SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, and its LOCAL UNION
8183,

Authorized Employee
Representative.

OSHRC DOCKET NO. 81-2267

ORDER

This case is before the Commission on remand from the United States Court of Appeals for the Fifth Circuit, the second time this case has been to the Court of Appeals.  United Steelworkers v. St. Joe Resources Co., 916 F.2d 294 (5th Cir. 1990).  The court has remanded the case for the Commission to determine the amounts of back pay due St. Joe Resources Company employees who, because they had elevated levels of lead in their blood, were transferred to other jobs with less exposure to lead, as required by the OSHA standard governing exposure to lead.

The Secretary of Labor had cited St. Joe Resources Company for violating the occupational safety and health standard at 29 C.F.R. § 1910.1025(k)(2),[[1/]] which requires that employees removed from their positions to lower-exposure jobs must maintain the earnings, rights and benefits they received before they were transferred.  In its first opinion in this case, the Court of Appeals concluded that "earnings" included not only base pay but also such premium payments as paid lunch periods, overtime pay, production bonuses, and shift differentials for scheduled night and evening work.  United Steelworkers v. Schuylkill Metals, 828 F.2d 314, 320 (5th Cir. 1987).  On remand, the two-member Review Commission voted to vacate the order of the administrative law judge, but the commissioners split on the disposition of the case.  One of the Commissioners was of the opinion that the Review Commission could order the employer to pay back pay.  The other held the opinion that, under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, the Review Commission had no such power.

In its second decision in this case, the Court of Appeals has concluded that the Review Commission does have the power to order back pay.   The court therefore remanded the case for the Commission to determine the amounts of back pay owed to the employees identified in the citations issued to St. Joe Resources.

We, in turn, remand this case for an administrative law judge to make the necessary findings of fact and enter an order requiring payment of back pay, as directed by the court.  If it is necessary to do so, the judge may reopen the record to take evidence on this question.

Accordingly, this case is remanded to the Chief Administrative Law Judge for assignment and for further proceedings consistent with this order.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: December 4, 1990

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, and its LOCAL UNION
8183,

Authorized Employee
Representative.

OSHRC DOCKET No. 81-2267

DECISION

Before:  BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case involves the medical removal protection ("MRP") 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 the second time.  In the first decision, the Commission concluded that St. Joe Resources Company ("St. Joe") did not violate the standard by failing to include overtime compensation and shift differential payments in the amounts it paid to an employee under the provision.[[3/]]  Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ¶ 27,629 (No. 80-1793, 1986).  That decision was reversed by the Fifth Circuit, which said that the standard was "intended to include within 'earnings' precisely the kind of premium payments at issue here."  United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 321 (5th Cir. 1987).  The court remanded "for further proceedings attuned to this opinion".   Id. at 323.

I

Our first decision set forth the relevant facts, and we will only briefly summarize them here.  An employee at St. Joe's zinc smelter was removed from his position as "weighman" because of an elevated blood lead level and was transferred to a position as laborer, a job that did not expose him to excessive lead.  During the removal period, he worked 40 hours per week and was paid at the base hourly rate he would have received as a weighman.  However, had he remained a weighman, the employee would have worked a certain number of hours of overtime under a schedule incorporated in St. Joe's collective bargaining agreement with the United Steelworkers of America.  The employee would also have received additional payments ("shift differentials") for scheduled evening and night work.  Also, while employed as a weighman, the employee had been given the opportunity to work additional hours of overtime beyond those scheduled, and during his 16 weeks in that position, he had worked 45 hours of such voluntary overtime. Thus, the employee's weekly pay during the removal period was less than he would have received if he had remained a weighman.

The Fifth Circuit held that the lead standard's medical removal protection provision requires an employer to assure that a removed employee does not suffer economic loss.  Under that interpretation, St. Joe was required to pay its employee at least the scheduled overtime compensation and shift differential payments he would have earned if not removed.[[4/]]  Accordingly, St. Joe failed to comply with the standard.[[5/]]

II

St. Joe argues that the medical removal protection provision of the lead standard was invalidly promulgated because the Secretary of Labor lacked the authority to adopt such a requirement.  The Commission members both reject St. Joe's argument, but for different reasons.

Chairman Buckley believes that Commission consideration of the argument is foreclosed by the Fifth Circuit's remand order.  The argument raised by St. Joe was 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.  In Chairman Buckley's view, this language demonstrates that the Fifth Circuit considered the validity of the standard to be an established fact, at least for purposes of this case.  Chairman Buckley therefore concludes that the court's remand order precludes the Commission from ruling on the validity argument raised by St. Joe.

Commissioner Arey does not believe that the Fifth Circuit's decision precludes consideration of the issue.  She notes that the validity argument was 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 St. Joe's validity argument, and would reject it on its merits.[[6/]]

St. Joe's argument contains several prongs.  The company first argues that the Act only authorizes the Secretary to issue standards to protect employee safety and health, and the MRP provision does not meet this criterion because it "does not prevent employee illnesses or biological changes in their bodies resulting from exposure to inorganic lead."  Instead, St. Joe contends, the MRP provision is like a workers' compensation scheme, requiring payments for biological changes to workers' bodies that have already occurred.

It is true that the Secretary only has the authority to issue standards that promote workplace safety and health.  American Textile Manufacturers Institute v. Donovan, 452 U.S. 490, 540 101 S.Ct. 2478, 2506 (1981).  In Commissioner Arey's view, however, it is abundantly clear that the medical removal protection provisions of the lead standard, including the requirement for the payment of medical removal protection benefits, fulfill this purpose.  The standard limits the amount of lead employees inhale and ingest by establishing a permissible exposure limit for airborne lead and through other provisions that prevent exposure to lead.  However, during the rulemaking proceedings, the Secretary found that some employees would still have excessive blood lead levels even if those limits were met.  43 Fed. Reg. 52952, 52963 (Nov. 14, 1978).  The Secretary was concerned that these employees, as well as employees who had medical conditions that would be aggravated by exposure to lead, would have their health endangered if they remained in jobs where they would be exposed to significant amounts of lead.  Therefore, the Secretary adopted the MRP provision, requiring that such employees be removed from jobs involving high levels of lead exposure, as a "fall-back mechanism to protect individual workers in circumstances where other protective mechanisms were insufficient."  43 Fed. Reg. at 52973.

In order to determine whether an employee's health would be endangered by continued exposure to lead, it is necessary to measure the employee's blood lead level and to rely on the employee to disclose other medical conditions that could lead to medical removal. However, the Secretary found that employees faced with the potential loss of their income if they cooperate with medical surveillance will often withhold such cooperation, thereby sacrificing their health for their paycheck.[[7/]] 43 Fed. Reg. 54354, 54422 (Nov 21, 1978).  The requirement for payment of MRP benefits was therefore included in the standard to eliminate the likelihood that employees would endanger their physical health to assure their economic health.   See East Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989) (Arey, concurring).

Commissioner Arey believes that the Secretary's rulemaking findings, based as they were on an extensive rulemaking record, are entitled to deference.  Id. at n. 5. Moreover, she notes that those findings are supported by common sense.  The vast majority of employees, particularly those in the types of industrial jobs that involve exposure to lead, can ill afford to be removed from their jobs if this will result in the loss, or even a decrease, in their paychecks.  Commissioner Arey therefore concludes that the requirement for payment of MRP benefits is directly related to the protection of employee health, and she rejects St. Joe's contrary argument.

St. Joe also contends that Congress specifically intended to withhold from the Secretary the authority to require employers to pay MRP benefits.  The company's arguments in support of this claim are the same arguments that were specifically considered and rejected by the D.C. Circuit, and Commissioner Arey would reject these arguments for the reasons given by the court.  United Steelworkers of America v. Marshall, 647 F.2d at 1232-36.

III

St. Joe also argues that the citation should be vacated because the Secretary did not show that abatement of the violation will reduce a significant risk of harm.  St. Joe points out that the purpose of the medical removal protection provision is to induce employees to cooperate with the lead standard's medical surveillance provisions, and particularly to consent to blood testing.[[8/]]  St. Joe, however, required its employees to undergo medical surveillance.  Failure to cooperate with medical surveillance would subject an employee to discipline, up to and including discharge.  Therefore, according to the company, the standard's purpose was achieved in its workplace, and there was no significant risk that the health of its employees would be endangered by its failure to pay MRP benefits.  St. Joe relies on Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981), for the proposition that the Secretary must "demonstrate that abatement will reduce a significant risk of harm."

To prove that an employer violated an OSHA standard, the Secretary must establish (1) the applicability of the standard; (2) the employer's noncompliance with the standard; (3) employee exposure or access to the violative condition; and (4) that the employer knew or with reasonable diligence could have known of the violative condition.  See Dun-Par Engineered Form Co., 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD ¶ 27,650 at p. 36,019 (No. 79-2553, 1986), rev'd on other grounds, 843 F.2d 1135 (8th Cir. 1988).  St. Joe argues that the Secretary should bear an additional burden by being required to prove that the violation creates a significant risk of harm to employees.  While that burden exists in some cases, this is not such a case.

Some OSHA standards, by their terms, only require an employer to take corrective action where a "hazard" or "danger" exists.  For such standards, the Secretary must show that employees are subjected to a significant risk of harm in order to prove that a hazard exists.  Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 63-64 (2d Cir. 1983);[[9/]] Donovan v. General Motors Corp., 764 F.2d 32, 35-36 (1st Cir. 1985); Kastalon, Inc., 12 BNA OSHC 1928, 1937-38, 1986, CCH OSHD ¶ 27,643, p. 35,980 (No. 79-3561, 1986).  However, a standard that does not condition the employer's obligation to take corrective action on the existence of a hazard presumes that a hazard exists if the standard's terms are not met.  The Secretary need not prove that an employer's violation of such a standard exposes employees to a significant risk of harm.  Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1114-15 (7th Cir. 1982); Bunge Corp. v. Secretary of Labor, 638 F.2d 831, 834 (5th Cir. 1981).  Cf. Pratt & Whitney Aircraft v. Donovan, 715 F.2d at 63-64 (discussing distinction between standards that presume the existence of a hazard and those that do not).

The medical removal protection provision does not condition an employer's responsibility to pay MRP benefits on proof that employees will be subjected to a hazard if the payments are not made.  The Secretary therefore need not prove that the employer's failure to make MRP payments exposes employees to a significant risk of harm.  The Secretary met her burden of proof, and we conclude that St. Joe violated the standard.

