United Air Lines, Inc. v. Occupational Safety & Health Appeals Bd.

• Decision Date: 29 November 1982
• Docket Number: S.F. 24396
• Court: California Supreme Court
• Parties: , 654 P.2d 157, 1982 O.S.H.D. (CCH) P 26,323 UNITED AIR LINES, INC., Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.

Page 387

187 Cal.Rptr. 387

32 Cal.3d 762, 654 P.2d 157, 1982 O.S.H.D. (CCH) P 26,323

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

S.F. 24396.

Supreme Court of California In Bank.

Nov. 29, 1982.

Paul M. Tschirhart, Jean C. Gaskill, Kathleen Lucas-Wallace, Rebecca D. Strause and Brobeck, Phleger & Harrison, San Francisco, for plaintiff and appellant.

Elise Brody Manders, Los Angeles, Keith Tohru Yamanaka, Sacramento and Robert A. Heron, Los Angeles, for defendant and respondent.

Michael D. Mason, Menloe Park, Abby Ginzberg, Staff Counsel, Div. of Occupational Safety & Health, San Francisco and Frank E. Fernandez, Keene, for real party in interest and respondent.

Charles P. Scully, Donald C. Carroll, Charles P. Scully II, San Francisco, George A. Pappy, Pappy, Kaplon, Vogel & Phillips, Los Angeles, Joseph R. Colton, Norback DuRard, Colton, Gangemi & Schuler, San Mateo, Robert A. Bush, Taylor, Roth & Hunt, Los Angeles, Felix Velarde-Munoz and Joan Messing Graff, San Francisco, as amici curiae on behalf of defendant and respondent and real party in interest and respondent.

KAUS, Justice.

I

In 1976, an engineer from the California Division of Occupational Safety and Health (the division) inspected the United Airlines ground maintenance facility at San Francisco International Airport. As a result of his observations, the division cited and fined United for failing to provide a guardrail on an unenclosed elevated work platform that was being used by an employee working on a plane. ¹

United appealed the citation to the Occupational Safety and Health Appeals Board (appeals board) and filed a motion to dismiss, arguing, inter alia, that under Labor Code section 6303, subdivision (a)--which defines the places of employment over which the division has jurisdiction--the Federal Aviation Administration (FAA) and not the division has exclusive occupational safety jurisdiction over the maintenance facility. The current provisions of section 6303, subdivision (a)--which all parties agree should be applied in this case--exempt a "place of employment" from the division's jurisdiction if "the health and safety jurisdiction" over that place of employment is "vested by law in, and actively exercised by" any other state or federal agency. ²

At a hearing before an administrative law judge (ALJ), United introduced a copy of its "maintenance manual" developed under FAA regulations. The FAA requires carriers to prepare and keep current such manuals "... for the use and guidance of flight and ground operations personnel ..." in conducting operations. (14 C.F.R. § 121.133(a).) The manuals must contain, inter alia, instructions necessary to allow workers to perform their responsibilities with a "high degree of safety." (Id., at § 121.135(a)(1).) United's manual included a provision requiring employees to wear safety harnesses when working on elevated platforms. ³

A United Airlines engineer testified that the manuals are submitted to the FAA and considered "approved" unless the carrier is notified otherwise. He also testified that the FAA conducts inspections and has cited United for violations of manual procedures affecting inflight safety. He was not aware, however, of any instance in which the FAA had cited the airline for a violation of any provision relating solely to the safety of ground maintenance employees. ⁴

The ALJ found that although the FAA exercised safety jurisdiction as to the passengers, aircraft and cargo, the evidence failed to show any exercise of safety jurisdiction over ground employees. Accordingly, the citation was upheld.

The appeals board affirmed, noting that although the FAA could disapprove of a manual, the FAA offered no specific guidance to the airlines on employee safety provisions or their enforcement.

Pursuant to sections 6627-6633, United petitioned the trial court for a writ of mandate to have the board's decision set aside. United argued that the FAA had actively exercised jurisdiction over ground maintenance workers by promulgating regulations requiring the development of maintenance manuals.

