. Two

employees during the period in issue testified that they

had not observed an FAA inspector conducting an

employee safety inspection.

Findings and Reasons for Decision

The FAA did not exercise safety and health juris-

diction pursuant to Labor Code Section 6303(a)

regarding the violation of 8 Cal. Adm. Code 3339(a).

CAL/OSHA properly exercised safety and health

jurisdiction regarding the loading and ground move-

ment of LD-3 cargo containers.

The Employer contends that 5 605 (a) of the Federal

Aviation Act, 49 U.S.C. 41301, et seq., preempted the en-

tire field of safety by the granting of exclusive jurisdiction

to the FAA. Examination of the Act does not support this

contention. As pointed out by the Division, § 601 of the

Act, 49 U.S.C. §1421(a), deals with flight safety and air

commerce as the areas the FAA is authorized to regulate

on an exclusive basis. Although the LD-3 cargo containers

involved in this case were utilized by PAL in flight, the

hazard described was a ground hazard. No evidence pre-

sented indicated that the elimination of the hazard would

have any impact (adverse or otherwise) upon flight

operations.

A-13

The Division also points out that the jurisdiction of the

FAA is not totally exclusive in all matters affecting air

commerce as evidenced by 49 U.S.C. § 1301, et seq., and

45 U.S.C. § 151, et seq., which grants jurisdiction in

described areas to the Civil Aeronautics Board and han-

dling of labor management relations under the Railway

Labor Act. The Federal Occupational Safety and Health

Act and the related California Occupational Safety and

Health Act are examples of later enacted legislation

specifically aimed at a later recognized mandate to insure

the health and safety of employees where such objectives

have not been effectively dealt with.

The evidence presented established that employee safety

is merely included in a manual that appears to primarily

relate to air safety. There is no adequate indication in the

FAA manual requirements that ground safety of em-

ployees be dealt within the required manuals. Additionally,

the basis of the assertion by the FAA representative that

the FAA has safety jurisdiction was predicated upon the

fact that he considered the cargo containers to be part of

the airplane equipment and ignored the fact that the ex-

posure to the hazard in this case did not relate directly

to flight operations. The ground operations, which con-

stituted the exposure to the identified hazards, were clearly

not directly related to flight operations. Additionally, the

evidence established the cargo containers were used in

flight only by PAL (which may be assumed to be a foreign

airline) and not this Employer, which had only ground-

handling operations pursuant to a contract agreei ent.

The Employer contends that the FAA was actively exer-

cising jurisdiction within the meaning of Labor Code

A-14

§ 6603. The facts of this case do not support this con-

tention. The manual, which was prepared by the Employer,

was not shown to contain any minimum standards relating

to employee safety and only deemed approved by the

absence of any adverse comment by the FAA review. The

testimony by the employee that direct action to cure the

hazards that he had complained of in 1975 were only

responded to after Cal/OSHA made its inspection do not

support the contention of active or effective FAA em-

ployee safety jurisdiction and enforcement. Additionally,

the July, 1977, inspection by the FAA appears to have

been in response to the Employer’s request for assistance.

It is difficult to conclude that an effective safety and

health program for employees is one in which an employer

must ask the regulatory agency to conduct an inspection

so that the employer would have a valid reason to prevent

its employees from being exposed to a hazard.

The Federal OSHA Review Commission case of North-

west Airlines, OSHRC Docket No. 13649 (appeal pending),

has been noted; but, in addition to the dissimilar factual

situation, the case holding is contra to a previous decision

of the Appeals Board (United Airlines, Docket No. 76-878,

November 27, 1978) and other airline jurisdiction cases

from this agency.

For the reasons set forth above, it is concluded that

Cal/OSHA engaged in a valid exercise of jurisdiction, and

such jurisdiction was not limited or invalidated by any

vesting or exercise of safety and health jurisdiction by

the FAA.

A-15

Decision

The appeal is denied.