St. Joe also argues that its policy of requiring employees to cooperate with medical surveillance, by eliminating the hazard against which the standard is directed, renders the violation de minimis.  A violation is de minimis when there is technical noncompliance with a standard, but the departure bears such a negligible relationship to employee safety or health as to render inappropriate the assessment of a penalty or the entry of an abatement order.  Cleveland Consolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ¶ 27,829, p. 36,429 (No. 84-696, 1987).  St. Joe argues that the step it has taken to assure employee cooperation with medical surveillance--mandating such cooperation under threat of discipline--is as effective as the means required by the standard: payment of MRP benefits.  Therefore, according to the company, it has eliminated the hazard addressed by the standard, and its failure to pay full MRP benefits bears no relationship to employee safety or health.

St. Joe's argument must be rejected because it questions the wisdom of the standard.  In promulgating the lead standard, the Secretary rejected the suggestion that the standard should require that employees cooperate with medical surveillance.  Instead, the Secretary chose to encourage such cooperation by providing for medical removal protection benefits.  The de minimis classification cannot be used to override the Secretary's rulemaking decision. General Carbon Co. v. OSHRC, 860 F.2d 479, 487 (D.C. Cir. 1988).  Therefore, even if we were persuaded that St. Joe's substitute for MRP benefits would be equally effective in providing a safe and healthful workplace, we would not find the violation de minimis.

We note, however, that there is another flaw in St. Joe's argument.  St. Joe assumes that mandating employee cooperation with the standard's medical surveillance provisions will fully accomplish the objective of the medical removal protection provision.  However, the Secretary had an additional concern when he adopted the MRP standard.  Certain types of drugs, called chelating drugs, remove lead from the bloodstream but have harmful side effects.  The Secretary was concerned that mandatory blood tests would induce employees to resort to chelating drugs to reduce their blood lead levels if high blood lead levels could lead to loss of income, thereby exposing the employees to the adverse health effects the drugs can cause.[[10/]]  The requirement that employers pay medical removal protection benefits was not only intended to induce employee cooperation with medical surveillance, but also to eliminate any reason for employees to use chelating drugs to reduce their blood lead levels.  An employer policy mandating employee cooperation with medical surveillance might induce employees to endanger their health by using chelating drugs and would therefore not protect employee health as well as the payment of MRP benefits.

IV

The administrative law judge found that the violation was properly classified as serious.  We agree.  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 protect employees by eliminating the possibility that they will use chelating drugs to reduce their blood lead levels and thereby expose themselves to the serious health risks such drugs can cause.

A violation that could result in serious damage to the health of employees is properly classified as serious.  Phelps Dodge Corp., 83 OSAHRC 29/A2, 11 BNA OSHC 1441, 1448-49, 1983 CCH OSHD ¶ 26,552, p. 33,925 (No. 80-3203, 1983), aff'd, 725 F.2d 1237 (9th Cir. 1984).  The MRP standard is designed to protect particularly susceptible employees against the serious health risk presented by workplace lead exposure, as well as avoid serious health risks from the use of chelating drugs.   Since the potential for serious harm exists whenever the MRP standard is violated, we conclude that St. Joe's violation of the standard was serious.[[11/]]

The Secretary proposed, and the judge assessed, a penalty of $60.  Although the violation was serious, St. Joe exhibited good faith in implementing a medical surveillance program and in making those MRP benefit payments it believed were due under its reasonable but erroneous interpretation of the standard's requirements.  We conclude that a penalty of $60 is appropriate.

V

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 St. Joe to pay the removed employee the specific amounts that were due him but not paid.  St. Joe contends that the Commission lacks the authority to issue such an order.  St. Joe also argues that 29 U.S.C. § 659(b) [[12/]] tolls any requirement for abatement while a contest is pending before the Commission, and that this provision means that any duty it has to pay overtime compensation and shift differential payments under the MRP standard cannot apply retroactively to require it to make the payments withheld in this case.

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".[[13/]]  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 accepting St. Joe's argument 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, paid lunch time, 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 issue an order requiring St. Joe to pay the amounts it improperly withheld under the terms of the medical removal protection standard.  She believes that the Commission has the authority to issue this type of order and that such an order is appropriate in this case to resolve the disputed issues between the parties concerning what St. Joe must do to abate the violation.  St. Joe argues that it need not pay past-due amounts; the Secretary and the Union argue otherwise.  The parties also dispute whether St. Joe is required to make payments for voluntary overtime, in addition to the payment for scheduled overtime and shift differential payments.  Commissioner Arey believes that the Commission, which sits to resolve disputes that arise under the Secretary's standards, can and should decide the issues presented by the parties.  If those issues remain unresolved, the uncertainty over St. Joe's abatement obligation will continue and could result in the issuance of a failure-to-abate notification if St. Joe does not pay the amounts the Secretary believes are due.  Commissioner Arey believes it would be preferable to define St. Joe's obligation now and eliminate the need for a potential failure-to-abate proceeding.

Commissioner Arey would reject St. Joe's argument that 29 U.S.C. § 659(b) relieves it of responsibility for paying past-due amounts.  Section 659(b) provides that the abatement period does not begin to run in this case until the Commission enters a final order.[[14/]]  St. Joe contends that the meaning of this statutory provision is that it is only required to make MRP benefit payments for medical removals that occur after the date of the Commission's final order.  However, the Secretary and the Union argue that the tolling provision controls only the timing of abatement, not the requirement of abatement, and that abatement of the violation requires St. Joe to pay the amounts it withheld from the employee whose removal led to this case.

Commissioner Arey believes that the Secretary and the Union are correct.  The specific violation alleged and proved in this case was St. Joe's failure to make MRP benefit payments to a single employee, Simpson Butler, during the period of his medical removal. Butler was removed from his old job as a weighman on or about July 17, 1981, and he was still in removal status when the citation was issued on September 11, 1981.  That citation ordered St. Joe to abate the violation on or before September 29, 1981, that is, eighteen days after the citation's issuance.  In Commissioner Arey's view, the abatement required under the citation was, and is, payment to Butler of the benefits that were improperly withheld from him for the work he would have performed as a weighman between July 17 and September 11, 1981, if he had not been medically removed from that position.  Only by making these specific payments can St. Joe abate the violation that has been alleged and proved in this case.  The effect of section 659(b) and St. Joe's notice of contest has been to toll this abatement requirement during the pendency of proceedings before the Commission and its judge.  Once the Commission issues its final order, however, St. Joe's duty to abate will be reinstated.  This means that St. Joe will then have the same period specified in the citation (eighteen days) to abate the violation by compensating Butler for the MRP benefits it improperly withheld from him for the work he would have performed between July 17 and September 11, 1981.

Abatement of occupational safety and health violations can require the expenditure of considerable resources by employers.  The tolling provision in section 659(b) permits employers to obtain a Commission ruling on whether such expenditures are in fact required by the Act before the employers must make them.  But section 659(b) does not mean that an employer can avoid entirely the need to make expenditures required by a standard.  Commissioner Arey therefore concludes that, once the Commission issues a final order, St. Joe must pay the amounts it improperly withheld.

Commissioner Arey would also hold that St. Joe is not only required to pay the removed employee for improperly withheld scheduled overtime and shift differential payments, as found by the administrative law Judge, but is also required to compensate him for improperly withheld voluntary overtime payments.   In her view, the standard generally requires the employer to pay a removed employee the same total amount after removal as before or, in other words, to make the employee whole.  East Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989) (concurring opinion).  Although St. Joe's employee had the right to refuse voluntary overtime, he had a history of accepting it.  Based on this past history and records of the amount of voluntary overtime that was available during the period of his medical removal, the Commission could make a reasonably reliable estimate of the amount of voluntary overtime Butler would have earned if he had not been removed.  Accordingly, the judge erred in failing to compensate the employee for improperly withheld voluntary overtime payments based on his conclusion that these payments were too speculative to be included in his backpay order.

Official action can only be taken on the affirmative vote of at least two Commission members.  29 U.S.C. § 661(f).  The Commission members both agree to affirm the serious citation and assess a penalty of $60.   They are divided on the propriety of a "backpay" order, and therefore cannot issue such an order.[[15/]]

Accordingly, the citation alleging a serious violation of 29 C.F.R. § 1910.1025(k)(2) is affirmed.  A penalty of $60 is assessed.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: April 27, 198

SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

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

Authorized Employee
Representative.

OSHRC Docket No. 80-1793

SECRETARY OF LABOR,

Complainant,

v.

SCHUYLKILL METALS CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 8394,

Authorized Employee
Representative.

OSHRC Docket No. 81-0856

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO and LOCAL 8183,

Authorized Employee
Representative.

OSHRC Docket No. 81-2267

DECISION

BEFORE:  BUCKLEY, Chairman, RADER and WALL, Commissioners.

BUCKLEY, Chairman:

These consolidated cases[[1]] are before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA").  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. § 659(c).

These cases involve the interpretation of the medical removal protection benefits ("MRP benefits") provision of the standard at 29 C.F.R. § 1910.1025, which regulates occupational exposure to lead.  The lead standard primarily seeks to protect workers from the adverse effects of lead on their health by limiting the amount of lead they inhale and ingest.  The MRP provision is a "backup" requirement that is intended to protect employees who are not adequately protected by the other provisions of the standard.  If an employee's blood lead level exceeds certain limits or if the employee would otherwise experience certain risks to his health from continued lead exposure, the standard requires the employer to remove the employee from excessive lead exposure.  For an employee transferred under this requirement, the MRP benefits provision requires the employer to "maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed . . . . " 29 C.F.R. § 1910.1025(k)(2)(ii).  In these cases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, and St. Joe Resources Company transferred certain employees who had elevated blood lead levels from jobs with high lead exposures to positions outside high lead areas.  The employers paid the transferred employees their regular wage rate for the 40-hour weeks the employees worked during the periods of transfer.  The Secretary of Labor alleges that the employers violated the MRP benefits provision by not paying the transferred employees for potential overtime, production bonuses, shift differentials, and paid lunch periods that were incidents of the jobs they held before their transfers but not of the jobs to which they were transferred.  We conclude that the employers complied with the standard by paying the employees their regular wage rate for a 40-hour week, and we therefore vacate the citations.

I

It has long been known that lead is highly toxic to humans.  Lead that is inhaled or ingested enters a person's bloodstream, where it is carried to the various organs throughout the body.  In excessive amounts, lead can damage vital organs, notably the kidneys, the reproductive system, and the central nervous system.

