CF & I Steel Corporation

Plain-English summary

CF & I Steel was found to have violated the coke-oven-emissions respiratory protection standard after appellate courts upheld the Secretary of Labor's interpretation of the rule. The Tenth Circuit returned the case to the Commission because the remaining questions were whether the violation was willful and what penalty should be assessed. The Commission sent those questions to the Chief Administrative Law Judge for assignment to a judge. It directed the judge to apply the Tenth Circuit's opinion, including its statement that an employer must follow the law even when it believes its own policy is wiser.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1029(g)(3)
• Outcome: The case was remanded to an administrative law judge to decide willfulness and the appropriate penalty.
• Key point: An employer's disagreement with OSHA's interpretation does not excuse noncompliance with a governing standard.

Full text (OSHRC public release)

Docket No. 79-4786

SECRETARY OF LABOR,

Complainant,

v.

C F & I STEEL CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA

AFL-CIO, LOCAL 2102.

Authorized Employee Representative.

OSHRC Docket No. 79-4786

REMAND ORDER

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

BY THE COMMISSION

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

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

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

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

Edwin G. Foulke, Jr.

Chairman

Donald G. Wiseman

Commissioner

Velma Montaya

Commissioner

Dated: November 20, 1991