725 F.2d 1237 (9th Cir. 1984), 83-7321, Phelps Dodge Corp. v. Occupational Safety and Health Review Com'n

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 725 F.2d 1237
• Date: 14 February 1984
• Parties: P 26,800 PHELPS DODGE CORPORATION, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Raymond J. Donovan, Secretary of Labor, and United Steelworkers of America, AFL-CIO, and Local Union 616, Respondents.
• Docket Number: 83-7321.

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725 F.2d 1237 (9th Cir. 1984)

P 26,800

PHELPS DODGE CORPORATION, Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Raymond J.

Donovan, Secretary of Labor, and United

Steelworkers of America, AFL-CIO, and

Local Union 616, Respondents.

No. 83-7321.

United States Court of Appeals, Ninth Circuit

February 14, 1984

Argued and Submitted Jan. 11, 1984.

Stephen W. Pogson, Evans, Kitchel & Jenckes, Phoenix, Ariz., for petitioner.

Andrea Casson, Mary Win-O'Brien, U.S. Dept. of Labor, Washington, D.C., for respondents.

On Petition for Review of Decision of the Occupational Safety and Health Review Commission.

Before ANDERSON, SKOPIL and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge.

Phelps Dodge Corporation appeals from the decision of the Occupational Safety and Health Review Commission (the Commission) upholding a citation for violation of the inorganic arsenic standard, 29 C.F.R.

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Sec. 1910.1018. On appeal we are asked to determine whether the inorganic arsenic standard requires an employer to compensate employees for their time and to assume the costs incurred by employees in taking medical examinations scheduled during nonworking hours; whether such a standard is a valid exercise of the Secretary of Labor's authority under the Occupational Safety and Health Act (the Act), 29 U.S.C. Sec. 651 et seq.; and whether Phelps Dodge's violation of the standard was "serious" within the meaning of the Act.

FACTS

On August 1, 1978, a final Occupational Safety and Health Administration (OSHA) standard regulating employee exposure to inorganic arsenic became effective after publication and a comment period. 29 C.F.R. Sec. 1910.1018 (the standard). Under this standard, employers are required to provide medical examinations to employees who may be exposed to inorganic arsenic "without cost to the employee, without loss of pay and at a reasonable time and place." 29 C.F.R. Sec. 1910.1018(n)(1)(ii). An earlier proposed version of the standard had included the requirement that all medical examinations be given during the employees' normal working hours. The preamble to the final standard (hereafter "preamble") explained the change:

The final standard does not include the requirement because it may be impractical for shift workers or less convenient for employee or employer. However the employer is obligated to pay for the time spent taking the medical examination if it is taken outside normal working hours and the exam must be given at a reasonable time and place. It is necessary that exams be convenient and without loss to the employee to assure that they are taken.

43 Fed.Reg. 19,621 (1978).

Phelps Dodge scheduled the first set of examinations during working hours. Employees were taken to and from the hospital at company expense and received their normal pay during transportation, waiting, and examination time. Employee participation was 100%.

Phelps Dodge scheduled subsequent examinations at times outside working hours at a hospital about a mile from the work site. The company paid for the examinations, but employees provided their own transportation and were not compensated for their time. The tests themselves took about fifteen minutes; the actual time required, including transportation and waiting, was an hour or more. Employee participation in the 1979 tests dropped to 58%. Employee reasons for nonparticipation included the cost of extra transportation for those employees who commuted in van pools and personal responsibilities including childcare.

The United Steel Workers of America filed a complaint with OSHA for the company's failure to provide the examinations without cost to the employees. After inspection, the Secretary issued a citation to Phelps Dodge for violating the inorganic arsenic standard, 29 C.F.R. Sec. 1910.1018(n)(1)(ii). The union was granted party status after the company contested the citation. After a hearing the administrative law judge (ALJ) sustained the citation. The ALJ concluded that Phelps Dodge's failure to provide the examinations at a reasonable time and without cost was a nonserious violation of the standard.

Both Phelps Dodge and the Secretary requested review by the Commission pursuant to 29 C.F.R. Sec. 2200.91. The Commission found that the examinations had been provided at a reasonable time, but affirmed the ALJ's finding that the employer had failed to provide the examinations without cost to the employees. The Commission further found that the violation was serious within the meaning of the Act. The penalty was fixed at $100.

Phelps Dodge filed a timely notice of appeal. This court has jurisdiction under 29 U.S.C. Sec. 660(a).

ANALYSIS

1. Standards of Review

   In an enforcement challenge to an OSHA standard, this court accords the Secretary's

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   decisions substantial weight, especially when those decisions have been affirmed by the Commission. Donovan v. Castle & Cooke Foods, 692 F.2d 641, 646 (9th Cir.1982). Unless the decision is arbitrary and capricious, not in accordance with law,...