SECRETARY OF LABOR,
Complainant,

v.

RSR CORPORATION,
Respondent.

OSHRC Docket No. 79-6392

SECRETARY OF LABOR
Complainant,

v.

RSR CORPORATION,
Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, and LOCAL UNION 3721,
Authorized Employee Representative.

OSHRC Docket Nos. 79-3813 and 80-1602

SECRETARY OF LABOR,
Complainant,

v.

RSR QUEMETCO, a Division of RSR
Corporation, a corporation,
Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO, and LOCAL UNION 5554-J,

Authorized Employee
Representative.

OSHRC Docket No. 79-5062

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

Decisions of Administrative Law Judges Seymour Fier (Docket No. 79-6392), Dee C. Blythe (Docket Nos. 79-3813 and 80-1602), and F. Daley Abels (Docket No. 79-5062) are before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").   Commissioner Cottine granted the parties' petitions for review of the judges' decisions, which were each based on stipulated records without hearings.  The cases have been consolidated for review and present issues arising under the standard at 29 C.F.R. 1910.1025 ("the lead standard"), specifically issues relating to the temporary removal of employees from lead-exposed jobs, terminations of employment based upon medical determinations relating to lead exposure, and the payment of medical removal protection ("MRP") benefits to employees so removed or terminated.  The lead standard's MRP provision was "[o]ne of the most vigorously contested issues" before the federal appellate court that ultimately upheld its procedural and substantive validity.  United Steelworkers of America v. Marshall, 647 F.2d 1189, 1228 (D.C. Cir. 1980) ("Steelworkers"), cert. denied sub nom.  Lead Industries Association, Inc. v. Marshall, 453 U.S. 913 (1981).  See infra note 3.  Employee access to lead-exposure monitoring data is an additional issue before the Commission.  The cases also present issues involving willfulness and access to occupational injury and illness records.

Docket No. 79-6392

A
Respondent, RSR Corporation ("RSR"), is engaged in secondary lead refining, involving the recycling of lead from discarded batteries and other waste materials.

During September 1979, an Occupational Safety and Health Administration ("OSHA") compliance officer conducted an inspection of RSR's plant in Wallkill, New York.  As a result of this inspection, the Secretary of Labor ("the Secretary") issued a citation to RSR on November 1, 1979, alleging a willful violation of the Act for failure to comply with the standard at 29 C.F.R. 1910.1025(k)(2)(i).[[1/]]  The citation alleged that on or about September 5-27, 1979, RSR did not provide up to 18 months of MRP benefits on each occasion that an employee was removed from exposure to lead or otherwise limited in employment activity pursuant to the cited standard.  The Secretary proposed a $1,000 penalty.

The citation arose from OSHA's investigation of the removal and subsequent employment termination of one of RSR's employees, Lester King, who had worked in the battery wrecking department as an acid plant operator.  Even prior to the March 1, 1979 effective date of the lead standard, it had been RSR's practice to remove employees from a lead-contaminated environment upon the recommendation of its physicians.  King had been temporarily removed on five previous occasions, beginning in November 1973, for periods ranging from 1 to 2-1/2 months.  On February 1, 1979, King was again removed.[[2/]]  The determination to remove King was based on the recommendation of RSR's physicians due to the results of a blood test indicating that King had a blood lead level of 72 ug/100g, although he was asymptomatic (that is, presenting no symptoms of lead disease).

On April 12, 1979, RSR Vice-President John A. DePaul issued a corporate policy memorandum on the subject of medical removal protection benefits for employees who are removed from the worksite.  In pertinent part, the memo stated:

RSR Corporation, after reviewing extensively the regulations issued by the Secretary of Labor relating to employee exposure to lead, and after consultation with counsel, believes that those portions of the regulations requiring a continuation of earnings to employees who have been removed from the work place is arbitrary, capricious, and beyond the authority of the Secretary of Labor under the Occupational Safety and Health Act of 1970.   RSR Corporation has instructed its counsel to file the appropriate papers before the appropriate Federal Court to contest fully the legality of the Secretary's actions in this regard.  In the interim, RSR Corporation, if the situation presents itself, will set aside and deposit with a federally insured financial institution, appropriate sums of money to cover any potential liability that may accrue if the OSHA Standard is found to be a valid exercise of the Secretary's power.  This account will be specifically designated and segregated from any other accounts which RSR may have.  All interest which may accrue will inure to the benefit of those affected employees.

For those employees who are requested to be removed from the work place under applicable federal law, RSR will assist those employees in processing appropriate Worker's Compensation claims.  For those employees that are required to be removed, RSR will continue to maintain their seniority positions on appropriate employee rosters.

With respect to the remaining provisions of the OSHA Standard, RSR intends to comply with both the spirit and the letter of the law.

The stipulated record also establishes the following:

On May 22, 1979, Respondent acted upon the medical recommendation of its physician, Dr. Robert Kirschner, and terminated the employment of Mr. King.  In a letter to Respondent dated May 24, 1979 . . . , Dr. Kirschner detailed the medical reasons why Mr. King should not work in an environment containing significant lead concentrations. Specifically, Dr. Kirschner indicated that his examination of Mr. King revealed a decreased ability to excrete lead.  Dr. Kirschner has also stated that Mr. King's propensity to absorb or retain lead concentrations and his inability to excrete lead from his system significantly exceeded these "functions" of other employees similarly exposed to lead.  Dr. Kirschner has concluded that a major contributory factor in Mr. King's aberrant lead retention characteristic is his poor personal hygiene.  On the basis of the foregoing, Dr. Kirschner concluded that, while King presently exhibited no signs of lead toxicity, further exposure to lead particulates could prove harmful to him.   However, the stipulation further stated that the Secretary does not accept the validity of RSR's medical determination.

The parties take conflicting positions on whether King's right to receive MRP benefits ended when his employment was terminated. See supra note 2.  However, in their stipulation, the Secretary and RSR agreed that, if the MRP benefits provision of the lead standard then under judicial review were "ultimately upheld," Lester King would be entitled to the money which had been "escrowed" on his behalf for the period from March 1, 1979 (the effective date of the lead standard) through May 22, 1979 (the date on which King was terminated from employment).[[3/]]  They further agreed not to address the issue of the validity of the lead standard before the Review Commission, on the ground that exclusive jurisdiction to make that determination resided with the U.S. Court of Appeals in Steelworkers and, if appropriate, the Supreme Court.

Based on the parties' stipulation of facts and their briefs, Judge Seymour Fier concluded that RSR did not willfully violate section 1910.1025(k) (2)(i) either prior or subsequent to May 22, 1979.  Accordingly, he vacated the citation.  With respect to the period of King's temporary removal prior to May 22, the judge found that RSR's good faith efforts in maintaining a separate escrow fund and its "clear willingness" to comply with the standard upon the imminent resolution of its legality by the D.C. Circuit negated any possible characterization of the violation as willful.   Nevertheless, Judge Fier found that RSR had conceded King's right to receive MRP benefits if the standard were upheld and that, in view of the D.C. Circuit's decision in Steelworkers, "there is no further issue between the parties as to Mr. King's right to receive the separate escrow fund benefits set aside on his behalf."  Despite the fact that he vacated the citation, Judge Fier also ordered that the funds which had been "escrowed" on King's behalf during the period of his March 1-May 22 temporary removal be paid to King, with interest.

With respect to the period subsequent to King's May 22 termination, when MRP benefits were neither paid to King nor "escrowed," Judge Fier found that the Secretary had the burden of proving that King was still on temporary removal status after that date and, thus, that he was still entitled to MRP benefits.  The Secretary had argued two theories of his case.  The Secretary noted that an employee's MRP benefits can only be terminated pursuant to a "final medical determination," which is defined as ". . . the outcome of the multiple physician review mechanism or alternate medical determination mechanism. . . ."[[4/]] The Secretary argued that the unilateral determination by RSR's physicians to terminate King was not a "final medical determination" within the definition of that term.  The Secretary also argued that a "final medical determination" that an employee cannot be returned safely to work based upon the employee's elevated blood lead levels and diminished ability to excrete lead can be made only after the employee has been removed for 18 months, thereby allowing the physicians to make a reliable determination concerning the employee's ability to excrete lead.  Here, the Secretary charged, King was terminated even though none of his previous removals had exceeded three months.  Judge Fier rejected both theories.

Judge Fier took official notice of the fact that the multiple physician review mechanism had been stayed.  He acknowledged that the alternate physician determination mechanism had not been stayed.  Nevertheless, the judge found nothing in the standard which would preclude a "final medical determination" based solely on the determination of a single physician, nor any reason to conclude that RSR's physicians were less objective than any other physicians.  In Judge Fier's view, when RSR terminated King on May 22, 1979, the action was based on a bona fide effort to comply with subparagraphs (k)(1)(ii)(c)[[5/]] and (k) (2) (vi) (C).[[6/]]

Judge Fier also rejected the Secretary's argument that the termination of King was premature under the standard.  The judge pointed out that the preamble to the standard does not specifically preclude the possibility that a "final medical determination" that an employee cannot be returned safely to work in a lead environment might be rendered prior to the end of an 18-month removal period.  He acknowledged the parties' stipulation that King showed no evidence of clinical intoxication from lead exposure at the time of his termination.  He also noted that King's blood lead level "dropped significantly" during his removal -- from 72 ug/100g to 49-51 ug/100g.  Nonetheless, the judge maintained that King's ability to sustain exposure to lead must be judged at the time RSR's doctors actually examined him.  The judge concluded that RSR's physicians made a valid final medical determination on May 22, 1979 that, based on King's past medical history, King had a detected medical condition which placed him at increased risk of material impairment to health from exposure to lead and was unable to return to RSR's workplace.  Thus, the judge ruled that King was not entitled to MRP benefits after May 22, 1979, when his employment was terminated.

Commissioner Cottine granted the Secretary's petition for review, over RSR's opposition, and specifically directed review on the following issues:

1.  Whether the judge erred in concluding that the Respondent did not violate the medical removal protection benefits provision at 29 C.F.R. 1910.1025(k)(2)(i) because a valid "final medical determination" regarding employee termination had been made.

2.  Whether the judge erred in concluding that the Respondent was not in willful violation of 29 C.F.R. 1910.1025(k)(2)(i) during the period from March 1, 1979 to May 22, 1979, because the Respondent had, by establishing an escrow account, "acted within its legal rights by refusing to comport fully with the requirements of a regulation which is the subject of pending judicial review."

B
This is the Commission's first case interpreting the substantive provisions of the lead standard.  Initially, we must determine whether RSR violated the Act by segregating money in an account in lieu of providing MRP benefits to its employee, pending the outcome of its challenge to the lead standard in the court of appeals.[[7/]]

The Secretary argues that, because the obligation to pay MRP benefits became effective on March 1, 1979, and it is undisputed that RSR did not pay MRP benefits directly to King during the period of his temporary removal between March 1 and May 22, RSR clearly violated the requirements of subparagraph (k)(2)(i).  The Secretary adds that RSR was obligated to fully comply with the requirements of the regulation while it was the subject of judicial review.  He notes that section 6(f) of the Act, 29 U.S.C. 655(f), specifically states that such a petition for review shall not operate as a stay of the standard unless otherwise ordered by the court.[[8/]]  He further notes that the court did order a stay of part of the standard when it granted the petition (e.g., the multiple physician review mechanism), but it expressly denied a stay of enforcement of the MRP benefits provision.