Before 1975, an OSHA standard limited the amount of airborne lead to which an employee could be exposed to 200 micrograms per cubic meter of air ("µg/m³") averaged over an 8-hour day.[[2]]  In 1975, the Secretary of Labor, believing the existing standard was not sufficiently protective, proposed a new standard that would both lower the permissible exposure limit and adopt a number of other provisions intended to protect lead-exposed employees.  40 Fed. Reg. 45934 (Oct. 3, 1975).  Following lengthy rulemaking proceedings, the Secretary promulgated the standard here at issue.  43 Fed. Reg. 52952 (Nov. 14, 1978).[[3]]

Because lead reaches vital organs through the bloodstream, much of the Secretary's rulemaking effort focused on controlling the amount of lead in workers' blood.  The secretary first attempted to determine the maximum concentration of lead in the blood that would not produce material impairment of workers' health.  He found that serious lead poisoning occurs at blood lead levels of 80 micrograms per 100 grams of blood ("µg/100g"), 43 Fed. Reg. at 52954, but that other adverse health effects occur at lower blood lead levels.  These levels were referred to in the rulemaking proceedings as "subclinical effects," and can be defined as "physiological changes which can be detected by sophisticated laboratory tests, but not by either ordinary clinical examination or by the patient himself, which may be irreversible, and which likely bear a causal relationship with overt lead disease."  United Steelworkers of America, AFL-CIO v. Marshall, 647 F.2d 1189, 1249 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) ("Steelworkers").   The Secretary found that these subclinical effects become significant at blood lead levels of 40 µg/100g and higher.  43 Fed. Reg. at 52954-60.  Finding that the presence of subclinical effects constituted material impairment of health, the Secretary established the objective of maintaining the blood lead levels of lead-exposed workers at no higher than 40 µg/100g.  Id.

The Secretary also found, however, that a blood lead level at or below 40 µg/100g for all workers could not be feasibly achieved. Because people differ in the manner in which they absorb lead, at any particular level of airborne lead a group of workers will exhibit a range of blood lead levels.  The Secretary found that the lowest airborne level the major lead-based industries could feasibly achieve was 50 µg/m³ and he therefore established that level as the permissible exposure limit for airborne lead.[[4]]  43 Fed. Reg. at 52963.  He also found that approximately 30% of workers would have blood lead levels over 40 µg/100g when uniform compliance with the 50 µg/m³ permissible exposure limit was achieved. Id.

In order to protect the health of employees who would not be adequately protected by the permissible exposure limit, the standard requires employers to establish programs of medical surveillance.  29 C.F.R. § 1910.1025(j).  The key to medical surveillance is blood testing, which the employer must offer to all employees exposed to an "action level" of 30 µg/m³ for 30 or more days per year.  Subsections 1910.1025(j)(1) and (2).  If an employee is found to have a blood lead level exceeding a certain amount--50 µg/100g when the standard becomes fully effective--the medical removal protection provisions of the standard come into play. Subsection 1910.1025(k).  The employer must remove the employee from exposure to lead above the action level until two consecutive blood tests show that the employee's blood lead level has returned to no more than 40 µg/100g.  Subsections 1910.1025(k)(1)(i) and (iii).  An employee must also be removed from exposure to lead above the action level without regard to his blood lead level if it is determined that "the employee has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead."  Subsection 1910.1025 (k)(1)(ii).  Such an employee can be returned to his previous position if it is found that his medical condition has changed such that exposure to lead no longer places him at increased risk of material health impairment.  Subsection 1910.1025 (k)(1)(iii)(A)(4).

If an employee is removed from exposure to excessive lead due to an elevated blood lead level or other medical condition, the employer must pay the employee MRP benefits.  Subsection 1910.1025 (k)(2)(ii) provides:

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.

The employer is required to provide MRP benefits, i.e., "maintain the earnings, seniority and other employment rights and benefits of an employee," for up to 18 months on each occasion an employee is removed from excessive lead exposure.  Subsection 1910.1925(k)(2)(i).  The Secretary included this requirement in the standard in order to induce employees to cooperate with medical surveillance.  He was concerned that employees, faced with the possible loss of their income if medical surveillance showed they should be removed from lead exposure, would refuse to cooperate with the standard's medical surveillance provisions and thereby risk endangering their health.  Thus, "MRP was included in the final standard as a means of maximizing meaningful participation in medical surveillance provided to lead-exposed workers."  43 Fed. Reg. at 52973.

II.

A. Amax-Lead Company, Docket No. 80-1793

Amax operated a primary lead smelter in Missouri.  In late 1979 and early 1980, the company transferred six employees from areas of high lead exposure to low exposure areas[[5]] due to their elevated blood lead levels.  After about three months, the blood lead levels of these employees returned to acceptable levels.  Four of the employees returned to their previous jobs while two bid for and won other jobs in the facility.

Before their transfers, the six employees worked in positions that had to be filled during the plant's entire 24-hour workday.  For such jobs, the day was divided into three 8-hour shifts.  Each employee was paid for a full 8 hours but was allowed a half-hour for lunch.  The six employees were transferred to the mine/mill unit, which did not operate during the entire 24 hour day.   Workers in this unit therefore worked 8 1/2 hour shifts, getting paid for 8 hours but not for their half-hour lunch break.

The transferred employees were paid for their 40-hour work week at their regular base rate of pay.  In their regular jobs, they would also have had the opportunity to work overtime.  The collective bargaining agreement between Amax and the United Steelworkers of America provided that overtime would be distributed "as equitably as practical" among employees in each job classification. Available overtime was offered to employees in order of seniority.  They could either accept or refuse when their turn came.  The company kept and posted records showing for each employee the hours of overtime worked, the hours refused, and the total. Employees unavailable when overtime was offered, including those transferred to low exposure jobs, were considered to have refused offers of overtime work.  Thus, for each of the six transferred employees, the company had records showing the amount of overtime they "refused" during their transfers.

B. Schuylkill Metals Corporation, Docket No. 81-0856

Schuylkill operated a secondary lead smelter in Louisiana.  The plant's production department had a high airborne lead concentration, while the change house had a low lead concentration.  Employees in the change house performed janitorial duties such as washing work clothes and repairing respirators.

Under the normal work schedule in the production department, employees worked six 40-hour weeks and two 48-hour weeks in any 8-week period.   They thus averaged two hours of overtime per week.  Production department employees were also eligible to receive production incentive bonuses, which were based on the daily amount of production in excess of a certain base amount. Production incentive bonuses varied among the workers on a shift based on performance criteria unique to the individual.  In the change house, employees worked a 40-hour week.  They did not work overtime and were not eligible for production incentive bonuses.

Between January 1, 1980 and December 4, 1981, Schuylkill temporarily transferred a number of employees from the production department to the change house. [[6]]  While in the change house the employees were paid at the hourly wage rate they had earned in the production department.  They did not, however, receive either overtime pay or production incentive bonuses.

C. St. Joe Resources Company, Docket No. 81-2267

St. Joe operated a zinc smelter in Pennsylvania.   In 1981, the company transferred one employee---Simpson Butler--pursuant to the MRP provision of the lead standard.  Butler had been hired in 1980 as a laborer, a position that did not involve excessive lead exposure.  On April 2, 1981, he was awarded the position of "weighman" but, on July 17, 1981, he was returned to the laborer position due to an elevated blood lead level.

The plant operated 24 hours per day, seven days per week, and the weighman job had to be covered at all times.  To accomplish this, the weighmen were divided into four shifts that worked 20-week rotating schedules.  Each shift included various amounts of night, weekend, and overtime work, but the actual schedule would vary during the 20-week rotation.

St. Joe's collective bargaining agreement provided that weighmen would receive 1.5 times their base rate for scheduled Sunday and sixth day work ("scheduled overtime").  The agreement further provided for extra hourly pay ("shift differentials") for scheduled evening and night work.  A weighman who worked all of his scheduled time during a 20-week rotation would thus receive a total amount of compensation, including scheduled overtime and shift differentials, that would exceed the employee's base rate of pay multiplied by the number of hours actually worked.  However, each employee's pay during any particular two-week pay period would depend on the hours actually worked during that period, including the scheduled overtime and shift differentials actually earned.

Employees were also given the opportunity to work voluntary overtime.  The amount of such overtime available varied with the needs of the plant.  Employees signed up if they were interested in voluntary overtime and would be offered such overtime as the plant's needs and their skills allowed.   Voluntary overtime did not necessarily involve the employee's regular duties.  During his 16 weeks as a weighman, Butler worked all of his regular shifts and also worked 45 hours of voluntary overtime.

When Butler was transferred, he was assigned duties as a laborer for an 8 hour per day, 40 hour per week shift.  As a laborer, Butler was paid the base rate he received as a weighman, but he worked no scheduled overtime or night shifts and received no overtime pay or shift differentials.  He refused the one offer of voluntary overtime he received.

III

The MRP benefits provision requires that employers maintain the "earnings, seniority and other employment rights and benefits of an employee" who is transferred under the standard's MRP provisions.  The question presented by these cases is what an employer must pay a transferred employee in order to maintain that employee's "earnings."  The employers contend that they need only pay an employee who works a normal 40-hour week after being transferred his regular hourly rate of pay for those 40 hours, while the Secretary and unions claim the provision requires the employer to also pay additional amounts the employee could have earned if he had not been transferred.  In their view, Amax, Schuylkill, and St. Joe violated the standard by not paying their transferred employees for potential overtime, shift differentials, production incentives, and paid lunch periods (collectively, "premium payments") they would have received but for the transfers.

In interpreting a standard, the Commission employs the same rules of construction that are used to discern the meaning of statutes. Bunge Corp., 86 OSAHRC, 12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHD ¶ 27,565, p. 35,804 & n.12 (No. 77-1622 et al, 1986).  Ultimately, we must determine the intent of the standard's drafter, in this case the Secretary, at the time the standard was adopted.  The most compelling evidence of a drafter's intent is, of course, the plain meaning of the words he used.  Id.  In this case, however, the meaning of the crucial word "earnings" is not so plain as to enable us to resolve the dispute between the parties. "Earnings" is not a word of art but is a general term broad enough to encompass the interpretations offered by all of the parties.   One dictionary defines "earnings" as "money earned; wages; profits."  Random House Dictionary of the English Language 448 (1971).   Another defines it as "something (as wages or dividends) earned as compensation for labor or the use of capital."  Webster's Third New International Dictionary 714 (1971).  Because the issue cannot be resolved on the basis of the word's plain meaning, we must look to the legislative history of the standard to discern the Secretary's intent when he promulgated the standard.

The lead standard was the first, and is still the only, OSHA standard containing a comprehensive MRP benefits provision.  However, in adopting the standard, the Secretary did not write on an entirely clean slate.  The issue of MRP benefits had previously been addressed in several contexts, and these provide a background for examining the Secretary's intent when he included the MRP benefits provision in the lead standard.

The first federal law containing a MRP benefits provision was the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801 et seq. ("Mine Act").[[7]]  That statute provides that any miner showing evidence of black lung disease be given the opportunity to transfer to a position for which the dust level is sufficiently low to prevent further development of disease.   30 U.S.C. §§ 843(b)(1) and (2).  Any miner so transferred must be compensated at "not less than the regular rate of pay received by him immediately prior to his transfer."  30 U.S.C. § 843(b)(3).  This provision has been interpreted to mean that a miner need only be paid at the same daily rate he was receiving just prior to transfer, not the amount he would have earned if he had not been transferred.  Higgins v. Marshall, 584 F.2d 1035 (D.C. Cir. 1978), cert. denied, 441 U.S. 931 (1979).  When he adopted the OSHA lead standard, the Secretary was aware of both this provision of the Mine Act and of the interpretation placed on it in Higgins v. Marshall, for he discussed these matters in the preamble to the OSHA standard.  43 Fed. Reg. at 54447-49.

