American Federation of Labor and Congress of Indus. Organizations, Indus. Union Dept., AFL-CIO v. Marshall, AFL-CIO
| Decision Date | 20 January 1978 |
| Docket Number | AFL-CIO,No. 75-1506,75-1506 |
| Citation | 570 F.2d 1030,187 U.S.App.D.C. 121 |
| Parties | , 6 O.S.H. Cas.(BNA) 1257, 1977-1978 O.S.H.D. ( 22,496 AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, INDUSTRIAL UNION DEPARTMENT,, et al., Appellants, v. F. Ray MARSHALL, Secretary of Labor, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
George H. Cohen and Marsha S. Berzon, Washington, D. C., with whom J. Albert Woll, Laurence S. Gold, and Elliot Bredhoff, Washington, D. C., were on the brief, for appellants.
Michael H. Levin, Washington, D. C., Counsel for Appellate Litigation, U. S. Dept. of Labor and Patrick Tyson, Atty., U. S. Dept. of Labor, Washington, D. C., of the bar of the Supreme Court of Virginia, pro hac vice by special leave of court, for appellee, Secretary of Labor.
Carol Hunter, Sacramento, Cal., was on the brief for appellee-intervenor, State of California.
Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
Syllabus by the Court
This case involves a challenge to the standards applied by the Secretary of Labor to approve state occupational safety and health plans under the Occupational Safety and Health Act of 1970. 29 U.S.C. §§ 651-678 (1970). The AFL-CIO challenged as arbitrary and capricious the regulations issued by the Secretary of Labor interpreting the statutory requirements that the states, as a condition for plan approval, have "adequate funds" and the "qualified personnel necessary" to enforce state standards as effective as the federal standards. 29 U.S.C. § 667(c) (2), (4), (5) (1970). In particular, it challenged the Secretary's position that the Act only required that the state provide force and funding levels as effective as those that would be provided by the federal government in the absence of the state program. On appeal from a grant of summary judgment to the Secretary, held:
1. The purpose of OSHA, as explicitly set forth in § 2(b) (10), 29 U.S.C. § 651(b) (10) (1970), is "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 . . . by providing an effective enforcement program." This clear statement of purpose gives context for the use of such terms as "adequate" and "necessary" in § 667(c). The language expresses a Congressional intention that approved state programs assure sufficient resources to enforce effectively the standards set forth in those programs. This intent is corroborated by the legislative history.
2. An overall ascertainment of legislative purpose, however, bids that the court take into account practical necessities, including the concern for precipitate federal preemption also found in the legislative history. Therefore, the court finds that it is reasonable for the Secretary to employ, in setting benchmarks for state personnel and funding, the standard of "at least as effective as" federal enforcement, provided such benchmarks are part of a coherent, articulated program to realize a fully effective enforcement effort at some point in the foreseeable future. The states must subscribe to that timetable as a condition to implementation of their state plans.
3. The interim federal benchmarks that have been used by the Secretary for initial approval of state plans are not part of such a coherent, articulated program. Therefore, this court disagrees with the District Court's conclusion that the Secretary's regulations on number of personnel and funding are sufficient to enable the Secretary to administer the state plan approval program in a manner consistent with the legislative mandate. We declare that the Secretary has a duty to establish personnel and funding criteria that are part of an articulated plan to achieve a fully effective enforcement effort in a stated time frame.
4. We affirm the District Court's holding that the regulations concerning qualifications of state inspectors are valid. We find detail in these regulations sufficient to permit the Secretary to approve plans in a manner consistent with the mandate of the Act.
5. As a result of public interest considerations, we decline to enjoin implementation of any of the state plans that have been approved to date by the Secretary. The deficiencies in present regulations do not necessarily mean that the Secretary erred in giving an initial approval based on present "as effective as" criteria. But these criteria must be supplemented with a coherent and fully articulated program moving from these "as effective as" criteria toward the personnel and funding levels needed for satisfactorily effective enforcement.
Opinion for the Court filed by Circuit Judge LEVENTHAL.
The Occupational Safety and Health Act of 1970 1 (OSHA) was intended to reduce the number and severity of work-related injuries and illnesses. At the time of the passage of OSHA, there was some concern that the Act not result in the wholesale federalization of occupational safety. 2 Therefore, in § 18 of OSHA, 29 U.S.C. § 667 (1970), Congress provided that a state may reassume responsibility for occupational safety and health by submitting an acceptable plan to the Secretary of Labor. The issue presented by this case is the validity of the criteria used by the Secretary of Labor for approval of state plans.
There are two stages to the state plan approval process, initial approval and final approval, and the implementation of an approved plan is monitored at all times. 3 Section 18(c) of OSHA 4 sets out criteria for determining plan acceptability. "The Secretary shall approve the plan submitted by a State . . . if such plan in his judgment" satisfies the stated criteria. These initial approvals do not necessarily cede federal jurisdiction to the state nor affect the federal enforcement program's operation within the state. Instead, there is a concurrent jurisdiction period of at least three years during which the Secretary monitors the state program for compliance with § 18(c) and may enforce the federal program. See 29 U.S.C. § 667(e), (f) (1970).
This case requires us to focus on the standards for evaluating state plans set forth in § 18 of OSHA, and particularly the requirement of (c)(2), that the state standards be "at least as effective" as the federal standards, and of (c)(4) and (5), that there be adequate assurances that the state agency administering the plan will have sufficient "qualified personnel" and "adequate funds" to enforce the state standards. 5
The AFL-CIO challenged the regulations of the Secretary that interpreted "adequate funds" and "qualified personnel necessary for enforcement of (the state) standards." It claimed the regulations only parroted the language of the statute, established no rational criteria and guidelines for evaluating the sufficiency of a state's plan in terms of effective inspection and enforcement, and have resulted in state plans with wide disparities in manpower commitments and fund allotments.
The District Court upheld the Secretary of Labor's regulations on motions for summary judgment. 6 It held that "the Secretary has promulgated rational, ascertainable standards for personnel and funding." 7 The District Court interpreted those standards to require that the state effort be at least comparable to what the federal effort would have been in the absence of an approved state plan. The District Court also held that the Secretary of Labor had consistently and properly applied those standards. The AFL-CIO has appealed that decision to this court.
To state adequately the contentions of the parties on appeal, we set forth the text of OSHA's § 18(c)(2), (4), (5). Those subsections state that the "Secretary shall approve the plan submitted by a State under subsection (b), or any modification thereof, if such a plan in his judgment "
(5) gives satisfactory assurances that such State will devote adequate funds to the administration and enforcement of such standards . . . .
The AFL-CIO contends that the Secretary exceeded the scope of his authority by interpreting the requirements of § 18 to mandate only the provision of staff and funding levels "at least as effective as" the Federal enforcement program. 8 It emphasizes that (4) and (5) do not contain the "at least as effective as" criterion explicitly used in (2) and (3) of § 18(c), 9 and it argues that "adequate funds" and "qualified personnel necessary for the enforcement of such standards" mean force and funding levels sufficient to ensure that the normative standards are in fact enforced.
To demonstrate the invalidity of use of an "at least as effective as" standard for subsections (c)(4) and (5), the AFL-CIO notes that the federal benchmarks that have been employed by the Secretary are predicated on federal enforcement levels that are artificially low because the Secretary deliberately withheld commitment of adequate resources until he knew the full extent of likely state participation. It cites testimony given by Assistant Secretary of Labor George Guenther before the Senate Subcommittee on Appropriations...
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