Docket No. 80-1793

SECRETARY OF LABOR,

Complainant,

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, and its LOCAL UNION 7447-J,

Authorized Employee Representative.

OSHRC DOCKET NO. 80-1793

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case involves the medical removal protection provision of the OSHA standard regulating occupational exposure to lead. That provision, 29 C.F.R. § 1910.1025(k)(2),[[1/]] requires employers to "maintain the earnings, seniority, and other employment rights and benefits" of employees they remove from lead exposure because the employees are at particular risk of suffering lead- related diseases.[[2/]] The case is before the Commission for a second time. In its first decision, the Commission concluded that Amax Lead Company of Missouri ("Amax") complied with the standard by paying employees for a 40-hour work week at their regular rate of pay, rejecting the Secretary's argument that "earnings" under the standard included overtime compensation and paid lunch periods the employees received before their transfers. Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ś 27,629 (No. 80-1793, 1986). That decision was reversed by the Fifth Circuit, which adopted the Secretary's interpretation of the standard. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 321 (5th Cir. 1987).[[3/]] The court remanded "for further proceedings attuned to this opinion. Id. at 323.

The relevant facts are set forth in our prior opinion, and we shall only briefly summarize them here. Six Amax employees were transferred out of areas of high lead exposure pursuant to the medical removal provisions of the lead standard. During the transfer period, the employees were paid for a 40-hour work week at the regular hourly rate of pay they received in their normal jobs. However, they did not have the opportunity to work overtime, as they would have if they had not been transferred. They also no longer received compensation during their half-hour lunch breaks. Thus, in their regular jobs, they had been paid for 8 hours work on a normal shift but were allowed to use a half-hour of that shift for lunch. After being transferred, their shift was 8 1/2 hours long, of which 8 hours was working time and the remaining half-hour was an unpaid lunch period.

The Fifth Circuit adopted the Secretary's interpretation of the standard, which provides:

Earnings includes more than just your base wage; it includes overtime, shift differentials, incentives, and other compensation you would have earned if you had not been removed.

828 F.2d at 323, quoting 29 C.F.R. § 1910.1025 Appendix B.[[4/]] In this case, the employees did not receive the amounts they would have earned if not removed. After removal, they received pay for a 40-hour week at their regular rate of pay. However, if they had not been removed, they would have earned additional sums by working overtime. Under the Fifth Circuit's decision, Amax violated the standard by not paying the employees these additional sums.

The Secretary also argues that Amax violated the standard in that employees received paid lunch periods before, but not after, removal. We disagree. Under the Secretary's interpretation, which the Fifth Circuit adopted, the employer must pay a removed employee the total compensation he would have earned if not removed. Here, the employees received 8 hours pay per day before removal, and 8 hours pay per day after removal at the same hourly rate. Under the Secretary's agument, the employees would receive more pay after removal than before. We do not believe that such a result is consistent with the standard's objective of assuring that removed employees suffer no economic loss, nor do we think it is required under the Fifth Circuit's decision.[[5/]]

Amax contends that the lead standard was invalidly promulgated for a number of reasons. The company argues that the Secretary did not have the statutory authority to adopt the provision requiring payment of MRP benefits. The company also contends that the provision for payment of MRP benefits is economically infeasible, that the Secretary did not give interested persons adequate notice that a permissible exposure limit ("PEL") of 50 ľg/m3 would be adopted, that this PEL is technologically and economically infeasible, and that the Secretary improperly relied on outside consultants during the rulemaking proceedings.

The Commission members both reject Amax's validity arguments, but for different reasons. Chairman Buckley believes that Amax's arguments are foreclosed by the Fifth Circuit's remand order. Amax's arguments were considered and rejected by the D. C. Circuit in a pre-enforcement challenge to the standard. United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981). In remanding the case to us, the Fifth Circuit noted that its sister circuit had upheld the standard's validity and said:

The lead standard has been challenged by the industry in litigation from its inception. The courts, however, have not proved a receptive audience for the industry's well-orchestrated complaints. The present movement in this seemingly never ending symphony is but a minor variation on the prior themes. Thus, unlike a listener to Haydn, the industry should hardly be surprised at the outcome.

