SECRETARY OF LABOR,

Complainant,

v.

SCHUYLKILL METALS CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, and its LOCAL UNION 8394,

Authorized Employee
Representative.

OSHRC DOCKET NO. 81-0856

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

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

Under the court's remand order, we must determine whether Schuylkill failed to comply with the standard.[[4/]] Schuylkill argues that the employees it removed from lead exposure were transferred under a program of discipline and retraining, not under the provisions of the lead standard, and that it was therefore not required to pay them medical removal protection benefits. For the reasons that follow, we reject this argument and conclude that Schuylkill violated the standard.

A

Schuylkill operates a secondary lead smelter in Louisiana. Lead is refined in the production area of the plant, where the airborne lead concentration exceeds the standard's permissible exposure limit. At various times between January 1, 1980, and December 4, 1981, Schuylkill temporarily transferred a number of its production employees to the change house, a locker room facility, where airborne lead concentrations are low. In the change house, the employees performed janitorial duties such as washing work clothes and repairing respirators.

Under the normal work schedule in the production department, employees worked six 40-hour weeks and two 48-hour weeks in each eight week period. They thus averaged two hours of overtime per week. Production department employees were also eligible to receive production incentive bonuses, which were based on the daily amount of production in excess of a certain base amount. The production employees who were transferred to the change house continued to receive their normal hourly wage rate for a 40-hour week, but they did not receive the overtime compensation or incentive bonuses they would have received if they had remained in the production department.

As required by the lead standard, Schuylkill took periodic blood samples from the employees working in the production area. If these samples had shown that an employee's blood lead level exceeded a certain limit, [[5/]] Schuylkill would have been required to transfer the employee to an area of low lead exposure while maintaining the "earnings, seniority and other employment rights and benefits of [the] employee as though the employee had not been removed from normal exposure to lead or otherwise limited." Under the Fifth Circuit's decision, Schuylkill would have had to pay the employees the overtime compensation and incentive bonuses they would have earned if they had not been transferred. However, the employees transferred in this case did not have blood lead levels that required their transfer.

Because medical removal of these employees was not "mandatory," Schuylkill's liability to pay MRP benefits depends on whether the "voluntary removal provision" of the standard, 29 C.F.R. 1910.1025(k)(2)(vii), applied to the removals. This provision states:

1910.1025 Lead
* * *
(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 section 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.

This section requires an employer to pay MRP benefits to an employee it voluntarily removes from lead exposure whenever the transfer is "due to the effects of lead exposure on the employee's medical condition." The initial question we must therefore address Is whether Schuylkill transferred employees from the production area to the change house because of the effects of lead exposure on their medical condition.

B

Schuylkill contends that none of the transferred employees had lead-related diseases or any medical conditions that placed them at increased risk of material impairment to health from lead exposure. The company argues that it transferred the workers, not because of the effects of lead upon any medical condition, but under a program that was designed to protect employees who were found to have elevated levels of lead in their blood by disciplining and retraining the employees to improve their work habits and hygiene practices. The Secretary contends that Schuylkill's decision to transfer an employee was triggered by an employee's elevated blood lead level, that an employee's blood lead level is a "medical condition" within the meaning of the standard, and that Schuylkill was therefore required to pay MRP benefits.

Schuylkill's resident, Anthony, testified that the company's transfer program had been started more than 20 years before the OSHA lead standard went into effect. In Schuylkill's experience, high blood lead levels resulted only from poor work habits or failure of supervision. Therefore, when an employee's blood lead level started to rise, it indicated a need for the employee to be closely watched and, if the rise continued, for the employee to be removed and retrained in good hygiene practices and the proper use of protective equipment. Anthony testified that removal was triggered by a supervisory decision that the employee required retraining, not by an elevated blood lead level alone. Hasse, Schuylkill's vice-president, administered the company's removal program and decided who should be removed. He testified that the criteria he used were "the blood lead level. The rate of acceleration of that level. Observation by a supervisor or a member of management." According to Hasse, the company's experience showed that proper respirator use and hygiene habits will prevent an employee from getting a high blood lead level.

Schuylkill's plant physician, Dr. Lorio, was stipulated to be an expert on the effects of lead exposure. Dr. Lorio administered Schuylkill's medical surveillance program, which included taking blood samples and medical histories from the company's lead-exposed employees. At no time did Dr. Lorio advise Schuylkill that it was medically necessary to remove any employee from lead exposure. According to Dr. Lorio, of the employees voluntarily removed, none had primary conditions associated with occupational lead exposure and none were at an increased health risk if they had continued in their jobs.