The United Steelworkers of America ("the Union"), which was granted amicus curiae status in this case (Docket No. 79-6392) on review, also contends that to allow RSR to defer the payment of MRP benefits simply because RSR did not believe that the Act authorizes MRP would defeat the protective measures that the D.C. Circuit determined would become effective on March 1, 1979, when it refused to stay the MRP provision pending RSR's challenge.

RSR defends by arguing that its escrow policy and the parties' stipulation regarding payment merely permitted the withholding of funds in a reasonable manner and for an equitable purpose until the employees' rights could be definitively established.   RSR asserts that, by agreeing to be bound by the outcome of its validity challenge in Steelworkers, it intended that the Secretary would hold in abeyance the issue of whether its escrow policy violated the standard until the judicial proceedings were completed.  Accordingly, RSR concludes that it has not manifested any intent to circumvent or undermine the standard's MRP provisions.  RSR denies that the issue here is whether it paid MRP benefits directly to employees; it claims that the issue is whether its actions, when considered under the totality of the circumstances, constituted compliance with the standard.  RSR maintains that compliance was achieved. Finally, RSR denies that its withholding of MRP payments amounted to a stay that the court refused to grant.  To the contrary, RSR contends that, under a court stay, employees' claims to MRP benefits would not begin until after the stay was lifted, whereas these employees continued to accrue MRP benefits -- albeit in escrow -- throughout the course of the court proceedings.

Contrary to RSR's assertions, the issue before us is whether it paid MRP benefits to employee King.  RSR points to no provision in the standard or its preamble and attachments, no action on the part of the Secretary or the courts, and no Commission or judicial precedent that purportedly authorized it to deviate from the specific requirements of the cited standard.

In upholding the validity of the MRP provision as a supplement to the medical surveillance provisions of the standard, the D.C. Circuit noted that,

OSHA regards MRP as a sine qua non of the lead standard, insisting that without it employees, fearing they will lose jobs if they demonstrate high blood-lead levels, will refuse to participate in medical surveillance.

Steelworkers, 647 F.2d at 1228.

The standard explicitly requires that an employer provide MRP benefits on each occasion that an employee is removed from a job involving exposure to lead or otherwise limited in employment activity pursuant to the standard.  The standard is equally clear in requiring that the benefits be provided to the employee.  Subparagraph 1025(k)(2)(ii) provides 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 . . . ." Because the funds were not available for use by the employee as they accumulated, they cannot be considered a substitute for earnings as though the employee had not been removed.  It is undisputed that Lester King was temporarily removed.  It is also undisputed that MRP benefits were not provided to King.  The employee was entitled to MRP funds by virtue of the standard, which came into full force and effect on March 1, 1979.  As the Secretary and the United Steelworkers correctly note, the court in which RSR sought to invalidate the lead standard specifically denied the motion to stay the MRP provision pending judicial review. As a consequence, it was RSR's duty under the law to pay MRP benefits pursuant to the standard.   RSR's intent in establishing its escrow policy is irrelevant to the question of whether it violated the Act.  The only relevant issue is whether RSR complied with the requirements of 29 C.F.R. 1910.1025(k)(2)(i).  We conclude that RSR violated 29 C.F.R. 1910.1025 (k)(2)(i) when it established an account in which to deposit funds instead of paying MRP benefits to its employee during the period of his temporary removal.

C
The next issue to be determined is whether RSR's termination of King's employment on May 22, 1979, provided a sufficient basis under the standard for the termination of King's right to continue to receive MRP benefits during the period of his removal from exposure to lead.  To resolve this issue, we must first consider the scope and purpose of the lead standard's removal provisions.[[9/]] 

On its face, subsection (k)(1) of the lead standard requires that employees be temporarily removed from specified levels of lead exposure under either of two circumstances: due to elevated blood lead levels, pursuant to prescribed removal trigger levels which are phased in over a five-year period; [[10/]] or due to a physicians' determination of a medical condition warranting removal.[[11/]] In addition, if the multiple physician review mechanism or an alternate physician determination mechanism has not yet resulted in a physicians' determination of a medical condition warranting removal, subparagraph (k)(1)(v)(A) prescribes that "[t]he employer may remove the employee from exposure to lead, provide special protective measures to the employee, or place limitations upon the employee, consistent with the medical findings, determinations, or recommendations of any of the physicians who have reviewed the employee's health status."

In addition to these temporary removal provisions, the lead standard also contains provisions concerning the compensation to be paid and other benefits to be provided employees who are temporarily removed.  The cited subparagraph (k)(2)(i) provides that an employee whose removal is required under the standard must be provided MRP benefits for up to 18 months.  Paragraph (k)(2)(vii) of the standard also provides that, when an employer voluntarily removes an employee from exposure to lead under circumstances where he is not required by the lead standard to do so, he must nevertheless provide MRP benefits equal to those mandated under
section 1910.1025(k)(2)(i).[[12/]] Read together, these paragraphs of the standard indicate that whenever an employee is removed as a result of exposure to lead - whether that removal is required or voluntary -- the employer must provide the MRP benefits.

In contrast, the lead standard contains only one section that expressly authorizes an employer to terminate MRP benefits without returning the employee to his or her job.  An employer may cease providing MRP benefits after an 18-month temporary removal period when a final medical determination is made that an employee who was initially removed from exposure to lead on account of an elevated blood lead level is "incapable of ever safely returning to his or her former job status."  See supra note 6.  The standard does not expressly state when or whether an employer may cease providing MRP benefits where an employee was initially removed from exposure to lead for any other reason, e.g., due to a physicians' determination of a medical condition warranting removal. Nevertheless, the attachments to the preamble for the final lead standard provide guidance as to the Secretary's intent with respect to the termination of MRP benefits for such employees.  The Secretary anticipated that during the first few years after the effective date of the standard there would be few workers temporarily removed from exposure to lead as a result of physician determinations and, as working conditions in the lead industry improved, fewer still would be removed.[[13/]]   Nevertheless, the Secretary noted that these removals might be appropriate even though an employee's blood lead level remains below removal trigger levels, if the employee: (1) experiences recognized symptoms of lead poisoning; (2) acquires a temporary, non-work-related medical condition which is aggravated by lead exposure; (3) desires to conceive a child in the near future; or, (4) is pregnant.[[14/]]  Thus, the Secretary intended that temporary removals of employees that were not based on elevated blood levels would occur only under exceptional circumstances.   Clearly, permanent removal of employees would be even more exceptional.  Only "in extremely rare situations" did the Secretary expect a physician to conclude on the basis of excessive blood lead levels that a worker would never be able to safely return to prior lead exposure - and, even then, only after 18 months of removal.[[15/]]  In addition, the attachments state:

The standard is not intended to preclude all final medical determinations formed prior to the end of 18 months of removal which decide that a particular worker's condition will never permit a return to a lead-exposed job.  Determinations of this nature might arise with respect to permanent, irreversible neurological impairment, and kidney disease.  The standard does, however, embody the judgment that such medical determinations cannot be quickly made with respect to blood lead level declines. [[16/]]

Moreover, the attachments declare that:

If, however, a final medical determination is made that the worker is incapable of ever safely returning to his or her former job status, then the provision of MRP benefits may cease.  At that point, a worker would have to turn to the State workers' compensation system for possible relief, since continued removal would no longer constitute a temporary medical removal under this lead standard. [[17/]]

In sum, the standard does not expressly provide for the termination of MRP benefits on the basis of a determination of incapability not attributed to elevated blood lead levels.  Nevertheless, the attachments clearly indicate that the Secretary contemplated that these terminations might arise under exceptional circumstances not expressly provided for in the standard, e.g., with respect to permanent, irreversible neurological impairment and kidney disease.

RSR contends, and Judge Fier found, that its decision to terminate King was based upon a bona fide medical determination that King was "incapable of ever safely returning to his or her former job status."  RSR argues that this medical determination was based on King's six-year previous medical history, including his decreased ability to excrete lead from his system, and not solely on King's blood lead level at the time of the examination.  The doctors detailed King's poor personal hygiene and stated that further exposure to lead would likely prove harmful to him.  RSR concludes that the Secretary failed to produce any evidence to discredit the validity of the doctors' evaluation and, thus, failed to carry his burden of proof that King remained on temporary removal status and was therefore entitled to MRP benefits.

We disagree.  The cited standard, supra note 1, creates an unequivocal obligation on the part of employers to provide MRP benefits to employees who are removed from exposure to lead.  The cited standard contains no exceptions allowing an employer to terminate those benefits during the period of the employee's removal.  Indeed, there is apparently only one standard, section 1910.1025(k)(2) (vi)(C), that expressly provides for the termination of MRP benefits and that provision is clearly inapplicable to the circumstances in this case because the employee at issue had not been removed from exposure to lead for an 18-month period prior to his termination.   Accordingly, there is no provision of the lead standard on which RSR can rely as authorization for its action. Instead, RSR attempts to rely solely on language in the standard's attachments -- language indicating that termination of MRP benefits, particularly termination prior to the expiration of the 18-month removal period, is only justified in the narrowest of circumstances.  The standard's attachments establish guidelines for reaching such a determination.  They indicate a strong preference for returning the employee to his or her former job [[18/]] unless exceptional circumstances exist.  Three of these conditions are specifically mentioned:  elevated blood lead levels after 18 months of removal from lead exposure; permanent, irreversible neurological impairment; and kidney disease.  Similarly, they indicate a strong preference for broadly construing the MRP benefits provisions so that benefits are provided to employees who are removed from lead exposure and for narrowly construing any exceptions to the general rule that benefits be provided.[[19/]]  In our view, the medical exception carved out of the standard's universal requirements is small.  The burden of proof is on the employer to establish that it falls within the implied and narrowly-circumscribed exception to the clear command of the lead standard that employees who are removed from their jobs on account of lead exposure must be paid MRP benefits.   Furthermore, this burden is not met by evidence of a physician's determination that an employee is incapable of ever safely returning to his or her former job if the evidence also indicates that the physician's determination is premature or based on legally proscribed criteria. [[20/]]

In the case before us, RSR terminated Lester King on May 22, 1979, on the recommendation of its physicians -- despite the absence of evidence of lead toxicity at the time -- both because of King's decreased capacity for lead excretion and because "there remains this problem in the future should he maintain his present exposure and blood lead level."  The parties stipulated that King's removal on February 1, 1979, was based on the recommendation of RSR's physicians, due to the results of a blood test indicating that King had a blood lead level of 72 ug/100g.  The stipulation also recites that the doctors who monitored King's blood lead level on a weekly basis would testify that as a result of their most recent examination of King, together with King's blood lead history, they determined "that Mr. King could return to work only in a non-lead environment."  However, the Secretary refused to accept the validity of RSR's doctors' determination recited in the stipulation.  The evidence shows that King's blood lead levels decreased during his three-month removal period from 72 ug/100g down to 51 ug/100g.  Indeed, King's blood lead levels did not even attain the 80 ug/100g removal trigger level established for the first year of the standard.  We also note that King did not present any subjective evidence of disease.  On this record, the doctors' determination cannot be said to constitute a "final medical determination" that King was "incapable of ever safely returning to his...former job status" as we interpret the legal criteria for termination under the standard.[[21/]]  Indeed, we are unable to determine on this record that the basis of King's termination was not simply high blood lead levels.  Under subparagraph (k)(2)(vi)(C), that determination cannot be made until the employee has been temporarily removed for at least 18 months.[[22/]]  Accordingly, we conclude that the purported final medical determination by RSR's doctors was not effective to extinguish RSR's MRP benefit payment obligation to King, which began on March 1, 1979, the effective date of the regulation.  As a result, we further conclude that King continued on temporary removal status after May 22, 1979, and was entitled to continue receiving MRP benefits.

