ASARCO, Inc. (ALJ decision, February 6, 1995)

Plain-English summary

ASARCO operated a primary lead refinery in Omaha, Nebraska. Maintenance welder Michael Dougherty was medically removed to lower-exposure areas and then was not considered for an open mason position solely because that job involved work above OSHA's lead action level. The judge held that Dougherty's collectively bargained right to compete for a transfer based on seniority and ability was an employment benefit protected by the lead standard's medical-removal provisions. If Dougherty was qualified, ASARCO had to award and temporarily hold the position until his medical restriction ended, just as it covered his regular welding job during removal. The violation was serious because withholding employment benefits could discourage workers from participating in blood testing or reporting elevated lead levels. The judge affirmed the item and assessed the proposed $2,125 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1025(k)(2)(i).
• Outcome: Affirmed. One serious medical-removal-protection item was affirmed with a $2,125 penalty.
• Key point: Medical-removal protection preserves an employee's opportunity to compete for job transfers and promotions as though the employee had not been removed from normal lead exposure.

Full text (OSHRC public release)

UNITED STATES OF AMERtCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, e 2003&3419

SECRETARY OF LABOR
Complainant,
OSHRC DOCKET
v. NO: 93-2657

ASARCO, INC.,
Respondent,
UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, LOCAL NO. 461
Authorized Employee
Representative.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on January 5, 1995. The decision of the Judge will become a final order of the Commission on February 6, 1995 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW. Any such etition should be received b the Executive Secretary on or before January 29 , 1995 in order to ermit su f!ficient time for its review. See Comrmssion Rule 91, 29 C.F.k . 2200.91. All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DOCKET NO. 93-2657

If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review nghts may contact the Commission’s Executive Secretary or call (202) 606-5400.

Date: January 5, 1995
DOCKET NO. 93-2657
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Tedrick Hous!, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
1210 City Center Squire
1100 Main Street
Kansas City, MO 64105

Thomas F. Hoarty, Jr., Esquire
McGowan & Hoarty
520 Farnam Building
1613 Farnam Street
Omaha, NE 68102

Jeffrey Van Hove
Assistant General Counsel
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222

James fi. Barkley
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO ir0204 3582

00109322206 :07
 UNITED STATES Of AMERICA
OCCUPATIONAL SAFE-W AND HEALTH REVIEW COMMISSION 1244 N. Spew Boulevbd
Room 250
Denver, Colorado 802044582

§ECRETARY OF LABOR, I .
Complainant
I
I
v. I
OSHRC DOCKET
I
NO. 93-2657
ASARCO, INcoRPoRATED,
I
Respondent,
I
------ ---------------o-o I
UNITED STEELWORKERS OF AMERICA, 1 ‘:
AFLCIO-CLC, =AL
NO. 461, I
Authorized Employee
I
Representative.
I
I

DECISION AND ORDER

This proceeding arises UIIclerthe occupational safety and Health Act of 1970 (29 U.S.C., Section 651, et. seq, hereafter referred to as the Act).
Respondent, ASARCO, Inc. (ASARCO), at all times relevant to this action maintained a worksite at 5th and Douglas Streets,Omaha, Nebraska, where it operates a primarylead refinery. ASARC is an employer engaged in a business afkcting com- merce and as such is subject to the requirements of the Act.
On July 24, 1993 the Occupational safety and Health Administration (OSHA) jssued to ASARCO citations, together with proposed penalties, alleging violations of the Act. Respondent filed a timely notice of contest to “serious” citation 1, item 5, alleging violation of 29 CFR §1910.1025(k)(2)(i),bringing this proceeding before the Occupational Safety and Health Review Commission (Commission).
In lieu of a hearing, the parties have elected to submit this case on a stipulated record, pursuant to Commission Rule s2200.61. This matter is now ready for disposition. Citation 1, item 5 alleges:

29 CFR 1910.102!5(k)(2)(i): An employee remwed from exposure to lead, or othenvise limited pursuant to this section was not provided with medical removal protection benefits:

Establishment - employees who have been remwed from working in areas of the plant exceeding the action level were not provided with up to eighteen months of medical removal protection benefitsin that empl&yees who had been medWly remwed were not considered for advancement, promotion or lateralpb changes, thereby&biting potential earnings and seniority rights and/or other employment rights based on their medical removal status.