The administrative law judge credited the testimony of Schuylkill's witnesses,[[6/]] but he nevertheless concluded that the employees in question were removed because of the effects of lead exposure on their medical condition. Although he found that the decision to remove an employee was ultimately based on a need for training or discipline, he noted that it was an elevated blood lead level that initiated the process. The judge rejected Schuylkill's argument that an employee had to exhibit symptoms of a lead-related disease in order to have a "medical condition" within the meaning of the voluntary removal provision, concluding that an elevated blood lead level is a "medical condition" within the meaning of the standard.

We agree with the judge's holding that an employee's elevated blood lead level is a "medical condition" within the meaning of the standard. The term "medical condition" encompasses an abnormal physiological change that does not rise to the level of an illness. See Amoco Chemicals Corp., 12 BNA OSHC 1849, 1853, 1986-87 CCH OSHD 27,621, pp. 35,902-03 (No. 78-250, 1986)(requirement that employer record occupational illnesses does not mean that employer must record "conditions" that are not illnesses). As the Secretary points out, the voluntary removal provision of the lead standard was intended to preclude employers from evading the payment of MRP benefits by removing employees when their blood lead levels began to approach the standard's limits. 43 Fed. Reg. 52952, 54472 (Nov. 21, 1978). Thus, unless an elevated blood lead level is characterized as a "medical condition" within the meaning of the voluntary removal provision, the provision cannot achieve its purpose. Accordingly, an employee who is removed because of blood lead levels that are elevated, but not yet above the standard's limits, has been removed "due to the effects of lead exposure on the employee's medical condition" within the meaning of section 1910.1025(k)(2)(vii). Here, the employees' elevated blood lead levels played an important part in the employer's decision to transfer them to jobs where the airborne concentrations of lead were low. We therefore conclude that Schuylkill removed the employees because of the effects of lead exposure on their medical conditions, and that Schuylkill was required to pay them MRP benefits under the standard's voluntary removal provision.

C

Having determined that section 1910.1025(k)(2)(vii) applies to the cited conditions, we must now determine whether Schuylkill complied with its terms. Schuylkill paid the employees partial MRP benefits. It maintained their regular hourly wage rate when they worked in the change house, but it did not pay them overtime compensation and bonuses they would have earned if they had remained in the production area. Under the Fifth Circuit's decision, Schuylkill must be found in violation of the standard for its failure to pay the employees the total amounts they would have earned if they had not been removed.

The judge concluded, however, that Schuylkill had established an affirmative defense to the alleged violation. The judge found that Schuylkill's program was "a bona fide program of discipline and retraining which is necessary to the effective enforcement of rules of hygiene and safety . . . ." The judge observed that the Act requires employers to discipline employees who fail to comply with requirements intended to protect their safety and health,[[7/]] and noted that such discipline can involve suspension from work with corresponding loss of pay. He reasoned that the lead standard should not be applied in a manner that would preclude an employer from imposing effective discipline on employees who fail to comply with rules and instructions intended to protect them from absorbing lead into their bodies. The judge concluded that requiring Schuylkill to pay overtime and bonuses to employees who were being disciplined would, by eliminating any economic loss from the discipline, negate the value of that discipline and be contrary to the standard's purpose. Having found that Schuylkill transferred the employees under a bona fide discipline and retraining program, the judge concluded that the company did not violate the standard by failing to pay the transferred employees the overtime compensation and production bonuses they would have earned if not removed.

We conclude that the judge's result is inconsistent with both the language and the legislative history of the standard. The judge created an exception not found in the standard itself, which requires MRP payments whenever an employee is transferred because of the effects of lead upon his medical condition. Before creating an exception not found in a standard, we would need persuasive evidence that such an exception was mandated by the standard's overall purpose and was consistent with the standard's intent. See Aaron v. SEC, 446 U.S. 680, 700, 100 S.Ct. 1945, 1957 (1980)(In the absence of a conflict between a statute's plain meaning and its legislative history, the words of the statute must prevail); Ulmet v. United States, 822 F.2d 1079, 1087 (Fed. Cir. 1987)(same). That is not, however, the case here. The standard's legislative history demonstrates that the Secretary specifically declined to include in the standard the very same exception that has been recognized in this case by the judge. In the preamble accompanying the standard's adoption, the Secretary stated:

Personal hygiene and work practice rules. The LIA [Lead Industries Association] argued that MRP [medical removal protection] should contain an explicit provision voiding an employer's obligation to provide MRP benefits in the event the employer is somehow prevented from establishing and enforcing reasonable personal hygiene and work practice rules. The Battery Council International (BCI) urged that MRP be denied to workers who violated established work rules. The MRP provisions do not include either of these suggestions since they are neither necessary nor appropriate.

