“Docket No. 86-0168 SECRETARY OF LABOR, Complainant, v. ASARCO, INC., Respondent.OSHRC Docket No. 86-0168REMAND ORDERBefore: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:This case is before the Commission on remand from the United States Court of Appealsfor the Ninth Circuit. McLaughlin v. ASARCO, Inc., 841 F.2d 1006 (9th Cir. 1988).In the initial decision in this case, Administrative Law Judge William R. Mullins vacatedthe Secretary’s citation alleging that ASARCO failed to comply with the medical removalprotection (\”MRP\”) provision of the OSHA standard regulating occupationalexposure to lead, 29 C.F.R. ? 1910.1025.[[1\/]] The judge concluded that the standard didnot require ASARCO to compensate its employees for the overtime pay they would havereceived had they not been transferred from their regular job positions after showingexcessive levels of lead in their blood.[[2\/]] The judge relied on Commission precedentholding that MRP benefits do not include overtime or premium pay that are incidents of thejobs from which employees have been transferred but not of the jobs to which they areassigned. Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629(No. 80-1793, 1986), rev’d, United Steelworkers of America v. Schuylkill MetalsCorp., 828 F.2d 314, 321 (5th Cir. 1987). The Commission did not review Judge Mullins’decision, and it became a final order of the Commission.On appeal, the Ninth Circuit reversed. It agreed withthe Fifth Circuit’s holding in Schuylkill that the term \”earnings\” in theMRP provision refers to overtime as well as to regular pay. In accordance with the court’sorder,[[3\/]] we remand this case to a Commission administrative law judge for furtherproceedings consistent with the court’s decision that ASARCO failed to comply with the MRPrequirement by withholding overtime pay from its removed employees.[[4\/]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 27, 1989SECRETARY OF LABOR, Complainant, v. ASARCO, INCORPORATED, Respondent,UNITED STEELWORKERS OF AMERICA LOCAL 72 – AFL-CIO, Authorized Employee Representative.OSHRC DOCKET NO. 86-0168APPEARANCES: For the Complainant:H. Alice Jacks, Esq., Office of the Solicitor,U.S. Department of Labor, Kansas City, MissouriFor the Respondent:William O. Hart, Esq., Asarco, Incorporated,New York, New YorkFor the Employees:James P. Reardon, President, United Steelworkersof America, AFL-CIO, East Helena, MontanaDECISION AND ORDERMullins, Judge:On January 23, 1986, a citation was issued against the respondent, Asarco, Incorporated,alleging the violation as follows:29 CFR 1910.1025(K)(2)(1): An employee removed from exposure to lead, or otherwise limitedpursuant to this section was not provided with medical removal protection benefits:(a) Employees on medical removal were not paid for overtime which would have beenavailable to them in their regular job positions.To this citation the respondent has filed Notice of Objection and the employees were givennotice and have entered an appearance through their authorized representative, UnitedSteelworkers of America, AFL-CIO, Local 72.On July 3, 1986, the parties submitted to theundersigned a joint stipulation of facts and further agreed that the decision in thismatter could be determined by the undersigned after submission of briefs by the parties.Two extensions of time were granted in which to file the briefs and the briefs ofcomplainant and respondent have been received at this time; however, no brief has beenfiled by the representative of the employees.In both Complainant’s Brief and Respondent’s Brief,there is cited the Occupational Safety and Health Review Commission combined cases of AmaxLead Co. of Missouri, Schuylkill Metals Corp., and St. Joe Resources Co.,OSHRC Docket Nos. 80-1793, 81-0856, and 81-2267, 12 BNA OSHC 1878, decided in June of1986.The single issue for determination in this case waswhether or not employees who are receiving medical removal benefits as a result ofexcessive lead levels determined from blood tests would be entitled to overtime pay. Thisspecific issue was addressed in the Amax case cited above and the Commission clearly hasruled that employees are not entitled to overtime benefits.Therefore, based upon the stipulation of facts andthe Commission case cited above, the citation