4 /s/ ROBERT L. HARVEY

Presiding Administrative

Law Judge

RLH:en

Dated: February 4, 1981

A-16

United States Court of Appeals

For the Ninth Circuit

No. 79-4489

United Air Lines, Inc.

Plaintiff-Appellee,

vs.

The Division of Industrial Safety of the

Department of Industrial Relations of

the State of California and the Occupa-

tional Safety and Health Appeals Board

for the State of California,

Defendants-Appellants.

o J

4

On Appeal From the United States District Court

For the Northern District of California

OPPOSITION OF UNITED AIR LINES, INC.

TO MOTION FOR A STAY PENDING APPEAL

Paul M. Tschirhart

P.O. Box 66100

Chicago, Illinois 60666

(312) 952-4192

Jean C. Gaskill

Kathleen Lucas- Wallace

Brobeck, Phleger & Harrison

Spear Street Tower,

27th Floor

San Francisco,

California 94105

(415) 442-0900

Attorneys for Plaintiff-

Appellee, United Air

Lines, Inc.

APPELLANTS ARE NOT LIKELY

TO SUCCEED ON THE MERITS

This action involves an analysis of the duties and respon-

sibilities of the Federal Aviation Administration (“FAA”)

under the Federal Aviation Act of 1958, as amended, 49

U.S.C. § 1301, et. seg. (“Aviation Act”), and the effect

which the carrying out of those duties and responsibilities

has on the jurisdiction of CAL/OSHA, under its organic

statute, the California Labor Code §§ 148-149, 6300 et. seq.

It is not a case of Federal pre-emption; it is a case of

statutory pre-emption since the law requires that the

proper exercise of FAA jurisdiction precludes the continu-

ing exercise of CAL/OSHA jurisdiction in the same “place

of employment.”

A. CAL/OSHA Is Without Safety and Health Jurisdic-

tion Over United’s Operations and Maintenance

Facilities

1. CAL/OSHA Has No Jurisdiction Where A Fed-

eral Agency Is Otherwise Empowered To Act.

The federal Occupational and Safety and Health Act of

1970, 29 U.S.C. 4651, et seg., preempts state regulation

Al / osHA has requested that this Court take judicial notice

of certain testimony concerning the FAA’s jurisdiction. United

objects to the propriety of adding to the record before this Court

and also submits that these materials have been taken out of

context and are not properly within Rule 201 of the Federal Rules

of Evidence. Nevertheless, the FAA’s position is discussed, infra.

it is entitled to a stay.

A-18

United States Court of Appeals

For the Ninth Circuit

No. 79-4489

United Air Lines, Inc. :

Plaintiff-Appellee,

vs.

The Division of Industrial Safety of the

Department of Industrial Relations of

the State of California and the Occupa-

tional Safety & Health Appeals Board

for the State of California,

reibe Nee l

a:

On Appeal From the United States District Court

For the Northern District of California

BRIEF OF PLAINTIFF-APPELLEE

UNITED AIR LINES, INC.

Of Counsel: Paul M. Tschirhart

J. Richard Street P.O. Box 66100

Assistant General Counsel Chicago, Illinois 60666

(312) 952-4192

Jean C. Gaskill

Kathleen Lucas-Wallace

Brobeck, Phleger & Harrison

Spear Street Tower,

29th Floor

San Francisco,

California 94105

(415) 442-0900

Attorneys for Plaintiff-

Appellee, United Air

Lines, Ine.

A-19

paragraph 2 of United’s Verified Complaint, (CR. 1). Juris-

diction asserted under 28 U.S.C. §§ 1331 and 1337 is chal-

lenged herein by appellants.’ The standards for determin-

ing whether a federal question is involved are essentially

the same under both statutes, although 28 U.S.C. § 1337

jurisdiction depends on the case “arising under any Act of

Congress regulating commerce”. The instant action clearly

presents a predominant federal question as well as one

which arises under a federal statute which regulates com-

merce, i.e., The Federal Aviation Act.

