SECRETARY OF LABOR,
Complainant,
v.
C F & I STEEL CORPORATION,
Respondent.

UNITED STEELWORKERS OF AMERICA
AFL-CIO, LOCAL 2102.

Authorized Employee Representative.

OSHRC Docket No. 79-4786

REMAND ORDER

Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION

The case is before us as at the direction of the United States Court of
Appeals for the Tenth Circuit.  Martin v. OSHRC (CF & I Steel Corp.),
941 F.2d 1051 (10th Cir. 1991).  The case was before the Tenth Circuit
on remand from the United States Supreme Court.  Martin v. OSHRC (CF&I
Steel Corp.), 111 S.Ct. 1171 (1991).   In the case, the Supreme Court
held that a reviewing court must give precedence to the Secretary of
Labor's reasonable interpretation of an ambiguous regulation over the
Review Commission's reasonable interpretation..  Id. at 1175, 1179-80. 
The Supreme Court directed the Tenth Circuit to consider the
reasonableness of the Secretary's interpretation of 29 C.F.R.
§1910.1029(g)(3) requiring an employer's respiratory protection program
to assure that each employee is properly fitted with a respiratory
protection program to assure that each employee is properly fitted with
a respirator and to take corrective action when atmospheric testing of
respirators reveals excessive leakage. Id. at 1053-1054 

The Tenth Circuit determined that the Secretary's interpretation was
reasonable because it furthered the remedial purpose of the Act's
remedial scheme for minimizing worker exposure to coke oven emissions.
Id. at 1057. Based on that interpretation and the facts of the case, the
Court found that the Secretary had established a violation of section
1910.1029(g)(3).

Noting the subsequent proceedings in this case, the controverted nature
of the willful determination, and the discretion vested in the
Commission with respect to the amount of any penalty assessment, the
Tenth Circuit remanded the case to the Commission to determine whether
the violation was willful and what penalty should be assessed. Id. at
1059. In remanding, the Tenth Circuit recognized "the basic rule...that
the regulated business must 'follow the law even if it has a good faith
belief that its own policy is wiser." Id at 1059 n.10 [citations
omitted]. The court also observed that an "employer may not simply
substitute its judgment for that of OSHA; the employer must follow what
it knows to be the law despite its subjective belief that an agency
interpretation is invalid." Id. [citation omitted].

Accordingly, we remand to Chief Administrative Law Judge for assignment
to a judge[[1]] to determine--consistent with the Tenth Circuit's more
recent opinion- whether the violation is willful and what penalty amount
is appropriate.

 

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Velma Montaya
Commissioner

Dated: November 20, 1991