SECRETARY OF LABOR,
Complainant,

v.

ERIE COKE CORPORATION,
Respondent,

UNITED STEELWORKERS OF AMERICA,
AFL-C10-CLC, LOCAL 8415, DISTRICT 20,

Authorized Employee Representative.

OSHRC Docket No. 88-0611

DECISION

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

At issue in this case is whether, by requiring its employees to pay for the flame resistant gloves that it makes available to them, Erie Coke Corporation ("'Erie") has failed to "provide" the gloves as required by the coke oven emissions standard at 29 C.F.R. § 1910.1029(h)(1)(ii), which states:

(h) Protective clothing and equipment--(1) Provision and use. The employer shall provide and assure the use of appropriate protective clothing and equipment, such as but not limited to:

(ii) Flame resistant gloves ....
(Emphasis added.)

Based on the stipulated record,[[1]] former Commission Administrative Law Judge David J. Knight held that the Secretary's interpretation of "provide" in the standard to mean that the employer must pay for the gloves is reasonable and entitled to deference. He rejected Erie's argument that the Secretary is estopped from maintaining that interpretation in this case, and he found that Erie had violated the standard.

I. Background

Erie produces coke at its plant in Erie, Pennsylvania, where the company has its principal office. About 35 employees who regularly work in the areas of the coke oven batteries, and 50 to 55 employees who potentially could work in those areas, wear flame resistant gloves purchased from Erie, as do most of the remaining 130 employees at the plant.

The flame resistant gloves, also known as "hot mill" gloves, are not individually sized. Most of the affected employees wear the long gauntlet (six- inch cuff) style, but the gloves also come in a short gauntlet (two-inch cuff) style. Erie purchases the gloves and then sells them to its employees at cost, which was, at the time of the stipulations, $1.70 a pair for the long gauntlet and $1.30 a pair for the short gauntlet. In exceptional circumstances, such as when the gloves become damaged through no fault of the employee, Erie supplies replacement gloves at no cost. As stipulated, the gloves "last on the average between three and four weeks when used by [Erie's] oven workers."

In response to a complaint filed by the president of Local 8415, United Steelworkers of America, AFL-CIO-CLC, Local 8415, District 20 ("the union"), concerning Erie's failure to pay for the gloves, the Occupational Safety and Health Administration ("OSHA") conducted an inspection of the plant in January 1988. As a result, OSHA issued a citation to Erie alleging that it violated the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("the Act") by failing to "provide" flame resistant gloves as required by section 1910.1029(h)(1)(ii).[[2]] No penalty was proposed. Based on the stipulated record, the judge affirmed the other-than-serious citation and assessed no penalty.

Erie contends that the Secretary's interpretation of "provide" to require it to bear the costs of the gloves is unreasonable because, among other reasons, it is contrary to the objectives of the Act, Commission and court precedent, and the collective bargaining process. Erie also contends that the Secretary is estopped from enforcing the standard in this case because of previous administrative actions that she took involving other coke- producing companies having the same principal owner as Erie. We first consider whether the Secretary's interpretation is reasonable. Our inquiry is limited, by Erie's arguments and the language of the citation, to the Secretary's interpretation of "provide" only as it relates to flame resistant gloves under this standard.[[3]] The test for assessing the reasonableness of the Secretary's interpretation is set out in Martin v. OSHRC (CF & I Steel Corp.), 111 S. Ct. 1171, 1178-80 (1991) ("CF & I Steel"). In CF & I Steel, the Supreme Court held that reviewing courts must defer to the Secretary's interpretation of her own regulations where that interpretation is reasonable, taking into account such factors as the consistency with which the interpretation has been applied, "the adequacy of notice to regulated parties," and "the quality of the Secretary's elaboration of pertinent policy considerations." Id. at 1179-80. The Court further noted that "when embodied in a citation, the Secretary's interpretation assumes a form expressly provided for by Congress." Id. at 1179.

II. Reasonableness of the Secretary's Interpretation of "Provide"

Neither the legislative history of section 1910.1029(h)(1) nor any Commission or court decision has addressed the issue of whether "provide" means "pay for" under this standard. Among the dictionary definitions of "provide" is "to supply what is needed for sustenance or support." Webster's Third New International Dictionary 1827 (1971). That definition suggests, as does the written interpretation of the cited standard introduced by the Secretary, that "provide" encompasses more than merely making items available.

A. Secretary's Written Interpretation

OSHA Instruction STD 1-6.4 (March 12, 1979) ("the Instruction") establishes that the Secretary had, prior to the citation here, interpreted "provide" as meaning "pay for." The Instruction is an internal directive to OSHA's field staff designed to facilitate uniform enforcement of specific coke oven emissions standards and to establish internal OSHA policies. It provides:

A. Purpose.  This instruction clarifies the OSHA inspection procedure for the protective clothing requirement in the Coke Oven Emissions Standard, 29 CFR 1910.1029(h)(2)(i)-(iii).

C. Action.  OSHA will interpret and enforce the standard as follows:
1. The clothing provision and cleaning service are obligations of the employer at no cost to the employee.

E. Background.  Recently, we have received questions concerning the OSHA's inspection procedure for the protective clothing requirement in ... 29 CFR 1910.1029(h)(2)(i)-(iii). Paragraph (h)(2)(i) states "The employer shall provide the protective clothing required by paragraphs (h)(1)(i) and (ii) of this section in a clean and dry condition at least weekly." Additionally, paragraph (h)(2)(iii) states "'The employer shall repair or replace the protective clothing and equipment as needed to maintain their effectiveness."
(Emphasis added.)

The Instruction applies by its own terms to section 1910.1029(h)(1)(ii), the cited standard. As Judge Knight noted in his decision, the standards mentioned in the "'Purpose" portion of the Instruction, 29 C.F.R. § 1910.1029(h)(2)(i)-(iii), which set forth cleaning and maintenance requirements, by necessity incorporate by reference sections 1910.1029(h)(1)(i) (flame resistant jackets and pants, see supra note 3) and (ii) (flame resistant gloves). The Instruction clarifies that "'provision" and "cleaning" of the protective clothing under section 1910.1029(h) are separate obligations to be borne by the employer at no cost to the employee.[[4]]

Erie contends that the Commission cannot consider this written interpretation because, when OSHA issued the Instruction, it was taking "legislative" action in violation of the notice-and-comment procedures of the Administrative Procedure Act, 5 U.S.C. § 553 (1976)("APA"), [[5]] (citing Chamber of Commerce of the United States v. OSHA, 636 F.2d 464 (D.C. Cir. 1980)). We disagree.

In Chamber of Commerce, the court invalidated, based on its determination that it constituted "legislative" action, a regulation issued without notice and comment that sought to impose a new requirement, that employers must pay employees for time spent accompanying OSHA compliance officers on walkaround inspections. The regulation was based on the language in section II (c) of the Act, that employees have "an opportunity" to participate in such inspections. The court distinguished a "legislative" rule from an "interpretive" rule by stating that an "interpretive" rule need not follow the procedures in section 553 of the APA because it is "no more than an expression of [the agency's] construction of a statute or rule." 636 F.2d a.468.

We agree with the judge that the OSHA Instruction here is "interpretive" rather than "legislative" It merely clarifies and explains which meaning, among several ordinary uses, to give the ambiguous term "provide" as it is used in the regulation. It does not set forth a new regulatory requirement. See, e.g., American Hospital Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987); United Technologies Corp. v. EPA, 821 F.2d 714, 718-19 (D.C. Cir. 1987). Accord Bendix Forest Prods Corp. v. Division of Occupational Safety and Health, 600 P.2d 1339 (Cal. Sup. Ct. 1979) (California Division of Industrial Safety's order interpreting "provide" and "furnish" in CalOSHA provisions to require employers to pay for gloves or mittens for lumber movers was specific application of existing regulation, not promulgation of new standard). See also Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927-29 (Fed. Cir.1991). We therefore conclude that in issuing this written interpretation the Secretary did not violate section 553 of the APA. [[6]]

B. Purposes of the Act

Erie contends that it is irrelevant under the Act who pays for the requisite protective clothing and equipment, and, therefore, the Secretary's interpretation of "provide" as requiring imposition of the cost of the gloves on employers is contrary to the objectives of the Act. However, as the judge noted in his decision, several courts have examined the relevant legislative history of the Act and determined that for employers to bear the costs of protective measures is in accordance with the Act's purposes.

