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01/20/78 American Federation of v. F. Ray Marshall

January 20, 1978

ORGANIZATIONS, INDUSTRIAL UNION DEPARTMENT, AFL-CIO, ET AL., APPELLANTS

v.

F. RAY MARSHALL, SECRETARY OF LABOR, ET AL. 1978.CDC.8 DATE DECIDED: JANUARY 20, 1978



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

Appeal from the United States District Court for the District of Columbia (D.C. Civil 74-406).

APPELLATE PANEL:

Tamm, Leventhal and MacKinnon, Circuit Judges. Opinion for the Court filed by Circuit Judge Leventhal. Concurring opinion filed by Circuit Judge MacKinnon.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL

The Occupational Safety and Health Act of 19701 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.

A. Background

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 OSHA4 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.

B. Contentions on Appeal

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 --

(2) provides for the development and enforcement of safety and health standards relating to one or more safety or health issues, which standards (and the enforcement of which standards) are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under section 6

. . . .

(4) contains satisfactory assurances that such agency or agencies have or will have the legal authority and qualified personnel necessary for the enforcement of such standards,

(5) gives satisfactory assurances that such State will devote adequate funds to the administration and 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 ...


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