It is undisputed that employee personal hygiene and work practices are crucial to preventing harmful absorption of lead and the final standard contains numerous provisions specifically addressing these problems. OSHA fully expects that employers will establish reasonable personal hygiene and work practice rules and then enforce them in a fair and nondiscriminatory fashion. OSHA is in full agreement with the following statement by the LIA:

"In order to encourage workers to develop good hygiene habits and work practices, the employer should have the authority to promulgate reasonable rules and regulations concerning hygiene and work practices.

Moreover, if an employer is or should be aware that an employee is disobeying such rules and that his poor hygiene or work practices, if unchecked, might eventually endanger the employee's health, the employer should have the authority to warn and then discipline the employee."

The United Steelworkers of America concurs:

"Obviously, the way of handling poor, personal hygiene practices is through education, the furnishing of clean, adequate hygiene facilities, and only as a last resort, disciplinary action."

The lead record reveals that employers have the ability both to establish and enforce these types of rules. In view of this power, employers should be fully capable of assuring that employees understand and follow these rules. Permitting employers to deny MRP benefits to employees who have at some time in the past violated a work rule adds nothing to an employer's power, but carries the potential for abuse. The LIA recognized this fact when it stated:

"If, on the other hand, the employer does not take any disciplinary or corrective action at the time the violation of rules is discovered, he should not later be able to disclaim responsibility for paying rate retention after it becomes necessary to remove the worker from overexposure."

As a consequence, the final standard does not permit an employer to deny MRP benefits to an employee on the ground that the employee violated a hygiene or work practice rule.

43 Fed. Reg. at 54472 (emphasis added; citations to rulemaking record omitted). As this discussion demonstrates, the Secretary did not intend for the standard to preclude an employer from establishing work rules and disciplining employees who violate those rules, as long as the discipline is imposed when the infraction occurs. If, however, the employer only imposes discipline when the employee's blood lead level has risen, the discipline could be a subterfuge for avoiding the payment of MRP benefits; for this reason, the Secretary explicitly declined to include an exception in the standard that would permit an employer to avoid paying MRP benefits as a disciplinary measure. In this case, Schuylkill did not discipline employees when they first violated work rules, but only after their blood lead levels began to rise.[[8/]] Once Schuylkill relied on blood lead levels to make removal decisions, the removals were "due to the effects of lead exposure on the employee's medical condition" within the meaning of the standard, and the voluntary removal provision of the standard required the payment of MRP benefits. Schuylkill violated the standard by not paying the full amount of MRP benefits the standard requires.

We do not suggest that Schuylkill engaged in a deliberate attempt to circumvent the standard.[[9/]] We note that its voluntary removal program existed long before the standard was issued, and we believe that the company acted in the good faith belief that it was promoting the health of its employees. But we cannot create an exception to the standard that is inconsistent with the Secretary's rulemaking intent. We therefore conclude that Schuylkill violated the standard.

We conclude that the violation was serious. The serious health hazard presented by metallic lead is well established. The MRP benefits provision attacks this hazard by removing barriers to complete employee cooperation with medical surveillance. It seeks to protect the employees who face the gravest risk of serious lead-related disease: those who have high blood lead levels and those who have other medical conditions that would place them at particular risk should they continue to be exposed to lead in the workplace. The standard also seeks to eliminate the possibility that employees fearing economic loss due to removal from their jobs would use chelating drugs, which have dangerous side effects, in an attempt to reduce their blood lead levels. See St. Joe Resources Co., OSHRC Docket No. 81-2267 (Apr. 27, 1989). Since the potential for serious harm exists whenever the MRP standard is violated, we conclude that Schuylkill's violation of the standard was serious. Id.

The Secretary proposed a penalty of $360. We find that Schuylkill acted in good faith to protect the health of its employees, and the company partially complied with the standard by maintaining the hourly wage rates of the employees it voluntarily removed from lead exposure. We conclude that a penalty of $60 is appropriate.

D

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

The Commission members are divided on the propriety of such an order. While Chairman Buckley is of the view that the employees who failed to receive full "earnings", as that term has been interpreted by the Fifth Circuit, are entitled to be paid retroactively for the period of time that they failed to receive full earnings, he is also of the view that the Review Commission is without authority to make individual compensatory awards to those employees. Under the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the Secretary is authorized to issue citations to employers alleged to have violated the Act or any standard, rule or regulation promulgated pursuant to the Act. The citation is required to specify the violation with particularity, and to prescribe a reasonable time for abatement. The Secretary must also notify the employer of any penalty proposed to be assessed. That Act also created the Occupational Safety and Health Review Commission and authorized it to hear cases brought before it involving safety and health violations, and to affirm, modify, or vacate the Secretary's citation or proposed penalty, or to direct "other appropriate relief". 29 U.S.C. 659(c). The determination of the amount of pay to be awarded to an employee, and an order providing for individual compensatory relief to an employee, is clearly not the assessment of a civil penalty (which would be paid into the Treasury of the United States) . Nor is it an "abatement" as used in the Act, which he would define as those actions required to terminate the violative condition. In this case, the failure to pay full "earnings" would be abated by the commencement to pay them. Nor does the awarding of individual compensatory relief to individual workers retroactively for earnings which they failed to receive constitute "other appropriate relief".[[10/]] The ordering of back pay is not necessary as an abatement measure to the termination of the violative condition. In Chairman Buckley's opinion, the Commission is without authority to make individual compensatory awards unless expressly so authorized by Congress (as Congress has done, for example, in the case of awards of attorney's fees and costs under the Equal Access to Justice Act).