1. Legislative History

In United Steelworkers of America v. Marshall ("USWA"), 647 F.2d 1189,1231 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981), the court concluded that the cost of medical removal protection benefits under the lead standard at 29 C.F.R. § 1910.1025(k) can be borne by the employer. It relied heavily on three statements in the legislative history of the Act. First, the Report from Senator Williams, Chairman of the Subcommittee on Labor, Committee on Labor and Public Welfare, stated:

[M]any employers--particularly smaller ones--simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so. The competitive disadvantage of the more conscientious employer is especially evident where there is a long period between exposure to a hazard and manifestation of an illness. In such instances a particular employer has no economic incentive to invest in current precautions, not even in the reduction of workmen's compensation costs, because he will seldom have to pay for the consequences of his own neglect.

S. Rep. No. 91-1282, 91st Cong. 2d Sess. 4 (1970), reprinted in Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 144 (1971) ("Legislative History").

Second, Senator Yarborough, Chairman of the Committee on Labor and Public Welfare, told the Senate during the debate:

We need a Federal statute, not to try to federalize things, but to equalize the cost in one industry vis-a-vis another. We know the costs would be put into consumer goods but that is the price we should pay for the 80 million workers in America.

Legislative History at 444. In addition, Senator Eagleton, a member of the Subcommittee on Labor, stated in consideration of the Conference Report that "the costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are ... reasonable and necessary costs of doing business." Id. at 1150. The Report from Senator Williams also stated that "[f]inal responsibility for compliance with the requirements of this act remains with the employer." Id. at 151.

In Forging Indus. Ass'n v. Secretary of Labor ("Forging Indus."), 773 F.2d 1436, 1451 (4th Cir. 1985) (en banc), the court concluded that the Secretary can, under the Act, require employers to pay for hearing protectors under the noise standard at 29 C.F.R. § 1910.95(i)(1), stating:

The legislative history clearly indicates "that Congress understood that the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment."   American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 at 519-20 (1981). In view of this clear statement, it is only logical that OSHA may require employers to absorb such costs.

We agree with these courts of appeals that, based on the legislative history, Congress intended that the cost of compliance with OSHA would be uniformly reflected in the price of goods and services, so as not to place the safety-conscious employer at a competitive disadvantage. The Secretary's interpretation of "provide" in this case to require employers to bear the cost of the gloves is certainly not inconsistent with this intent nor with the stated purposes of the Act.

2. Decisions Relied Upon by Erie Distinguishable

As support for its view that the Secretary's interpretation is contrary to the purposes of the Act Erie relies on the decisions by the Commission and the Third Circuit[[7]] in The Budd Co., 1 BNA OSHC 1548, 1973-74 CCH OSHD ¶ 17,387 (No. 199, 1974), aff'd, 513 F.2d 201 (3d Cir. 1975) ("Budd"). In Budd, the Commission determined that the employer need not pay for safety shoes under the general industry personal protective standard at 29 C.F.R.§ 1910.132(a), requiring that "[p]rotective equipment ... shall be provided," in light of the language in the next subsection, 29 C.F.R. § 1910.132(b), specifically addressing "employee-owned [personal protective] equipment." The Commission concluded:

Our interpretation comports, not only with settled rules of statutory construction, but, also, with the basic objective of the Act. The purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (Act, sec. 2(b)). Unlike other labor statutes with essentially economic purposes (e.g. Fair Labor Standards Act), the Act is concerned solely with safety and health in the work situation. Prescription of cost allocations is not essential to the effectuation of the Act's objectives. It is irrelevant for the purposes of the Act who provides and pays for the equipment. Either employer or employee provision is consistent with the purpose of the Act.

1 BNA OSHC at 1550, 1973-84 CCH OSHD at p. 21,915 (footnotes omitted). See Budd, 513 F.2d 201, 205-06 (3d Cir. 1975). Erie places particular reliance on this language.

However, neither this language, which is essentially dicta,[[8]] nor the rest of the Commission or court decisions In Budd actually support Erie's claim that the Secretary's interpretation is unreasonable.

In Budd, the Third Circuit found that the Commission's interpretation of the standard did not conflict with "the provisions of the Act itself" or "the attainment of the congressional purpose." 513 F.2d at 205-06. But, as the D.C. Circuit noted in USWA, 647 F.2d at 1231-32 n.66, "the court there [in Budd] failed to address the relevant parts of the legislative history of the OSH Act." Another critical factor distinguishing Budd from this case is that in Budd, it was not the Secretary, whose interpretation is usually afforded considerable weight, but the union that maintained that employers are required to pay for protective footwear. The Secretary agreed with the Commission that employers did not need to pay for safety shoes under section 1910.132(a). 513 F.2d at 205 and n.12; 1 BNA OSHC at 1549, 1973-74 CCH OSHD at p. 21,914.

The language of section 1910.132(a), the standard at issue in Budd, and its neighboring subsection also distinguish that case from this one. Section 1910.132(a) requires that protective clothing and equipment "shall be provided." It does not specify who is to do the providing, only that it be accomplished. Budd, 513 F.2d at 206.[[9]] In contrast, the standard here states clearly that "[t]he employer shall provide." In addition, in finding that the employer was not required to provide safety shoes, the Commission and the Third Circuit in Budd relied heavily on the language of section 1910.132(b) which requires employers to assure the adequacy of "'employee-owned equipment." There is no corresponding provision in section 1910.1029(h) involving employee-owned clothing and equipment.

The safety shoes themselves are also distinguishable from the gloves at issue here because they were, in the Commission's words. "uniquely personal and may be used by the employee when he is away from the job." Budd, 1 BNA OSHC at 1550 n.5, 1973-74 CCH OSHD at p. 21,915 n.5. See USWA, 647 F.2d at 1231 n. 66 (special character of shoes an Issue in Budd because they could be worn off as well as on the job). Erie asserts that the gloves at issue here can be safely worn outside the plant so long as they have been cleaned.[[10]] However, the Secretary and the union maintain that once the gloves have been used in the workplace they have become contaminated and "are no longer reasonably usable outside the workplace." Because the gloves are not individually sized and have a relatively brief (three-to-four week) work life, we agree with the judge that the gloves do not have a 46 uniquely personal" use such as the safety shoes in Budd.

For the reasons given above we conclude that Budd is distinguishable from this case, and we find that the Secretary's interpretation of "provide" as requiring employer payment for the gloves is in accordance with the purposes of the Act.[[11]]

C. Cost Allocation as Subject of Collective Bargaining

Prior to the citation, Erie and the union had participated in collective bargaining negotiations on the issue of who pays for the gloves. The union had requested that Erie provide flame resistant gloves at no cost to the employees, but Erie refused.[[12]] The resultant language in the bargaining agreement stated that protective clothing and equipment "shall be provided by the Company."[[13]]

Erie contends that the Commission in Budd and two federal courts of appeals have acknowledged that, unless there is specific language to the contrary in the applicable standard, allocation of costs of personal protective equipment and clothing is best resolved through collective bargaining, citing United Parcel Service of Ohio v. OSHRC ("UPS"), 570 F.2d 806 (8th Cir. 1978); Leone v. Mobil Oil Corp. ("Leone"), 523 F-2d 1153 (D.C. Cir. 1975). Erie notes that, after concluding that section 1910.132(a) did not require employers to pay for the gloves in light of section 1910.132(b), the Commission stated in Budd:

The question of cost allocation . . . is a question to be resolved between employer and employee. In our judgment, it is an appropriate subject for collective bargaining. Cf. Fiberboard Paper Products Corp. v. NLRB (concurring opinion), 379 U.S. 212, 227" (1964); NLRB v. Miller Brewing Co., 408 F.2d 12, 14 (9th Cir. 1969); NLRB v. Gulf Power Co., 384 F.2d 822, 824-25 (5th Cir. 1967).