D
We turn to the issue of whether RSR's use of an escrow account constituted a willful violation of the MRP provision. [[23/]]

The Secretary argues that RSR's refusal to pay MRP benefits was done knowingly and purposely.  RSR was well aware of the existence of the standard because it was one of the parties who petitioned for review of the standard and unsuccessfully sought a stay.  Its decision not to comply with the standard was publicized as a statement of corporate policy.  The Secretary assails the judge's conclusion that RSR's escrow policy evinced good faith and negated any willful characterization.  The Secretary charges that the regulation contains no provision for escrow payments.  Moreover, while acknowledging RSR's right to test its position in the courts, the Secretary charges that RSR's continued noncompliance despite the court of appeals' specific rejection of its application for a stay amounted to defiance of the court's order as well as of the standard.  Citing Anaconda Aluminum Co., 81 OSAHRC 27/A2, 9 BNA OSHC 1460, 1981 CCH OSHD 25,300 (No. 13102, 1981), the Secretary concludes that RSR's violation should be characterized as willful because RSR consciously ran the risk that its interpretation of the standard might prove to be wrong and it cannot now plead that it should not bear the consequences of that risk.

The United Steelworkers makes some of the same arguments as the Secretary, but it focuses particularly on the issue of RSR's good faith in establishing the escrow account.  The Union cites Acme Fence & Iron Co., 80 OSAHRC 13/A2, 7 BNA OSHC 2228, 1980 CCH OSHD 24,235 (No. 78-982, 1980), for the proposition that, if there is a reasonable, good-faith difference of opinion as to a critical fact and the resolution of this question determines whether there is a violation, a violation will not be found to be willful.  Here, the Union argues, there is no good faith difference of opinion regarding a critical fact; the failure to pay full MRP benefits is admitted.

Notwithstanding the Secretary's contrary assertion, RSR claims that it has always believed that its "substantial challenge" to the standard's validity, in conjunction with its bona fide escrow policy and its stated intention to deliver all escrowed funds to temporarily-removed employees if the standard were ultimately upheld, constituted total compliance with the Secretary's rules and regulations.  RSR insists that all of its actions, far from constituting "indifference to" or "disregard of" the regulations, were motivated by its desire to comply fully with the letter and spirit of the law.  RSR did not refuse to pay MRP benefits; the delay occasioned by the escrow fund merely served to protect the legitimate interests of all parties.  RSR argues that it made good faith efforts to comply; its escrow policy may not reflect the best method chosen to comply, but it certainly does not manifest intentional disregard of the standard.  RSR also asserts that this case is distinguishable from Anaconda Aluminum Co., supra.

A violation is willful in character if it was committed with either an intentional disregard of, or plain indifference to, the Act's requirements.  Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD 25,713 (No. 77-2100, 1981).  A violation is not willful if the employer had a good faith opinion that the violative conditions conformed to the requirement of the cited standard.  C.N. Flagg & Co., 75 OSAHRC 32/C6, 2 BNA OSHC 1539, 1974-75 CCH OSHD 19,251 (No. 1409, 1975) (good faith belief concerning a factual matter critical to the existence of the violation); see also General Electric Co., 77 OSAHRC 88/A2, 5 BNA OSHC 1448, 1977 CCH OSHD 21,853 (No. 11344, 1977) and General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1975 CCH OSHD 19,567 (No. 2739, 1975), rev'd in part on other grounds, 540 F.2d 67 (2d Cir. 1976) (good faith misinterpretation of the terms of the cited standard).   The test of an employer's good faith for the purpose of determining willfulness is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard reasonable under the circumstances.  Mel Jarvis Construction Co., supra.

In Anaconda Aluminum Co., supra, the Commission rejected the employer's argument that the violation at issue was not willful because it had a good faith belief that the standard did not require medical examinations for workers who were not exposed to excessive concentrations of asbestos.  There, the Commission found that the employer consciously chose not to provide the examinations -- despite its knowledge that the Secretary interpreted the standard to require them -- hoping that its own interpretation of the standard would ultimately prevail.  The Commission concluded that, "[h]aving taken that course, Anaconda ran the risk that its interpretation would prove to be wrong and cannot now complain that it must bear the consequences of that risk and be subjected to increased penalties for noncompliance."[[24/]]

This case does not present a situation where the employer claims any confusion about whether its conduct conforms to the requirements of the Act or whether the cited standard is applicable to its operations.  RSR's corporate policy statement belies its claims on review that it believed in good faith that its actions constituted compliance:

RSR Corporation . . . believes that those portions of the regulations requiring a continuation of earnings to employees who have been removed from the work place is arbitrary, capricious, and beyond the authority of the Secretary of Labor under the Occupational Safety and Health Act of 1970 . . .With respect to the remaining provisions of the OSHA Standard, RSR intends to comply with both the spirit and the letter of the law.

(Emphasis added).

Here, RSR was clearly aware of the standard's explicit requirement to pay MRP benefits to employees.  RSR was also clearly aware that the D.C. Circuit Court of Appeals had denied the stay and ordered that the MRP provision take effect on March 1, 1979, while the court considered RSR's challenge to the standard.  Thus, RSR not only was aware that the Act expressly provides a means for staying a standard pending review but also was aware that that means had been unsuccessfully exhausted.  Nevertheless, RSR unilaterally effected the stay that had already been denied by the court and refused to pay MRP benefits to its employee;[[25/]] instead, it made deposits into a separate account, thereby defeating the intent of the MRP provision that employees not be adversely affected financially during the statutory period of removal.[[26/]] Accordingly, we conclude that RSR's violation of the cited MRP provision was willful.

Having reversed the judge's determination that RSR did not commit a willful violation of the Act, we must consider the question of the penalty to be assessed.  In light of the criteria set forth at section 17(j) of the Act, 29 U.S.C. 666(i), we conclude that a penalty of $1,000 is reasonable and appropriate.

Accordingly, in Docket No. 79-6392, we reverse the judge's decision vacating the Secretary's citation, we find RSR in willful violation of the Act, and we assess a penalty of $1,000 for this citation.  Moreover, because we find that the medical recommendation leading to the termination of King's employment did not conclude RSR's obligation to pay MRP benefits to King, we remand the matter to the Chief Administrative Law Judge [[27/]] in order to afford the parties the opportunity to present evidence and arguments concerning the amount of MRP benefits which are owed to this employee.  Docket No. 79-6392 is hereby severed from these consolidated proceedings pursuant to Commission Rule 10, 29 C.F.R. 2200.10.

II Docket Nos. 79-3813 and 80-1602

A
On June 12, 1979, a compliance officer conducted an inspection of RSR's plant in Dallas, Texas, pursuant to an employee complaint.  The Secretary issued a citation on June 25, 1979, which included three items alleging other than serious violations of the Act.  Following RSR's notice of contest, the case was assigned Docket No. 79-3813.  One of the items alleged a violation for failure to comply with the standard at 29 C.F.R. 1910.1025(k)(2)(i).[[28/]]  A series of amendments to the citation was granted.  As a result, the original charge was revised as follows.  The characterization of the alleged violation was changed to willful.  In addition, separate instances of noncompliance with section 1910.1025(k)(2)(i) were alleged for each of seven employees, in lieu of the original item which had charged only a single instance of noncompliance with the standard.[[29/]]  A $10,000 penalty was proposed for each of these seven sub-items.  Moreover, the Secretary added an eighth sub-item alleging a willful violation of the Act embracing 14 other employees as a group.[[30/]]  The Secretary did not propose a penalty regarding this sub-item, expressly leaving it to the Commission's discretion to determine an appropriate penalty.  Finally, in each of the eight sub-items, noncompliance with section 1910.1025(k)(2)(vii).[[31/]] is alleged in the alternative to the original charge of noncompliance with section 1910.1025(k) (2)(i).

The stipulated record establishes that, during the period from March 1 to December 31, 1979, RSR temporarily removed 21 employees for periods of as little as 3 days and as long as 8-1/2 months.  The record does not reveal the reasons for these temporary removals.  The parties stipulated that RSR did not provide any of these employees with MRP benefits either by paying their regular salaries or by paying the difference between their regular salaries and the amount received from workers' compensation benefits during the duration of the employees' removal.  Instead, RSR deposited funds into a separate account in an amount claimed to be equivalent to the MRP payments due under the standard.  RSR stated that it would pay the employees out of these funds in the event that the validity of the MRP benefits provision of the lead standard were "ultimately upheld."  The parties also stipulated that the seven employment terminations, see supra note 29, were "based on the medical determination of Respondent's physicians that these employees were incapable of ever safely returning to work in a lead environment" and that RSR had no positions available which would have enabled these employees to work in an environment of lead concentration at or below the permissible exposure limit ("PEL") of 50 ug/m3.  Moreover, RSR ceased setting aside funds in "escrow" for these seven employees once they were terminated.

Following an inspection of the same Dallas facility on February 22, 1980, pursuant to an employee complaint, the Secretary issued a second citation to RSR on February 26, 1980, which became the contested charge in Docket No. 80-1602.  In his complaint, the Secretary alleged four separate violations of the Act for failure to comply with section 1910.1025(k)(2)(vii), supra note 12, or, in the alternative, section 1910.1025(k)(2)(i), supra note 1.  The citation arose from the employment termination, without prior temporary removal, of 4 other employees -- not among the 21 employees covered in Docket No. 79-3813 -- at the Dallas plant on November 19, 1979.[[32/]]  Each of the four violations was alleged to have been willful, with a $10,000 proposed penalty in each instance.  The parties later stipulated that these four terminations were "based upon the medical determination of Respondent's physicians that these employees were incapable of ever safely returning to work in a lead environment."  None of these four employees has received any MRP benefits, nor has RSR "escrowed" any funds on their behalf following their termination.

Based on the stipulated record filed in the consolidated proceeding in Docket Nos. 79-3813 and 80-1602, Judge Dee C. Blythe concluded that RSR's payments to an escrow fund did not constitute a "satisfactory or legal substitute" for paying benefits to the employees.  Accordingly, he affirmed the Secretary's allegations relating to the periods of temporary removal for 21 employees.

With respect to the 11 employees who had been terminated (seven, following periods of temporary removal, and four, without any prior temporary removal), Judge Blythe considered and rejected RSR's argument that MRP benefits were no longer required because its physicians had made a "final medical determination" under section 1910.1025(k)(2)(vi)(C), supra note 6, that the 11 employees were "incapable of ever safely returning to [their] former job status."  The judge noted first that the multiple physician review mechanism had been stayed by the D.C. Circuit Court of Appeals.   Second, employers and employees or their authorized representatives remained free despite the stay to agree upon the use of any expeditious alternate physician determination mechanism in lieu of the multiple physician review mechanism.  The judge found no indication of an agreement.  Accordingly, Judge Blythe concluded that the medical determination by RSR's physicians did not qualify as a "final medical determination" as defined by subparagraph (k)(1)(ii)(B) and, thus, was ineffective to cut off MRP benefits.  In addition, the judge acknowledged the standard's intention that "final medical determinations" not be made hastily, particularly in the absence of conditions of permanent, irreversible neurological impairment, and kidney disease.  Here, the judge found that the actual basis for the terminations was not specified in the record and that blood lead levels alone would be insufficient unless they extended over a considerable period of time.  The judge pointed out that all of the 11 employees who were terminated had blood lead levels which were below the removal trigger level (80 ug/100g of whole blood) that would mandate temporary removal from lead environments.  Judge Blythe concluded that all 11 employees should receive MRP benefits for 18 months or until they were found unable to return to a lead environment, pursuant to a proper "final medical determination," whichever period was the lesser.  Accordingly, the judge also affirmed the citations' allegations relating to the failure to pay benefits to 11 employees after the date of their employment termination.