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

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

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

Accordingly, the citation alleging a serious violation of 29 C.F.R. 1910.1025(k)(2)(vii) is affirmed. A penalty of $60 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.
EXECUTIVE SECRETARY

DATED: April 27, 1989


SECRETARY OF LABOR,

Complainant,

v.

SCHUYLKILL METALS
CORPORATION,

Respondent,

and

UNITED STEELWORKERS OF
AMERICA, AFL-CIO, and its
LOCAL 8394,

Authorized Employee
Representative.

OSHRC Docket No. 81- 0856

APPEARANCES:

Marigny A. Lanier, Esquire, Office of the Solicitor, U.S. Department of Labor, Dallas, Texas, on behalf of complainant.

G. Michael Pharis, Esquire, Taylor, Porter, Brooks and Phillips, Baton Rouge, Louisiana, on behalf of respondent.

Francis Melancon, Staff Representative, and Darnell Dunn, President of Local 8394, United Steelworkers of America, Baton Rouge, Louisiana, on behalf of authorized employee representative.

DECISION AND ORDER

SPARKS, Judge: Schuylkill Metals Corporation is a Louisiana corporation engaged in business as a secondary lead smelter. The smelter converts previously refined lead from products such as batteries to reusable lead products.

Complainant alleges in the alternative that respondent violated provisions of the lead standard at 29 C.F.R. 1910.1025(k)(2)(i) or 29 C.F.R. 1910.1025(k)(2)(vii). The Secretary contends that respondent's employees removed from the production areas to janitorial duties are entitled to maintain their same level of earnings including overtime pay and production bonuses. The pertinent provisions state as follows:

(k) Medical Removal Protection.

* * *
(2) Medical removal protection benefits.

(i) Provisions 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.

(vii) Voluntary Removal or Restriction of An Employee. Where an employer, although not required by this section 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.

Medical removal protection benefits ". . . means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited." 1910.1025(k)(2)(ii).

FINDINGS OF FACT

The following findings of fact have been stipulated by the parties (Ex. J-1):

1. Schuylkill Metals Corporation, hereinafter called respondent, is a Louisiana corporation engaged in business as a secondary lead smelter. The smelter converts previously refined lead from products such as batteries to reusable lead products.

2. The lead which is processed at respondent's plant is lead within the meaning of 29 C.F.R. 1910.1025(b).

3. Respondent is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act.

4. Respondent's employees are represented by the United Steelworkers, Local 8394.

5. The period covered by the citation and complaint at issue herein is January 1, 1980, to December 4, 1981.

6. Respondent has had a removal program called the voluntary removal program under which employees are transferred from work in various areas of its plant where there is exposure to lead to work in the change house of the plant.

7. This case deals with removal of employees from areas in the production department where there is an average daily eight-hour exposure to airborne concentrations of lead which has exceeded and exceeds 200 ug/m3 without regard to the use of respirators.

8. The change house is the locker room facility where respondent's employees change from street clothes to work clothes and respirators and vice versa and shower. Change house employees are engaged in washing work clothes, janitorial duties in the change house and lunchroom and maintenance and repair of respirators.

9. The change house has a low air lead concentration.

10. Employees are removed from the production area and transferred to the change house based on blood tests or medical or management observation which lead management to conclude that those employees have developed poor hygiene habits, repeatedly have problems with respirator fit or have what is considered to an abnormal rise in blood lead levels.

By entering into stipulation number ten, respondent is not restricted from putting on further evidence of the exact reasons why employees have been removed.

11. Employees transferred from the production area to the change house are given education and training in methods, procedures and safety equipment and proper personal hygiene habits which protect them from lead exposure in the plant.

12. Participation in the voluntary removal program is mandatory for employees selected by respondent for transfer to the change house.

13. Respondent's voluntary removal program is a continuing program which has been in effect during the period covered by this case.

14. When an employee who has been removed to the change house completes his education and training, as determined by management and medical observation and blood test, he is transferred out of the voluntary removal program and into a plant department.