1 BNA OSHC at 1550, 1973-74 CCH OSHD at p. 21,915. Erie also relies on the Third Circuit's only words on this issue in its decision affirming the Commission's decision in Budd: "Moreover, the cost of the shoes may be compensated by other items in the collective bargaining settlement." 513 F.2d at 208 n.20. Erie asserts that its negotiations with the union involved the type of trade-off described by the Third Circuit.

We would first note that the portion of the Commission decision in Budd quoted by Erie was not dispositive of that case and is therefore dicta. However, the issue of cost allocation under the Act has been more thoroughly discussed by other courts. In Forging Indus., the Fourth Circuit stated:

FIA's argument that this [provision of hearing protectors at no charge] is a traditional area of collective bargaining is unpersuasive. . . . "In passing a massive worker health and safety statute. Congress certainly knew it was laying a basis for agency regulations that would replace or obviate worker safety provisions of many collective bargaining agreements. Congress may have viewed collective bargaining agreements along with state worker's compensation laws as part of the status quo that had failed to provide worker's sufficient protection."

773 F.2d at 1451-52 (quoting USWA, 647 F.2d at 1236 (D.C. Cir. 1980)).

The decisions upon which Erie relies are distinguishable from this case. In UPS, the issue was not who should pay for safety shoes, but rather what types of shoes at what cost would be adequate under the circumstances. The Eighth Circuit found that, in light of such factors as the nature of the business, the small size of the parcels, the low injury rate, and the high turnover rate of employees, it was "unreasonable and an abuse of discretion [for the Commission] to require that all of the unloaders and sorters be equipped, either at their expense or at the expense of petitioner, with steel-toed safety shoes." 570 F.2d at 812 (emphasis added). Leone involved a charge initiated by employees, not the Secretary, requesting payment for time spent participating in a walkaround inspection. 523 F.2d at 1154. In Leone, the D.C. Circuit noted that the plaintiffs argued that the 44 policies of OSHA," not the labor agreement or the language of the Act, require payment for those "hours worked" that are compensable under the Fair Labor Standards Act. Id. at 1159.

We agree with the reasoning of the courts in Forging Indus. and USWA. We therefore conclude that the Secretary's interpretation of this standard to require coke producing employers to pay for flame resistant gloves is reasonable under the Act, and that it is not affected by the collective bargaining agreement.

We do not base our conclusion on the Secretary's assertion that Erie and the union cannot bargain on the issue of the cost of the gloves because it relates to the "creation of a safety disincentive." Where the record has supported it, the role of safety incentives or disincentives has been found significant in several cases. Cf. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 322 (5th Cir. 1987) (employer's failure to maintain premium payments would provide economic disincentive to voluntary employee cooperation in medical surveillance program); Phelps Dodge Corp., 11 BNA OSHC 1441, 1443, 1983-84 CCH OSHD ¶ 26,552 p. 33,919 (No. 80-3203, 1983), aff'd, 725 F.2d 1237 (9th Cir. 1984) (in finding violation of standard requiring that medical examinations be "provided without cost to the employee." Commission noted that 42 percent of employees failed to go for follow up examinations when required to bear own transportation costs and use own personal time).

However, the Secretary's safety disincentive argument is not supported by the record. The Secretary, who has the burden of proving the violation, acknowledged at the oral argument that there is nothing in this stipulated record that establishes that Eric's employees were in fact wearing their gloves past their protective life in order to save themselves money. Common sense dictates that Eric's employees have the incentive to wear fully protective gloves because they know burns could otherwise result. The Secretary acknowledged at the oral argument that there is a certain point of discomfort at which an employee would change gloves to avoid burns. Moreover, the record indicates that employees do wear the gloves.

D. Work Rule to Address Practical Concerns

Eric asserts that its motive for charging its employees for the gloves is to prevent waste. It claims that its employees do not use as many pairs of gloves when they pay for the gloves themselves. Eric contends that the gloves may be used for a number of non-work purposes outside the plant, but the record is silent as to whether its employees were doing this. Eric argues that its interpretation of the standard is therefore more economically feasible than the Secretary's interpretation because it saved money by the reduction in glove purchases compared to its predecessor, the Koppers Corporation. However, the only statistics Erie has introduced to support that claim involve glove use during a seven-week strike that occurred prior to the collective bargaining. Even if those figures had shown that Erie could save money by not bearing the costs of the gloves, that does not mean that the Secretary's interpretation here is unreasonable. Based on the rulemaking record, OSHA found that "compliance with the standard (even if the higher cost estimate were used) is well within the financial capability at the coking industry." Exposure to Coke Oven Emissions: Final Rule, 41 Fed. Reg. 46,742, 46,751 (1976).

The Secretary and the union express their concern that gloves worn in the regulated areas of Erie's facility would be contaminated with coke oven emissions and therefore should not be used by employees outside of work. The union avers that most of the coke-producing, employers it has negotiated collective bargaining agreements with have work rules prohibiting employees from taking personal protective clothing and equipment away from the workplace. We conclude that, if such a work rule were adopted in this case, it would address the health concerns of the Secretary and the union, as well as the economic concerns of Eric.

Based on the discussions above, we conclude that the Secretary's interpretation of "provide" in section 1910.1029(h)(1) to require employers to pay for flame resistant gloves is reasonable and entitled to deference.

Ill. Estoppel Defense

Erie contends that, based on prior OSHA positions in two settlement agreements and a discussion with an OSHA regional official involving two other coke-producing corporations owned by J.D. Crane, Erie's principal owner, the Secretary has waived her right to interpret the standard to require employer payment for the gloves and is therefore estopped from enforcing the standard in this case.

The first settlement that Eric points to involved Carondelet Coke Corporation ("Carondelet") of St. Louis, Missouri. In April 1985, the Secretary cited Carondelet for an other-than-serious violation of section 1910.1029(h)(1)(ii), the same standard at issue here. During the settlement discussions, the parties deadlocked only on the issue of payment for the gloves. The Secretary and Carondelet finally agreed to a settlement that merely affirmed the item, without any mention of who must bear the cost of the gloves. For the next two years, until the plant closed, OSHA did not challenge Carondelet's practice of selling the gloves to its employees.

The other settlement upon which Erie relies resulted from a citation issued in August 1987, to Toledo Coke Corporation ("Toledo") of Toledo, Ohio, for violating the standard at issue here. The parties agreed that the citation item, along with several others, would be vacated on the basis that "there is insufficient evidence to establish violations of the standards cited at the times and places alleged."

In addition, Erie contends that, at a meeting in December 1986 with Carondelet representatives, the OSHA Area Director for St. Louis, Warren Hargreaves, advised them that he interpreted section 1910.1029(h)(1)(ii) to not require an employer to provide flame resistant gloves at no cost to the employees. The basis for this averment by Erie is an unsigned letter to the company's vice president from one of Carondelet's representatives who attended the meeting.

