Amax Lead Company of Missouri

Plain-English summary

Amax transferred six employees away from high lead exposure and continued their regular hourly rates for 40-hour weeks. The employees lost opportunities for overtime and no longer had paid lunch periods, although their total daily paid hours remained unchanged. Following a Fifth Circuit ruling, the Commission held that protected earnings include overtime and that Amax violated the medical-removal benefits standard by not paying it. The Commission found no separate violation for lunch periods because the employees still received the same eight hours of daily pay and suffered no loss from that change. It rejected both the original willful characterization and the ALJ's de minimis treatment, modifying the citation to serious and assessing $60. The members agreed that withheld earnings were owed but divided over Commission authority to order back pay, so no compensatory order issued.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1025(k)(2)
• Outcome: Citation modified to serious and affirmed with a $60 penalty; no back-pay order issued.
• Key point: Medical-removal benefits protect actual earnings lost through removal, including overtime, but do not require extra pay when a schedule change leaves total compensation unchanged.

Full text (OSHRC public release)

Docket No. 80-1793

SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC, and its LOCAL UNION 7447-J,

Authorized Employee Representative.

OSHRC DOCKET NO. 80-1793

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

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

I

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

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

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

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

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

II

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

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

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

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

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

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

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

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

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

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

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

III.

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

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

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

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

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

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

D

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

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

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

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

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

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

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: April 27, 1989

FOOTNOTES:

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

�1910.1025 Lead

(k) Medical Removal Protection

(2) Medical removal protection benefits--

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

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

[[2/]] The lead standard requires that an employee
whose blood lead level exceeds a specified concentration be removed from a work area in
which the ambient airborne concentration of lead exceeds a certain amount. Since the
expiration of the phase-in period during which higher concentrations were permitted, the
standard has required that an employee with a blood lead level at or above 50 �g/100g of
whole blood be removed from work having a daily eight hour time-weighted-average exposure
to airborne lead at or above 30 �g/m3. 29 C.F.R.

�1910.1025(k)(1)(i). [This case, however, arose during the phase-in period.] The
standard also requires removal if a "final medical determination" establishes
that an employee has a "detected medical condition which places the employee at
increased risk of material impairment to health from exposure to lead." 29 C.F.R. �
1910.1025(k)(1)(ii)(A).

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

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

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

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

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

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

� 2200.92 Review by the Commission.

(a) Jurisdiction of the Commission;

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

[[9/]] In RSR Corp. v. Donovan, 733 F.2d 1142 (5th
Cir. 1984), the court adverted to, but did not discuss or define, "other appropriate
relief" in the one instance in which the Commission has issued what amounted to a
retroactive pay order: the Commission ordered a remand of certain cases for a
determination of the amount of medical removal protection benefits due the employees.
However, the Commission had not said that it was ordering "other appropriate
relief;" in fact, the Commission did not give any attention to what authority it had
to issue such an order. RSR Corp, 83 OSAHRC 6/A2, 11 BNA OSHC 1163, 1983-84 CCH OSHD �
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.