This symphony of lead litigation should not remain forever unfinished. The industry's arguments -- in large measure resting on the policies underlying the lead standard-likely will continue to strike a discordant note in the courts. The industry must either accept legislative and regulatory atonality, or, if too painful for the ears (and pocketbooks) attempt to return the score to the composers of the lead policy for reorchestration.

828 F.2d at 315-16. This language suggests that the Fifth Circuit considered the validity of the standard to be definitively established, at least for purposes of this case. Accordingly, Chairman Buckley concludes that the court's decision precludes further consideration of Amax's validity arguments.

Commissioner Arey does not believe that the Fifth Circuit's decision precludes consideration of Amax's validity arguments. She notes that those arguments were not raised before the court, and believes that the court's decision cannot be considered a definitive ruling on an issue it did not explicitly consider.

Commissioner Arey would therefore consider Amax's validity arguments.[[6/]] She would reject them for the following reasons.

Two of Amax's arguments--that the Secretary gave inadequate notice of the 50 ľg/m3 PEL and that he improperly relied on outside consultants--challenge the procedures the Secretary followed in promulgating the standard. In National Industrial Constructors, Inc. v, OSHRC, 583 F.2d 1048 (8th Cir. 1978), the Court of Appeals for the Eighth Circuit held that the validity of the procedures followed by the Secretary in promulgating OSHA standards cannot be challenged in enforcement proceedings. This case arises in the Eighth Circuit, and the Commission's decision is therefore appealable to that court.[[7/]] 29 U.S.C. §§ 660 (a) & (b). Commissioner Arey believes that the Commission must follow controlling circuit law, and therefore declines to consider Amax's procedural challenges in this enforcement proceeding.

Although Amax's substantive challenges can be considered under National Industrial Constructors, Commissioner Arey concludes that those challenges lack merit. Amax argues that the Secretary lacked the statutory authority to adopt the provision requiring payment of MRP benefits. Commissioner Arey rejects that argument for the reasons she stated in St. Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).

Amax also argues that the MRP provision is economically infeasible, and that the standard's PEL of 50 ľg/m3 is both technologically and economically infeasible. Commissioner Arey rejects these arguments because they are not supported by the record. Amax argues that the rulemaking record on which the Secretary based his findings that the standard was feasible does not support the Secretary's findings. Without deciding whether it would ever be proper for the Commission to review findings made by the Secretary on the basis of a rulemaking record, Commissioner Arey observes that the Commission certainly cannot do so here because the rulemaking record is not before it. The burden of proving, in an enforcement proceeding, that a standard is invalid lies with the party challenging the standard's validity. See Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541, 548-50 (3d Cir. 1976). Commissioner Arey concludes that Amax has failed to meet its burden of proving that the standard is invalid for the reasons it has stated.

In addition, Commissioner Arey notes that there is a second reason for rejecting Amax's two arguments that challenge the validity of the standard's PEL of 50 ľg/m3. Amax has not been cited for violating that provision in this case. Yet, under Commission precedent, the Commission will only consider validity challenges that may affect the outcome of a case. DeKalb Forge Co., 13 BNA OSHC 1146, 1151, 1886-87 CCH OSHD ś 27,842, p. 36,449 (No. 83-299, 1987). Accordingly, Commissioner Arey would reject Amax's challenges to the validity of the PEL for both of the reasons stated above.

III.

We must now determine the proper classification of the violation and assess an appropriate penalty. The Secretary originally alleged that the violation was willful and proposed a $1600 penalty. The administrative law judge rejected the willful characterization, found that the violation was de minimis, and assessed no penalty. Amax argues that the de minimis classification is proper. The Secretary contends that the violation is willful, or at least serious, in nature.