To establish a traditional estopped defense against a litigant, a party must prove: "(1) a misrepresentation by another party; (2) which he reasonably relied upon; (3) to his detriment." United State Asmar (" Asmar "), 827 F-2d 907, 912 (3d Cir. 1987); see Heckler v. Community Health Service of Crawford County ("Crawford"), 467 U.S. 51, 59 (1984). The Supreme Court recognized in Crawford that the Government may not be estopped on the same terms as any other litigant. Id. at 60. Because the Supreme Court found that the traditional estopped elements had not been proven, it did not reach the issue, which was before the Third Circuit in Crawford, of what more a party must show to estop the Government. Id. at 60-61. The Third Circuit, to which this case can be appealed, see supra note 7, and several other federal circuit courts have determined that for the Government to be estopped there must be a showing of a fourth element called "affirmative misconduct." Asmar, 827 F.2d at 911 n.4, 912. See Miami Industries, Inc., 15 BNA OSHC 1258, 1264-66, 1991 CCH OSHD ¶ 29,465, pp. 39,742-43 (No. 88-671, 1991), appeal filed, No. 91-4045 (6th Cir. Nov. 7, 1991)

Judge Knight concluded in his decision that Erie had failed to establish the estopped defense because it did not show that OSHA had made misrepresentations upon which Eric could have reasonably relied, nor did it prove affirmative misconduct. The judge noted that the Carondelet settlement was silent as to the cost issue and the Toledo settlement had no information in it that could lead an employer to believe that cost allocation was a factor influencing the Secretary's agreement to vacate. Relying on Crawford, 467 US. at 65-66, the judge concluded that the fact that Hargreaves' advice was oral instead of written undermined the reasonableness of any reliance on it. He found that a subsequent letter by the Carondelet representative "confirming" Hargreaves' statement at the informal conference did not transform that statement into an authority upon which Erie could reasonably rely. The judge also noted, quoting Long Beach Container Terminal Inc. v. OSHRC, 811 F.2d 477, 479 (9th Cir. 1987), that an internal staff memorandum written by the employee who drafted the standard "expresses the view of a particular staff member, not the official view of the Secretary....It is the Secretary who promulgates the standards, and the Secretary's official statements must be the guide as to their meaning."

We agree with the judge's reasoning. We would add that the settlements and the alleged misrepresentations in the discussion with Hargreaves were not made to Erie itself, but rather to other subsidiaries of Its principal owner. Furthermore, as the Secretary suggests, settlement agreements by their nature reflect the give and take, or trading off, particular to a case, and in both the Carondelet and Toledo settlements, numerous citation items were at issue. Those two settlement agreements reflect the results of the bargaining process with regard to those particular companies and those particular citations. They are therefore not "misrepresentations" that Eric could have "reasonably relied upon." Moreover, the Secretary's exercise of her discretion not to issue a citation for a particular condition, as she did against Carondelet, does not immunize an employer from being cited for the same or a similar condition in a future enforcement action. E.g., Donovan v. Daniel Marr & Son Co., 763 F.2d 477, 484 (1st Cir. 1985); Cardinal Indus., 14 BNA OSHC 1008,1013,1987-90 CCH OSHD ¶ 28,510, p. 37,803 (No. 82-427,1989), rev'd on other grounds, 828 F.2d 373 (6th Cir. 1987); Columbian Art Works, Inc., 10 BNA OSHC 1132 1133,1981 CCH OSHD ¶ 125,737, p. 37,102 (No. 78-29, 1981). See also United States v. City of Menominee, 727 F.Supp. 1110, 1121 (W.D. Mich. 1989) (mere inaction by EPA in face of violations not affirmative misconduct upon which estopped will lie). The Toledo settlement provides even less support for Erie's case. OSHA's decision there to agree to have the judge vacate for "insufficient evidence" indicates only the deficiency in OSHA's evidentiary case, not its legal position. See Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1104-05 (5th Cir. 1980) (where Secretary's failure to proceed due to evidentiary reasons, employer should have been aware that Secretary's position would be litigated in future).

Concerning the alleged statement by Hargreaves, we note that the Secretary did not stipulate that Hargreaves made the statement. She only stipulated that "Respondent [Erie] avers" that he made the statement. Therefore, the record does not establish that there was any actual representation, and thus no "misrepresentation." Although the Secretary acknowledged at the oral argument that there could have been some reasonable reliance on Hargreaves' statement, assuming it was a misrepresentation, we note, as the judge did, that a party is less justified in relying on oral rather than written advice. See Crawford, 467 US. at 65-66; Henry v. United States, 870 F-2d 634, 637 (Fed. Cir. 1989). See generally Schweiker v. Hansen, 450 U.S. 785, 790 (1981) (erroneous information from Social Security field representative "fall[s] far short" of conduct that would raise an estopped question against the government); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (to extent company relied on interpretation of regulations by MSHA officials, it "assumed the risk" that interpretation in error). The reasonableness of Erie's reliance on Hargreaves' alleged statement is further diminished by the fact that, eight months after Hargreaves' statement, the Secretary issued a citation to Toledo, which resulted in the 1987 settlement discussed above, that alleged a violation of the cited standard for failure to pay for gloves, an enforcement position contrary to Hargreaves' statement.

Even assuming that Hargreaves had made a misrepresentation upon which Erie reasonably relied, there is no evidence that Erie instituted or changed its policy of charging for gloves in reliance on what Hargreaves allegedly told it. Instead, as shown by the averment of J.D. Crane, Erie's principal, "[d]uring his entire career in the industry [over 40 years], no plant under his operation or control has provided hot mill or name resistant gloves at no cost to the employees."

Even if Erie had established that there was a misrepresentation by the Secretary that it had reasonably relied upon to its detriment, Erie has the burden of additionally proving that the misrepresentation rose to the level of "affirmative misconduct." Asmar, 827 F.2d at 912. It is clear that the record here does not support a finding of the sort of "active" misrepresentations and resultant injustice to the estoppel claimant necessary to establish this element. See Miami Industries, 15 BNA OSHC at 1266,1991 CCH OSHD at pp. 39,743-44 (several reinforcing "active" misrepresentations constitute "affirmative misconduct" where employer suffered unfairness and estoppel would not unduly damage the public interest).

Based on the discussion above, we conclude that Erie failed to prove that the Secretary made misrepresentations to it that it reasonably relied upon to its detriment. We therefore reject Erie's estoppel defense.

Having found that the Secretary is not estopped from applying her reasonable interpretation of "provide" under this standard with regard to the flame resistant gloves, we conclude that, based on the stipulated record, Erie failed to comply with the terms of section 1910-1029(h)(1)(ii).

IV. Classification of Violation

Under section 10(c) of the Act, 29 U.S.C § 659(c), the Commission has the authority to issue an order "affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief." Section 9(a) of the Act, 29 U.S.C § 658(a), provides that "de minimis" violations "have no direct or immediate relationship to safety and health." Based on these sections of the Act, the Commission has the authority to classify a violation as de minimis where it, has no direct or immediate relationship to employee safety and health. Super Excavators, Inc., 15 BNA OSHC 1313, 1314, 1991 CCH OSHD ¶ 29,498, p. 39,802 (No. 89- 2253,1991).

Violations have been classified as de minimis where the level of protection that the employer afforded employees was not significantly different from that required by technical compliance with the standard. See Super Excavators, 15 BNA OSHC at 1313-14, 1991 CCH OSHC at p. 39,801-02 (Commission, upon motion by the Secretary, classified violation as de minimis where employer had developed and implemented a written hazard communication plan but had not maintained a copy of the plan at a transient worksite); Charles H. Tompkins, 6 BNA OSHC 1045, 1047, 1976-77 CCH OSHD ¶ 1977-78 CCH OSHD ¶ 22,337, p. 26,918 (No. 15428, 1977) (violation was de minimis because employees" climbing safety was not "appreciably diminished" by additional distance between rungs on scaffold bucks). See also Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 1030-33 (5th Cir. 1989) (violation was de minimis because safety monitors provided protection as sufficient as prescribed warning lines for employees four feet from edge of roof). The Commission has recognized that its decisions finding violations de mininis are not intended "to derogate from the Secretary's rulemaking authority," as, for example, where she has made a specific choice from among different protective measures. Turner Co., 4 BNA OSHC 1554, 1564, 1976-77 CCH OSHD ¶ 21,023, p. 25,281 (No. 3635, 1976), set aside and rem'd on other grounds, 561 F.2d 82 (7th Cir. 1977).

