Appeal from orders of the United States District Court for the Eastern District of New York, Neaher, J., directing the reinstatement of a warrant authorizing an inspection of defendant's airport facilities by an officer of the Occupational Safety and Health Administration.
Kaufman, Chief Judge, Smith and Meskill, Circuit Judges.
Northwest Airlines, Inc. ("Northwest") seeks to prevent representatives of the Occupational Safety and Health Administration ("OSHA") from inspecting one of its airport facilities, claiming that the safety aspects of the hangar in question are already regulated by the Federal Aviation Administration ("FAA"). It adopts this position notwithstanding the fact that an administrative record concerning the alleged overlap in jurisdiction has not been assembled and discovery is yet to commence. We agree with the determination of the district court that the challenge to OSHA's jurisdiction cannot be brought until Northwest has more adequately developed the record by exhausting its existing administrative remedies.
On October 27, 1976, Efraim Zoldan, an OSHA compliance officer, attempted to inspect Northwest's Hangar No. 1 at John F. Kennedy International Airport. After being denied entrance by the agent in charge, he sought an inspection warrant from Magistrate Vincent Catoggio on November 4, 1976. Relying on affidavits establishing that Northwest's hangar had in the past been cited for 13 violations of OSHA standards, the magistrate issued a warrant.
The following day, Northwest again turned Zoldan away when he attempted to enter its facility, ostensibly because it would soon be moving to quash the warrant. It did so that very afternoon, arguing that section 4(b)(1) of the Occupational Safety and Health Act ("Act") explicitly withdrew from OSHA any jurisdiction over safety matters already regulated by other federal agencies. Northwest contended that the FAA oversaw the occupational safety of hangar workers, and cited an opinion by Administrative Law Judge Jerome C. Ditore as support for this principle.
The opinion relied upon concerned the airline's challenge to a previous OSHA citation issued for failing to provide adequate protection to employees changing landing lights on aircraft. After a 24-day hearing, Judge Ditore determined that the FAA had preempted this area by promulgating regulations "affecting the occupational safety and health of ground maintenance personnel changing landing lights through the leading edge flap cavities of Boeing 747 aircraft." A member of the Occupational Safety and Health Review Commission subsequently granted the Secretary of Labor's petition for discretionary review of Judge Ditore's decision by the full Commission, but such plenary consideration has been delayed pending the appointment of a third commissioner.
Upon being apprised of Judge Ditore's decision, Magistrate Catoggio vacated the search warrant. He interpreted the earlier ruling to indicate that the FAA had preempted "at least part of the area [of airline safety]," and thus had, for section 4(b)(1) purposes, prevented OSHA from exercising jurisdiction over any safety hazards within the hangar. The Secretary of Labor then appealed to the district court, which reinstated the warrant, finding that the challenge to OSHA's jurisdiction was premature, and requiring the airline to first exhaust all administrative remedies.
Section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 653(b)(1), provides that:
Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
In essence, this provision is designed to eliminate any duplication in the efforts of federal agencies to secure the well-being of employees. At the same time, however, section 4(b)(1) was not intended by Congress to eliminate OSHA's jurisdiction merely on the basis of hypothetical conflicts. Employees should not lightly be denied the protection of OSHA for, as the Senate Report accompanying the Act noted, "the problem of assuring safe and healthful workplaces for our working men and women ranks in importance with any that engages the national attention today." S.Rep. No. 91-1282, 91st Cong., 2d Sess., reprinted in 3 U.S. Code Cong. & Admin. News 5177, 5178 (1970). Thus, as the section's wording makes clear, a sister agency must actually be exercising a power to regulate safety conditions in order to preempt OSHA. Were this not the case, many occupational health hazards might remain uncorrected merely because some agency whose prime concern is not safety has failed to take notice of that area.
In a similar vein, section 4(b)(1) is not designed to provide wholesale exceptions for entire industries. See, e.g., Southern Pacific Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874, 54 L. Ed. 2d 154, 98 S. Ct. 221, 46 U.S.L.W. 3219 (1977); Southern Ry. v. OSHRC, 539 F.2d 335 (4th Cir.), cert. denied, 429 U.S. 999, 50 L. Ed. 2d 609, 97 S. Ct. 525 (1976); Baltimore & Ohio R.R. v. OSHRC, 179 U.S. App. D.C. 97, 548 F.2d 1052 (1976). The exact standard to be applied in determining the scope of preemption, however, is less than crystal-clear. The Southern Pacific court concluded that agency rule-making directed "at a working condition - - defined either in terms of a 'surrounding' or a 'hazard' - - displaces ...