The application of the exemption provision of the CAL/

OSHA statute depends entirely on interpretation of federal

law. If the Federal Aviation Act provides safety and health

jurisdiction to the FAA and the FAA exercises that juris-

diction,* CAL/OSHA is without concurrent authority under

the exemption terms of its own statute. No interpretation

of state law is necessary.

United mistakenly asserted jurisdiction under 28 U.S.C. § 1332

(diversity of citizenship) but no longer relies on that section.

Even negative exercise ot :*s jurisdiction serves to deprive

CAL/OSHA of jurisdiction. See Se-retary of Labor v. Consolidated

Rail Corp. OSHRC Docket No. 75.5805, CCH OSHA Paragraph

23,363 (1979) in which the Federal Railroad Administration

declined to require guardrails around service pits and the Occupa-

tional Safety and Health Review Commission (“OSHRC”) held

that such non-action was sufficient to oust FED/OSHA of juris:

diction.

A-20

U.S. Department of Labor

Occupational Safety and Health Administration

Washington, D.C. 20210

Nov. 11, 1977

OSHA Program Directive # 77-5

OSHA Instruction

October 30, 1978

To: Regional Administrators

Assistant Regional Administrators

Through: Donald E. MacKenzie, Field Coordinator

From: Richard P. Wilson

Subject: Reference Book on Jurisdictional Issues

1. Purpose. The purpose of this directive is to replace

Field Information Memoranda #75-39, #75-39A, #75-39B

which transmitted copies of the “Reference Book on Juris-

dictional Issues” and amendments thereto. The content of

the FIM’s has been combined and updated to reflect cur-

rent conditions.

2. Program Directives Affected. Field Information

Memoranda #75-39, #75-39A, #75-39B are replaced by

this directive. Since sufficient copies of the Reference Book

have been previously transmitted, only an updated Table

of Contents and one new Interagency Agreement are pro-

vided as attachments to this directive.

3. Background. It is OSHA’s position that a State has

jurisdiction in occupational safety and health issues that

are not specifically excluded in its approved plan. The

State has the same scope of authority and responsibility

for exercising that jurisdiction as would OSHA were the

A-21

plan not in effect. In carrying out their enforcement re-

sponsibility States may encounter problems involving two

types of jurisdictional questions.

The first and more prevalent problem involves ques-

tions of whether OSHA has jurisdiction under Section

4(b)(1) of the Act. Section 4(b)(1) excepts from OSHA

application those particular working conditions over which

other Federal agencies have exercised their statutory au-

thority by promulgating enforceable occupational safety

and health standards applicable to those particular work-

ing conditions (hazards). Approved States are expected

to exercise jurisdiction over all working conditions unless

another Federal agency is clearly exercising its authority.

Section B, Jurisdictional Interpretations, of the Refer-

ence Book contains documents that present OSH4A’s inter-

pretations of where jurisdiction lies in relation to certain

Federal agencies. Where appropriate, States should use

these documents for guidance in determining the extent

of OSHA jurisdiction. States are free to honor these Fed-

eral limitations on OSHA’s jurisdiction as State limita-

tions. However, Section 4(b)(1) limitations are strictly

binding only on the Federal program. Therefore, a State

may choose to exercise greater jurisdiction under its own

law than is allowed to Federal OSHA. Any maximum limi-

tation on State jurisdiction would be determined under the

State law and other Federal law and applicable court

decisions.

(In a related development, the Consumer Product Safety

Commission, the Environmental Protection Agency, the

Food and Drug Administration and OSHA have recently

entered into an interagency agreement with the goal of

A-22

increased cooperation in standards setting, enforcement,

training, ete. A copy of this agreement is attached.)

The second jurisdictional problem involves the question

of “exclusive Federal jurisdiction” over private contractors

on certain Federal properties. In this situation there is not

a question of whether OSHA or another Federal agency

has jurisdiction, but whether OSHA may pass its jurisdic-

tion on to a State through an approved State plan. Exclu-

sive jurisdiction exists on certain limited Federal property

where such jurisdiction has been reserved by the Federal

government or ceded by the State to the Federal govern-

ment. In such cases specific Congressional action would be

required to permit State regulation of private employers

working on these Federal properties. While it has been

OSHA’s position that the necessary Congressional action

was taken through the enactment of Section 2(b)(11) and

18 of the Act, whereby States were invited to cover the

same class of employers as the Federal program, a recent

Federal district court decision in Minnesota has challenged

this interpretation.