In this case, the protective measures required by the standard are that gloves be made available to employees and that employees wear them. It is undisputed that Erie did make flame resistant gloves available to its employees, and that the employees wore the gloves. However, as we noted above in dismissing the Secretary's safety disincentive argument, there is nothing in the stipulated record indicating that employees were wearing torn or otherwise ineffective gloves beyond their useful life in order to save money, thereby exposing their hands to possible burns and coke oven emissions in the work environment.Cf. Anoplate Corp., 12 BNA OSHC 1678, 1688, 1986-87 CCH, OSHD ¶ 27,519, p. 35,686 (No. 80-4109, 1986) (de minimis violation of 29 C.F.R. § 1904.2(a) where no evidence that employer's failure to list injured employees' job titles and departments, hindered OSHA investigation, and all employees knew details anyway). Had the Secretary introduced any evidence that Erie's employees were not adequately protected by the gloves they wore, she could have established that Erie's practice of charging its employees for the gloves did have a direct relationship to the safety and health of the employees.

In the absence of such evidence, we conclude that, based on this particular stipulated record, including the collective bargaining agreement between Erie and the union, Erie's employees have not been shown to have suffered any direct impairment of their safety and health as a result of having to pay for the gloves. We therefore characterize Erie's violation as de minimis with regard to these particular employees. A de minimis violation carries no penalty and requires no abatement. See Super Excavators, 15 BNA OSHC at 1315, 1991 CCH OSHD at p. 39,803.

V. Order

We therefore affirm the citation insofar as it alleged that Eric violated section 1910.1029(h)(1)(ii) by requiring its employees to pay for the flame resistant gloves, and we find that the violation is de minimis.

Edwin G. Foulke, Jr.
Chairman

Donald G.Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: April 10, 1992

ANN McLAUGHLIN, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
Complainant,

v.

ERIE COKE CORPORATION,
and its successors,
Respondent.

OSHRC Docket No. 88-0611

Appearances:
Mark V. Swirsky, Esq., for Complainant
John J. Gazzoli, Jr., Esq., for Respondent

DECISION AND ORDER

This is a proceeding brought under section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. § 651 et seq., hereinafter sometimes referred to as 'the Act') to review a citation issued by the Secretary of Labor pursuant to section 9(a) of the Act.

Due to a complaint filed by the president of the local union representing respondent's employees, an investigation of respondent's Erie, Pennsylvania, coke plant facility was conducted between January 15, 1988 and January 29, 1988. One citation was issued on February 17, 1988, alleging an other- than-serious violation of the coke oven emissions standard at 29 CFR § 1910.1029 (h)(1)(ii). No penalty was assessed. Respondent timely filed with a representative of the Secretary of Labor a notification of intent to contest the citation on March 30, 1988.

The parties submitted the case on the basis of a stipulated record on December 15, 1988, pursuant to Commission Rule 107, 29 CFR §2200.107. Both parties filed proposed conclusions of law on January 26, 1989.

Background

Respondent, Erie Coke Corporation ("Erie"), is a corporation engaged in the operation of a coke plant, using coke oven batteries, with its principal office and place of business located at Foot of East Avenue, Erie, Pennsylvania (Stipulation of Parties, ¶ 1). Respondent is an employer engaged in a business affecting commerce within the meaning of sections 3(3) and 3(5) of the Act (Stipulation ¶ 3).

Respondent employs approximately 130 employees at its Erie coke plant, of which approximately 35 work in regulated areas involving coke oven batteries; there is the potential for approximately 50 to 55 employees to work in these areas (Stipulation ¶ 7).

Respondent acquired the Erie, Pennsylvania coke oven facility in April, 1987 (Stipulation ¶ 6, ¶ 9). The former owner and operator of the plant, Koppers Corporation, provided flame resistant gloves at no cost to employees; respondent did not adopt Koppers' collective bargaining agreement with the United Steelworkers of America ("USWA") (Stipulation ¶ 6, ¶ 9).

All of respondent's employees who work in proximity to the coke oven batteries are provided and wear flame resistant, or "hot mill" gloves as required by 29 CFR §1910.1029(h)(1)(ii) (see Exhibit K) These gloves are sold by respondent to employees at cost (Stipulation ¶ 8). In the event that an employee's gloves become inadvertently damaged, replacement gloves are furnished by the employer at no cost to the employee (Stipulation ¶ 8).

The parties agree that OSHA considers coke oven emissions to be carcinogenic; oven workers and affected employees have been so instructed (Stipulation ¶ 24, ¶ 25; see Exhibit L of Stipulation of Parties: 41 Fed. Reg. 46744 (1976)).

The sole issue in this case is whether the employer must bear the cost for provision of the flame resistant gloves required under the standard.

Discussion

The standard at 29 CFR § 1910.1029(h)(1)(ii) provides:

(h) Protective clothing and equipment - (1) Provision and use. The employer shall provide and assure the use of appropriate protective clothing and equipment, such as but not limited to:

(ii) Flame resistant gloves;

29 CFR § 1910.1029(h)(1)(ii).

The Secretary and the employee representative, Robert M. Kostek, president of local 8415, USWA AFL- CIO, contend that the standard requires that the employer provide flame resistant gloves at no cost to the employee. The Respondent argues that the standard is silent on the issue of cost allocation for personal protective equipment, and that compliance with the standard is accomplished by providing gloves for employees to purchase and assuring their use.

The standard does not specifically assign responsibility for payment of the cost of flame resistant gloves to either the employer or the employee. The Preamble to the standard is equally silent on this issue. (See Exhibit L: 41 Fed. Reg., 46775 (October 22, 1976) ('The standard requires the employer to provide and ensure that employees use protective clothing and equipment in order to minimize three types of hazards').[[1]]

The Secretary contends that OSHA has consistently interpreted the standard as requiring the employer to assume the cost of flame resistant gloves. She submits two documents to buttress this assertion: OSHA Instruction STD 1-6.4, issued on March 12, 1979 (Exhibit M) and a memorandum from the Directorate of Compliance Programs, dated October 31, 1988, which upholds the current validity of the OSHA Instruction (Exhibit N).

OSHA Instruction STD 1-6.4 clarified the OSHA inspection procedure for the protective clothing requirement found at 29 CFR § 1910.1029 (h) (2) (i) (iii).[[2]] It stated that OSHA would interpret and enforce the standard as follows:

1. The clothing provision and cleaning service are obligations of the employer at no cost to the employee.
(see Exhibit M).

This instruction was later referred to in a memorandum, dated October 31, 1988, written in response to a request for an interpretation of the coke oven emissions standard, and whether or not the employer must furnish the equipment identified in this standard at no cost to the employee. The memorandum reiterated the interpretation given in the OSHA Instruction by stating that the clothing provision and cleaning requirements of that section were obligations of the employer at no cost to the employee (see Exhibit N).

Joseph Hopkins, author of this memorandum, is a Mechanical Engineer with OSHA's Directorate of Compliance Programs Office of Health Compliance Assistance. Since 1980, he has had principal oversight responsibility for coke oven emissions standard compliance and enforcement for OSHA. He avers that during his tenure at OSHA, it has been "OSHA's national enforcement policy that all protective clothing and equipment listed in 29 CFR §1910.1029(h)(1) in an obligation of the employer to provide at no cost to the employee." (Stipulation ¶ 33).

Erie contends that these agency interpretations, by imposing such costs on employers, are an attempt at "legislating" rather than "interpretation" and must, therefore, be vacated for failure to comply with the notice-and-comment rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. §553. See, Chamber of Commerce of the United States v. OSHA, 636 F.2d 464 (D.C. Cir. 1980).

In Chamber of Commerce, an "interpretive rule and general statement of policy" promulgated by the Assistant Secretary of Labor declared that "an employer's failure to pay employees for time during which they are engaged in walkaround inspections is discriminatory under section 11(c)" of the Act. 646 F.2d 464, 467. This regulation was codified at 29 CFR § 1977.21 (1979) (42 Fed.Reg. 47344-47345 (1978)) without public proceedings. The D.C. Circuit held this action to supplement rather than to construe the Act, and was thus a legislative rather than an interpretive rule. The regulation was vacated as improperly promulgated in absence of full public notice-and-comment procedures under the Administrative Procedure Act.

