SECRETARY OF LABOR,
Complainant,
v.
C F & I STEEL CORPORATION,
Respondent.

UNITED STEELWORKERS OF AMERICA
AFL-CIO, LOCAL 2102.

Authorized Employee Representative.

OSHRC Docket No. 79-4786

REMAND ORDER

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION

The case is before us as at the direction of the United States Court of Appeals for the Tenth Circuit.  Martin v. OSHRC (CF & I Steel Corp.), 941 F.2d 1051 (10th Cir. 1991).  The case was before the Tenth Circuit on remand from the United States Supreme Court.  Martin v. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171 (1991).   In the case, the Supreme Court held that a reviewing court must give precedence to the Secretary of Labor's reasonable interpretation of an ambiguous regulation over the Review Commission's reasonable interpretation..  Id. at 1175, 1179-80.  The Supreme Court directed the Tenth Circuit to consider the reasonableness of the Secretary's interpretation of 29 C.F.R. §1910.1029(g)(3) requiring an employer's respiratory protection program to assure that each employee is properly fitted with a respiratory protection program to assure that each employee is properly fitted with a respirator and to take corrective action when atmospheric testing of respirators reveals excessive leakage. Id. at 1053-1054 

The Tenth Circuit determined that the Secretary's interpretation was reasonable because it furthered the remedial purpose of the Act's remedial scheme for minimizing worker exposure to coke oven emissions. Id. at 1057. Based on that interpretation and the facts of the case, the Court found that the Secretary had established a violation of section 1910.1029(g)(3).

Noting the subsequent proceedings in this case, the controverted nature of the willful determination, and the discretion vested in the Commission with respect to the amount of any penalty assessment, the Tenth Circuit remanded the case to the Commission to determine whether the violation was willful and what penalty should be assessed. Id. at 1059. In remanding, the Tenth Circuit recognized "the basic rule...that the regulated business must 'follow the law even if it has a good faith belief that its own policy is wiser." Id at 1059 n.10 [citations omitted]. The court also observed that an "employer may not simply substitute its judgment for that of OSHA; the employer must follow what it knows to be the law despite its subjective belief that an agency interpretation is invalid." Id. [citation omitted].

Accordingly, we remand to Chief Administrative Law Judge for assignment to a judge[[1]] to determine--consistent with the Tenth Circuit's more recent opinion- whether the violation is willful and what penalty amount is appropriate.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montaya
Commissioner

Dated: November 20, 1991