Nevertheless, Judge Blythe rejected the Secretary's characterization of the violations as "willful" because RSR held "strong opinions" that the standard was invalid and it was entitled to test them in the courts.  Moreover, Judge Blythe continued, RSR's payment of the MRP benefits into an escrow account, though not a substitute for compliance, negated the willfulness characterization of the violations.   He concluded that the violations were other than serious.

Commissioner Cottine granted both the Secretary's and Respondent's petitions for review.  With respect to the citation items discussed above, Commissioner Cottine specifically directed review on the following issues:

(from Respondent's petition)

1.  Whether the judge erred in (a) finding a violation of the provision of the lead standard at 29 C.F.R. 1910.1025(k)(2)(i) on the ground that "RSR's paying of the MRP [Medical Removal Protection] benefits into an escrow fund is not a satisfactory or legal substitute for paying the benefits to the employees" and (b) ordering that the payments be commenced.

2.  Whether the judge erred in finding a violation of the standard at 29 C.F.R. 1910.1025(k)(2)(vii) on the ground that "the medical determination by RSR's physicians that the 11 employees [terminated on November 19, 1979] were incapable of ever returning to work in a lead environment was ineffective to cut off MRP benefits."

(from the Secretary's petition)

3.  Whether the judge erred in failing to find the Respondent in willful violation of 29 C.F.R. 1910.1025(k)(2)(i) and (vii)...and in failing to assess appropriate penalties for these violations.

B
In relation to the Secretary's citations in Docket Nos. 79-3813 and 80-1602 alleging willful violations for failure to comply with the standard at 29 C.F.R. 1910.1025(k)(2)(i) or (vii), the parties raise essentially the same arguments as those raised in Docket No. 79-6392, supra, regarding the use of an escrow account, the termination of MRP benefits, and the willful characterization of the violations.  In Docket No. 79-3813 the Secretary's allegations of failure to pay MRP benefits cover a total of 21 employees.  Rather than pay MRP benefits directly to these employees during the periods of their temporary removal from lead exposure, RSR set aside funds in a separate account.  For the reasons stated in Part I, Subpart B, supra, we conclude that RSR's resort to an escrow device is not a substitute for compliance with the standard. [[33/]]

In addition, the Secretary alleges noncompliance with the standard based on RSR's failure to pay MRP benefits to seven employees in Docket No. 79-3813 and four employees in Docket No. 80-1602 during the period after their employment was terminated.   RSR responds that it properly terminated these eleven employees as a result of final medical determinations by its physicians that the employees were incapable of ever safely returning to work in a lead environment.  Though the record does not conclusively establish the medical basis for the determination of RSR's physicians, we note that the sparse evidence available points to the conclusions that the employees at issue were not suffering from any detectable medical condition due to lead exposure and that the determinations of RSR's physicians were based solely on blood lead levels, despite the standard's clear intent that these determinations could only be made after 18 months of removal. [[34/]]  We also reject RSR's implication that a finding that the physicians made inadequate determinations to justify the cessation of MRP benefits under the standard would cast aspirations on their professional integrity.  Our legal conclusion is limited to a finding that RSR has not met its burden of proving, under acceptable legal standards, circumstances warranting the termination of MRP benefits.   See Part I, Subpart C, supra.  Accordingly, we must conclude that the determinations by RSR's doctors were not effective to extinguish RSR's MRP obligation to those 11 employees.  Therefore, the employees remained entitled to receive MRP payments.

The Secretary alleges that each of the MRP violations at issue in Docket Nos. 79-3813 and 80-1602 was willful.  For the reasons stated in Part I, Subpart D, supra, we conclude that RSR's failure to pay MRP benefits to the 21 employees in Docket No. 79-3813 during the periods of their temporary removal when funds were deposited in escrow accounts was willful.  In Docket No. 80-1602, the Secretary's allegations of willful failure to pay MRP benefits cover a total of four employees, each of whom was terminated from employment.  None of these four had been previously removed from their lead-exposed jobs.  Consequently, MRP funds were neither paid to these employees nor set aside in a separate account.  Furthermore, seven of the 21 employees in Docket No. 79-3813 were eventually terminated from employment.  No MRP benefits were either paid to these employees or set aside after their employment was terminated.  On this record, we conclude that RSR could not have relied in good faith upon the determinations of its physicians that the 11 terminated employees were incapable of ever safely returning to work in a lead environment.  RSR was intimately familiar with the lead standard as a party to the section 6(f) challenge and points to no provision of the lead standard and/or its preamble and attachments that authorized it to permanently remove these 11 employees from exposure to a lead-contaminated environment by terminating their employment.  Indeed, it does not even appear that the temporary removal of these employees was required under the standard.  None of the employees had blood lead levels that would require their removal.  See 29 C.F.R. 1910.1025(k)(1)(i)(A), supra note 10.  Nor is there any evidence that any of the employees had "a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead."  See 29 C.F.R. 1910.1025(k)(1)(ii)(A), supra note 11.  On the contrary, there is no evidence of any adverse effects on the health of the employees.  Nor does RSR offer any legal support for its actions in Docket No. 80-1602 in terminating the employment of four employees without first placing them on temporary removal status and without paying them any MRP benefits.  These four employees did not even have monies escrowed for later disbursement.  Finally, we are unpersuaded by RSR's argument that it was necessary to terminate the employment of these employees or to stop the payment of MRP benefits to them in order to protect their health.  Clearly temporary removal of the employees in accordance with the provisions of the lead standard would have provided this same protection.  Accordingly, we conclude that RSR's resulting failure to pay MRP benefits to the 11 terminated employees, as well as its failure to pay MRP benefits to the 21 temporarily removed employees, constituted willful violations of the Act.

C
In addition to the citation item alleging failure to provide MRP benefits, discussed in Part II, Subparts A and B, supra, the Secretary's citation in Docket No. 79-3813 contained two items alleging other than serious violations of the Act for failure to comply with the regulation at 29 C.F.R. 1904.7(b)(1) [[35/]] and the standard or regulation at 29 C.F.R. 1910.1025(n)(4)(ii).[[36/]]  The Secretary subsequently amended these citation items to allege that the violations were "willful" and to propose penalties of $1000 and $3000, respectively.

These two items resulted from a series of events prior to and following the June 12 inspection of the Dallas facility.  First, one of RSR's employees, Isaac Jackson, submitted a written request to RSR in April 1979 for OSHA Form 200, the log and summary of all recordable occupational injuries and illnesses.  As stipulated later by the parties, Jackson's request was made in his capacity as president of the union local that represented RSR's employees under the collective bargaining agreement.  At the time of his request, however, Jackson was also a named plaintiff in a lead intoxication class action suit against RSR and others.  RSR provided the portion of OSHA Form 200 designated as the "Summary," but declined to furnish the "Log" portion, asserting that Jackson would have to submit a discovery request for this material through his attorney under the Federal Rules of Civil Procedure.  This discovery request was not made.  On June 14, 1979, the class action was dismissed on RSR's motion on the ground that the court was without jurisdiction due to the lack of diversity of citizenship.  Four days later, RSR's Technical Services Manager, Gerald Dumas, called the OSHA Area Office and informed OSHA that, because the suit had been dismissed against RSR, the company would provide the requested information to employees.  No such information was provided to Jackson.  A week after Dumas called OSHA, on June 25, 1979, OSHA cited RSR for failure to provide access to records as required by the regulation at 29 C.F.R. 1904.7(b)(1).

In April 1979, Jackson also submitted to RSR a written request for all monitoring data on air contaminants and the monitoring results of employee blood level tests.  RSR had completed first quarter air monitoring on March 3, 1979, and had forwarded the samples to a private laboratory for analysis.  RSR received the raw sample data from the laboratory by April and converted it into time weighted averages by May.  Exposure calculations were completed in August.  Programming for data processing was begun in September and the final summary was presented on December 13, 1979.  The data was printed in letter form and individual employees received their monitoring results in December.  The parties stipulated that, at the time of Jackson's request, RSR enforced a corporate policy requiring written releases from individual employees expressly giving the employee representative access to that employee's monitoring data.  Jackson never submitted employee releases and, thus, never received the data from the company.

In addition, on February 28, 1979 (the day before the lead standard became effective), an oral request for all medical removal, air sampling and blood lead level test data was made to a company representative during a monthly union safety committee meeting. RSR's corporate policy requiring written releases by individual employees prior to distributing sampling data to an employee representative was also applied to the distribution of this medical removal data.

In his decision Judge Blythe found that RSR violated section 1904.7(b)(1) and section 1910.1025(n)(4)(ii) by denying the authorized employee representative access to the requested records.  Specifically, the judge found that forcing Jackson to resort to legal process in order to obtain the OSHA Form 200 during the pendency of the private suit against RSR was without legal justification.  As to the requests for monitoring and test data, the judge concluded that the union was entitled to the requested information, that RSR was not justified in requiring written permission from individual employees, and that RSR should have supplied it to the union as soon as it was available in usable form.  The judge did not find these violations to be willful, and he affirmed them as other than serious violations.

Commissioner Cottine's direction for review granted in pertinent part the following issue from the Secretary's petition:

Whether the judge erred in failing to find the Respondent in willful violation of 29 C.F.R. . . . 1910.1025(n)(4)(ii) and 1904.7(b)(1) and in failing to assess appropriate penalties for these violations.

D
We turn initially to the issue of access to the OSHA Form 200.[[37/]]  The Secretary contends that Judge Blythe correctly found that RSR violated the cited regulation, but that the judge failed to articulate any reason why the violation was not willful as alleged. The Secretary points out that RSR clearly knew the requirements because it did provide the "summary," although it refused to provide the "log."   Again citing Anaconda Aluminum Co., supra, the Secretary charges that RSR consciously and deliberately chose not to comply with the regulation, running the risk that its own interpretation of what was meant by "available . . . in a reasonable manner and at reasonable times" would prove to be wrong.  The United Steelworkers also argues that the violation was willful.

In rebuttal, RSR asserts that it is undisputed in the record that RSR did not deny the employee's request for OSHA Form 200; it merely requested that the employee obtain the material through discovery proceedings pursuant to the Federal Rules of Civil Procedure.  RSR contends that it reasonably believed that access to the requested documents was governed by the discovery rules, not by 29 C.F.R. 1904.7, because the employee was acting in furtherance of his private lawsuit.  Thus, RSR continues, because its belief that section 1904.7 was not applicable was reasonable, the violation should not be characterized as willful.

At the outset, we note that in the absence of exceptional circumstances any issue neither raised in a petition for review nor directed for review by an individual member upon his own motion is not before the Commission on review.  Austin Building Co., 80 OSAHRC 98/E1, 8 BNA OSHC 2150, 1980 CCH OSHD 24,839 (No. 77-3878, 1980).   See Commission Rules of Procedure 92(c) and (d), 29 C.F.R. 2200.92(c) and (d).  Therefore, only the willful characterization of the violation and not the judge's conclusion that RSR failed to comply with the regulation is before us on review.  RSR does not dispute that it had knowledge of the requirements of the cited regulation.  The regulation requires that RSR provide the employee representative with the log at his request.  RSR consciously and deliberately chose not to honor his request.  In defense, it asserts that it reasonably believed that access to the requested materials should properly have been made through discovery.  However, the reasonableness of RSR's position is belied by the fact that it persisted in its refusal to honor the request even after the suit in question had been dismissed and it had assured OSHA that the information would be provided to employees.  In addition, we note that there is no language in the regulation and no other cited authority that lends credibility to RSR's asserted belief that it was exempt from the regulation's requirements.  Thus, RSR's belief that it was in compliance with or excused from the requirements of the regulation could not have been held in good faith.  See Mel Jarvis Construction Co., supra.  We conclude that RSR's failure to provide access to the log of all recordable occupational injuries and illnesses pursuant to section 1904.7(b) constituted an intentional disregard of the requirements of the regulation and, accordingly, was a willful violation of the Act.