The D.C. Circuit distinguished an interpretive from a legislative rule: "A rule is interpretive, rather than legislative, if it is not 'issued pursuant to legislatively delegated power to make rules having the force of law' or if the agency intends the rule to be no more than an expression of its construction of a statute or rule." Chamber of Commerce, supra, at 468. They are "'statements as to what the administrative officer thinks the statute or regulation means.'" Chamber Of Commerce, supra, at 469, citing Citizens to Save Spencer County v. United States Environmental Protection Agency, 600 F.2d 844, 876 (D.C. Cir. 1979) (quoting Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1952)).

In the instant case, the OSHA Instruction was not a promulgation of a new regulation or standard, but an application of an existing standard. See Bendix Forest, Products Corp. v. Division of Occupational Safety and Health, 25 Cal. 3d 465, 158 Cal.Rptr. 882, 600 P.2d 1339, (1979) (employer required to pay for protective gloves under California law, as Division of Industrial Safety had authority to issue order which interpreted "'furnish" or "provide" safety equipment as requiring employer to do so at its expense). The OSHA Instruction served to provide a "clarification of statutory language", and was, thus, interpretive rather than legislative. Chamber of Commerce, citing Joseph v. United States Civil Service Commissioning, 554 F.2d 1140, 1153 (1977).

In this case, the Secretary must interpret, must come to a conclusion. Is the union correct: "shall provide" means the employer must pay the cost of the gloves? Is the respondent correct: "shall provide" means only to make available? In either case, the Secretary interprets the standard. The question of what "shall provide" means lurks in the standard itself and its answer is not something superimposed there but only removes a doubt.

Unlike the situation in Chamber of Commerce, supra, where the employer had no role to play concerning the employees' rights during the walk-around inspection (see 636 F.2d at 467), here, the employer is directly and necessarily involved. One way or another, cost-wise, the employee must wear the gloves; but for an employee to accompany the inspecting officer is only permissive[[3]] by statute [29 U.S.C. §657(e)]. Since the Act is silent as to the employee cost of accompaniment, to force it on the employer is a superimposition, i.e., there was no such "existing duty" (see 636 F.2d at 469), and such compulsion is an exercise of legislative power.

But here, providing the gloves is a requirement and who bears the cost merely implements that requirement.  Thus, the OSHA Instruction STD 1-6.4 must qualify as " ... rule...no more than an expression of its [i.e. the Secretary's] construction of a statute or rule", 636 F.2d at 468, and it is not a legislative implementation.

Legislative History of the Act

In the Chamber of Commerce decision, the D.C. Circuit reasoned that OSHA could not have been clarifying the Act's language in issuing its interpretive rule, as the Act "neither prohibits nor compels pay for walkaround time."  Congress had not "'legislated and indicated its will'" on the question of walkaround pay, thus, the agency did more than "exercise its 'power to fill up the details.' "Chamber of Commerce, supra, citing United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563 (1911) (quoting Wayman v. Southard, 23 U.S. (10 Whear.) 1, 43, 6 L.Ed. 253 (1825)).

As the Secretary notes, the legislative history of the Act indicates that Congress intended that "[f]inal responsibility for compliance with the requirements of this act remains with the employer."  S. Rep. No. 91-1282, 91st Cong., 2d Sess. 4 (1970).  Congress contemplated that this responsibility would include the assumption of costs by employers when necessary to create a safe and healthful working environment. Forging Industry Ass'n v. Secretary of Labor, 773 F.2d 1436 (4th Cir. 1985) (citing American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 at 519-520, 101 S.Ct. 2478, 2495-96, 69 L.Ed 2d 185 (1981)).

The report of the Senate subcommittee on Labor and Public Welfare from which the Act emerged "stressed the need to place the cost of standards on employers, noting that

many employers--particularly smaller ones--simply cannot make the necessary investment in health and safety, and survive competitively, unless all are compelled to do so. The competitive disadvantage of the more conscientious employer is especially evident where there is a long period between exposure to a hazard and manifestation of an illness. In such instances a particular employer has no economic incentive to invest in current precautions, not even in the reduction of workman's compensation costs, because he will seldom have to pay for the consequences of his own neglect.

United Steelworkers of America. Etc. v. Marshall, 647 F.2d 1189, 1231 (D.C. Cir. 1980), cert. denied 453 U.S. 913, 101 S.Ct. 3148 (1981), quoting S. Rep. No. 91-1282, 91st Cong. 2d Sess. 4 (1970).

Further indication that Congress intended to place financial responsibility for compliance with the Act on the employer is found in the statement of Senator Eagleton, a member of the subcommittee:

[t]he costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are... reasonable and necessary costs of doing business.

USWA v. Marshall, supra.

Costs of Doing Business

Respondent refers to the language of the Review Commission decision in Budd Co., 1 BNA OSHC 1548 (1974), to support its claim, that cost allocation is irrelevant to fulfillment of the Act's purposes:

Unlike other labor statutes with essentially economic purposes, the Act is concerned solely with safety and health in the work situation. Prescription of cost allocations is not essential to the effectuation of the Act's objectives .... The question of cost allocation, on the other hand, is a question to be resolved between employer and employee. In our judgment, it is an appropriate subject for collective bargaining. [footnotes omitted].

Budd Co. v. Occupational Safety & Health Rev, Com'n, 513 F.2d 201, 203 (3rd Cir. 1975) quoting 1 BNA OSHC 1548 (Rev. Comm. 1974).[[4]]

The Review Commission in Budd Co. held that the word "provide" in the standard at 29 CFR § 1910.132(a) [[5]] did not require the employer to pay for foot protection (safety shoes) for its employees. The Secretary of Labor had endorsed this interpretation of the standard as it applied to safety shoes.

The rationale for this decision was based primarily on a reading of the entire section in question, and the "uniquely personal" nature of safety shoes. Upon appeal by the union ("UAW"), the Third Circuit affirmed the Commission decision as "a reasonable reading of the language of 1910.132(a)." Budd, supra, 513 F.2d 210, 206. The Secretary distinguishes the Budd decision on the two fundamental levels which served as the basis for the Third Circuit's decision. For the following reasons, I agree with the Secretary's analysis.

Language of the Standard

The Review Commission, and later, the Third Circuit, looked to the language of section 132. Section 132(b) stated the requirements for employee-owned equipment. The Commission determined that to require the employer to pay for protective equipment under subpart (a) would render subpart (b) "superfluous." Further, the regulation did not explicitly compel the employer to bear the cost of the protective equipment. "The verbs -- 'provided, used and maintained'-- set forth in subsection (a), are all phrased in the passive voice, without specifying who is to perform these functions. At least one of the items of conduct -- use -- must be carried out by the employees." Budd, supra, at p.206.

In contrast, the standard at 1029(h) does not delineate requirements for "employee-owned" equipment. Moreover, as the Secretary notes, the standard is phrased in the active voice: "The employer shall provide and assure." 29 CFR § 1910.1029(h)(1).

Personal v. Capital Equipment

The Review Commission emphasized the personal nature of protective devices which were characterized by their ability to be worn off-the-job as well as at work. As it explained in footnote 5 of its decision:

We do not imply that an employer is not to bear the cost of things such as capital equipment which is ordinarily his responsibility to assume. We are here considering the cost-allocation of personal equipment.... [W]e note that the most universally used foot protective equipment is the steel-toed shoe. Thus, the most universally used type of protection is uniquely personal and may be used by the employee when he is away from the job.

Budd-Co., supra, at p.203, quoting 1 BNA OSHC 1548.
The "uniquely personal" nature of safety shoes was a critical factor in the Commission's determination. The Secretary and Erie, in the instant case, disagree on the non-work utility and, thus, the characterization of hot mill gloves an "personal" equipment.

Erie asserts that hot mill gloves may be used outside the workplace both before and after having been used at the coke plant (Stipulation ¶ 11, 12(b)). The Secretary and employee representative aver that these gloves may not reasonably be used outside the workplace after having become soiled and contaminated by carcinogenic coke oven battery emissions (Stipulation ¶ 12(a)).