The Secretary considered MRP benefits in rulemaking proceedings for two other standards before the adoption of the lead standard. One of the first standards issued by the Secretary after notice-and-comment rulemaking regulated occupational exposure to asbestos.  29 C.F.R. § 1910.1001.  That standard contains a limited MRP provision, applicable only to employees who would be required to wear respirators but who are medically incapable of doing so.

Such employee shall be rotated to another job or given the opportunity to transfer to a different position whose duties he is able to perform with the same employer, in the same geographical area and with the same seniority, status, and rate of pay he had just prior to such transfer, if such a different position is available.

29 C.F.R. § 1910.1001(d)(2)(iv)(c) (emphasis added).  Subsequent rulemakings continued the practice of considering MRP protection as maintenance of the employee's "rate of pay."  The term "rate retention," implying maintenance of an employee's "rate of pay," was often used as a synonym for medical removal protection.  In promulgating a standard regulating exposure to coke oven emissions, the Secretary considered a recommendation that he adopt a MRP provision.  The recommendation was that removal of an employee from exposure should "not result in loss of earnings or seniority status to the affected employee."  (Emphasis added.) The Secretary referred to this recommendation as a "rate retention provision."  41 Fed. Reg. 46780 (Oct. 22, 1976). The Secretary did not, however, include such a provision in the coke oven standard.  29 C.F.R. § 1910.1029.

The next standard promulgation proceeding in which the Secretary considered MRP protection involved the lead standard at issue here.   The Secretary first proposed a standard that did not contain a MRP provision.   40 Fed. Reg. 45934 (Oct. 3, 1975).  After receiving comments and holding informal public hearings on the proposed standard, the Secretary announced an additional comment period for the submission of written data, views, and arguments on medical removal protection.  42 Fed. Reg. 46547 (Sept. 16, 1977).  The announcement stated:

The medical surveillance provisions of the lead standard should include a requirement for medical removal protection.  This requirement would maintain the rate of pay, seniority, and other rights of an employee for the time period, or a portion thereof, that the employee is transferred or removed from his or her job as a result of an increased health risk from exposure to lead.  After a follow-up medical examination and opinion, the following options would be available with no loss of earnings or rights:  Return to the original job, assignment to a different job (transfer), or continuation of the transfer or removal.

Id. at 46548 (emphasis added).  Another passage in the same announcement stated:  "Ninety days was mentioned as one time period for earnings protection ('rate retention')."  Id. at 46549.  Thus, the announcement gave notice that the Secretary was considering the traditional type of MRP protection in which the employee's rate of pay would be maintained during removal.  It used the words "earnings" and "earnings protection" synonymously with "rate of pay" and "rate retention."

When he issued the lead standard, the Secretary did not use the terms "rate of pay" or "rate retention," but mandated that employers maintain the "earnings" of transferred employees.  The Secretary contends that his choice of the word "earnings" instead of "rate of pay" is significant.  He asserts that if he intended to limit MRP benefits to "rate of pay," he would have included language such as is found in the Mine Act instead of the language he actually chose.

We cannot conclude that the Secretary deliberately used the word "earnings" in the final standard to indicate that he intended something different than "rate of pay."  As we have noted, in the announcement in which MRP protection was injected into the rulemaking proceeding, the Secretary used "earnings" synonymously with "rate of pay."  Therefore, when he used "earnings" in the final standard, the most logical conclusion is that he was again using it as a synonym for "rate of pay," particularly since he did not express any different intent.  As St. Joe points out, the Secretary is sophisticated in labor matters and knows that compensation issues often involve overtime and other premium payments.  Thus, if the Secretary made a deliberate decision that premium payments were to be included in MRP benefits, it is reasonable to infer that he would have made such an intent explicit.  See United States v. American Trucking Associations, 310 U.S. 534, 544 (1940) ("a few words of general connotation appearing in the text of statues should not be given a wide meaning, contrary to a settled policy, 'except as a different purpose is plainly shown'.")

A further indication that "earnings" was not meant to include premium payments is the absence of evidence that the subject of premium payments received any attention in the rulemaking proceedings.  As noted above, the announcement that injected MRP into the rulemaking indicated that a traditional "rate retention" rule was being considered.  The comments submitted in response to this announcement reflect that employees had one overriding concern:   that their cooperation with the medical surveillance provisions of the standard not lead to the loss of their jobs.  The Secretary cited the testimony of Anthony Mazzocchi, vice president of the Oil, Chemical and Atomic Workers Union, that the absence of an MRP provision would force employees to choose between their jobs and their health.  43 Fed. Reg. at 54442.  In the preamble to the lead standard the Secretary noted that the potential loss of one's job will create a substantial deterrent to an employee's cooperation with the standard's medical surveillance provisions.  However, there is nothing in the preamble to indicate that the Secretary also believed that the potential loss of premium payments would create a comparable deterrent.  The Secretary simply did not address the subject of premium payments.

The only indication in the standard's legislative history that the subject of premium payments was considered at all was a suggestion by the United Steelworkers of America that the Secretary include a definition of "earnings" in the standard.  The Secretary declined this invitation, saying:

The United Steelworkers of America urged that the standard include a detailed definition of the term "earnings," listing all the possible forms of direct and indirect compensation which an employer might have normally given a worker in the absence of a removal.  (Ex. 452, p. 44.)  OSHA rejected the adoption of such a detailed definition because it would likely be confusing to some employers in light of the many contexts in which the standard will apply.  To comply with the standard, an employer need only maintain the removed worker as though no removal had occurred.

43 Fed. Reg. at 54466.  If the Secretary truly intended that "earnings" would include premium payments, the suggestion by the Steelworkers that he define "earnings" gave him the opportunity to explicitly state that intent.  His failure to include a definition of "earnings" is a further indication he intended it to mean no more than his announcement originally indicated, i.e., "rate of pay."[[8]]

The Secretary argues that the last sentence in the above quotation and a statement elsewhere in the preamble that the MRP provision "uses the all-encompassing phrase 'earnings, seniority and other employment rights and benefits' to assure that a removed worker suffers neither economic loss nor loss of employment opportunities due to removal," 43 Fed. Reg. at 52976 (emphasis by the Secretary) make clear his intention that MRP benefits include premium payments.  We do not agree.  In light of the Secretary's failure to include a definition of "earnings" in either the standard or the preamble, and the absence of any discussion in the preamble of premium payments, we cannot read these general statements as exhibiting an intention on the Secretary's part that MRP benefits include premium payments.

Finally, if the Secretary did intend "earnings" to have a broader meaning than "rate of pay," his action would be contrary to the spirit, and possibly the letter, of notice-and-comment rulemaking.  In conducting such a rulemaking, an agency is required to give the public fair notice of the rule it proposes to adopt, so that persons affected by the rule will have an adequate opportunity to make their views known.  See Chamber of Commerce of the United States v. OSHA, 636 F.2d 464, 470-71 (D.C. Cir. 1980).   As discussed above, the Secretary gave the public notice that he was considering adopting a "rate retention" provision.  Had the Secretary given notice that he was also considering a broader MRP provision, one which would also require premium payments, it could be expected that he would have received comments addressing the necessity and propriety of such payments.  As it was, nothing in the preamble or the standard indicates that the Secretary received any comments addressed to premium payments, with the possible exception of the United Steelworkers' general request, which the Secretary rejected, to include a definition of "earnings" in the standard.

An agency can, of course, deviate from a proposed rule when it issues a final rule, as long as the final rule is a "logical outgrowth" of the rulemaking proceeding.  Steelworkers, 647 F.2d at 1221.  In order to justify such a deviation however, there must be evidence in the rulemaking record that warrants the change.  Id.  If there was evidence in the record of the lead rulemaking to justify inclusion of premium payments in MRP benefits, the Secretary did not mention it or rely on it.  Thus, even if the Secretary did use the word "earnings" because he meant MRP benefits to include premium payments, it is highly doubtful whether the standard, as so interpreted, would be valid in light of the absence of his reliance on any record evidence justifying the change.
See United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982) (interpretation of statute is favored that avoids question of statute's validity).

We conclude that Amax, Schuylkill, and St. Joe complied with the MRP benefits provision by paying the employees they transferred at their regular rate of pay for the 40 hours per week the employees worked during the periods of transfer.  Accordingly, the citations are vacated.[[9]]

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED:  June 25, 1986

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

OSHRC DOCKET NO. 81-2267

DECISION AND ORDER

Ditore, J.

PRELIMINARY STATEMENT

As a result of an inspection of Respondent's facility at Monaca, Pennsylvania, on August 7 and August 20, 1981, by a safety and health officer of the Occupational Safety and Health Administration, a citation was issued to Respondent for a serious violation of 29 CFR § 1910.1025(k)(2)(i) with a proposed penalty of $60.00.  Respondent contested the citation and penalty.

The citation alleges:

"An employee removed from exposure to lead, or otherwise limited pursuant to this section was not provided with medical removal protection benefits.

(a) Simpson Butler was removed from his assignment as weighman and reassigned to a clean-up position it approximately $150 per month reduction in wages.

Subsection (2)(i) of Section 1910.1025(k) is entitled "(2) Medical removal protection benefits - (i) Provision of medical removal protection benefits" and provides:

"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."

Subsection (2)(ii) of Section 1910.1025(k) defines medical removal protection benefits as follows:

"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."

In lieu of a hearing, Complainant, Respondent and the Union (United Steelworkers of America), the parties to this action, have agreed to submit the contested issues for resolution on the basis of a Joint Stipulation of facts (Court Exh. A).

ISSUES

1.  Whether the promulgation of Section 1910.1025(k)(2)(i) Lead Standard was a valid exercise of the Secretary of Labor's statutory authority under the Occupational Safety and Health Act of 1970.

2.  If it was, whether the standard conflicted with Section 4(b)(4) of the Act (29 U.S.C. § 653(b)(4)

3.  If it did not, whether Respondent violated the standard.

4.  If it did, whether the violation was serious.

5.  If it was, whether Commission has the authority to order an abatement of the violation by means of retroactive "back pay".

6.  Is the proposed penalty reasonable and proper.

STATEMENT OF FACTS

For the purposes of convenience the Joint Stipulation of the Parties is set forth verbatim.

"The parties hereto stipulate and agree that all proper, necessary and indisposable parties are parties hereto, and to the following facts, but without prejudice to any party contending that any such fact is irrelevant:

1.  Respondent is a corporation with its principal office and place of business in New York City, New York.  Respondent maintains an office and place of business at Josephtown Road, Monaca, Pennsylvania.