15. Employees in the change house on the voluntary removal program do not work over 40 hours per week except in isolated instances. They work either a locked shift or a rotating shift. The locked shift employees work 7:00 a.m. to 3:00 p.m. and begin their workweek on Tuesday and work ten straight days, then have four days off. The rotating shift employees work the same schedule as the Production employees except they are limited to working a maximum of five days in the workweek.

16. Production area employees work the following shifts:

Work six shifts 7:00 a.m. to 3:00 p.m., off two days, then work six shifts 3:00 p.m. to 11:00 p.m., off two days; then work six shifts 11:00 p.m. to 7:00 a.m., off two days. Repeat. As a result, production department employees work two 18-hour workweeks out of every eight weeks.

17. Respondent's workweek begins on Sunday at 7:00 a.m.

18. Employees working in the production area are eligible to receive a production incentive bonus and a discretionary bonus in addition to their usual wages.

19. Employees who are put on the voluntary removal program and moved to the change house receive the same wage rate as they did in the production area and are eligible for the discretionary bonus. They are not eligible for the production incentive bonus while they are in the voluntary removal program.

20. The following is a description of the production incentive bonus:
Earned daily, paid each pay period by employees crushing batteries, working on the blast and reverbatory furnaces, kettle floors, and casting crew in the production area. Amount of bonus is based on quantity of production produced above a base amount. These employees must also satisfactorily cornplete all elements of their job to be eligible.

The materials attached hereto and marked exhibit A pertain to and describe the production incentive bonus. The production incentive bonus may vary from person to person and week to week based on the application of a performance criteria which would reduce the amount of the bonus. The performance criteria are: accuracy, alertness, creativity, personality, absenteeism, housekeeping, dependability, job knowledge, quantity of work, courtesy, and overall performance.

21. Exhibit B lists employees removed from the production area to the change house, their period of removal, job status at removal and blood lead level on removal and on return. The list provided in exhibit B of individuals on the voluntary removal program may not be exhaustive in that there may be individuals who were removed but who have not been identified in discovery in this case.

22. Exhibit C is the collective bargaining agreement in effect during the relevant period of this case. Article IX, Section 9 defines overtime work. Article IX, Section 10 defines premium time work.

23. Exhibit D contains the payroll records for employees removed to the change house during the period January 1, 1980, to December 4, 1981. They show the pay periods, rates of pay, straight time hours, overtime hours, premium hours, holidays worked and total pay. The total pay figure includes the discretionary bonus if received.

24. Exhibit E contains the production bonuses paid to all employees in the production area each pay period ending from January 5, 1980, through June 20, 1981.

25. Exhibit F contains the production bonus histories of all employees removed to the change house on respondent's voluntary removal program for the payroll periods ending January 5, 1979, to December 22, 1979. The information which is relevant to this case in exhibit F is limited to bonuses paid to Goldman England, George Coleman, Benjamin Jarvis, Eddie Clark, William Waldon, Lucious Jefferson, King Bell, Lee Willis, Evans Raby and Oreal Spears.

26. Respondent does not maintain records which would identify specific individuals who replaced individuals removed from the production area to the change house on the voluntary removal program. Respondent does not use job descriptions and does not replace one employee with another. In most cases of personnel vacancies, the vacating person's work tasks are divided among the balance of the employees in his department or area. In some cases where this division is impractical, the vacating person can be replaced by as many as five different people in as short a period as six weeks. In time periods of normal removal, there is no "one for one" replacement of a vacating person.

27. This case does not address problems, if any, of removal from the maintenance, construction, or yard departments to the change house on the voluntary removal program.

28. Respondent employed approximately 225 persons at the time of the OSHA inspection in June 1980.

29. Prior to the inspection which began June 1980, respondent was inspected on eight occasions by OSHA.
(NOTE: Exhibits A, B, C, D, E and F are omitted from the findings but are established facts contained in the record.)
The following additional findings of fact are found based upon the evidence of record:

30. Respondent has established and maintained for about 25 years a continuing and effective program for reducing and minimizing the adverse medical effects of occupational exposure to lead (Tr. 67-81, 103-104, 114, 127-128).

31. The program consists of reducing the concentration of lead in the ambient air, medical monitoring, counseling and enforcement of rules which require protective equipment such as a respirator and good hygiene (Tr. 70-71, 98, 104).

32. Employees do not experience adverse effects from exposure to lead so long as the rules are rigidly enforced by management and adhered to by the employees (Tr. 68-71, 84, 114).

33. Periodically employees are reassigned from the production areas of the facility to janitorial duties in the change house. Some employees are so assigned because illness or injury make them fit for "light duty" only and others are transferred to the change house to provide a full complement of workers to operate the facility. Most employees, however, are transferred to the change house after blood tests show elevated levels of lead (Tr. 69-70, 74, 84-85, 86, 114).