Stidated Facts
The parties agree that at all relevant times, Michael Dq@xty was employed by
ASARCO at the Omaha plant as a maintenance welder [Stip. #3). Between Februaq 2, and July l&l993 Dougherty was placed on medical remuvd to areas of the plant with lead exposure levels below OSHA’s action level [Stip. #4]. In March 1993,Dougherty bid for an open position as a second class mason. Dougherty ‘~8s not considered for the job solely on the basis of his medical removal status. The masonry p&ion was - performed in areas of the plant which were above the OSHA action level for lead, and ASARCD had an immediate need to fill the vacancy [Stip. #6 & 7) The collect& bargaining agreement
. in effect at ASARcD’s Omaha plant states that requests for transfer to bid jobs will be granted “on the basis of Plant Seniority @oviding applicant has the ability to do the work requiredin the best judgment of the Management” [Stip.
#2; Attachment 1, p. 7]. piSCUSSiOQ
section 1910.1025(k)(2)(i) req uires the employer to provide up to 18 months of medical removal protection benefits, including%a&~& seniority and other emplqment rights and benefits l a as though the emplayee had not been remwed fiord normal l

exposure to lead or otherwise limited?
The evidence establishes that the right to be considered for transfer on the basis of seniority and ability is a benefit of Mr. Dougherty’s employment!? Had Mr. Dougherty not suffered from. elevated blood lead levels, ASARm would have had to consider his

2 bid for the masoni’sposition, and awarded him the pition, if qualified. Dougherty was admittedly denied an equal opportunity to compete for the position; that opportunity was denied him solely on the basis of his medical remwal status. He was, therefore, denied a Umedical removal protection benefit” as defined by the cited standard.
ASAR~‘s failure to provide the said benefit is not excused by its need to %mediately” fill the posted position. If Dougherty was found to be qualified, the standard requiresASARCO to award the position to him, and hold the position open for him until his period of removal or limitation ends and he can be returned to his former job, or “to the position [he) would likely be OCCIS@~ if he or she had never been removed.” 43 Fed. Reg. 52,974 (1978). The burden impcwd on ASARCO to fill the mason’s position temporarily is no greater than the burden placed upon it to cover Dougherty’s job zk maintenance welder during his medical rem&.
ASAR@O defends solely on the bas& that the language in the citation refers to its failure to consider Dough&ty for “advancement, promotion or lateral job changes.” ASARCO maintains that because the mason’s position was actually a demotion fkom Dougherty’s welding position, the stipulated f&ts fail to establish the specific violation * charged.
ASARm’s argument is without merit. The language of the citation is sufficiently broad to encompass the conduct which is the subject of this matter. Moreover, it is clear fkom the stipulated facts that Respondent was fidy aware of the issue in dispute despite the flawed pleadings. In such a case, amendment of the pleadings to conform to the evidence under ,Fed.R.Civ.P. 15(b) is appropriate. Pw c@nymny,No. 89-2836 (September 26,19!94). [commission slip opinion] Accordingly, the citation is amended to aIlege ASARCO’s failure to consider a medically remwed employee’s request for transfer.

The undersigned is satisfied that the cited violation is correctly classified as b
Userious.n The medical removal provisions are designed to ensure meaningful employee participation in.blood testing. The provisions are meant to eliminate the possibility that employees will not voh~~tarily participate, fearing that they would be endangering their

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 jobs. or the benefits associated with them An empk@s fkilure to adhere to the
standard might encourage employees to amceal high blood lead levels. It is wtll settled that persistent exposure to excessive levels of airborne lead is substantially likely to result in serious physical harm. S& tq A&k II Gun Shun Ihc., Nos. 91-2146 & 91-3127 (September 29,1994). [Commission slip opinion]; Appendix A to the lead standard, 29 e
C.F.R. ~1920.102!5.
Respondent is a large employer, with 8,500 empltiees nationwide, and approximately 220 employees in its Omaha plank The gravity of the cited violation is moderately law, consideringASARms adherenceto all other provisions of the medical removal standard [Stip. X5], and the reported occurrence of only one incident of this nature. No evidence of prior OSHA violations or bad faith was adduced in the stipulated facts, and those factors are not considered in assessing a penalty.
Based on the relevant factors, the Secretary% proposed penalty of $2J25.00 is deemed appropriate.
.
Findings of Fact and Corksions of Law All findings of fact and conclusions of law relevant and neceswy to a deter- mination of the contested issues have been found specially and appear in the decision above. See Rule 52(a) of the Federal Rules of Civil Procedure.

ORDER

10 Serious citation 1, item 5 is AITRMED and a penalty of $2,12S.OOisASSESSED.

Dated: December 23, 1994

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