We reject the Secretary's argument that the violation should be classified as willful. The judge found that the violation was not willful, the Secretary did not seek review of that finding, and the issue was not directed for review. Accordingly, we would normally not reach the issue.[[8/]] We note, in any event, that the argument is without merit. A violation is willful if "it was committed voluntarily with either an intentional disregard for the requirements of the Act or plain indifference to employee safety." United States Steel Corp., 12 BNA OSHC 1692, 1703, 1986-87 CCH OSHD ś 27,517, p. 35,675 (No. 79-1998, 1986); see Donovan v. Mica Construction Co., 699 F.2d 431 (8th Cir. 1983). The facts of this case were stipulated, and nothing in the stipulation suggests that Amax acted with either an intentional disregard for the requirements of the Act or plain indifference to employee health. The Secretary bases the willfulness allegation on the undisputed fact that Amax knew of the lead standard's medical removal protection provisions. But an employer's knowledge that a standard exists does not establish that the employer knew it was violating the standard. Amax did in fact maintain the hourly wage rate of the employees it removed, but it disputed whether the standard also required it to maintain the existing levels of overtime compensation and payments for lunch period. A violation is not willful if an employer has a good faith difference of opinion with OSHA over what a standard requires. Keco Industries, 13 BNA OSHC 1161, 1169, 1986-87 CCH OSHD ś 27,860, p. 36,478 (No. 81-263, 1987).

We also reject Amax's argument that the judge properly classified the violation as de minimis. A de minimis violation is one which bears such a negligible relationship to employee safety or health as to render inappropriate the assessment of a penalty or entry of an abatement order. Cleveland Consolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ś 27,829, p. 36,429 (No. 84-696, 1987). We cannot say that the hazard here was negligible. The lead standard relies on employees consenting to have their blood tested to determine their blood lead level. Blood testing provides early detection of rising blood lead levels and triggers the medical removal of employees before their blood lead level exceed a certain amount. See note 2 supra. The purpose of medical removal protection benefits is to eliminate an economic disincentive for employees to consent to blood testing and to otherwise cooperate with the workplace medical surveillance program required under the lead standard. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d at 322. Thus, the hazard addressed by the standard is not negligible. See St. Joe Resources Co., OSHRC Docket No. 81-2267 (Apr. 27, 1989).

We conclude that the violation is properly classified as serious. The serious health hazard presented by metallic lead is well established. The MRP benefits provision attacks this hazard by removing barriers to complete employee cooperation with medical surveillance. It seeks to protect the employees who face the gravest risk of serious lead-related disease: those who have high blood lead levels and those who have other medical conditions that would place them at particular risk should they continue to be exposed to lead in the workplace. The standard also seeks to eliminate the possibility that employees fearing economic loss due to removal from their jobs would use chelating drugs, which have dangerous side effects, in an attempt to reduce their blood lead levels.

See St. Joe Resources Co., supra. Since the potential for serious harm exists whenever the MRP standard is violated, we conclude that Amax's violation of the standard was serious.

In determining an appropriate penalty, we find that Amax acted in good faith to protect its employees from the adverse health effects of high blood lead levels. Of the six employees removed from work involving exposure to high airborne lead levels, only one had a blood lead level sufficiently high to require removal. Amax transferred the remaining five, and paid them at their normal hourly wage rate, even though their blood lead levels did not require medical removal. Amax did violate the standard by not paying the removed employees for overtime, but that action was taken under a good faith interpretation of the standard. We conclude that a penalty of $60 is appropriate.

Normally, an order affirming a citation and establishing a penalty assessment would be sufficient to dispose of the case. However, there is one additional contention that we must address. The Secretary and the Union argue that the Commission should issue an order requiring Amax to pay the removed employees the specific amounts that were due them but not paid.

