Schuylkill Metals Corporation

Plain-English summary

Schuylkill operated a secondary lead smelter and transferred employees with rising blood lead levels from production work to lower-exposure janitorial duties. The company maintained their regular hourly rates but did not pay the overtime and production bonuses they would have earned in production. Schuylkill described the transfers as discipline and retraining for poor hygiene or respirator practices. The Commission held that elevated blood lead is a medical condition and that removals triggered by those levels fall under the standard's voluntary-removal provision. It rejected a discipline exception because the standard did not permit withholding medical-removal benefits when discipline began only after blood lead levels rose. The Commission affirmed a serious violation and assessed $60. The two members disagreed on whether the Commission could order back pay, so no compensatory order issued.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1025(k)(2)(vii)
• Outcome: Serious medical-removal benefits violation affirmed with a $60 penalty; no back-pay order issued.
• Key point: An employer that voluntarily removes workers because of elevated blood lead must preserve overtime, production bonuses, and other earnings even if it also views the transfer as discipline or retraining.

Full text (OSHRC public release)

Docket No. 81-0856

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/m 3 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/m 3 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/m 3
of the standard which required mandatory removal. For instance, when the regulation
required medical removal when the level of blood lead reached 80 ug/m 3 , the
company voluntarily removes employees whose blood level was at 70 ug/m 3 (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/m 3
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/m 3 . 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.