should be dismissed. It is SO ORDERED.William R. MullinsJudge, OSHRCDated: December 3, 1986\u00a0\u00a0SECRETARY OF LABOR, Complainant, v. ASARCO, INC., Respondent.UNITED STEELWORKERS OF AMERICA, LOCAL 72 – AFL-CIO, Authorized Employee Representative.OSHRC DOCKET NO. 86-0168FINAL ORDERThe above captioned case was originally submitted onstipulation for decision on the sole issue of whether respondent was required by 29 C.F.R.? 1910.1025(k)(2)(ii)[[1]] to compensate employees removed from lead exposure forovertime they would have worked had they not been removed. The prior Administrative LawJudge vacated the Secretary’s citation based on Commission precedent holding thatemployees were not entitled to such overtime benefits, citing Amax Lead Co. ofMissouri, Schuylkill Metals Corp., St. Joe Resources, Co., 12 BNA OSHC 1878 (Nos.80-1793, 81-0856, 81-2267, 1986).The Secretary filed a Petition for DiscretionaryReview with the Commission on December 23, 1986. No Commission Member directed review, andthe decision became a final order of the Commission on January 5, 1987, pursuant to ?12(j) of the Act.On appeal, the Ninth Circuit reversed, finding thatthe Commission’s interpretation was in conflict with the plain meaning of the medicalremoval standards, which require a continuation of \”earnings\” including\”overtime, shift differentials, incentives and other compensation\”.[[2]] McLaughlinv. ASARCO, Inc., 841 F.2d 1006 (9th Cir. 1988).The order was remanded to this judge for furtherproceedings consistent with the Court’s decision.The parties have submitted a Stipulation ofResolution setting forth specific amounts of overtime compensation due affected employeesand providing for the manner of payment.ORDEROvertime compensation is due respondent’s employees as follows:L. Cox $1,980.75 R. Mahr $1,324.50Payment will be made as set forth in the stipulation.James H. BarkleyJudge, OSHRCFOOTNOTES: [[1\/]] The pertinent provision of this standard requires as follows: ? 1910.1025 Lead.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(k) Medical Removal Protection*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(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 removalprotection benefits on each occasion that an employee is removed from exposure to lead orotherwise limited pursuant to this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employeewhose blood lead level exceeds a specified concentration be removed from a work area wherethe airborne lead concentration is more than a certain amount. 29 C.F.R. ?1910.1025(k)(1)(i). The standard also requires removal if a \”final medicaldetermination\” establishes that an employee has a \”detected medical conditionwhich places the employee at increased risk of material impairment to health from exposureto lead.\” 29 C.F.R. ? 1910.1025(k)(1)(ii)(A).[[3\/]] We must apply the Ninth Circuit’sinterpretation as the \”law of the case.\” See In re Progressive FarmersAss’n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied, South CentralEnterprises v. Farrington, 108 S.Ct. 1574 (1988). In East Penn Manufacturing Co.,OSHRC Docket No. 87-0537 (Apr. 27, 1989), we overruled the Commission’s decision in Amaxand aligned the Commission’s interpretation of the medical. removal provision with that ofthe Fifth Circuit in Schuylkill and the Ninth Circuit in this case.[[4\/]] The Commission members are divided on whetherthe Commission has authority to issue an order requiring ASARCO to pay the removedemployees the specific amounts that were due but not paid. For the Commission members’views on this question, see St. Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).[[1]] The pertinent provisions state: 1910.1025 Lead.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(k) Medical Removal Protection*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(2) Medical removal protection benefits – (i) protection of benefits. The employer shall provide to an employee up toeighteen (18; months of medical removal protection benefits on each occasion that anemployee is removed from exposure to lead or otherwise limited pursuant to this section.(ii) Definition of medical removal protection benefits. For the purpose of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[2]] ? 1910.1025 Appendix B, ? IX ?(K)”