E
We next turn to the issue of access to monitoring records.[[38/]]  The Secretary notes on review that the judge failed to conclude that the violation was willful notwithstanding the finding that RSR's ground for failing to provide access to the environmental monitoring data requested by the union representative pursuant to section 1910.1025 was "of the nit-picking type."  The Secretary argues that RSR was clearly aware of the requirements of the standard, yet RSR refused to present the information on the ground that the employee representative never presented employee release for the data.  The Secretary urges that the standard contains no requirement for releases.  Moreover, the D.C. Circuit in Steelworkers and the judge below concluded that this restrictive reading would effectively prevent a union from monitoring compliance with the standard.  The Secretary concludes that RSR's choice not to provide the data was conscious and deliberate, and, thus, it was willful.

RSR maintains that at the time of the violation it believed that the disjunctive 'or' in the standard meant that an employer had a choice regarding the means of access to this data -- access could be provided to either employees and former employees or to their authorized employee representative.[[39/]]  Thus, RSR asserts that it believed that it fully complied with the mandate of the standard by providing this data to each employee to whom it pertained.  RSR adds that the subsequent amendment of the standard supports its interpretation; the fact that the pertinent wording was changed from "or" to "and" suggests that the rule previously in effect allowed the conclusions drawn by RSR.[[40/]]  RSR concludes that it should not be penalized for conduct pursued according to a reasonable interpretation -- confirmed by the subsequent amendment -- of a government regulation.

In the United Steelworkers' view, RSR's disjunctive reading of the term "or" in the cited standard or regulation is "absurd and irrational."  Under that interpretation, one former employee could request access to all the records under this section, copy a few of the items and forever preclude any current employee, other former employee or the union from looking at the records.  In light of the asserted basis of RSR's decision to impose restrictions on the employee representative's access to the environmental monitoring data, and because the refusal formed part of what the Union asserts is a pattern of denial of information, the Union contends that violation meets the criteria for willfulness.

The judge concluded that the interpretation of subparagraph 1025(n)(4)(ii) advocated by the Secretary and the United Steelworkers is correct and, based on that interpretation, further concluded that RSR failed to comply with this standard or regulation.  The correctness of these holdings is not at issue before us on review.  See Austin Building Co., supra.  Nevertheless, the Secretary's subsequent amendment of the standard or regulation, replacing "or" with "and," lends credibility to RSR's argument that the original standard could reasonably have been read disjunctively rather than conjunctively.  The plausibility of such an interpretation precludes us from finding that RSR's failure to comply with section 1910.1025(n)(4)(ii) was intentional or due to indifference to the Act's requirements.  As noted above, the test of an employer's good faith for purposes of determining willfulness is an objective one, i.e., was the employer's belief concerning a factual matter or concerning the interpretation of a standard reasonable under the circumstances.  On this record it cannot be concluded that RSR's interpretation of the standard was unreasonable.  See General Electric Co., supra.  Accordingly, we conclude that RSR's violation of section 1910.1025(n)(4)(ii) was not willful.[[41/]]

F
In summary, in Docket No. 79-3813, the Commission affirms that part of the judge's decision which concludes that RSR's violation of the standard or regulation at 29 C.F.R. 1910.1025(n)(4)(ii) was other than serious and not willful.  In addition, the Commission reverses the judge's decision insofar as it failed to find that RSR's noncompliance with the regulation at 29 C.F.R. 1904.7(b)(1) and the standard at 29 C.F.R. 1910.1025(k)(2)(i) or (vii) was willful as alleged by the Secretary.  In Docket No. 80-1602, the Commission reverses the judge's decision insofar as it failed to find that RSR's noncompliance with the standard at 29 C.F.R. 1910.1025(k)(2)(i) or (vii) was willful as alleged by the Secretary.

Having carefully reviewed the record in light of the statutory penalty assessment criteria prescribed in section 17(j) of the Act, 29 U.S.C. 666(i), a penalty of $1,000 is assessed for RSR's willful violation of 29 C.F.R. 1904.7 (b)(1), and no penalty is assessed for the other than serious violation of 29 C.F.R. 1910.1025(n)(4)(ii).

In Docket No. 79-3813, the Secretary alleged seven separate instances of noncompliance with the MRP provisions for each of the seven employees who were terminated from employment.  The Secretary proposed a $10,000 penalty for each of these alleged willful violations.  Similarly, in Docket No. 80-1602, the Secretary alleged separate willful violations and proposed separate $10,000
penalties for each of four employees who were also terminated from employment.  Finally, in Docket No. 79-3813, the Secretary alleged an additional willful violation based on RSR's failure to pay MRP benefits to fourteen employees who were temporarily removed from the workplace.  The Secretary did not make a penalty proposal with respect to this final alleged violation.

Commissioner Cottine would assess a per capita penalty of $1,000 for each of the eleven separately charged violations involving the terminated employees.  He would assess a penalty of $10,000 for the twelfth charged violation involving the fourteen temporarily removed employees because $10,000 is the maximum penalty that may be assessed for a willful violation under section 17(a) of the Act, 29 U.S.C. 666(a).  In Commissioner Cottine's view, the standards violated in these cases were designed to maximize individual employee participation in the medical surveillance program required under the lead standard and the violations are uniquely individual in nature.  See supra notes 19 & 26.  Furthermore, separate instances of violative conduct by the employer are involved.  Under Commission precedent, where separately charged violations involve a single instance of substantially the same violative conduct, the violations merge into a single violation.  Alpha Poster Service, Inc., 76 OSAHRC 141/B8, 4 BNA OSHC 1883, 1976-77 CCH OSHD 21,354 (No. 7869, 1976).  However, separate instances of the same violation may be charged either in combination or as separate violations.  See Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1679-1680, 1981 CCH OSHD 25,359 at p. 31,526 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2d Cir. Aug. 3, 1981) (combined); Hoffman Construction Co., 78 OSAHRC 2/A2, 6 BNA OSHC 1274, 1977-78 CCH OSHD 22,489 (No. 4182, 1978) (separate). Accordingly, the Secretary has the discretion to seek separate penalties for separate instances of the same violation.  Consistent with this precedent and the individual nature of these violations, Commissioner Cottine would affirm twelve separate willful violations as charged and assess separate penalties for each.  Moreover, Commissioner Cottine would assess substantial penalties for these violations, computed in the manner described above and totaling $17,000 in Docket No. 79-3813 and $4,000 in Docket No. 80-1602.  In order for an agency's penalty assessment role to function effectively as a means of promoting a statute's remedial objective, the penalties assessed should serve to motivate behavior to achieve that objective.  See generally, Diver, The Assessment and Mitigation of Civil Money Penalties by Federal Administrative Agencies, 79 COLUMN. L. REV. 1435 (1979).  In Commissioner Cottine's view, insubstantial penalty assessments in these cases unrelated to the number of employees denied benefits would encourage compliance with the medical removal protection provisions of the standard or advance the achievement of a safe and healthful workplace.[[42/]]

Commissioner Cleary finds it unnecessary to consider whether the Secretary's action in alleging separate violations and seeking separate penalties for each employee harmed was a proper exercise of administrative discretion.  Ultimate authority for assessment of penalties lies with the Commission.  See 29 U.S.C. 666(j); United States Steel Corporation, 82 OSAHRC, 10 BNA OSHC 2123, 1982 CCH OSHD 26,297 (No. 77-3378, 1982); H.H. Hall Construction Co., 81 OSAHRC 91/D12, 10 BNA OSHC 1042, 1981 CCH OSHD 25,711 (No. 76-4765, 1981); Hoffman Construction Co., 78 OSAHRC 2/A2, 6 BNA OSHC 1274, 1978 CCH OSHD 22,489 (No. 4182, 1978).

While he agrees with Commissioner Cottine that penalty assessments should serve to motivate behavior to achieve compliance with the Act's requirements, Commissioner Cleary is mindful that the Act's primary purpose is remedial.  Indeed, it has been the usual practice of the Secretary in proposing penalties and of the Commission in assessing them to group all instances of noncompliance with a single standard at one site into one citation with one penalty.[[43/]]  See, for example, United States Steel Corporation, supra; OSHA Field Operations Manual, Chapter X-C1(a).

In exercising their respective authorities as proposer and assessor of penalties, the Secretary and the Commission must keep in mind that the penalty provision of the Act, section 17(j), already provides for the inclusion of employee numbers in penalty assessment. Section 17(j) directs that the number of employees affected by an alleged violation ("gravity of the violation") and the company size overall are to be considered in penalty calculations.  Consistent with this mandate, the OSHA Field Operations Manual provides at Chapter XI-C3(c) that proposed gravity characterizations be based in part on the number of employees exposed, and Chapter XI-C3(e) provides for a penalty reduction of up to 40% based on overall company size.

Although assessment of individual penalties per employee harmed may not be precluded by section 17(j), Commissioner Cleary finds no basis in this case for such a result.  The Secretary has offered no reason for this departure from his own previously announced enforcement policies and from well settled Commission precedent.[[44/]]  In light of these considerations and the fact that the affected employees will now be provided with the benefits to which they are entitled, Commissioner Cleary finds it sufficient to assess penalties of $1,000 each for Docket Nos. 79-3813 and 80-1602.

Under these circumstances, the Commission members who join in affirming willful MRP violations agree to enter an order assessing penalties in amounts that represent common minimum penalties.  Both Commissioners therefore join in assessing single penalties of $1,000 each in Docket No. 79-3813 and in Docket No. 80-1602 for RSR's willful violations of the Act based on failure to comply with 29 C.F.R. 1910.1025(k)(2)(i) or (vii).

Because the Commission finds that the medical determinations that resulted in the termination of 11 employees here did not conclude RSR's obligation to pay MRP benefits to those employees, these cases are remanded to Judge Blythe in order to afford the parties the opportunity to present evidence and arguments concerning the amount of MRP benefits owed to these employees. Docket Nos. 79-3813 and 80-1602 are hereby severed from these consolidated proceedings pursuant to Commission Rule 10, 29 C.F.R. 2200.10.

III Docket No. 79-5062

A
In August 1979, a compliance officer conducted an inspection of RSR's plant in Indianapolis, Indiana.  As a result of this inspection, OSHA issued two citations to RSR on September 5, 1979:  the first, alleging a serious violation of the Act for failure to comply with the standard at 29 C.F.R. 1910.1025(k)(1)(i), supra note 10; and the second, alleging other than serious violations of the Act for failure to comply with the standards at 29 C.F.R. 1910.1025(k)(2)(i), supra note 1, and 29 C.F.R. 1910.1025(k)(2)(iv).[[45/]]  The Secretary proposed a $700 penalty for the violation alleged in the first citation and no penalty for the two violations alleged in the second.   The Secretary later amended these charges to allege that the violations that were originally characterized as other than serious were willful and to propose a combined $8,000 penalty for those violations.