2.  An inspection of Respondent's Monaca, Pennsylvania facility was conducted between August 7 and August 20, 1981 by a compliance safety and health officer from the Pittsburgh, Pennsylvania area office of the Occupational Safety and Health Administration.

3.  At the time of the inspection noted above, and at all times material hereto, Respondent was engaged at its Monaca, Pennsylvania facility in the business of zinc smelting and refining.

4.  Respondent employs approximately 450 employees at its zinc smelting and refining facility in Monaca, Pennsylvania.

5.  Respondent utilizes goods, equipment and materials shipped from outside the State of Pennsylvania and is engaged in a business affecting commerce.  Respondent is, therefore, an employer within the meaning of the Occupational Safety and Health Act" ("the Act").

6.  Following the aforesaid inspection by the Secretary's representative, a citation was issued to Respondent.  The citation alleged that Respondent was in serious violation of the Act; a penalty of sixty dollars ($60.00) was proposed.  A copy of the Citation and Notice of Proposed Penalty marked Exhibit "A", is attached hereto and made a part hereof.  The citation alleges a violation of paragraph (k)(2)(i) of the provisions of 29 C.F.R.  Section 1910.1025, et seq. ("the lead standard").  A copy of the lead standard and Appendices A and B thereto, marked Exhibit "B", is attached hereto and made a part hereof.  Also attached as Exhibit "C" are the Preambles to the lead standard published in the Federal Register on November 14 and November 21, 1978 and the corrections thereto.  In stipulating that the Appendices to the lead standard and Exhibit C may be made part of the record herein, Respondent agrees that the said documents are available to the public and represent statements that the Secretary has made with respect to the lead standard.  Respondent's agreement to this stipulation does not constitute agreement with or acquiescence [sic] in any statement of law or fact made by the Secretary or any other person in said documents.

7.  The serious citation and proposed assessment of penalties were timely contested by Respondent.

8.  Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health Review Commission Section 10 of the Act.

9.  Respondent's employee, Simpson Butler, employee #1558, was hired as a Laborer at Respondent's facility on November 17, 1980.   He had been employed in the facility prior to its shutdown in December 1979 and was rehired when it opened again in the Fall of 1980.

10.  Pursuant to the provisions of the attached collective bargaining agreement between Respondent and the United Steelworkers of America ("USW"), Simpson Butler bid to and was awarded the position of Weighman in the Sinter Plant at Respondent's facility, which position he assumed on April 2, 1981.  A copy of the agreement, marked "Exhibit D", is attached hereto.

11.  On or about July 17, 1981, Respondent temporarily transferred Simpson Butler from his regular work assignment at Respondent's Monaca, Pennsylvania facility.  In voluntary compliance with the provisions of 29 C.F.R.  Section 1910.1025(k)(1)(i)(C), Respondent removed Butler to a position involving low lead exposure.  Respondent transferred Butler when blood tests taken by its medical personnel indicated that his blood lead level had reached or exceeded 60 micrograms of lead per deciliter (dl) of whole blood.  Butler's blood lead levels between November 17, 1980 and February 23, 1982 were as follows:

12.  Respondent has, in compliance with the requirements of 29 C.F.R. Section 1910.1025(j), conducted a biological monitoring and medical surveillance program at its zinc smelting and refining facility in Monaca, Pennsylvania both prior to the cessation of operations in December 1979 and subsequent to the recommencement of operations in the Fall of 1980.

13.  Respondent presently takes blood lead samples from:  (1) Simpson Butler on a monthly basis; (2) about twenty-two employees every two months; and (3) about forty-two employees every six months.

14.  Respondent uses the results of the blood lead samples to determine, inter alia, whether employees need to be removed from exposure to excessive air leads pursuant to the provisions of 29 C.F.R.   Section 1910.1025(k)(1)(i)(C).

15.  The employees are notified periodically that they have been scheduled for biological monitoring, and they are expected to report on schedule to have their blood samples taken.  The notices used for this purpose have informed the employees that participation in the program is a requirement of the job and refusal to participate will subject them to progressive discipline. Attached hereto as Exhibit "E" are copies notification sheets for biological monitoring that were posted in the facility.

16.  Respondent will not tolerate the refusal of any employee to participate in its biological monitoring and surveillance program since such refusal would deprive Respondent of the information it needs to determine whether the employee is disqualified to work in atmospheres wherein air leads exceed OSHA prescribed exposure limits.

17.  Respondent would exercise its rights pursuant to Articles XIV and VI of the agreement between it and the USW (Ex. D) to impose progressive discipline up to and including discharge on any employee who refuses to participate in Respondent's biological monitoring program.  Respondent's position is that an employee's refusal to participate in the biological monitoring program is just cause for dismissal.

18.  Respondent has had no need to impose discipline against any employee at its zinc smelting and refining facility for refusal to participate in its biological monitoring program.  Instead, Respondent has counseled a small number of employees who expressed their reluctance to participate, and the counseling was sufficient to obtain their participation in the program.

19.  Respondent has, however, warned at least one employee who refused to participate in Respondent's air lead monitoring program.   The warning was documented by way of a letter filed in the employee's Department personnel file indicating that he would be given time off without pay for future infractions.  The letter is attached as Exhibit F.

20.  Articles VII, VIII, IX, of the attached collective bargaining agreement (Ex. D), as modified by local agreements (Ex. G), represent the procedures followed by Respondent, and agreed to by the USW, regarding hours of work, regularly scheduled overtime, voluntary overtime and shift differential pay for the job position of Weighman.

(a) A weighman is assigned to one of four "shifts" of employees.  Each "shift" of employees is assigned a 20--week rotating schedule which permits Respondent's facility to operate seven days a week with three 8-hour time shifts per day (day, evening and night shifts).  Exhibit H hereto shows a typical 20-week rotating schedule for one of the four employee "shifts".  During the 20-week period, an employee assigned this schedule, and who is available to work at all times, will work:

- 35 daylight shifts;
- 35 evening shifts;
- 35 night shifts.

An employee assigned this schedule will work 15 Sundays and 5 sixth days.  An employee who works the entire 20-week schedule will work a total of 840 actual hours.

(b) The attached collective bargaining agreement (Ex. D) provides that premium compensation be paid at the rate of 1.5 times an employee's base rate of pay for scheduled Sunday and sixth day work (referred to also as "scheduled overtime").  Consequently, the total of available "compensable work hours, as distinguished from hours actually worked, during the 20-week rotating schedule (Ex. H) will be 920 hours, which is computed as follows:

1.  Straight time:

(35 days x 3 x 8 hours per day) less 15 Sundays x 8 hours and 5 sixth days x 8 hours) = 680 hours;

2.  Sunday premium:

15 Sundays x 8 hours x 1.5 = 180 hours;

3.  Sixth day premium:

5 sixth days x 8 hours x 1.5 = 60 hours.

Thus, during a 20-week period, an employee who works all scheduled shifts would be compensated for straight time and scheduled over-time (Sunday and sixth day premium) in an amount equal to the following:

employee's base rate of pay x 920 hours.

(c) In addition, the attached collective bargaining agreement provides that shift differential premiums be paid for scheduled evening and night work.  Thus, during the same period, if the employee works all scheduled shifts, he will receive shift differential pay as follows;

35 night shifts x 8 hours per shift x $0.50 per hour = $140.00

35 evening shifts x 8 hours per shift x $0.30 per hour = $84.00

The maximum shift differential pay presently available during a 20-week schedule is $224.00.

(d) On the basis of the above, an employee's wage for one week of the 20-week scheduled period may be roughly approximated from the following formula:

(employee's base rate x 920 hours) + $224.00

This formula produces only an approximation because the employee is paid according to the shifts and days actually worked during a two-week pay period.  For example, if the employee worked all available time during the pay period composed of weeks 1 and 2 on Exhibit H, he would not be paid for scheduled overtime because there is none, but he would be paid for one week of night differential and one week of evening differential.  In contrast, during the pay period composed of weeks 3 and 4, the employee would receive only straight time pay for week 3, but would also receive shift differential pay and premium pay for scheduled overtime for week 4.

21.  When Simpson Butler assumed the duties of Weighman, he was assigned to the third "shift" of employees (Ex. I) who were then in week 14 of the rotating schedule, as shown in Exhibit H.  Butler completed the remaining 6 weeks of this 20 week schedule with his group, and then commenced a new 20 week schedule.  He was removed from his job position when his employee "shift" was in week 10 of the new schedule.  Thus, he worked a total of sixteen weeks over two 20-week rotating schedules.  Butler worked all scheduled shifts to which he was assigned during these sixteen weeks, working 656 actual hours.

22.  Following removal as specified in paragraph 11, Butler was assigned Laborer duties at the smelter.  He has been offered the opportunity to work 8-hour day light shifts, Monday through Friday, continuously since his removal from the position of Weighman.  800 hours of work have been available every 20 weeks.  Exhibit J hereto is a Letter of Intent to supplement Article XII of the contract (Exhibit D) between Respondent and the USW.  Paragraph 9 of the Letter provides that employees who are removed from exposure to excessive levels of a toxic substance and who are assigned to other duties will have their rate protected during the reassignment.  Butler's rate as a Weighman has been protected since he was removed, i.e., he has received and continues to receive his base rate of pay as a Weighman for hours he has worked as a Laborer.  He did not receive scheduled overtime work and he was not paid for such work, nor did he receive shift differential pay.  On the basis of the above, the wage for one week of a 20-week period worked by Simpson Butler as a Laborer since he was removed may be represented by the following formula:

employee's base rate x 800 hours

23.  Voluntary overtime work, which is distinct from "scheduled" overtime (Sunday and sixth day work), is made available from time to time to employees who are assigned to a rotating schedule.  Employees who desire to work voluntary overtime indicate their interest by signing up for this work on sheets used for that purpose.  However, voluntary overtime work is not available on a regular basis.  When it does become available, moreover, it varies in nature depending entirely on production and maintenance needs.  The work offered to an employee may, and often does, involve duties different from those of his normal job position.  The work is offered only to persons qualified and available to perform it.  An employee may refuse an offer of voluntary overtime.

24.  Simpson Butler worked 45 hours of voluntary overtime during the sixteen week period he worked as a Weighman.  He accepted 16 hours of such work on two consecutive days in April, 1981, 8 hours on one day in May, 8 hours spread over two consecutive days in, June, and 13 hours spread over two separate days in July, 1981.  The total of his voluntary overtime hours represents 6.86 percent of his total "scheduled" work time (656 hours) during this period.  Butler received premium pay for his voluntary overtime hours in accordance with the terms of the attached collective bargaining agreement and related agreements.  (Exs. D and G).

