820 F.2d 909 (7th Cir. 1987), 86-1771, Brock v. Chicago Zoological Soc.

Docket Nº:86-1771.
Citation:820 F.2d 909
Party Name:William E. BROCK, United States Secretary of Labor, Petitioner, v. CHICAGO ZOOLOGICAL SOCIETY and Occupational Safety and Health Review Commission, Respondents.
Case Date:June 08, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 909

820 F.2d 909 (7th Cir. 1987)

William E. BROCK, United States Secretary of Labor, Petitioner,

v.

CHICAGO ZOOLOGICAL SOCIETY and Occupational Safety and

Health Review Commission, Respondents.

No. 86-1771.

United States Court of Appeals, Seventh Circuit

June 8, 1987

Argued Dec. 2, 1986.

Page 910

Sandra Lord, Div. Occupational Safety & Health, Office of Solicitor, U.S. Dept. of Labor (with whom on the brief was Mark J. Lerner), Washington, D.C., for petitioner.

Anne B. Shindell, Minahan & Peterson S.C., Milwaukee, Wis., for respondents.

Before WOOD, and POSNER, Circuit Judges, and WILL, Senior District Judge. [*]

WILL, Senior District Judge.

Respondent Chicago Zoological Society ("Society") operates the Brookfield Zoo in west suburban Chicago, Illinois. Following an inspection by officials of the Occupational Safety and Health Administration ("OSHA") in April 1979, the Secretary of Labor issued a citation against the Society and proposed a $2000 penalty for safety violations occurring on zoo premises. The citation charged violations of 29 C.F.R. Sec. 1910.23(a)(8) for failing to guard floor holes in the Tropic World Building and 29 C.F.R. Sec. 1910.252(e)(1)(i) for a lack of fall protection for a welder working on a fifteen foot platform.

The Society contested the citation on the ground that, as a "political subdivision" of a state, it was exempt from OSHA jurisdiction. 29 U.S.C. Sec. 652(5). An administrative law judge ruled against the Society and in favor of the Secretary of Labor. The Occupational Safety and Health Review Commission ("Commission"), finding that the Society qualified as a political subdivision, reversed. We now reverse the Commission.

Section 3(5) of the Occupational Safety and Health Act of 1970 ("OSH Act" or "Act"), 29 U.S.C. Sec. 652(5), exempts "any State or political subdivision of a State" from the definition of the term "employer" and therefore from the coverage of the Act. The Secretary of Labor's regulations set forth a two-part test for determining whether an entity is a state or political subdivision. Under this test, any entity that is "(1) created directly by the State, so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are controlled by public officials and responsible to such officials or to the general public" will be deemed to be a state or political subdivision under Sec. 625(5). 29 C.F.R. Sec. 1975.5(b). This test is identical to the formula the National Labor Relations Board has long used to determine whether an entity is a political subdivision exempt from the Board's jurisdiction under 29 U.S.C. Sec. 152(2). See NLRB v. Natural Gas Utility Dist., 402 U.S. 600, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971); NLRB v. Austin Developmental Center, 606 F.2d 785 (7th Cir.1979). Though we know of no case interpreting the term "political subdivision" as it appears in Sec. 652(5), both sides agree, first, that the Secretary's interpretive regulation is valid, and second, that the cases construing the comparable provision of Sec. 152(2) offer authoritative guidance.

As the Commission found, the Society clearly fails the first branch of the two-part test. Demonstrating why this is so requires a bit of zoo history. In 1920, Edith Rockefeller McCormick granted a tract of land to the Forest Preserve of Cook County ("District") for purposes of maintaining a zoo. To develop plans for establishing the zoo, the president of the Cook County Board of Commissioners appointed two committees, one composed of fellow commissioners and one composed of prominent private citizens. In 1921, the two committees incorporated the Society under Illinois law as a private, nonprofit corporation. (The Society is also an exempt organization under 26 U.S.C. Secs. 501(c)(3) for purposes of federal taxation). Two years later, the

Page 911

Illinois legislature authorized officials of the state's forest preserve districts to maintain zoological parks "or to contract with the...

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