The citations at issue grew out of RSR's use of a "special project crew," which it inaugurated on April 16, 1979.  The special project crew was begun at the Indianapolis facility four days after RSR announced its corporate policy creating an escrow fund pending the outcome of its challenge to the MRP provision of the lead standard.  The crew was comprised of those employees who were removed from RSR's Indianapolis plant based on elevated blood lead levels.  Crew members were assigned work (e.g., picking up trash, weeding, clearing brush, general maintenance of the grounds) outside the fenced-in area of the plant.  They were required to wear respiratory protection at all times.

The stipulated record establishes that ambient air sampling conducted by RSR on May 21, 1979, in the area where the special project crew had been working "indicated" that one of its employees, Gray, had a time-weighted average ("TWA") exposure to lead at or above 100 ug/m3 on that date.  At the time of this air sampling, Gray's blood lead level was recorded at 82 ug/100g of whole blood; for one test prior to that date and for two tests subsequent to that date his blood lead level was recorded at or above 80 ug/100g of whole blood.  Accordingly, first citation charged RSR with noncompliance with section 1910.1025(k)(1)(i) for having failed, during the first year following the effective date of the standard, to remove an employee from work having a daily eight-hour TWA exposure to lead at or above 100 ug/m3 on each occasion that a periodic and follow-up blood sampling test conducted pursuant to this section indicated that the employee's blood lead level was at or above 80 ug/100g of whole blood.

The second citation alleged that RSR willfully failed to pay MRP benefits to certain employees assigned to the special project crew. Specifically, in April 1979, three employees--Franklin, Calhoun and Strong--were informed prior to the end of their scheduled 40-hour work weeks that they were being removed from their normal duties and reassigned to the special project crew, commencing the following week.  As a result, they were only paid for 8 hours, 30.5 hours, and 32 hours respectively, during the 40-hour work week prior to joining the special project crew.  In addition, three other employees--Woods, Jones and Denny--were placed on temporary removal about this time due to elevated blood lead levels and received workers' compensation benefits during the periods of their removal. RSR did not compensate any of the three for the difference between his workers' compensation benefit payment and his normal in-plant wages.  Accordingly, the second citation charged RSR with a failure to comply with section 1910.1025(k)(2)(i) in that RSR failed to maintain the earnings of employees Franklin, Calhoun, and Strong during the week prior to their reassignment to the special project crew, and also a failure to comply with section 1910.1025(k)(2)(iv) because the employer did not pay employees Woods, Jones, and Denny the difference in lost earnings between workers' compensation payments and normal earnings.  The parties stipulated that Franklin, Woods, Jones and Denny would be entitled to the money which RSR had escrowed on their behalf during the periods of their removal -- commencing on the March 1, 1979 effective date of the standard -- in the event that the standard were "ultimately upheld."   It appears that no MRP funds were ever placed in escrow on Calhoun and Strong's behalf.  The stipulation also noted a provision in the collective bargaining agreement at RSR's plant whereby the employer reserved the right to make changes in the number of employee work hours and did not guarantee a 40-hour week.

In his decision, Judge F. Daley Abels affirmed the citations but modified the proposed penalties.  With respect to the first citation, the judge noted that the stipulation established both that the air sampling and the blood lead level brought Gray within the purview of section 1910.1025(k)(1)(i) and that Gray was a member of the "special project crew."  There was no evidence that Gray's status changed subsequent to the May 21, 1979 air sampling and the judge inferred that Gray continued to be a member of that crew. Judge Abels thus concluded that Gray's continued membership in the crew satisfactorily showed RSR's failure to remove him as required by the statute.   RSR had argued before the judge that, based on an error factor that the OSHA Field Operations Manual stated should be used in analyzing air sampling results, the sampling result only reflected a possible exposure to lead in excess of the PEL and, therefore, the Secretary had not established an actual violation, but only the possibility of one.   Judge Abels dismissed this contention on the basis that RSR could not later claim an exposure to lead at possibly less than the prescribed limit when it had stipulated that the May 21, 1979 sampling indicated that Gray had a TWA exposure to lead at or above 100 ug/m3 on that date.

With respect to the second citation, Judge Abels noted that both the D.C. Circuit Court of Appeals in the Steelworkers decision and the U.S. Supreme Court in its ruling on a motion to stay the lead standard in Lead Industries Association, Inc. v. Marshall, supra, had refused to stay the application of the MRP benefits provision.   He concluded that the lead standard requires that the money be paid to employees in order to maintain their earnings during removal and that it makes no provision for establishing an escrow account.  Accordingly, Judge Abels held that RSR's utilization of the escrow account violated the cited standards with respect to Franklin, Woods, Jones and Denny.  Concerning Calhoun and Strong, Judge Abels noted both RSR's stipulation that employees on the special project crew are removed due to elevated blood lead levels, and also its stipulation that RSR had reassigned Calhoun and Strong to the crew.   Therefore, Judge Abels found that these employees had been removed on account of elevated blood lead levels. He further concluded that RSR's duty to maintain the removed employees' earnings commenced with their removal from their regular work assignment and was not postponed until the next scheduled work day for the special project crew.  He further concluded that RSR's reliance on the collective bargaining provision concerning assignment of work hours was misplaced.  In essence, he found that the employees had been temporarily removed from their lead-contaminated work areas pursuant to the provisions of the lead standard and not merely reassigned under the terms of the collective bargaining agreement.  Judge Abels determined that RSR violated the standard by failing to pay Calhoun and Strong for the hours that each did not work after their removal but before they started on the special project crew.

Judge Abels also agreed with the Secretary's characterization of the violations charged under the second citation involving Franklin, Calhoun, Strong, Woods, Jones and Denny as willful.  The judge rejected RSR's contention that its use of the escrow account during the pendency of its challenge to the validity of the standard indicated its willingness to provide MRP benefits.  Judge Abels found that RSR deliberately, intentionally, and voluntarily elected to violate the provisions of the standard with full knowledge that the standard was in full force and effect at the time of its election.  Thus, he concluded that RSR willfully violated the Act.  Judge Abels assessed penalties of $900 for the first citation and $6,000 for the second.

Commissioner Cottine granted Respondent's petition for review, specifically directing review on the following issues:

1.  Whether the judge erred in concluding that Respondent's violations of the lead standard provisions at 29 C.F.R.
1910.1025(k)(2)(i) and (k)(2)(iv) were willful and in assessing a total penalty of $6,000.

2.  Whether the judge erred in affirming a serious violation of 29 C.F.R. 1910.1025(k)(1)(i) based on employee lead exposure in excess of the limit established by the cited standard.

B
We conclude that RSR's failure to comply with the standards at 29 C.F.R. 1910.1025(k)(2)(i) and (iv) was willful.[[46/]]  See Part I, Subpart D, supra.   RSR raises essentially the same arguments which we have already rejected on review in Docket Nos. 79-6392, 79-3813 and 80-1602 and which were also asserted before and rejected by Judge Abels below.  Inasmuch as Judge Abels correctly decided the issue before him, we adopt his findings and conclusions.  See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD 23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD 22,737 (No. 14281, 1977).

C
We next consider the alleged serious violation of 29 C.F.R. 1910.1025 (k)(1)(i) based on employee exposure to levels of airborne lead in excess of the limit established by the cited standard.[[47/]]  The Secretary argues that he satisfied his burden of proving this alleged violation by showing:  (1) the stated purpose of the "special projects crew" was to reassign employees with elevated blood lead levels; (2) Gray was exposed to airborne lead excess of 100 ug/m3; and (3) Gray's blood lead levels were in excess of 80 ug/100g for one test prior to the air sampling and for two tests following it.  The United Steelworkers makes essentially the same argument as the Secretary.

RSR points out that the three parties stipulated in pertinent part:

Ambient air sampling conducted by Respondent on May 21, 1979, indicated that Mr. Joe Gray had a TWA exposure to lead at or above 100 ug/m3 on that date,. . . . At the time of the ambient air sampling conducted by Respondent on May 21, 1979, Mr. Gray's blood lead was recorded at 82 ug/100g of whole blood and for one test prior to this date and two tests subsequent to this date his blood lead had been at or above 80 ug/100g of whole blood.

Citing to this language RSR reiterates the contention it made before the judge that the parties merely stipulated what the sampling "indicated."  In its view, the parties stipulated neither to the validity of the test's results nor to its probative value.  It adds that the Secretary's Field Operations Manual provides a sampling and analytical error (SAE) number in order to account for variations in sampling accuracy.  Applying the relevant SAE number, it asserts that the actual exposure level could have been less than 100 ug/m3 (as little as 93 ug/m3).  Therefore, RSR insists that the Secretary has not proved a violation, only a possible violation.

We note first that the parties stipulated to the facts in issue.  This stipulation conclusively establishes the material facts it contains. See Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir. 1978).  The material facts report a level of exposure to lead in excess of that permitted by the standard.  Moreover, RSR has presented no evidence to invalidate the accuracy of this specific sample and no reason to disregard the stipulation.  Accordingly, we conclude that Judge Abels correctly rejected RSR's argument that the stipulated sampling results lack validity.

Nevertheless, it is the Secretary's burden to prove RSR's failure to comply with the requirements of the standard. See Daniel International Corp., Wansley Project, 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD 25,813 (No. 76-181, 1981). The cited standard requires that the employer shall remove an employee from excessive exposure.   Judge Abels found a violation here, but acknowledged that there was no evidence as to employee Gray's status subsequent to the May 21, 1979 air monitoring. The judge merely inferred that Gray remained a member of the special project crew subsequent to May 21, 1979.  This inference proved critical in Judge Abels' analysis, because he declared that Gray's continued membership in the crew satisfactorily showed a failure by RSR to remove Gray from the work in question as mandated by the standard.  However, we conclude that this inference lacks support in the record.  There is no record evidence here establishing whether or not Gray was removed from the work area where he was subjected to this excessive exposure.  Although in its brief RSR characterized the Secretary as having shown a "possible" violation, RSR referred only to the significance of the stipulations regarding Gray's measured TWA exposure.  Nothing suggests that the reference pertained to other matters which were not addressed in the stipulations.  Since the parties did not stipulate as to whether Gray remained a member of the "special projects crew," we do not interpret RSR's brief as expressing any view on that question.  Under the circumstances, we must reverse this portion of the judge's decision and vacate the citation.[[48/]]
Accordingly, in Docket No. 79-5062, we affirm that portion of Judge Abels' decision finding RSR in willful violation of the standards at 29 C.F.R 1910.1025(k)(2)(i) and (iv) for failure to pay MRP benefits.  We also affirm the judge's assessment of a $6,000 penalty for this willful violation.[[49/]]  In addition, we reverse the judge's decision insofar as it finds RSR in noncompliance with the standard at 29 C.F.R. 1910.1025(k)(1)(i) and we vacate the citation alleging that violation.  Because the record does not establish the amount of the MRP benefits that Calhoun and Strong are entitled to, we remand this case to the Chief Administrative Law Judge so that the parties may be provided an opportunity to present evidence and arguments on this issue.[[50/]]   Finally, pursuant to Commission Rule 10, 29 C.F.R. 2200.10, this case is hereby severed from these consolidated proceedings.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  JAN 31 1983


The Administrative Law Judge decision in this matter is unavailable in this format.   To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).



FOOTNOTES:

[[1/]] 29 C.F.R. 1910.1025(k)(2)(i) provides:

(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.