25.  The amount of available voluntary overtime declined subsequent to Simpson Butler's removal from his Weighman position. During the period he was a Weighman, 892.5 voluntary overtime hours were worked in the Sinter Plant and 12,371 hours of scheduled time were worked.  Thus, the ratio of voluntary time to scheduled time was 7.21 percent.  Thereafter, during, the period beginning on July 27, 1981, and ending on April 26, 1982, 1,292.3 voluntary overtime hours were worked in the Sinter Plant and 34,222.7 scheduled hours were worked.  Accordingly, the ratio of voluntary time to scheduled time was 3.78 percent following his removal.

26.  Simpson Butler was not routinely offered available non-scheduled overtime work following his removal.  He was, however, offered one such overtime opportunity, but he declined the offer.  Butler has not, therefore, received premium pay for voluntary overtime work subsequent to his removal.

27.  Simpson Butler took one week of vacation from August 31 through September 4, 1981, and he did not work December 14 through December 18, 1981 because of personal illness.  For purposes of the procedures set forth herein (regarding hours of work, regularly scheduled overtime, voluntary overtime and shift differential pay), vacation and personal illness days are noncompensable time for all employees at Respondent's facility.

28.  The parties stipulate and agree that Simpson Butler's base rate of pay was $9.78 per hour from the date of his removal until August 1, 1981 and has been $10.08 per hour since that date.

29.  The parties stipulate and agree that the $10.08 rate shall be used to calculate overtime premium pay in the event the Commission enters a final order that either scheduled overtime premium pay or voluntary overtime premium pay or both are required under 29 C.F.R. §1910.1025(k)(2).

30.  The scheduled average weekly overtime premium pay, calculated by subtracting the weekly wage figure generated by the formula in paragraph 22 from the weekly wage figure generated by the formula in paragraph 20(d), is $71.68.

31.  The maximum weekly average voluntary overtime premium pay Butler could have earned since his removal had he been offered and accepted all such opportunities offered to him using the sinter plant average set out in the last sentence of Paragraph 25 herein is $22.86.

32.  The parties stipulate and agree that either or both of the weekly average premium pay figures set forth in Paragraphs 30 and 31 will be used to calculate "back pay" if the Commission determines that back pay is required in its final order in this matter.  The term "back pay" as used herein means that overtime premium pay whether scheduled, voluntary or both which the Commission might determine is required under 29 C.F.R. §1910.1025(k)(2) and which Butler did not receive during the period of this contest.

33.  The parties stipulate and agree further that in the event the Commission enters a final order requiring the payment of scheduled overtime or voluntary overtime premium pay prospectively as distinguished from retroactive or back pay, the pay figures appearing in this stipulation may be adjusted as appropriate to reflect the conditions that prevail as of such date.

34.  The parties stipulate and agree further that in the event the Commission enters a final order in this matter requiring Respondent to pay Butler scheduled overtime premium pay, voluntary, overtime premium pay, or both regardless whether such order requires back pay or prospective pay or both, Respondent shall not be required to compensate him for time he was not available to perform work.

35.  The parties also stipulate and agree that nothing said herein shall be construed to preclude Respondent from seeking a stay including a judicial stay of any final order of the Commission that might require the payment of overtime premium payment under 29 C.F.R. § 1910.1025(k)(2).

FACTUAL SUMMARY

In summary, on, April 2, 1981, Respondent's employee Simpson Butler started work as a Weighman in the Sinter Plant of Respondent's facility (Stip. ¶ 10)*.  On or about July 17, 1981, Butler was removed from, his position as Weighman and transferred to the low lead exposure position of laborer.  The removal and transfer were based on blood tests taken by Respondent's medical personnel, which revealed that Butler's blood lead level had reached or exceeded 60 micrograms of lead per deciliter (dl) of whole blood.  Butler's removal was mandated by Section 1910.1025(k)(1)(i)(C) (Stip. ¶ 11).

As a Weighman, Butler's earnings consisted of base or straight time pay, shift differential pay, Sunday premium pay, 6th day premium pay (scheduled overtime) and voluntary overtime pay (Stip. ¶'s 20, 21, 22, 23).   Respondent paid Butler the base rate of pay of a Weighman for all the hours he worked as a laborer during the removal period (Stip. ¶ 22).  Respondent did not pay Butler shift differential pay, scheduled overtime pay or voluntary overtime pay after his removal from the Weighman position (Stip. ¶ 22, 24, 26).  Butler as a laborer worked 8 eight hours a day, Monday through Friday, with no shift differential or scheduled overtime pay (Stip. ¶ 22).

The basic issue is whether Respondent violated 29 C.F.R. § 1910.1025 (k)(2)(i) by failing to pay Butler the scheduled overtime pay, shift differential pay and voluntary overtime pay he would have earned if he had not been removed from his position as Weighman.

OPINION
The facts are not disputed Respondent has raised several legal arguments attacking the validity and applicability of Section 1910.1025 (k)(2)(i)

First, Respondent argues that Section 1910.1025 (k)(2)(i) is invalid because the medical removal protection benefits provision (MRPB) is beyond OSHA's statutory authority (Respondent's brief pp 8-19).  Respondent's posits its argument on the ground that the Occupational Safety and Health Act (OSH) contains no express grant of authority to OSHA, to require employers to maintain the earnings of a removed employee at the pre-removal level.  Respondent contends that Congress was well aware of the concept of the MRPB since it had less than a year prior to the enactment of the OSH Act, granted such authority under the Federal Mine Safety and Health Act.  Therefore, Congress did not intend to grant such authority to OSHA.

Respondent to support its conclusion as to Congressional intent, utilizes the principle that "[w]here a statute with respect to one subject contains given provisions, the omission of such a provision from a similar statute is significant to show a different intention existed", citing case authority including American Textile Manufacturers Institute v. Donovan* 452 U.S. 490, 101 S.Ct. 2478 (1981) (Respondent's brief p. 10).  This issue, among others, was fully litigated and argued before the D.C. Circuit in United Steelworkers v. Marshall 647 F.2d 1189 (1980), cert. denied, 453 U.S. 913 (1981), where the validity of the lead standard, as promulgated, was challenged.  Respondent was a party to that action (Respondent's brief pp 22-23).

Chief Judge J. Skelly Wright writing for a majority of the Court after an exhaustive analysis of the MRPB provision concluded that [t]he substantive provisions of the lead standard, including the medical removal protection program .... fall within the scope of OSHA's statutory power and are reasonable exercises of that power.  647 F.2d at pages 1223-1234, 1311.

Respondent contends that the Court's decision in United Steelworkers is incorrect and should not be followed.  We do not agree with this contention.  We fully concur in the majority's decision including the Court's analysis distinguishing the case relied on by Respondent in its brief here, Whirlpool Corporation v. Secretary of Labor, 445 U.S. 1, 100 S. CT. 883 (1980).

The Secretary of Labor in promulgating the Lead Standard has devised a comprehensive regulatory program to protect workers from the dangerous hazards of overexposure to lead.  The program requires the removal with attendant benefits, of employees whose lead blood levels have reached and exceeded permissible limits.  See 29 C.F.R. 1910.1025 and sections thereunder.

In American Textile Manufacturers Institute Inc., v. Donovan, 452 U.S. 490, 101 S.Ct. 2478 (1981), the United States Supreme Court had before it a challenge to the validity of the cotton dust standard promulgated by the Secretary of Labor.  Included within the challenge was one made to OSHA's authority under that Act, to require employers to guarantee that employees suffer no loss of earnings or other employment rights or benefits when transferred due to exposure to cotton dust above a certain level.

The Court held that the Secretary of Labor in his "Summary and Explanation of the Standard" never explained the wage guarantee provision as an approach, designed to contribute to increased health protection but explained it as solely designed "to minimize any adverse economic impact on an employee."  The Court concluded that since "the Act in no way authorized OSHA to repair general unfairness to employees that is unrelated to achievement of health and safety goals", it was beyond OSHA's statutory authority to promulgate the wage guarantee regulation.  101 S.Ct. at 2505-2506.

The Court did acknowledge that a wage guarantee provision if health related, may very well have merit but that the "health related" contention must be properly articulated in the Secretary's determination or statement of reasons and supported by substantial evidence.  The Secretary of Labor failed in these latter requirements when he promulgated the cotton dust wage guarantee provision, 101 S.Ct. at 2505 nn. 72 & 73 and 2506 n. 74.  It is reasonable to infer that if the Secretary of Labor had formulated and articulated the "health related" rationale and supported it by substantial evidence, the Court might have reached a different conclusion.

It is interesting to further note that the United States Supreme Court rendered its decision in American Textile on June 17, 1981. On June 29, 1981, twelve days later, the Court denied certiorari in the United Steelworkers case.  453 U.S. 913, 101 S.Ct. 3148. Although one may not draw substantive conclusions that the Court was from a denial of certiorari, one can infer that the Court was aware of provisions dealing with earnings protection benefits and the issues involved as they relate to the Occupational Safety and Health Act.

Aside from the economic impact the earnings protection benefits provision of the Lead Standard may have on employees, it is health related.  The MRPB is designed and intended in the overall program of worker protection, to reduce an employee's exposure or continued exposure to lead poisoning by eliminating possible attempts by employees to defeat other provisions of the lead standard and thereby increase their exposure to lead poisoning.

The promulgation of the medical removal protection benefits standard is valid and within the statutory authority of the Secretary of Labor.

Respondent argues in Point II of its brief (pp 19-24) that OSHA's lead standards and Respondent's compliance with these standards, other than the medical removal protection benefits provision, insures that the exposure of its employees to lead is reduced or eliminated.*  Respondent states that all of its employees who are exposed to the hazards of lead must participate in Respondent's mandatory blood lead monitoring program or suffer disciplinary action.  Therefore, Respondent reasons, the medical removal protection benefits provisions neither contributes to the reduction or elimination of the lead hazard nor reduces or eliminates an employee's risk of exposure to lead.

Respondent's approach is somewhat simplistic and fails to consider or overlooks the underlying basis established by OSHA, as to the reasons the medical removal protection benefits provision is necessary to insure the efficacy of the other lead standards relating to medical surveillance and medical removal.  (See Exhs. C(i)(a), p. 52973, C(i)(b) pp 54446-54447).

The Court in United Steelworkers of America v. Marshall, 647 F. 2d 1189, 1237 (1980), clearly sets forth OSHA's findings and basis for the medical removal protection benefits provision.