34. There is no set level of blood lead which will cause an employee to be transferred automatically to the change house. The principal reason for such transfers is the determination by management that discipline or retraining is necessary to ensure compliance with rules concerning hygiene and the proper wearing of a respirator (Tr. 70, 76-78, 79-80, 84-84, 114).

35. The reassignment of employees to the change house whose blood lead level has remained elevated is an integral part of respondent's program to minimize the effect of occupational exposure to lead. It is a necessary and effective method for respondent to enforce its rules by discipline and retraining concerning the personal hygiene and the wearing of respirators (Tr. 68-71, 77-80, 84).

36. A decline of lead in the blood is accomplished by a diminished intake with increased excretion (Tr. 123).

37 . None of the employees transferred to the change house had experienced any primary or secondary medical problems caused by exposure to lead (Tr. 74, 110-111, 113, 119-120).

DISCUSSION

Complainant has established that certain of respondent's employees were removed from the production area of the plant where exposure to lead exceeded 200 ug/m3 on an average daily eight-hour basis to the "change house" where there was a low level of exposure to lead. The blood lead level of none of the employees was sufficiently high to trigger the requirements for mandatory removal from exposure to lead pursuant to 29 C.F.R. 1910.1025(k)(2)(i), so the issue is whether employees are entitled to medical removal protection benefits as provided in 29 C.F.R. 1910.1025(k)(2)(vii), which states as follows:

Voluntary Removal or Restriction of An Employee. Where an employer, although not required by this section 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.

There are few areas of sharp conflict over the significant facts in the case. Mr. Darnell Dunn, president of Local Union 8394, testified that employees were selected for removal when their blood level of lead was within 10 ug/m3 of the standard which required mandatory removal. For instance, when the regulation required medical removal when the level of blood lead reached 80 ug/m3, the company voluntarily removes employees whose blood level was at 70 ug/m3 (Tr. 18-19, 38-39). Company officials acknowledged that an elevated level of blood lead caused them to closely supervise the employee to determine defects in his work habits, but the blood lead level did not automatically trigger removal into the change house. The decision was based ultimately on whether the employee needed additional training or discipline. The testimony of respondent's witnesses, Anthony Hesse and Dr. Lorio, is given greater weight on that issue because they were involved in making and implementing the policy and were in a better position to know the details of its operation.

Complainant argues that "Respondent's obligations to pay MRP benefits arise any time there is a removal from exposure to lead" (Comp. brief p. 9). Respondent, on the other hand, emphasizes that the medical removal protection benefits are payable only when the removal is "due to the effects of lead upon an employee's medical condition ..." (Resp. brief pp. 3-4). The evidence does not show that any of the employees suffered gastric difficulties, anemia or kidney disorders which are the most common and early symptoms of lead problems. The evidence is not convincing that employees were assigned to the change house automatically if the blood lead level was within 10 ug/m3 of the mandatory removal level, but does establish that an elevated level of blood lead was the principal screening device for selection and transfer into the change house. The blood level of those selected for transfer to the change house was "elevated" in relation to other employees although not "elevated" above the level required for mandatory removal. It is entirely believable that, based upon its experience as to the effectiveness of its rules concerning hygiene and the wearing of respirators, management viewed reassignment into the change house as effective and necessary for discipline and retraining.

The Secretary's interpretation of the regulations states that "Respondent's obligations to pay MRP benefits arise any time there is a removal from exposure to lead" (Comp. brief p. 9). Under the facts found in this case, the central issue is whether an elevated blood lead level is a "medical condition" within the meaning of 29 C.F.R. 1910.1025(k)(2)(vii). There is a little question but that the blood lead level of all or nearly all employees exceeds that of the average population (Tr. 124). A literal reading of the term "medical condition" would include an elevated blood lead level as found in the employees assigned to the change rooms. Other sections of the lead standard use the term "medical condition" in different contexts.

1. Section 1910.1025(k)(ii) of 29 C.F.R. requires that an employee be removed from exposure to lead upon 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."

2. Section 1910.1025(k)(iii)(A)(4) of 29 C.F.R. provides that an employee who has been removed pursuant to the mandatory removal provisions shall be returned to his former job status when ". . . the employee no longer has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead."

Respondent contends that the term "medical condition" should be read as modified by the language in the two provisions above, i.e., a medical condition
". . . which places the employee at increased risk of material impairment to health from exposure to lead." Respondent's expert medical witness, Dr. Lorio, repeatedly testified that none of the employees who were transferred to the change house would have been placed at any increased risk of significant impairment to his health had he remained at his workplace (Tr. 113, 119-120) He further testified that none of the employees had any primary medical condition associated with occupational lead exposure (Tr. 111, 113).

Dr. Lorio described respondent's removal program as administrative action which could deal with potential problems before reaching the stage that a medical condition would develop (Tr. 114).