Employees wear two types of flame resistant gloves: short gauntlet and long gauntlet, with nearly all affected employees donning the latter (Stipulation ¶ 8, Exhibit K). The gloves are not individually sized, and have an approximately three to four week work life (Stipulation ¶26).

As the Secretary points out, the coke oven emissions standard has a scheme of precautionary requirements intended to separate contaminated protective clothing and equipment. All oven workers and other hourly employees have clean clothes lockers and dirty clothes lockers which are separated, as required by the coke oven emissions standard, by a 15 to 20 foot hallway. From their initial use to final disposal, flame resistant gloves are kept by respondent's employees in their dirty clothes locker, with used work clothing and other used personal protective equipment, when not in use (Stipulation 122). [[6]]

While Erie alludes to the potential for outside use of hot mill gloves, it does not aver that such use, in fact, occurs. [[7]]

I find that hot mill gloves, unlike safety shoes under section 132(a), do not have a uniquely personal use. Given the exposure of these gloves to coke oven emissions and their relatively brief work life, it is not reasonable to assume that this type of protective clothing may be used outside the workplace.

While the Third Circuit in Budd found that the Commission's interpretation of 132(a) was not unreasonable, it made clear that it expressed no opinion on cost allocation for other protective devices. "We need not now decide whether the Commission could reasonably conclude that the employer is not obligated to bear the cost of other mandatory protective equipment." Budd, supra, at p.206. For the foregoing reasons, I find the circumstances in the present case to fall within the specter of those which the Third Circuit declined to address, and are thus distinguishable from those presented in the Budd decision.

Deference to Agency Interpretation

"When construing a statute or regulation, the courts show great deference to the interpretation of the officers or administrative bodies charged with its administration." Brock v. Schwarz-Jordan. Inc., 777 F.2d 195 (5th Cir. 1985); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed 2d 616 (1965). The Third Circuit in Budd reiterated the principle expressed in Udall v. Tallman, that "When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order." Budd, supra, at p.205.

Erie contends that reasonableness is gleaned from weighing the surrounding circumstances, and sets forth several factors in support of this determination which are predominantly based on cost-efficiency. It charges that hot mill glove purchases decreased when employees were obligated to purchase them (Stipulation 12, 13; Exhibit C). In addition, respondent does not make a profit on gloves, and will pay to replace them if they are ruined by no fault of the employee. Respondent provides, free of charge, all other protective equipment, including respiratory protection and clothing, except for hot mill gloves and safety shoes, to employees (Stipulation ¶ 8, ¶ 28, ¶ 29 ¶ 31). Erie contends that employees be required, at least, to submit the issue of payment to collective bargaining (Respondent's Brief, p.13). [[8]]

The Secretary argues that its interpretation of the standard is reasonable and consistent with prior agency interpretation, and more likely to effectuate the purpose of the Act. "[A]n agency's interpretation of a regulation 'is deemed of controlling weight as long as it is one of several reasonable interpretations ... even though the chosen exegesis may not appear quite as reasonable as some other construction.'" Budd Co., supra, at p. 205, n.11, quoting Roy Bryant Cattle Co. v. United States, 463 F.2d 418, 420 (5th Cir. 1972). and other cases cited therein.

The record reflects that the agency has interpreted the standard to require the employer to provide safety gloves at no cost to employees. This is not inconsistent with either prior case law or the purposes of the Act. While respondent's cost efficiency arguments are well stated, I find the Secretary's interpretation to be reasonable and entitled to great weight.

Respondent's Affirmative Defense: Waiver and Estoppel

Respondent seeks to vacate this item on the basis of two prior enforcement actions involving citations under 29 CFR § 1910.1029(h)(1)(ii) against coke plants operated by respondent's

replace or obviate worker safety provisions of many collective bargaining agreements. Congress may well have viewed collective bargaining agreements along with state worker's compensation laws as part of the status quo that had failed to provide workers sufficient protection.

Forging Industry, supra, quoting USWA v. Marshall, supra, at p.1236. principal, J.D. Crane, and a statement made by the former OSHA Area Director in St. Louis, Missouri. Respondent argues that the Secretary should be estopped from enforcing the regulation against it in the instant case.

In the first case (OSHRC Docket No. 85-0448), Carondelet Coke Corporation was issued a citation, in part, for an other than serious violation of 29 CFR § 11910.1029(h)(1)(ii). A settlement agreement ensued in which this item was affirmed, however, Carondelet refused to pay for the gloves as a condition of settlement; Secretary's counsel reiterated her position that the employer had the burden of paying for flame resistant gloves under this standard (Stipulation ¶ 14; Exhibit E).

The parties, however, agreed to a settlement that affirmed the citation without any mention of the issue of cost.

The second citation, issued against Toledo Coke Corporation, (OSHRC Docket No. 87- 1388) involved, in part, an other than serious violation of this standard. As part of a subsequent settlement agreement, this item was vacated on the grounds "that there is insufficient evidence to establish violations of the standard(s) cited at the times and places alleged." (Stipulation ¶ 16; Exhibit H).

Respondent avers that St. Louis OSHA Area Director Warren Hargreaves, in a December 1986 meeting with Carondelet representatives, advised that it was his interpretation that paragraph (h)(1)(ii) of 29 CFR § 1910.1029 did not require an employer to provide hot mill gloves at his expense. (Stipulation 15; Exhibit F).

The Supreme Court has declined to hold that there are no cases in which the government may be estopped, but estoppel against the government requires more than proof of the traditional elements of this affirmative defense. Montana v, Kennedy, 366 U.S. 308, 81 S.Ct. 1336 (1961).

To succeed in a traditional estoppel defense, a party must prove: "(1) a misrepresentation by another party; (2) which he reasonably relied upon; (3) to his detriment." United States v. Asmar, 827 F.2d 907, 912 (3rd Cir. 1987); Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed 2d 42 (1984). A fourth element, "affirmative misconduct," must also be proven to succeed in a governmental estoppel action. Wagner v. Director, Federal Emergency Management Agency, 847 F.2d 515 (9th Cir. 1988).

The respondent in this case has failed to carry its burden. Erie did not show affirmative misconduct on the part of the Secretary, nor did it demonstrate that its reliance on the aforementioned enforcement actions and the oral opinion of an OSHA Area Director was reasonable.

In the first citation, the Secretary maintained its position that the standard required the employer to provide hot mill gloves to employees at its expense. The citation was sustained by the terms of the settlement agreement, and was silent on the issue of cost.
The second citation was vacated for lack of sufficient evidence. The settlement agreement is devoid of any information upon which the employer would be led to believe that the issue of cost allocation was a factor in the Secretary's determination. Therefore, respondent did not show upon what facts it relied, and how such reliance was reasonable.

As the Secretary notes, the Supreme Court in Crawford County, supra, expressed that reliance on oral opinions is not to be given much weight. Although John Gazzoli, Jr. of Carondelet Coke Corporation confirmed Hargreaves' statement at the informal conference in a subsequent memo, it cannot be considered an authoritative source upon which Erie's reliance could reasonably have rested. "The memo expresses the view of a particular staff member, not the official view of the Secretary .... It is the Secretary who promulgates the standards, and the Secretary's official statements must be the guide an to their meaning."Long Beach Container Terminal, Inc. v. O.S.H.R.C., 811 F.2d 477 (9th Cir. 1987); See Secretary's Brief, p.16.

ORDER:

Based on the parties' stipulation of facts and the conclusions of law based thereon, as stated herein, the citation issued February 17, 1988, alleging a non- serious violation of 29 CFR §1910.1029(h)(1)(ii) be, and it is hereby affirmed.

DAVID J.KNIGHT
Judge, OSHRC

Dated:
Boston, Massachusetts

FOOTNOTES:

[[1]] In lieu of a hearing, the parties agreed to submit this case to the judge based on stipulations and accompanying exhibits. See Commission Rule 61, 29 C.F.R. § 2200-61. The stipulations were signed by all the parties. including the United Steelworkers of America, AFL-CIO-CLC. Local 8415, District 20.