"OSHA found, however, that unless workers were guaranteed all their wage and seniority rights upon removal, they would resist co-operating with the medical surveillance program that determined the need for removal, since they reasonably might fear being fired or sent to lower-paying jobs if they revealed dangerously high blood-lead levels.  54442/2-54446/2.[[x]]  The record showed that workers often consumed self-prescribed chelating agents, and lied to physicians about their subjective symptoms, all because they held job security more dear than their health.  54446/3-54447/1 (citing evidence).  OSHA also found existing earnings protection programs in private bargaining agreements too few and too limited.  54444/2.  Moreover, exercising its statutory authority to rely on experience gained under a congressionally-mandated earnings protection program like the one that is part of the Federal Coal Mine Health and Safety Act, see text and notes at notes 67-68 supra, workers-perhaps because they were not guaranteed the seniority rights and pay increases of their high-exposure jobs - frequently refused to co-operate in medical review. 54447/1-54449/1."

It is clear from the evidence and case authority, that the medical removal protection benefits provision is health related and is an integral part of the Lead Standard's objective to reduce or eliminate employee exposure to lead.

In Point III A of its brief (pp 24-36), Respondent contends that Section 4(b)(4) of the Act prohibits the Commission from interpreting the medical removal protection benefits provision to increase Respondent's liability beyond that set by the State of Pennsylvania's workmen's compensation laws.

Section 4(b)(4) of the Act states:

"Nothing in this Act shall be construed to superceded or in any manner affect any workmen's compensation law. . . "
(29 U.S.C. § 653(b)(4)).

The court in United Steelworkers, supra, at pages 1235-36, after determining that protection benefits provision did not violate Section 4(b)(4) of the Act, stated:

"The question remains, then, what does Section 4(b)(4) mean, if it does not mean that OSHA is barred from creating medical removal protection?  We see two plausible meanings.  First, as courts have already held, Section 4(b)(4) bars workers from asserting a private cause of action against employers under OSHA standards.  Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974).  Second, when a worker actually asserts a claim under workmen's compensation law or some other state law, Section 4(b)(4) intends that neither the worker nor the party against whom the claim is made can assert that any OSHA regulation or the OSH Act itself preempt any element of the state law.  For example, where OSHA protects a worker against a form of disablement not compensable under state law, the worker cannot obtain state relief for that disablement.  Conversely, where state law covers a wider range of disablements than OSHA aims to prevent, an employer cannot escape liability under state law for a disablement not covered by OSHA.  In short, OSHA cannot legally preempt state compensation law, even if it practically preempts it in some situations.

We conclude that though MRP may indeed have a great practical effect on workmen's compensation claims, it leaves the state schemes wholly intact as a legal matter, and so does not violate Section 4(b)(4)."  (Emphasis in original).

We agree with the Court's determination and fail to see how Section 4(b)(4) of the Act, legally affects or supercedes Pennsylvania's workmen's compensation laws.  The amount of compensation that Butler or any other employee could receive under Pennsylvania's workmen's compensation law, is neither increased or decreased by the amount due the employee under the medical removal protection benefits provision.  This provision does not alter, supercede or preempt the state's law, and imposes no burden on the state to award more or less than its laws require.  Nor does it increase Respondent's liability under state law.  The affect of the medical removal protection benefits provision is on the employer's liability under the OSH Act.  It requires the employer to make up the difference between what is granted an employee under state law and what is calculated to be due him under federal law (see, 29 CFR §1910.1025(k)(2)(iv)).

Respondent's liability under both laws is no indication that Pennsylvania's workmen's compresentation law, per se, has been altered or superceded.   Respondent mistakenly equates its dual liability under federal and state law as a supersession of the state law by OSHA's MRPB provision.

In Point III B of its brief (pp 29-33), Respondent further contends that any interpretation of the medical removal protection benefits standards, requiring payment of shift differential and overtime pay to a removed worker, is impermissible, discriminatory, would reward workers for hours not worked and would encourage others to become leaded in order to receive more pay for less work.   We have held that the medical removal benefits protection benefits standard is valid and properly within the statutory authority of the Secretary of Labor.

Section 1910.1025 (k)(2)(iv) defines medical removal protection benefits to mean that "the employer shall maintain the earnings, . . . of an employee as though the employee had not been removed from normal exposure to lead or otherwise."  The definition is clear on its face.  The word "earnings" unqualified and unlimited means all earnings.  An employee removed because of lead exposure is to continue to receive all the earnings he would have received if he had not been removed.  The Secretary understood this when he explained in the Preamble to the Lead Standard, that medical removal protection benefits:

"In most cases will simply mean the rate of pay of a worker transferred to a low-lead-exposure job.  The standard however, uses the all-encompassing phrase 'earnings, seniority and other employment rights and benefits' to assure that a removed worker suffers neither economic loss nor loss of employment opportunities due to removal."
(Exh. C(i)(a) p. 52976, Col. 1).

Applying the standard and definition to this case, it means that Butler's earnings are to continue and are to be maintained as if he still was employed as a Weighman.  It does not mean that Butler is to receive more than he would have received if he was not removed. Butler is entitled only to the amount he would have earned if he continued working as a Weighman.  This in turn must be tempered by reason and be achievable by means other than speculation.

Respondent is mistaken in believing that earnings mean only the worker's pre-removal base rate of pay.  "Earnings" is a broad concept and includes not only the base rate of pay but all other ascertainable earnings that could have been earned by a worker prior to his removal.

The question here is not what "earnings" mean but how are they to be calculated so that Butler does not receive more than he would have received if not removed.

Butler could have been, carried on the company records as a Weighman for earnings purposes.  His shift differential and scheduled overtime pay, could have been calculated during the removal period, based on the four 'shifts', 20 weeks rotating schedule.  (Stip. ¶ 20).  Deductions during that time could have been made against the earnings amount for uncompensable time.  (Stip. ¶ 27).

Respondent states without further support (brief pp 34-35) that "it would be extremely difficult to calculate the overtime opportunities Simpson Butler would have."  Therefore, the parties agreed to an artificial formula to calculate shift differential and scheduled overtime due Butler after he was removed.  (Stip. ¶'s 20(d), 30).

Whatever method is used, Butler is entitled to the shift differential and scheduled overtime earnings that would have accrued to him if he had not been removed.

Voluntary overtime present a different and more difficult problem.  Voluntary work is not available on a regular basis, may differ from the normal job duties of an employee, is offered only to qualified persons available to perform it and depends on the subjective determination of the employee to accept it.   The amount of available overtime declined subsequent to Butler's removal and he was not routinely offered such work.  The one offer made to him he declined to accept.   During his sixteen weeks of work as a Weighman, Butler accepted 45 hours of voluntary overtime work (Stip. ¶'s 23, 24, 25, 26).

No set formula can properly determine what voluntary work would have been available, offered to and accepted by Butler if he had not been removed.  Butler is not entitled to voluntary overtime pay during his removal period on any set formula.  He is entitled only to voluntary overtime that was available, offered to him and accepted by him during the removal period.

In part C of Point III of the brief (pp 33-36, Respondent argues that it had no notice that "earnings" in Section 1910.1025 (k)(2)(i) meant anything other than the base rate of pay since it does not mention overtime or shift differential pay.  The standard does not refer specifically to overtime or shift differential pay nor does it refer specifically to base rate of payment.   It speaks of "earnings" which is an all-inclusive term and as indicated previously, means all ascertainable earnings that a worker would have received if he continued to perform the same work that he performed before his removal.  In Butler's case, this meant his base rate of pay, shift differential and scheduled overtime pay but not voluntary overtime.

Voluntary overtime pay was excluded from earnings because of its speculative character and because it depended upon the worker's subjective option to accept or decline it.  Nonetheless, the standard, and its definition gave ample notice to Respondent that it meant not only the base rate of pay but all other ascertainable earnings.

Respondent also contends (brief pp 36-37), assuming the validity and applicability of the standard, that a violation of the standard is de minimis because the failure to pay shift differential and overtime pay has no direct or immediate relationship to occupational safety and health.  This argument has facial appeal because Butler was removed from exposure to lead pursuant to other lead standards prior to the violation of standard herein.  Therefore, reasons Respondent, any violation of the "earnings" benefit standard could not expose Butler to lead hazards and had no direct or immediate relationship to his health.

Respondent misconstrues the purpose of the standard and reads it in isolation.  The Lead Standard consists of a comprehensive set of regulations promulgated to protect and prevent employees in the lead industry from being overexposed to the hazards of lead. The sections of the Lead Standard interrelate to carry out the purpose and intent of the Standard.

The Lead Standard is only as strong as its component parts.  If compliance with, and enforcement of any section is weakened, the Standard as a whole loses its optimum effect.   It has been established, supra, (p. 23), that worker participation in the regulatory scheme is essential to its operation.  To insure this participation, economic considerations which could cause an employee to thwart the objectives of the Standard were eliminated.

No one can seriously question that the exposure of an employee to the hazards of lead could cause serious physical harm or death to the employee.  Any violation of any part of the Lead Standard which reduces or could possibly reduce the health protection intended by the Lead Standard, is serious because it could increase the risk of overexposure to lead.

Finally, Respondent argues (brief pp 37-44), that the Commission has no authority to order a "back pay award" because it is not authorized to do so under the civil penalty sections of the Act (29 U.S.C. § 666).   Further, the Commission has no authority to order retroactive abatement.

Respondent is correct in stating that the Commission is only authorized to assess civil penalties as prescribed in Section 17 of the Act (29 U.S.C. § 666).  Civil penalties are imposed upon an employer for violating an occupational safety and health standard. Abatement is the means or methods an employer must employ to correct a violation of a standard.

Abatement and civil penalty are not synonymous.  They are entirely separate concepts under the Act.  The issue in this case is not one for "back pay", per se, but whether Respondent violated the Act and if it did what abatement is necessary to correct the violation.

Generally, abatement methods or means in occupational safety and health cases involve the production, utilization or installation, prospectively, of protective devices, engineering controls, etc.  They all involve the expenditure of money by an employer to achieve the end result.  The very nature of this type of abatement does not permit retroactive application.  An employer, for example, cannot install or utilize engineering controls retroactively to the date the violation occurred, even if the evidence established that the violation was a continuing one.

Shift differential and scheduled overtime payments although different in nature from the usual forms of abatement, are nevertheless a method of abatement.  This type of abatement lends itself to retroactive application because of its nature (money payment) and because here the evidence established that the violation was a continuing one.  The violation occurred when Butler's first weeks earnings were due after, his removal which was on or about July 17, 1981.  The citation was issued, approximately a month and a half later on September 11, 1981, well within the limitation clause of the Act (Section 9(c), 29 U.S.C. § 658(c)).  Although the type of abatement here is novel, it is well within the statutory authority of the Commission.

Based on the record and a consideration of the factors set forth in Section 17(j) of the Act, the penalty of $60.00 proposed by the Secretary of Labor is reasonable and proper.

FINDINGS OF FACT

The relevant and material facts have been stipulated by the parties in their Joint Stipulation (Court Exh. A, supra, pp 4-16).

CONCLUSIONS OF LAW

1.  Section 1910.1025(k)(2)(i) of the Lead Standard is valid and within the statutory authority of the Secretary of Labor.