4. Action.

a. In any case where a State inspector is denied entry

on the basis of a 4(b)(1) jurisdictional question, the State

should pursue entry in one of the following ways:

1, A State may seek a court order enforcing its right

of entry. In this case the Region should be notified of the

State action and kept informed of the progress of the suit.

OSHA will provide legal advice if requested by the State.

2. A State may take advant- ge of the Federal proce-

dure for determining jurisdietion under Program Directive

A-23

#200-2, “Handling Jurisdictional Complaints. con-

tained in Section A2 of the Reference Book. States choos-

ing this alternative should contact the Regional Office to

initiate action under the Federal procedure. :

b. In cases involving claims of exclusive Federal juris-

diction over private contractors on Federal property

(military bases, national parks, ete.), Program Directive

#77-6, “Application of State Safety and Health Provision

to Private Employers in Areas of Exclusive Federal

Legislative Jurisdiction,” should be referred to for specific

directions. That directive should be incorporated into

Section A3 of the Reference Book.

c. The attached CPSC/EPA/FDA/OSHA agreement is

provided for information and should be added, as Section

C-9, to the Reference Book.

d. Regional Administrators should assure that State

designees have received copies of this updated directive as

well as Program Directive #77-6 and should assist them

with any specific problems.

5. Filing. This Directive is effective immediately and

remains in in effect until further notice.

Attachments:

Table of Contents

Interagency Agrzement (C9)

Originator: OCS

Distribution:

A-1, B. 2, C- 2, D-4 and 5, E-1, HEW-1, NIOSH Regional

Program

Directors-1, NACOSH-1, Training Institure-4

A-24

Before the

Occupational Safety and Health Appeals Board

Department of Industrial Relations

State of California

Docket No. 76-R1D3-878

In the Matter of the Appeal of :

United Airlines—SFOCG

San Francisco International Airport

San Francisco, California 94128

Martin A. Soll, Attorney at Law

Petitioner.

=~

J

GRANTING PETITION FOR

RECONSIDERATION AND DECISION

AFTER RECONSIDERATION

The Occupational Safety and Health Appeals Board,

acting pursuant to authority vested in it by the California

Labor Code, hereby grants the Petition for Reconsidera-

tion filed by the Petitioner, and makes the following

Decision After Reconsideration in the above-entitled mat-

ter.

JURISDICTION

On June 16 and 17, 1976, a representative of the Division

of Industrial Safety (the Division) conducted an inspection

of a place of employment at San Francisco International

Airport, San Francisco, California. As a result of this

inspection, a citation was subsequently issued to Petitioner

A-25

herein, United Airlines—SFOG, for an alleged violation

of Title 8, California Administrative Code, Section 3642(a)

(1). A proposed civil penalty of $110 was issued to Peti-

tioner on July 27, 1976.

Petitioner filed a timely appeal with the Appeals Board

contesting the citation and the civil penalty. The matter

was docketed for hearing, and on November 3, 1976, the

hearing was conducted in San Francisco, California. The

appeal was submitted for decision on December 23, 1976,

after the submittal of closing briefs. On January 24, 1977,

the Administrative Law Judge issued a decision denying

the appeal in its entirety. On January 28, 1977, a corrected

decision was issued by the Administrative Law Judge.

On March 1, 1977, Petitioner filed a timely Petition for

Reconsideration with the Appeals Board which was taken

under submission by the Appeals Board on March 4, 1977.

On March 14, 1977, the Division filed an Answer to the

Petition for Reconsideration.