[[2]] The purposes of the glove requirement in section 1910.1029(h)(1) are to protect exposed employees from: (1) repeated skin contact with coke oven emissions, which are carcinogenic; and (2) burn hazards that may result from "direct body contact with flame, or hot objects such as a piece of coke, or from the clothes of a coke oven worker catching fire." Exposure to Coke (Oven Emissions: Final Rule, 41 Fed Reg. 46,742, 46,744, 46,775 (1976).

[[3]]In addition to flame resistant gloves. section 1910.1029(h)(1) requires employers to "provide" other types of protective clothing and equipment as follows:
(i) Flame resistant jacket(s) and pants;. ...
(iii) Face shields or vented goggles ....
(iv) Footwear providing insulation from hot surfaces ....
(v) Safety shoes .... and
(vi) Protective helmets ....
It was stipulated that Erie provides its employees, at no cost to them. with all of the protective clothing and equipment listed in the standard. except for flame resistant gloves and safety shoes.

[[4]] The instruction was specifically referred to in a memorandum issued on October 31. 1988 by OSHNs Directorate of Compliance to an OSHA Regional Administrator. This memorandum responded to the question of whether employers must furnish all the equipment listed under section 1910.1029(h)(1)(i)-(vi) free of cost to their employees. The memorandum reiterated and clarified the Instruction's interpretation that the employer is obligated to provide that clothing and equipment without charge. However, because the memorandum was issued about eight months after the February 1988 citation in this case, we cannot consider it as relevant in determining the reasonableness, of the Secretary's interpretation under CF & I Steel.

[[5]] That provision states that except for interpretive rules or general policy statements, notice of proposed rulemaking must be published in the Federal Register, and interested persons must be given an opportunity to participate.

[[6]] In a related matter, Erie notes that the Secretary has specifically required employers to provide protective equipment "at no cost to the employee" in eight other standards in this Subpart: sections 1910.1001(h), 1018(j), 1025(g), 1028(h), 1044(j), 10450(j), 1047(g)(4), and. 1048(h). Citing Rusello v. United States, 464 U.S. 16, 23 (1983), Erie contends that the inclusion of that phrase was intentional in those standards, and, therefore, the absence of such language in the standard at issue must be presumed intentional as well. Erie argues that by including the "no cost to employee" language in other Subpart Z standards, the Secretary cannot assign that meaning to the word "provide" here, especially considering that there were four opportunities to do so when the coke oven emissions standard was otherwise amended in 1977, 1980, 1985, and 1989.
We reject Erie's argument. We note that, as the Secretary points out, the eight other standards in the Subpart were issued subsequent to the coke oven emission standard, which was promulgated in 1976. Erie's contentions ignore the fact that, as discussed above in OSHA Instruction STD 1-6.4, issued in 1979, the Secretary interpreted the word "provide" in section 1910.1029(h)(1)(ii) to require employers to pay for the gloves. The subsequent inclusion of "no cost to the employee" language in the other standards clarifies the policy that had been applied with regard to those standards.

[[7]] This case can be appealed to the Third Circuit because the alleged violative condition and the principal office of the company are in Pennsylvania.

[[8]] This same passage was also dicta in the decision in which it originally appeared, Ryder Truck Lines, Inc., 1 BNA OSHC 1326, 1329, 1973-74 CCH OSHD ¶ 16,669, p. 21,453 (No. 391, 1973), aff'd 497 F.2d 230 (5th Cir. 1974) (under section 1910.132(a), employer must require its employer to use protective footwear, but it need not pay for the shoes).

[[9]] The Third Circuit in Budd specifically limited its decision to protective shoes under section 1910.132(a), noting that it "need not now decide whether the Commission could reasonably conclude that the employer is not obligated to bear the cost of other mandatory protective equipment." 513 F.2d at 205. See USWA, 647 F-2d at 1231 n.66.

[[10]]On this basis, Erie also distinguishes flame resistant gloves from the following types of "special purpose gloves." which it does provide at no cost to its employees: high temperature gloves for oven maintenance workers: leather gloves for welders; and rubber gloves for janitors.

[[11]]As the Secretary notes, the phrase "provision of readers" in the "reasonable accommodation" regulations implementing section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, has been found to mean that the employer must pay for readers. or their mechanical equivalent. to accommodate its qualified blind employees, unless it can show that such costs would pose an undue burden. Nelson v. Thornburgh, 567 F. Supp. 369, 379-82 (E.D. Pa. 1993), aff'd, 732 F.2d 146 (3d Cir. 1984) (unpublished), cert. denied, 469 U.S. 1188 (1985).

[[12]] An agreement to provide the gloves at no cost would have been consistent with the union's contract with Erie's immediate predecessor. the Koppers Corporation.

[[13]]The fourteen collective bargaining agreements with other coke producers that are contained in the record here show that. as stipulated. the union has made the issue of who pays for protective clothing and equipment (of different types) the subject of collective bargaining. However, there is nothing in the record that shows that flame resistant gloves. in particular. are always the subject of collective bargaining, The union averred that most employers in the industry have provided flame resistant gloves free of charge to their employees since the promulgation of the coke oven emissions standard, and the language in the respective bargaining agreements should be viewed as memorializing the practice of those employers to provide the gloves at no cost. Erie argues that in none of those fourteen agreements has the Secretary's interpretation of "provide" in this case been adopted. We note that neither do any of the agreements express Erie's interpretation of the standard.

[[1]] The preamble to the standard noted, in a section entitled "Economic Considerations", that the economic feasibility of the then-proposed standard for coke oven emissions was the subject of extensive studies by OSHA; several days of hearings were held which focused primarily on issues relating to the economic impact of coke oven emissions control. 41 Fed.Reg. 46748 (1976). OSHA concluded that compliance with the standard was "well within the financial capability of the coking industry" and that "these costs are necessary in order to adequately protect employees from the hazards associated with coke oven emissions." 41 Fed.Reg. 46751.

[[2]] Respondent argues that the OSHA Instruction does not specifically address flame resistant gloves, but rather, discusses "laundry requirements and other issues totally unrelated to gloves" and, therefore, did not intend to refer to cost allocation of these items. I disagree. The Instruction applies to 1910.1029(h)(2)(i) through (iii), which necessarily incorporate paragraphs (h)(1)(i) ('Flame resistant jacket and pants') and (h)(1)(ii) ('Flame resistant gloves'). Further, the Instruction distinguishes the clothing provision and the cleaning service as separate "obligations" of the employer.

[[3]] Absence of an employee representative requires the officer to consult with a reasonable number of employees concerning health and safety. 29 U.S.C. § 657(e).

[[4]] The D.C. Circuit in United Steelworkers of America, Etc. v. Marshall, supra, criticized this decision as having "failed to address the relevant parts of the legislative history of the OSH Act." 647 F.2d 1189, 1231-1232, n. 66.

[[5]] This standard provides in pertinent part, "Protective equipment, including personal protective equipment... protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained...."

[[6]] The employee representative further argues that most other employers operating coke ovens have work rules prohibiting employees from taking personal protective equipment out of the workplace. (see Stipulation ¶ 17 and Exhibit I). The USWA has agreed to this practice because of the contamination of this equipment caused by its proximity to coke oven batteries (Stipulation ¶ 19).

[[7]] The Secretary notes that respondent's answer to complainant's Interrogatory 8 states: "Respondent does not contend that its employees use their flame resistant gloves outside the workplace." (Secretary's Brief, p.10; C-1).

[[8]] The USWA has made this issue the subject of collective bargaining (Stipulation ¶ 17, Exhibit I). The employee representative avers that most employers have provided flame resistant gloves at no cost to employees at all times since the coke oven emissions standard was promulgated and that subsequent contract language "merely memorialized existing practice in this respect." (Stipulation ¶ 18).
In collective bargaining negotiations with Erie, the USWA requested that it provide hot mill gloves at no cost to employees, to which it refused (See Exhibit J).
But see, Forging Industry, supra:
In passing a massive worker health and safety statute, Congress certainly knew it was laying a basis for agency regulations that would