2.  Section 1910.1025(k)(2)(i) of the Lead Standard does not conflict with Section 4(b)(4) of the Act.

3.  From September 11, 1981, and for approximately a month and a half prior thereto, Respondent was in violation of Section 5(a)(2) of the Act (29 U.S.C. § 654(a)(2) for failing to comply with 29 CFR § 1910.1025(k)(2)(i).

4.  A "back pay" retroactive money payment is the proper method of abatement to correct the violation herein.

5.  The violation of the standard by Respondent is serious.

6.  A penalty of $60.00 is assessed for the violation.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation for a violation of 29 CFR § 1910.1025(k)(2)(i) is affirmed, it is further

ORDERED that abatement of the violation is to be made consistent with the Decision herein, it is further

ORDERED that the proposed penalty of $60.00, is affirmed.

JEROME C. DITORE
JUDGE, OSHRC

Dated: February 14, 1983
New York, New York

FOOTNOTES:

[[1/]] That 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 where the airborne lead concentration is more than a certain amount.  Since the expiration of the initial 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 µg/100g of whole blood be removed from work having a daily eight hour time-weighted-average exposure to airborne lead at or above 30 µg/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/]] For that decision, this case was consolidated with Amax Lead Co. of Missouri, OSHRC Docket No. 80-1793, and Schuylkill Metals Corp., OSHRC Docket No. 81-0856.  Because the cases no longer involve a single common legal question, we hereby sever them pursuant to Commission Rule 10, 29 C.F.R. § 2200.10.

[[4/]] The administrative law judge who first heard the case held that St. Joe was required to pay the employee for scheduled overtime, but not for voluntary overtime because the amount of voluntary overtime was too speculative to calculate.  The Fifth Circuit's decision holds that the standard requires payments for "over-time," but the court did not expressly address the distinction between scheduled and voluntary overtime.  We interpret the court's decision as holding that the standard requires payments in this case for the scheduled overtime and shift differentials.  We read the Fifth Circuit's decision as leaving open the voluntary overtime issue and we will discuss that issue later in this decision.

[[5/]] 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 Enterprise v. Farrington, 108 S.Ct. 1574 (1988).  In another decision issued today, East Penn Manufacturing Co., OSHRC Docket No. 87-0537 (Apr. 27, 1989), we have overruled the Commission's decision in Amax and aligned the Commission's interpretation of the medical removal provision with that of the Fifth Circuit in United Steelworkers of America v. Schuylkill Metals Corp.

[[6/]] Because she rejects the argument on its merits, 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 St. Joe's challenge is barred by collateral estoppel, and St. Joe's contention that the Secretary untimely raised collateral estoppel issue.

[[7/]] As will be discussed later in this opinion, the Secretary was also concerned that, if excessively high blood lead levels could lead to loss of income, employees would resort to chelating drugs, which remove lead from the blood but have dangerous side effects.

[[8/]] "United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d at 320.

[[9/]] This Pratt & Whitney case is a later decision in the same Pratt & Whitney case on which St. Joe relies.   The second Pratt & Whitney decision was issued after St. Joe filed its review brief.

[[10/]] United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d at 1237 & n.73.

[[11/]] Although we conclude that violations of the lead standard's MRP provisions are serious, we do not agree with the judge's broad statement that "[a]ny violation of any part of the Lead Standard which reduces or could possibly reduce the health protection intended by the Lead Standard, is serious because it could increase the risk of overexposure to lead."  Presumably, all provisions of the lead standard are intended to reduce the risk of lead exposure to some extent.  However, for some provisions, the reduction in risk to employees may be so limited that a serious classification would not be justified.  For example, 29 C.F.R. § 1910.1025(n) contains detailed recordkeeping requirements.  Technical violations of those requirements would not be serious violations.  See RSR Corp., 83 OSAHRC 6/A2, 11 BNA OSHC 1163, 1180, 1983-84 CCH OSHD ¶ 26,429, p. 33,558 (No. 79-3813, 1983) (violation of section 1910.1025(n)(4)(ii) affirmed as other than serious).

[[12]] 29 U.S.C. § 659(b) provides that the abatement period for a violation "shall not begin to run until the entry of a final order by the Commission in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties."

[[13/]] 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 ¶ 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.

[[14/]] There is no question that St. Joe contested the citation in good faith, and thus satisfied the condition established in section 659(b) for tolling the abatement date.

[[15/]] When the Commission is divided on an issue resolved by the administrative law judge, they will normally agree to affirm the judge's action and accord it the precedential value of an unreviewed judge's decision.   St. Regis Paper Co., 84 OSAHRC 40/D3, 11 BNA OSHC 2208, 2210-11, 1984-85 CCH OSHD ¶ 27,032, p. 34,805 (No. 77-1385, 1984).  In this case, the judge concluded that "[a] 'back pay' retroactive money payment is the proper method of abatement to correct the violation herein," and he ordered that the violation be abated consistent with his decision.  For the reasons stated in the text, Chairman Buckley would not enter such an order.  Commissioner Arey also would not uphold the judge's order because the order does not compensate the removed employee for voluntary overtime.   Therefore, neither member would adopt the backpay order issued by the judge.

[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidated by order of the Commission.  Because Docket No. 81-0856 involves questions of law and fact similar to those in the other two cases, we consolidate all three cases for decisional purposes.  Commission Rule of Procedure 9, 29 C.F.R. § 2200.9.

[[2]] The pre-1975 standard was derived from a standard issued by the American National Standards Institute.  The Secretary promulgated it under section 6(a) of the Act, 29 U.S.C. § 655(a), which authorized the Secretary to adopt national consensus standards as OSHA standards without notice-and-comment rulemaking proceedings within two years of the Act's effective date.

[[3]] In promulgating the new standard, the Secretary acted under section 6(b) of the Act, 29 U.S.C. §655(b), which authorizes the Secretary to promulgate occupational safety and health standards following notice-and-comment rulemaking proceedings.

[[4]] Due to feasibility constraints, certain of the standard's provisions, including the permissible exposure limit, are phased in over a period of time.  In our description of the provisions of the standard, we have for the sake of clarity used those numerical values that are in effect after the standard is fully phased in.  Certain of the values given were not in effect at the time the alleged violations in these cases occurred, but this is not significant for purposes of this decision.

[[5]] The words "high" and "low" are, of course, relative.  For purposes of this decision, we use them to distinguish between airborne lead concentrations from which employees with elevated blood lead levels must be removed, and concentrations to which such employees may permissibly be exposed.

[[6]] The employees Schuylkill transferred did not have blood lead levels sufficiently high to require their removal under the standard.   They did, however, have blood lead levels higher than the plantwide average.  According to Schuylkill, the company measured the blood lead level of employees and, when a particular employee was found to have a level above average, the employee was observed closely to determine the cause of the increase.  If it was found that the increase was due to poor hygiene habits or failure to wear a respirator properly, the employee was transferred from the production area to the change house for purposes of discipline and retraining.

The Secretary contends that Schuylkill was required to pay MRP benefits even though the transferred employees did not have blood lead levels high enough to require their removal.  The Secretary points to subsection 1910.1025(k)(2)(vii), which provides:

Where an employer, although not required by this section to do so, removes an employee from exposure to lead or otherwise places limitations on an employee due to the effects of lead exposure on the employee's medical condition, the employer shall provide medical removal protection benefits to the employee equal to that required by paragraph (k)(2)(i) of this section.

The Secretary argues that the employees Schuylkill transferred were transferred because they had rising blood lead levels, that the transfers were therefore a result of the effects of lead exposure on the employees' medical condition, and that this section therefore requires Schuylkill to pay MRP benefits to the employees.  Schuylkill argues that the transfers were for the purpose of discipline and retraining, and not a result of the effects of lead exposure on the employees' medical condition.  Schuylkill points to the testimony of its plant physician that none of the employees had primary conditions associated with occupational lead exposure and none were at an increased risk to their health if they had continued in their jobs.

We find it unnecessary to resolve this dispute.  Under our interpretation of the standard, even assuming Schuylkill was required to pay MRP benefits, the payments it made to the transferred employees were adequate to discharge that obligation.

[[7]] The Mine Act was subsequently amended and redesignated the Federal Mine Safety and Health Act of 1977.  Pub.L. 95-164, 91 Stat. 1290 (Nov. 9, 1977).  The amendments did not affect the Act's MRP provision.

[[8]] We also note that, if the Secretary intended "earnings" to include premium payments, his statement that he did not include such a definition because it would be likely to confuse some employers is difficult to credit.  About a year after he adopted the lead standard, the Secretary published appendices that were intended to summarize key provisions of the standard for employees.  44 Fed. Reg. 60980 (Oct. 23, 1979).  Section IX of Appendix B discusses medical removal protection and states:  "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."  Id. at 60987.  The Secretary's ability to draft such a clear and concise definition for the information of employees suggests he could have also drafted a definition that would not have confused employers if he indeed intended to include premium payments in "earnings" when he adopted the standard.  Thus we conclude, from the fact that he did not do so when adopting the standard, that he did not intend "earnings" to include the premium payments to which he later referred in this summarization for employees.  We do not accord dispositive weight to this summarization because it was not composed when the standard was promulgated and thus is not a contemporaneous explanation and interpretation.  L.E. Myers Co., 86 OSAHRC__ 12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ¶ 27,476, p. 35,604 n.9 (No. 82-1137, 1986).  Moreover, it is inconsistent with the history of the standard we have cited.

[[9]] Amax and St. Joe argue that the lead standard is invalid and that promulgation of the MRP provision exceeds the Secretary's authority.  The Secretary counters that the principle of collateral estoppel precludes the employers from challenging the standard's validity in this proceeding, pointing out that the D. C. Circuit in Steelworkers rejected the employers' validity arguments and arguing that Amax and St. Joe were either parties to Steelworkers or were in privity with parties to that case.  Because of our disposition, we need not reach either the validity arguments raised by the employers or the collateral estoppel argument made by the Secretary.

[[*]] Reference key:  Stip. - refers to Joint Stipulation of the Parties.
¶      - refers to paragraph of the Joint Stipulation.
Exh. - refers to exhibits accompanying the Joint Stipulation.

[[*]] It is interesting to note that the U.S. Supreme Court may have adhered to this principle in striking down the cost benefit analysis provision of the Cotton Dust Standard but did not in its consideration of a similar MRPB provision in that standard.  101 S.Ct. at 2491-2492 and 2504-2506.

[[*]] Respondent also argues that the medical removal protection benefits provision does not encourage the implementation of engineering controls (brief pp 22-24).  We do not reach this argument since the provision is found to be health related on other grounds.

[[x]] These numerical citations reflect page numbers of the "Attachments to the Preamble to the Final [lead] Standard" which is Exhibit C(i)(b) herein.