ISSUE

The Division issued Petitioner a citation alleging a viola-

tion of a safety order with respect to lack of guardrail pro-

tection for an employee performing work on an aircraft

engine. The only issue is whether the Division’s jurisdiction

to issue the citation has been precluded by the vesting of

such jurisdiction in the Federal Aviation Administration

(FAA).

A-26

REASONS FOR DECISION

AFTER RECONSIDERATION

The violation allegedly occurred while a United employee

was performing a borescope inspection on a DC-10 air-

liner in the ramp area at the San Francisco International

Airport. Petitioner maintains that the State’s jurisdiction

is preempted by the FAA for the following reasons:

1. The safety jurisdiction of airline employees, includ-

ing aircraft ground maintenance employees, is vested in

the FAA. Labor Code Section 6303 (a); 29 U.S.C. 651, 653;

The Federal Aviation Act of 1958, 49 U.S.C. 301, et seq.

2. It is not necessary that the FAA actually exercise

its authority in matters of airline employee safety includ-

ing aircraft maintenance personnel. it is sufficient that the

FAA is vested with such power to preclude State juris-

diction.

3. Even if the FAA is required to exercise its author-

ity in order to preempt the State, it has fulfilled any such

requirement by issuing regulations with respect to aircraft

maintenance, including safety of ground maintenance per-

sonnel. These regulations require airlines to submit main-

tenance manuals to the FAA which must include other in-

formation or instructions relating to safety. (14 C.F.R.

121.135(b).)

4. Matters relating to the size of maintenance manuals,

how they are approved, what approved methods are em-

ployed, or even the manner of enforcement by the FAA,

are all irrelevant to the question of “exercise.”

A-27

As to Petitioner’s first two points, the Appeals Board

has applied, and continues to apply, a jurisdictional test

as to whether another State or Federal agency is actually

exercising safety jurisdiction in a given circumstance be-

fore the State’s safety authority is declared preempted.

(Southern Pacific Transportation, Cal/OSHA Docket Nos.

74-R2D3-193, 194, 195, and 74-R3D1-393, Decision After

Reconsideration, October 28, 1975.) Although we acknowl-

edge that this may be contrary to the trend of recent

Federal OSHA cases, our reading of both Federal and

State law indicates that both Congress and the Legislature

intended that if employees were to be exempted from

OSHA or Cal/OSHA protection, they should not be left

with a mere token or recital of safety protection. Hence,

the “actually exercising” test is applied with regard to

State or Federal agencies vested with employee safety

responsibility.

Evidence in this case was presented that FAA regula-

tions require air carriers like Petitioner to submit main-

tenance manuals for approval which must include other

informatioa or instructions relating to safety. In fact, a

copy of United’s maintenance manual had a provision sim-

ilar to the section cited. The FAA may disapprove of a

manual in whole or in part, but no specific guidance regard-

ing employee safety provisions or their enforcement are

provided by the FAA; and, approval is assumed by the

FAA’s failure to disapprove.

In regard to the enforcement of employee safety require-

ments, Petitioner presented evidence that FAA representa-

tives inspect its facilities and operations; and, reportedly,

A-28

an inspector may take action for possible violation of em-

ployee safety requirements contained in the manual. The

evidence failed, however, to show that the FAA actually

does exercise such authority in matters affecting employee

safety. In fact, without convincing evidence to the contrary,

the Division’s contention that the FAA exercises safety

jurisdiction as to the aircraft itself, passengers, and cargo,

but not employee safety, is supported by the evidence

presented.

Accordingly, the Division properly exercised safety

jurisdiction in issuing Petitioner a citation for failure to

adequately protect an employee on an elevated work

platform from a fall based on the lack of evidence that the

FAA actually exercised employee safety jurisdiction in

such circumstances.

DECISION AFTER RECONSIDERATION

The Decision of the Administrative Law Judge in this

matter dated January 24, 1977, is affirmed.

/s/ HAROLD MITCHELL

Chairman

/s/ MARK K. BOWERS

Member

Occupational Safety and Health Appeals Board

Nov. 27, 1978