The two subsections which respondent relies upon in modifying the term "medical condition", 29 C.F.R. 1910.1025(k)(2)(iii) and (iii)(A)(4) are contained in a portion of the lead standard relating to mandatory removal of employees, not voluntary removal. That fact and the omission of modifying language in the pertinent subsection lead to the conclusion that the term "medical condition" used in 1910.1025(k)(2)(vii) regarding voluntary removal should be given a literal interpretation to include an elevated blood lead level without the necessity for a finding of increased risk (Tr. 106). Without question, the elevated blood lead readings were due to the occupational exposure to lead at respondent's facility (Tr. 124-125).

Medical Removal Protection Benefits

Employees who are voluntarily removed are entitled to medical removal protection benefits equal to those of employees who are removed under the mandatory requirements of the standards. The benefits are to maintain the earnings and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited (29 C.F.R. 1910.1025(k)(2)(ii)). No question is raised concerning the seniority or rates of pay of employees voluntarily transferred into the change house. Complainant contends that such employees are entitled to overtime pay for an average of two hours per week and a share of the production bonus. Complainant retained the services of RPC Corporation to ascertain the amount of unpaid earnings and the parties have agreed to compute the amounts of such unpaid earnings should the issues be resolved in favor of the complainant (Tr. 40-65, 133). The employees did not work the two overtime hours nor did they perform production work necessary to qualify for the production bonus. So far as is known, other employees working in the change house including those on "light duty" and those necessary to meet the manpower needs of the change house facility also were not paid overtime pay nor a production bonus.

Respondent has a collective bargaining agreement with the union, a party to this proceeding, which provides for rates of pay and permits the transfer of employees by management. There is no contention that the terms of the agreement have been abridged.

The record establishes that production employees are regularly scheduled to work 48 hours in two workweeks of each eight resulting in an average of two hours of overtime pay each workweek (Finding of Fact 16; Tr. 45-47). The production bonus was paid to employees based upon a production in excess of a quota and on evaluation of the employee's individual performance (Finding of Fact 20; Tr. 50-52). From these guidelines and records of the employees' past earnings, the amount of lost earnings can be estimated with a reasonable degree of accuracy.

Respondent forcefully states that to pay employees on the basis suggested by the Secretary would lead to an unwarranted result. Respondent argues that "[w]here discipline and close supervision is necessary, it seems ridiculous to argue that the recipient be rewarded with unearned overtime and production bonuses while being disciplined" (Resp. brief p. 7), Dr. Lorio also expressed the view that to make drastic changes in respondent's administrative practices "... would be arguing with success" (Tr. 114).

The record reflects, without contradiction, that respondent's program has been successful in reducing the level of blood lead (Ex. R-7; Tr. 127-130). Dr. Lorio testified as follows (Tr. 114):

It's relevant history that the efficacy of this methodology, both administrative and with medical overview, is reflected by the fact that with implementation of the standard in March of 1979, where 80 micrograms percent was a permissable [sic] limit, the plant average at Schuylkill was 57.

And then the subsequent three years of the standard it has been reduced to 45 and to make drastic changes in such a regimen, without a data base, would be arguing with success.

The Review Commission has often indicated that safety rules must be enforced to be effective. A system of discipline is often essential to an effective system of enforcement. It is common for systems of discipline for breaking safety rules to include suspensions from work which involve loss of pay. The loss of pay is regarded as a penalty which is reasonable and necessary to ensure that the safety rules are followed.

In this case, does the requirement that earnings be maintained prohibit discipline which involves some reduction in total earnings? If possible 29 C.F.R. 1910.1025(k)(2)(i) and (vi) should be interpreted to effectuate the purposes of the lead standard, which is to prevent the adverse effects on employees of occupational exposure to lead. Having found that removal to the change house is a bona fide program of discipline and retraining which is necessary to the effective enforcement of rules of hygiene and safety, it is concluded that the failure to pay for overtime hours not worked and a production bonus not earned is not a violation of the regulations. In a literal sense, the reduced compensation received by employees in the change house is not the result of reduced pay, but the lost opportunity for additional earnings. The purposes of the Act and the standard are not served by rewarding or making whole the employees so transferred. Some employees desire to remain in the change house, and, although not in the record, it is possible that working conditions, in addition to a lower concentration of lead, are otherwise less onerous in the change house than in the production area. In other words, it may be possible to make it more attractive to be assigned to the change house than the production jobs with adverse effects on moral and production and with results opposite to those intended (Tr. 80).

CONCLUSIONS OF LAW

1. The Review Commission has jurisdiction of the parties and the subject matter.

2. An elevated level of blood lead is a "medical condition" within the meaning of 29 C.F.R. 1910.1025(k)(2)(vii).

3. Employees assigned to the change house for discipline and retraining are not entitled to be paid in the same amount such employees earned in the production areas of the facility.