The division responded that United's arguments were effectively rebutted by the position of the administrator of the FAA. In a 1977 response to a letter of inquiry, the administrator expressed doubt that the manual procedures were of a regulatory nature, and stated that failure to follow the procedures would not serve as a basis for FAA enforcement action unless a Federal Aviation Regulation had also been violated. ⁵ The trial court judicially noticed the administrator's statement and denied United's petition. This appeal followed.

II

California has long looked to a specialized administrative agency to play an important role in protecting the health and safety of working men and women in this state. "In 1913 ... the Legislature enacted a ... bill creating the Industrial Accident Commission, and vested that body, inter alia, with broad authority to adopt regulations relating to the safety and welfare of employees. [Citation.] ... Subsequently, in 1945, the Industrial Accident Commission's broad authority to regulate safety in places of employment was transferred to a new body, the Industrial Safety Board. [Citation.]" (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 720-721, 166 Cal.Rptr. 331, 613 P.2d 579.) In 1973, as part of a comprehensive revision of California's occupational health and safety statutes in response to the Federal Occupational Safety and Health Act of 1970, the Industrial Safety Board was reconstituted as the Occupational Safety and Health Standards Board, and the Division of Occupational Safety and Health was designated as the administering entity. (Stats.1973, ch. 993, §§ 11, 13, pp. 1919-1920.) ⁶ It is this latter agency whose jurisdiction is challenged in this case.

The 1973 statute, in language which largely parallels its statutory predecessors, grants the division exceedingly broad authority to enforce regulations to protect the health and safety of employees throughout the state. Section 6307 provides: "The division has the power, jurisdiction and supervision over every employment and place of employment in this state, which is necessary to adequately enforce ... all laws and lawful standards and orders ... requiring 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."

As already noted, section 6303, subdivision (a) creates a limited exemption from the division's broad jurisdiction, excepting from the statutory definition of "place of employment" "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." (See fn. 2, ante.) The issue is the scope of this exemption.

Under the terms of section 6303, subdivision (a), the division is divested of jurisdiction over a place of employment only if two prerequisites are satisfied: (1) the place of employment is one over which the health and safety jurisdiction is vested by law in another agency and (2) that jurisdiction is being "actively exercised" by the other agency. In this case, United contends (1) that the safety jurisdiction over its ground maintenance facility is vested in the FAA by virtue of that agency's statutory authority to enact safety regulations with respect to airline operations and personnel, and (2) that the FAA has actively exercised this jurisdiction by promulgating a regulation requiring the airlines to develop manuals which include the subject of employee safety. The division, in response, asserts that the FAA's mission under the federal act is the protection of the inflight safety of passengers, crew and aircraft, not the health and safety of ground maintenance employees, and that the agency's incidental authority to promulgate regulations affecting employee safety is not sufficient to find that it is vested with "the health and safety jurisdiction over the place of employment" so as to divest the division of jurisdiction under section 6303, subdivision (a). Furthermore, the division argues that the limited regulatory action which the FAA has taken with respect to employee safety--directing employers to devise their own safety standards for inclusion in manuals submitted to the agency--does not constitute the kind of "active exercise" of occupational health and safety jurisdiction that is sufficient to displace the division's regulatory jurisdiction. In our view, both the legislative history of the statute and the past authorities construing the provision support the division's interpretation.

A.

We begin with the requirement that "the health and safety jurisdiction" over the place of employment be vested in another agency. This portion of the statutory exemption first appeared in California law in 1917. In defining "place of employment" for purpose of the jurisdiction of the Industrial Accident Commission, the 1917 act included an exception for "any place of employment, concerning the safety of which jurisdiction may have been vested by law heretofore or hereafter in any other commission or public authority." (Stats.1917, ch. 586, § 33, subd. (1), p. 861.) In 1937, when the definition of "place of employment" was codified as section 6302 of the Labor Code, the provision was modified to narrow the exemption to "a place the safety jurisdiction over which is vested by law in any State or Federal agency other than the commission." (Stats.1937, ch. 90, § 6302, p. 306.) With just a minor change in wording--reflecting the transformation of the administering agency from "commission" to "division"--the Legislature adopted this very definition of "place of employment" when it enacted section 6303,...