[[2/]] The question of whether the cited standard applies to persons already removed as of March 1, 1979, or only to persons removed on or after that date is not raised by the parties.  Instead, their focus is solely on King's removal status beginning on March 1.  The Secretary asserts that RSR must provide MRP benefits to King for up to 18 months, from March 1, 1979, up to September 1, 1980.  RSR's position is that, at most, King is entitled to MRP benefits through May 22, 1979, the date his employment was terminated.

[[3/]] The Secretary issued the new lead standard in November 1978.    It was published at 43 Fed. Reg. 53007 (1978), with minor amendments at 44 Fed. Reg. 5446 (1979).  The Preamble to the standard was published at 43 Fed. Reg. 52952-53007 (1978), with Attachments to the Preamble at 43 Fed. Reg. 54354-54509 (1978).   The standard was quickly challenged in the court of appeals both by employers -- including RSR -- and by employee representatives -- including the United Steelworkers of America, which is also a party in some of these proceedings before the Review Commission.   These challenges pursuant to section 6(f) of the Act, 29 U.S.C. 655(f), were consolidated before the D.C. Circuit under the name United Steelworkers of America v. Marshall.  Several of the petitioners, including RSR, moved that the court of appeals stay enforcement of the lead standard pending disposition of their petition for review.   On March 1, 1979, the court partially stayed the lead standard by delaying the requirements for installing engineering controls and for instituting work practice controls.  29 C.F.R. 1910.1025 (e)(1).  It also stayed a part of the standard which established a "multiple physician review mechanism" concerning employee medical examinations.  29 C.F.R. 1910.1025(j)(3)(iii).  However, enforcement of the permissible exposure limit (PEL) and provisions for environmental monitoring, recordkeeping, employee education and training, medical surveillance, and medical removal protection was permitted to begin on March 1, 1979.  On August 15, 1980, the court issued its decision on the 6(f) challenge, largely upholding the validity of the standard.  It ruled that the substantive provisions of the lead standard, including the MRP benefits program, the multiple physician review procedure and the rules governing access to medical records, fell within the scope of the Secretary's power under the Act and were reasonable exercises of that power.  United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980). Industry parties subsequently sought certiorari before the United States Supreme Court, again seeking a stay pending review.  On December 8, 1980 the Supreme Court granted a partial stay, which was essentially the same as the stay previously entered by the Court of Appeals.  Lead Industries Association, Inc. v. Marshall, 449 U.S. 1029 (1980).  On June 29, 1981, the Supreme Court denied the lead industry representatives' petition for certiorari.  Lead Industries Association, Inc. v. Marshall, 453 U.S. 913 (1981).

[[4/]] See the standard at 29 C.F.R. 1910.1025(k)(1)(ii)(B).  The standard at 29 C.F.R. 1910.1025 (j)(3) sets forth the requirements for the multiple physician review mechanism and for alternate physician determination mechanisms.

[[5/]] 29 C.F.R. 1910.1025(k)(1)(ii)(C) provides:

(k) Medical Removal Protection
(1) Temporary medical removal and return of an employee-
* * *
(ii) Temporary removal due to a final medical determination.
* * *
(C) Where a final medical determination results in any recommended special protective measures for an employee, or limitations on an employee's exposure to lead, the employer shall implement and act consistent with the recommendation.

[[6/]] 29 C.F.R. 1910.1025(k)(2)(vi)(C) provides:

(k) Medical Removal Protection -
* * *
(2) Medical removal protection benefits-
***

(vi) Employees whose blood lead levels do not adequately decline within 18 months of removal.  The employer shall take the following measures with respect to any employee removed from exposure to lead due to an elevated blood lead level whose blood lead level has not declined within the past eighteen (18) months of removal so that the employee has been returned to his or her former job status:
***
(C) Where the final medical determination has not yet been obtained, or once obtained indicates that the employee may not yet be returned to his or her former job status, the employer shall continue to provide medical removal protection benefits to the employee until either the employee is returned to former job status, or a final medical determination is made that the employee is incapable of ever safely returning to his or her former job status.

(Emphasis added.)

[[7/]] All three Commissioners join in this subpart (Part I B) of the Commission's decision.

[[8/]] Section 6(f) of the Act, 29 U.S.C. 655(f), provides:

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard.  A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary.  The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard.  The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.

[[9/]] Commissioners Cleary and Cottine join in this subpart (Part I C) of the Commission's decision.  Chairman Rowland's views are stated in his separate opinion.

[[10/]] 29 C.F.R. 1910.1025(k)(1)(i) provides, in pertinent part:

(k) Medical Removal Protection-
(1) Temporary medical removal and return of an employee-
(i) Temporary removal due to elevated blood lead levels
-(A) First year of the standard.  During the first year following the effective date of the standard, the employer shall remove an employee from work having a daily eight hour TWA exposure to lead at or above 100 ug/m3 on each occasion that a periodic and a follow-up blood sampling test conducted pursuant to this section indicate that the employee's blood lead level is at or above 80 ug/100g of whole blood.

The first year following the effective date of the standard is the relevant time period in all of the consolidated cases before us.

[[11/]] 29 C.F.R. 1910.1025 (k)(1)(ii) provides, in pertinent part:

(k) Medical Removal Protection-
(1) Temporary medical removal and return of an employee-
***

(ii) Temporary removal due to a final medical determination.
(A) The employer shall remove an employee from work having an exposure to lead at or above the action level on each occasion that a final medical determination results in a medical finding, determination, or opinion that the employee has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead.
(B) For the purposes of this section, the phrase "final medical determination" shall mean the outcome of the multiple physician review mechanism or alternate medical determination mechanism used pursuant to the medical surveillance provisions of this section.

For ease of reference, throughout this decision we refer to the determination described in 1910.1025(k)(1)(ii) as a "physicians' determination of a medical condition warranting removal."

[[12/]] 29 C.F.R. 1910.1025(k)(2)(vii) provides:

(k) Medical Removal Protection -
***
(2) Medical removal protection benefits
***

(vii) Voluntary Removal or Restriction of An Employee.
Where an employer, although not required by this reaction to do so, removes an employee from exposure to lead or otherwise places limitations on an employee due to the effects of lead exposure on the employee's medical condition, the employer shall provide medical removal protection benefits to the employee equal to that required by paragraph (k)(2)(i) of this section.

[[13/]] 43 Fed. Reg. 54459.

[[14/]] 43 Fed. Reg. 54462.

[[15/]] 43 Fed. Reg. 54470.  See also 29 C.F.R. 1910.1025, Appendices B & C.

[[16/]] 43 Fed. Reg. 54469.

[[17/]] 43 Fed. Reg. 54470.

[[18/]] See 1910.1025(k)(1)(iii).  For an employee removed due to a blood lead level at or above 80 ug/100g -- the relevant level at the time these cases arose - 1910.1025(k)(1)(iii)(A)(1) requires the employer to return the employee to former job status when two consecutive blood sampling tests indicate that the employee's blood lead level is at or below 60 ug/100g of whole blood.

[[19/]] For example, in explaining the purpose of 1910.1025(k)(2)(vii), supra note 12, the Secretary stated:

The purpose of this requirement is to preclude employers from evading the MRP program by voluntarily removing workers shortly before the standard would mandate removal.   For example, absent some countervailing requirement, an employer could lay off or transfer a worker having a blood lead level of 58 ug/100g without providing any economic protection.  It is likely that some employers would do this in the expectation of avoiding removal with MRP benefits when the worker's blood lead level reached 60 ug/100g.   Even the Lead Industries Association openly predicts that employers will remove workers from exposure before blood lead levels reach the standard's removal trigger. [Citation omitted.]  If employers can evade MRP with such ease, then MRP will play no role in effectuating meaningful worker participation in medical surveillance.   Without the protection of a comprehensive MRP program, the level of worker protection afforded by the standard will be reduced.  MRP benefits must be provided so as to close this loophole.

43 Fed. Reg. 54472

[[20/]] In establishing the 18-month temporary removal period the Secretary took into consideration worker variation in lead retention and excretion rates, 43 Fed. Reg. 54468.  Furthermore, the Secretary specifically rejected personal hygiene practices as a basis for denying MRP benefits. 43 Fed. Reg. 54472.

[[21/]] In light of our conclusion that the record does not establish the existence of a legally sufficient determination that King was incapable of ever safely returning to his job, we need not resolve the dispute between the parties as to whether the determination was also inadequate because it was not a "final medical determination" under the procedures set forth in the lead standard.  See supra note 4 and accompanying text.

[[22/]] In Steelworkers, supra, the D.C. Circuit clearly recognized the 18-month MRP period to be a minimum requirement when removal is based on lead retention rates:

[OSHA] offered both medical testimony and worker health statistics to demonstrate that workers needed removal protection for at least 18 months to allow the reversible phase of lead disease to subside and reduce their blood lead to safe levels.

647 F.2d at 1238 (emphasis added).  The court also noted that, if blood lead levels do not decline to safe levels within 18 months, a longer period of removal may be required.  647 F.2d at 1230 & n.61.

[[23/]] Commissioners Cleary and Cottine join in this subpart (Part I D) of the Commission's decision.  Chairman Rowland's views are stated in his separate opinion.

[[24/]] See also Intercounty Constr. Co. v. OSHRC, 522 F.2d 777, 780 (4th Cir. 1975), cert. den., 423 U.S. 1072 (1976), where the Fourth Circuit wrote:

The facts here indicate such a conscious, deliberate decision.  After the company was advised by OSHA that protective measures were necessary and had placed the "mule" in the trench to achieve compliance it intentionally removed the "mule" from the trench. Regardless of any good-faith belief that the work area remained safe the fact is that the company knowingly chose not to comply with the OSHA regulations and requirements.  That decision was a willful action in violation of the law.

[[25/]] In the partial stay granted by the D.C. Court of Appeals on March 1, 1979, the court specifically stated,

On consideration of the papers filed by the parties, and the discussions at conference, a partial stay of the standard will be ordered. The objective of the stay is to defer the requirements that employers undertake the expense of engineering controls, revision of work practices, and construction of facilities pending determination of their challenge to the standard.  At the same time, the Court has concluded that portions of the standard which will provide protection to employees during the pendency of judicial review should go into effect, as set forth in the order.

It is therefore ORDERED that
***

(9) The motion to stay the application of 29 C.F.R. 1910.1025(k), medical removal protection, 29 C.F.R. 1910.1025(1), training programs, and 1910.1025(n), recordkeeping is denied.

1979 CCH OSHD 23,338 at pp. 28,252-3.

[[26/]] The stated purposes of the MRP benefit provision are twofold:   (1) to allocate to the lead industry the costs of temporary removal as a cost of doing business, and (2) to effect full employee participation by eliminating any economic disincentive due to the feared loss of income, even though temporary.  See 43 Fed. Reg. 54442-50.  See also 29 C.F.R. 1910.1025, Appendix C.

[[27/]] Judge Fier is no longer a Commission administrative law judge.

[[28/]] See supra note 1. The two other items in the citation are discussed in Part II, Subparts C-E, infra.

[[29/]] The employment of each of these seven employees was terminated by RSR on November 19, 1979.  All seven either had previously been or were, at the time of their termination, on temporary removal status.  The allegations of violation appear to cover all periods of removal -- whether temporary or permanent -- of these seven employees following the March 1, 1979 effective date of the MRP regulation.

[[30/]] These 14 employees were placed on temporary removal status by RSR for varying periods between March 1 and December 31, 1979.  They did not come to the Secretary's attention until April 1980, when they were named by RSR in response to the Secretary's first set of interrogatories, long after the issuance of the citation in June 1979.  The allegations of violation appear to cover periods of temporary removal during the last ten months of 1979.