The Commission members are divided on the propriety of such an order. While Chairman Buckley is of the view that the employees who failed to receive full "earnings", as that term has been interpreted by the Fifth Circuit, are entitled to be paid retroactively for the period of time that they failed to receive full earnings, he is also of the view that the Review Commission is without authority to make individual compensatory awards to those employees. Under the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the Secretary is authorized to issue citations to employers alleged to have violated the Act or any standard, rule or regulation promulgated pursuant to the Act. The citation is required to specify the violation with particularity, and to prescribe a reasonable time for abatement. The Secretary must also notify the employer of any penalty proposed to be assessed. That Act also created the Occupational Safety and Health Review Commission and authorized it to hear cases brought before it involving safety and health violations, and to affirm, modify, or vacate the Secretary's citation or proposed penalty, or to direct "other appropriate relief". 29 U.S.C. § 659(c). The determination of the amount of pay to be awarded to an employee, and an order providing for individual compensatory relief to an employee, is clearly not the assessment of a civil penalty (which would be paid into the Treasury of the United States). Nor is it an "abatement" as used in the Act, which he would define as those actions required to terminate the violative condition. In this case, the failure to pay full "earnings" would be abated by the commencement to pay them. Nor does the awarding of individual compensatory relief to individual workers retroactively for earnings which they failed to receive constitute "other appropriate relief"[[9/]] The ordering of back pay is not necessary as an abatement measure to the termination of the violative condition. In Chairman Buckley's opinion, the Commission is without authority to make individual compensatory awards unless expressly so authorized by Congress (as Congress has done, for example, in the case of awards of attorney's fees and costs under the Equal Access to Justice Act).

Chairman Buckley emphasizes that the Commission's lack of authority to issue backpay orders to compensate employees who failed to receive full earnings does not leave the employees without a remedy. If the employers fail to compensate them fully and retroactively, there are forums authorized to resolve such disputes. Chairman Buckley's views on the Commission's lack of authority to issue awards of back pay should not be read as meaning that employees are not entitled to retroactive pay, only that the Commission is not the forum to award such pay. He agrees with Commissioner Arey that employees removed under the medical removal protection standard are entitled to continue to receive the full amount of remuneration that they were receiving before removal, whether that be contractual or voluntary overtime pay, production incentive bonuses, or other pay differentials. He stops short of agreeing to consider what those amounts are as to each individual employee, or whether they also are entitled to interest on the unpaid earnings.

Commissioner Arey would remand to the judge to calculate the amounts Amax improperly withheld under the terms of the medical removal protection standard and to order Amax to pay those amounts. She believes that payment of amounts improperly withheld is the abatement required when a violation of the MRP benefits provision of the standard is found, that ordering such payments is within the Commission's authority, and that such an order is generally appropriate to define the employer's abatement obligation and avoid a potential failure-to-abate proceeding. See St. Joe Resources Co., supra (separate views of Commissioner Arey).

Official action can be taken on the affirmative vote of at least two Commission members. 29 U.S.C. § 661(f). The Commission members both agree to find that Amax committed a serious violation of the cited standard and assess a penalty of $60. They are divided on the propriety of a "backpay" order, and therefore cannot issue such an order.

Accordingly, the citation is modified to allege a serious violation of 29 C.F.R. § 1910.1025(k)(2) and, as so modified, it is affirmed. A penalty of $60 is assessed.

FOR THE COMMISSION
RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: April 27, 1989

FOOTNOTES:

[[1/]] Insofar as is relevant here, the standard provides:

§1910.1025 Lead

(k) Medical Removal Protection

(2) Medical removal protection benefits--

(i) Provision of medical removal protection benefits. The employer shall provide to an employee up to eighteen (18) months of medical removal protection benefits on each occasion that an employee is removed from exposure to lead or otherwise limited pursuant to this section.

(ii) Definition of medical removal protection benefits. For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited.

[[2/]] The lead standard requires that an employee whose blood lead level exceeds a specified concentration be removed from a work area in which the ambient airborne concentration of lead exceeds a certain amount. Since the expiration of the phase-in period during which higher concentrations were permitted, the standard has required that an employee with a blood lead level at or above 50 ľg/100g of whole blood be removed from work having a daily eight hour time-weighted-average exposure to airborne lead at or above 30 ľg/m3. 29 C.F.R.
§1910.1025(k)(1)(i). [This case, however, arose during the phase-in period.] The standard also requires removal if a "final medical determination" establishes that an employee has a "detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead." 29 C.F.R. § 1910.1025(k)(1)(ii)(A).

