SECRETARY OF LABOR,
Complainant,

v.

ASARCO, INC.,
Respondent.

OSHRC Docket No. 86-0168

REMAND ORDER

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case is before the Commission on remand from the United States Court of Appeals for the Ninth Circuit. McLaughlin v. ASARCO, Inc., 841 F.2d 1006 (9th Cir. 1988). In the initial decision in this case, Administrative Law Judge William R. Mullins vacated the Secretary's citation alleging that ASARCO failed to comply with the medical removal protection ("MRP") provision of the OSHA standard regulating occupational exposure to lead, 29 C.F.R. § 1910.1025.[[1/]] The judge concluded that the standard did not require ASARCO to compensate its employees for the overtime pay they would have received had they not been transferred from their regular job positions after showing excessive levels of lead in their blood.[[2/]] The judge relied on Commission precedent holding that MRP benefits do not include overtime or premium pay that are incidents of the jobs from which employees have been transferred but not of the jobs to which they are assigned. Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ¶ 27,629 (No. 80-1793, 1986), rev'd, United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 321 (5th Cir. 1987). The Commission did not review Judge Mullins' decision, and it became a final order of the Commission.

On appeal, the Ninth Circuit reversed. It agreed with the Fifth Circuit's holding in Schuylkill that the term "earnings" in the MRP provision refers to overtime as well as to regular pay. In accordance with the court's order,[[3/]] we remand this case to a Commission administrative law judge for further proceedings consistent with the court's decision that ASARCO failed to comply with the MRP requirement by withholding overtime pay from its removed employees.[[4/]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: April 27, 1989

SECRETARY OF LABOR,
Complainant,

v.

ASARCO, INCORPORATED,
Respondent,

UNITED STEELWORKERS OF AMERICA
LOCAL 72 - AFL-CIO,
Authorized Employee Representative.

OSHRC DOCKET NO. 86-0168

APPEARANCES:

For the Complainant:
H. Alice Jacks, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri

For the Respondent:
William O. Hart, Esq., Asarco, Incorporated,
New York, New York

For the Employees:
James P. Reardon, President, United Steelworkers
of America, AFL-CIO, East Helena, Montana

DECISION AND ORDER

Mullins, Judge:

On January 23, 1986, a citation was issued against the respondent, Asarco, Incorporated, alleging the violation as follows:

29 CFR 1910.1025(K)(2)(1): An employee removed from exposure to lead, or otherwise limited pursuant to this section was not provided with medical removal protection benefits:

(a) Employees on medical removal were not paid for overtime which would have been available to them in their regular job positions.

To this citation the respondent has filed Notice of Objection and the employees were given notice and have entered an appearance through their authorized representative, United Steelworkers of America, AFL-CIO, Local 72.

On July 3, 1986, the parties submitted to the undersigned a joint stipulation of facts and further agreed that the decision in this matter could be determined by the undersigned after submission of briefs by the parties. Two extensions of time were granted in which to file the briefs and the briefs of complainant and respondent have been received at this time; however, no brief has been filed by the representative of the employees.

In both Complainant's Brief and Respondent's Brief, there is cited the Occupational Safety and Health Review Commission combined cases of Amax Lead Co. of Missouri, Schuylkill Metals Corp., and St. Joe Resources Co., OSHRC Docket Nos. 80-1793, 81-0856, and 81-2267, 12 BNA OSHC 1878, decided in June of 1986.

The single issue for determination in this case was whether or not employees who are receiving medical removal benefits as a result of excessive lead levels determined from blood tests would be entitled to overtime pay. This specific issue was addressed in the Amax case cited above and the Commission clearly has ruled that employees are not entitled to overtime benefits.

Therefore, based upon the stipulation of facts and the Commission case cited above, the citation should be dismissed.

It is SO ORDERED.

William R. Mullins
Judge, OSHRC

Dated: December 3, 1986

SECRETARY OF LABOR,
Complainant,

v.

ASARCO, INC.,
Respondent.

UNITED STEELWORKERS OF AMERICA,
LOCAL 72 - AFL-CIO,
Authorized Employee Representative.

OSHRC DOCKET NO. 86-0168

FINAL ORDER

The above captioned case was originally submitted on stipulation for decision on the sole issue of whether respondent was required by 29 C.F.R. § 1910.1025(k)(2)(ii)[[1]] to compensate employees removed from lead exposure for overtime they would have worked had they not been removed. The prior Administrative Law Judge vacated the Secretary's citation based on Commission precedent holding that employees were not entitled to such overtime benefits, citing Amax Lead Co. of Missouri, Schuylkill Metals Corp., St. Joe Resources, Co., 12 BNA OSHC 1878 (Nos. 80-1793, 81-0856, 81-2267, 1986).

The Secretary filed a Petition for Discretionary Review with the Commission on December 23, 1986. No Commission Member directed review, and the decision became a final order of the Commission on January 5, 1987, pursuant to § 12(j) of the Act.

On appeal, the Ninth Circuit reversed, finding that the Commission's interpretation was in conflict with the plain meaning of the medical removal standards, which require a continuation of "earnings" including "overtime, shift differentials, incentives and other compensation".[[2]] McLaughlin v. ASARCO, Inc., 841 F.2d 1006 (9th Cir. 1988).

The order was remanded to this judge for further proceedings consistent with the Court's decision.

The parties have submitted a Stipulation of Resolution setting forth specific amounts of overtime compensation due affected employees and providing for the manner of payment.

ORDER

Overtime compensation is due respondent's employees as follows:

L. Cox $1,980.75
R. Mahr $1,324.50

Payment will be made as set forth in the stipulation.

James H. Barkley
Judge, OSHRC

FOOTNOTES:

[[1/]] The pertinent provision of this standard requires as follows:

§ 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. 29 C.F.R. § 1910.1025(k)(1)(i). 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/]] We must apply the Ninth 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, South Central Enterprises v. Farrington, 108 S.Ct. 1574 (1988). In East Penn Manufacturing Co., OSHRC Docket No. 87-0537 (Apr. 27, 1989), we 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 Schuylkill and the Ninth Circuit in this case.

[[4/]] The Commission members are divided on whether the Commission has authority to issue an order requiring ASARCO to pay the removed employees the specific amounts that were due but not paid. For the Commission members' views on this question, see St. Joe Resources Corp., OSHRC Docket No. 81-2267 ( Apr. 27, 1989).

[[1]] The pertinent provisions state:

1910.1025 Lead.
*        *        *
(k) Medical Removal Protection
*        *        *
(2) Medical removal protection benefits -
(i) protection of 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 purpose 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]] § 1910.1025 Appendix B, § IX ¶(K)