[[31/]] See supra note 12.

[[32/]] Each of the 11 employees who were terminated on November 19, 1979 (seven in Docket No. 79-3813 and four in Docket No. 80-1602) received the following letter:

It has been medically determined that you have low tolerance for continued exposure to a lead environment.  Extensive testing conducted by our physicians has indicated that you have an unusual propensity to absorb certain amounts of lead into your bloodstream and tissues.  Thus, your blood lead levels tend to increase in a disproportionate fashion to those blood lead levels of other employees with similar or equivalent exposure.  Moreover, it has been concluded that temporary removal from your working environment will not alleviate the problem permanently.  Accordingly, we have decided to remove you from lead exposure by terminating your employment as of November 19, 1979.  In reaching this decision, we have attempted to pursue a course of action in the best interest any assistance in obtaining other employment, please contact the personnel office at your convenience.

[[33/]] Commissioners Cleary and Cottine join in this subpart (Part II B) of the Commission's decision.  Chairman Rowland joins in the Commission's affirmance of Judge Blythe's holding that RSR violated 1910.1025(k)(2)(i) or (vii) by failing to pay MRP benefits to 21 employees in Docket No. 79-3813 during the periods of their temporary removal when RSR withheld the funds in an escrow account rather than paying them directly to the employees.  Chairman Rowland's views on the remaining issues discussed in this subpart are set forth in his separate opinion.

[[34/]] As indicated at note 32, supra, the employment of these eleven employees was apparently terminated because of their "unusual propensity to absorb certain amounts of lead into [their] bloodstream and tissues."  Therefore, the following statements from the preamble to the lead standard (at 43 Fed. Reg. 54469) appear to be directly applicable here:

...some long-term lead workers will excrete lead at an extremely slow rate, while other workers with comparable prior exposures will rapidly excrete lead upon removal.  OSHA is convinced that there is no possibility of determining in advance how any particular worker will respond to a removal.  At some point, however, it should become clear to what extent the blood lead level of a removed worker is likely to soon decline to acceptable levels.  OSHA believes that at this point a medical determination should be made as to the propriety of continuing the worker's removal.   With this in mind, the standard provides a medical examination for workers whose blood lead levels have not adequately declined within 18 months of removal. . . . The standard does, however, embody the judgment that such medical determinations cannot be quickly made with respect to blood lead level declines.  Little is firmly known about the complicated dynamics of individual worker lead excretion.  It would be premature to attempt to quickly assess the nature of a specific long-term worker's future blood lead level declines.  The standard requires 18 months of removal before this medical determination is attempted so that the nature of a specific worker's excretion of lead has been documented and thus can be evaluated without concern for such confounding factors as recent substantial lead exposure.

[[35/]] 29 C.F.R. 1904.7(b)(1), Access to records, provides:

(b)(1) The log and summary of all recordable occupational injuries and illnesses (OSHA No. 200) (the log) provided for in 1904.2 shall, upon request, be made available by the employer to any employee, former employee, and to their representatives for examination and copying in a reasonable manner and at reasonable times.  The employee, former employee, and their representatives shall have access to the log for any establishment in which the employee is or has been employed.

[[36/]] At the time the citation was issued 29 C.F.R 1910.1025(n)(4)(ii) provided:

(n) Recordkeeping-
***

(4) Availability.
***

(ii) Upon request, the employer shall make environmental monitoring, biological monitoring, and medical removal records available to affected employees, former employees or their authorized employee representatives for inspection and copying.

This subsection has since been amended.  See infra note 40.

[[37/]] Commissioners Cleary and Cottine join in this subpart (Part II D) of the Commission's decision.  Chairman Rowland's views are stated in his separate opinion.

[[38/]] Chairman Rowland and Commissioner Cottine join in this subpart (Part II E) of the Commission's decision.  Commissioner Cleary's views are stated infra at note 41.

[[39/]] See supra note 36.

[[40/]] As amended, effective August 21, 1980, section 1910.1025(n)(4)(ii) provides:

(n) Recordkeeping-
***

(4) Availability.
***

(ii) Environmental monitoring, medical removal, and medical records required by this paragraph shall be provided upon request to employees, designated representatives, and the Assistant Secretary in accordance with 29 C.F.R. 1910.20 (a)-(e) and (2)-(i). Medical removal records shall be provided in the same manner as environmental monitoring records.

(Emphasis added).

[[41/]] Commissioner Cleary dissents from the holding that RSR's violation 29 C.F.R. 1910.1025(n)(4)(ii) was not willful.  The employee representative, Jackson, submitted a written request for the monitoring data in April of 1979, long before the data had been supplied to employees (it is not shown that the data was ever requested by employees).  RSR's response at that time was that Jackson must supply releases from employees.  Yet, in subsequent argument, RSR has maintained its action was based on its understanding of the regulation, that either the union or employees, but not both, were entitled to the data.  Even assuming a misinterpretation by RSR, it would then have to assume it was proper for RSR to select which one was to be furnished the data.   But the data was never requested by the employees as required by the standard, supra note 36.  RSR has no right to elect to furnish employees the data, though unrequested, and then deny the data to the union which had requested it.

RSR's defenses are inconsistent with each other, and in Commissioner Cleary's opinion, its argument before the Commission, that the standard was ambiguous, is untenable.  The standard simply said that upon request employees, former employees, or the union could obtain materials.  This could not reasonably be read to mean that any one group could obtain the data to the exclusion
of the other two, and that RSR could determine which was to receive it.  Moreover, the change in the standard, supra note 40, only served to add the Assistant Secretary as a recipient of the data if he so elects.  In addition, Commissioner Cleary concludes that this refusal is part of a pattern of evasion of the standard.

[[42/]] Commissioner Cottine notes that each employee in this case is exposed to unique risk associated with personal participation in the medical surveillance program and distinctly personal harm when medically removed without the attendant protection afforded by the standard.  Commissioner Cleary avoids the unique risk and harm suffered by these individual employees by simply consolidating the number of unique violations into a single generalized penalty assessment under section 17(j) of the Act, 29 U.S.C. 666(i).  As a result, the individual employee who has personally suffered the consequences of the employer's violation of the Act is reduced to no more than a fraction of a single violation.

[[43/]] Commissioner Cleary is unaware of any case in which the Secretary has issued separate citations and proposed separate penalties for each employee harmed (actually or potentially) by an employer's noncompliance with a single standard.   Commissioner Cleary would point out that neither Pratt & Whitney Aircraft, supra, nor Hoffman Constr. Co., supra, cited by Commissioner Cottine in support of the Secretary's discretionary powers, involved separate penalties for each employee.  In Hoffman Constr. Co., the Secretary issued separate citations for each scaffold which was not in compliance with a guardrail standard.  In Pratt & Whitney Aircraft, the administrative law Judge, acting sua sponte, assessed separate penalties for each electric panel box which had not been appropriately locked.  In neither case did the Secretary propose separate penalties for each employee harmed or potentially harmed by the violative conditions. More importantly, in both cases the Review Commission exercised its authority as final arbiter of penalties by assessing only one penalty per standard violated.

[[44/]] Commissioner Cleary notes that in Docket No. 79-3813, the citation originally charged RSR with an other than serious violation of 1910.1025(k)(2)(i) and proposed no penalty.  The complaint which followed amended the citation to charge a willful violation and to propose a penalty of $3,000 for the 1910.1025(k)(2)(i) item.   The Secretary explained at that time that his reason for upgrading the violation from other than serious to willful was that he had learned that RSR was involved in the industry challenge to the lead standard before the D.C. Circuit and therefore had actual knowledge of the requirements of the standard.  The complaint was subsequently further amended to allege separate violations with separate penalties for each employee harmed by RSR's medical removal policies after the Secretary learned, through discovery, the identities of the individual employees involved.

Although RSR's involvement in the D.C. Circuit proceedings may justify the Secretary's upgrading of the charge to willful, it does not explain the Secretary's amendment from a single violation of 1910.1025(k)(2)(vii) or 1910.1025(k)(2)(i) to separate violations based on the number of employees involved.  (Commissioner Cleary also notes that the Secretary has not been consistent in seeking separate violations for each employee involved in a MRP violation.  In the Indiana case, discussed infra (Docket No. 79-5062), the complaint alleges only one violation and seeks only one penalty even though at least six employees were harmed by the violation.)

[[45/]] 29 C.F.R. 1910.1025(k)(2)(iv) provides:

(k) Medical Removal Protection -
* * *
(2) Medical removal protection benefits -
* * *
(iv) Workers' compensation claims.  If a removed employee files a claim for workers' compensation payments for a lead-related disability, then the employer shall continue to provide medical removal protection benefits pending disposition of the claim.  To the extent that an award is made to the employee for earnings lost during the period of removal, the employer's medical removal protection obligation shall be reduced by such amount.  The employer shall receive no credit for workers' compensation payments received by the employee for treatment related expenses.

[[46/]] Commissioners Cleary and Cottine join in this subpart (Part III B) of the Commission's decision.  Chairman Rowland's views are stated in his separate opinion.

[[47/]] Chairman Rowland and Commissioner Clearly join in this subpart (Part III C) of the Commission's decision.  Commissioner Cottine's views are stated infra at note 48.

[[48/]] Commissioner Cottine dissents from the Commission's decision to vacate the citation for serious violation of 29 C.F.R. 1910.1025(k)(1)(i).  In his view, the judge properly concluded, based on the totality of the evidence, that Gray's employment status remained unchanged following the May 21, 1979 monitoring.  The special project crew was established by RSR for the very
purpose of reassigning and relocating employees with elevated blood lead levels.   Gray was already removed once from his regular work assignment and was placed on the special project crew.  There is nothing to indicate that his status was changed or that there was any other crew to which he could be reassigned.  Employees who were temporarily removed were the subject of another citation in this case. Gray was not among them.

Furthermore, RSR has not challenged the judge's finding in this regard.  RSR's sole objection relates to the accuracy of the air sampling results.  In fact, by arguing that "the evidence reflects a possible violation" (Respondent's brief at 10) when a confidence limit is applied to its monitoring results, RSR has essentially conceded the fact that the majority refuses to find.

[[49/]] For the reasons stated in Part II F of the Commission's decision, supra, Commissioners Cleary and Cottine do not agree on an appropriate penalty for RSR's willful violation of the standards at 29 C.F.R. 1910.1025(k)(2)(i) and (iv).   Commissioner Cleary notes that penalties of $1,000 each have been assessed for the willful MRP violations at issue in Docket Nos. 79-6392, 79-3813 and 80-1602.  To be consistent, Commissioner Cleary would also assess a penalty of $1,000 for the willful MRP violations at issue in this case, Docket No. 79-5062.  As indicated previously, Commissioner Cleary does not agree that the penalties in these cases should be based on the number of employees who were denied MRP benefits.  However, Commissioner Cottine has concluded that a reasonable and appropriate penalty in these cases would be a per capita penalty of $1,000 for each employee who was denied MRP benefits.  Therefore, he agrees with Judge Abels' assessment of a $6,000 penalty for the willful violation here, involving RSR's failure to pay MRP benefits to six employees at the Indianapolis plant.

Because the Commission members who join in affirming willful violations are divided on the appropriate penalties, they agree to affirm the judge's assessment.  See Marshall v. Sun Petroleum Products Co., 622 F.2d 1176 (3d Cir. 1980), cert. denied, 449 U.S. 1061 (1982); United States Steel Corp., supra.

[[50/]] Judge Abels is no longer a Commission administrative law judge.