[[3/]] In our initial decision in this case, and in the appeal before the Fifth Circuit, this case was consolidated with St. Joe Resources Co., OSHRC Docket No. 81-2267, and Schuylkill Metals Corp., OSHRC Docket No. 81-856. Because the cases no longer involve a single common legal issue, they are hereby severed pursuant to Commission Rule 10, 29 C.F.R. § 2200.10.

[[4/]] We must apply the Fifth Circuit's interpretation as the "law of the case." See In re Progressive Farmers Ass'n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. South Central Enterprises v. Farrington, 108 S. Ct. 1574 (1988). In another decision issued today, East Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989), we have overruled the Commission's decision in Amax and aligned the Commission's interpretation of the medical removal protection provision with that of the Fifth Circuit in United Steelworkers of America v. Schuylkill Metals Corp.

[[5/]] The Fifth Circuit said that paid lunch periods may be included in the payments and benefits that employees are entitled to receive under the standard. 828 F.2d at 320-22 & n. 4. However, we read this language to be consistent with the remainder of the court's decision, which focused on assuring that employees suffer no economic loss. As noted in the text, the court approved the Secretary's interpretation, which states that employees must receive the compensation they would have earned if not removed. The court also relied on the standard's preamble, which it found demonstrated a "near obsession that workers sustain no 'economic loss' because of removal ........" Id. at 322. Accordingly, we read the court's opinion to require employers to compensate a removed employee for paid lunch periods when failing to do so would reduce the employee's total compensation. We do not read either the court's opinion or the standard to require employers to pay employees more than they would have earned if not removed.

[[6/]] Because she rejects each of the arguments either on its merits or by applying the law of the circuit, Commissioner Arey finds it unnecessary to consider the arguments of the parties directed to the Commission's authority to rule on validity challenges, the argument that Amax's challenge is barred by collateral estoppel, and Amax's contention that the Secretary untimely raised the collateral estoppel issue.

[[7/]] The cited workplace and Amax's principal place of business are located in Missouri, which is in the Eighth Circuit. Although this case was previously appealed to the Fifth Circuit, that court only had jurisdiction because this case was consolidated with another case that arose in the Fifth Circuit. The cases have now been severed, and they must be appealed separately wherever jurisdiction lies.

[[8/]] Commission Rule 92(a), 29 C.F.R. § 2200.92(a), provides:

§ 2200.92 Review by the Commission.

(a) Jurisdiction of the Commission;

Issues on review. Unless the Commission orders otherwise, a direction for review establishes jurisdiction in the Commission to review the entire case. The issues to be decided on review are within the discretion of the Commission but ordinarily will be those stated in the direction for review, those raised in the petitions for discretionary review, or those stated in any later order.

[[9/]] In RSR Corp. v. Donovan, 733 F.2d 1142 (5th Cir. 1984), the court adverted to, but did not discuss or define, "other appropriate relief" in the one instance in which the Commission has issued what amounted to a retroactive pay order: the Commission ordered a remand of certain cases for a determination of the amount of medical removal protection benefits due the employees. However, the Commission had not said that it was ordering "other appropriate relief;" in fact, the Commission did not give any attention to what authority it had to issue such an order. RSR Corp, 83 OSAHRC 6/A2, 11 BNA OSHC 1163, 1983-84 CCH OSHD ś 26,429 (No. 79-3813, 1983). The court's reference to that term has little application here since the court was addressing only whether the Commission's decision was a final order from which the employer could appeal. Despite the remand for determination of benefits due, the employer wanted court review of the foundational portions of the Commission decision -- the Commission's affirmance of the underlying citations and penalties. The Secretary moved to dismiss the appeal on the ground that the Commission's decision was not final. On this the court replied, "Only a crabbed reading of section 10(c) [29 U.S.C. § 659(c)] would forbid review of an order that affirmed in part and modified in part both citations and penalties simply because the issue of what other (and additional) relief is appropriate has been remanded for determination." 733 F.2d at 1144. The court denied the Secretary's Motion to Dismiss. Whether the Commission had authority to order retroactive pay was not before the court, and the court gave the question no attention. Accordingly, Chairman Buckley declines to assign to the court's decision authority for the Commission to make individual compensatory awards.