4. Respondent did not violate 29 C.F.R. 1910.1025(k)(2)(i) or (vii).


ORDER

The complaint is dismissed and the citation vacated.

Dated this 24th day of June, 1982.

JOE D. SPARKS
Judge


FOOTNOTES:

[[1/]] 1910.1025 Lead
* * *
(k) Medical Removal Protection
* * *
(2) Medical removal protection benefits --
(i) Provision of medical removal protection benefits. The employer shall provide to an employee up to eighteen (18) months of medical removal protection benefits on each occasion that an employee is removed from exposure to lead or otherwise limited pursuant to this section.
(ii) Definition of medical removal protection benefits. For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited.

[[2/]] The lead standard requires that an employee whose blood lead level exceeds a specified concentration be removed from a work area where the airborne lead concentration is more than a certain amount. Since the expiration of the initial phase-in period during which higher concentrations were permitted, the standard has required that an employee with a blood lead level at or above 50 ug/100g of whole blood be removed from work having a daily eight hour time-weighted-average exposure to airborne lead at or above 30 ug/m3. 29 C.F.R. 1910.1025(k)(1)(i). [This case, however, arose during the phase-in period. See note 5 infra.] The standard also requires removal if a "final medical determination" establishes that an employee has a "detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead." 29 C.F.R. 1910.1025(k)(1)(ii)(A).

[[3/]] In our initial decision in this case, and in the appeal before the Fifth Circuit, this case was consolidated with St. Joe Resources Co., OSHRC Docket No. 81-2267, and Amax Lead Co. of Missouri, OSHRC Docket No. 80-1793. Because the cases no longer involve a single common legal issue, they are hereby severed pursuant to Commission Rule 10, 29 C.F.R. 2200.10.

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

[[5/]] During the time period covered by the citation, the blood lead level that would have triggered removal was 70 mg/100g part of the time, and 80 mg/100g the remainder of the time.

[[6/]] The judge specifically credited Schuylkill's witnesses in their denial of testimony presented by the Secretary that Schuylkill's policy was to remove employees whenever their blood lead levels got within 10 ug/100g of the level permitted by the standard.

[[7/]] See, e.g., Atlantic & Gulf Stevedores, 75 OSAHRC 47/A2, 3 BNA OSHC 1003, 1974-75 CCH OSHD 19,526 (No. 2818, 1975), aff'd, 534 F.2d 541 (3d Cir. 1976).

[[8/]] Schuylkill asserts that observations made of the employees after their blood lead levels had risen indicated the need for the employees to be disciplined and retrained. We therefore infer that whatever violations of workrules the employees were committing were detectable by visual observation and could have been detected before blood tests demonstrated the rising blood lead levels.

[[9/]] Commissioner Arey notes, however, that Schuylkill's removal program appears to be poorly designed to achieve its stated goals of disciplining and retraining the employees. Apparently, the duration of removal did not depend on the gravity of the employee's work rule infractions but rather on the length of time it took for the employee's elevated blood lead level to decline. Moreover, Commissioner Arey questions how much retraining the employees could have been provided in an artificial work environment where the low levels of lead in the atmosphere presumably meant that the employees were not even required to wear respirators.

[[10/]] In RSR Corp. v. Donovan, 733 F 2d 1142 (5th Cir. 1984), the court adverted to, but did not discuss or define, "other appropriate relief" in the one instance in which the Commission has issued what amounted to a retroactive pay order: the Commission ordered a remand of certain cases for a determination of the amount of medical removal protection benefits due the employees. However, the Commission had not said that it was ordering "other appropriate relief;" in fact, the Commission did not give any attention to what authority it had to issue such an order. RSR Corp., 83 OSAHRC 6/A2, 11 BNA OSHC 1163, 1983-84 CCH OSHD 26,429 (No. 79-3813, 1983). The court's reference to that term has little application here since the court was addressing only whether the Commission's decision was a final order from which the employer could appeal. Despite the remand for determination of benefits due, the employer wanted court review of the foundational portions of the Commission decision -- the Commission's affirmance of the underlying citations and penalties. The Secretary moved to dismiss the appeal on the ground that the Commission's decision was not final. On this the court replied, "Only a crabbed reading of section 10(c) [29 U.S.C. 659(c)] would forbid review of an order that affirmed in part and modified in part both citations and penalties simply because the issue of what other (and additional) relief is appropriate has been remanded for determination." 733 F.2d at 1144. The court denied the Secretary's Motion to Dismiss. Whether the Commission had authority to order retroactive pay was not before the court, and the court gave the question no attention. Accordingly, Chairman Buckley declines to assign to the court's decision authority for the Commission to make individual compensatory awards.