828 F.2d 314 (5th Cir. 1987), 86-4578, United Steelworkers of America, AFL-CIO-CLC v. Schuylkill Metals Corp.

Docket Nº:86-4578.
Citation:828 F.2d 314
Party Name:UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC and its Local Union 8394, et al., Petitioners, v. SCHUYLKILL METALS CORPORATION, and Occupational Safety and Health Review Commission, et al., Respondents.
Case Date:October 02, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 314

828 F.2d 314 (5th Cir. 1987)

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC and its Local

Union 8394, et al., Petitioners,

v.

SCHUYLKILL METALS CORPORATION, and Occupational Safety and

Health Review Commission, et al., Respondents.

No. 86-4578.

United States Court of Appeals, Fifth Circuit

October 2, 1987

Page 315

Mary Win O'Brien, Asst. Gen. Counsel, Pittsburgh, Pa., for United Steelworkers of America.

Allen H. Feldman, Arthur J. Amchan, Joseph M. Woodward, Jeffrey A. Hennemuth, Steven J. Mandel, Attys., Washington, D.C., for Brock.

G. Michael Pharis, William A. Ziegler, New York City, for Amax.

Louis M. Phillips, Baton Rouge, La., for Schuylkill.

W. Scott Railton, Washington, D.C., for St. Joe.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG, HILL and JONES, Circuit Judges.

GOLDBERG, Circuit Judge:

The Secretary of Labor (Secretary) and the United Steelworkers of America (USWA) appeal from an order of the Occupational Safety and Health Review Commission (OSHRC or Commission). The order interprets the Medical Removal Protection (MRP) benefits provision of the lead standard, promulgated by the Secretary pursuant to Sec. 6 of the Occupational Health and Safety Act, 29 U.S.C. Sec. 655 (Act or OSH Act). 29 C.F.R. Sec. 1910.1025(k). We hold that the Secretary gave the parties adequate notice of the issue in dispute; that the Secretary's interpretation of its regulation is reasonable and is thus owed substantial deference, irrespective of the reasonableness of OSHRC's decision; and that appellees' contention that the regulation as construed by the Secretary is "unenforceably vague" is wholly without merit. We therefore reverse the order of the Commission and remand for further proceedings.

The lead standard has been challenged by the industry in litigation from its inception. The courts, however, have not proved a receptive audience for the industry's well-orchestrated complaints. The present movement in this seemingly neverending symphony is but a minor variation on the prior themes. Thus, unlike a listener to Haydn, the industry should hardly be surprised at the outcome.

This symphony of lead litigation should not remain forever unfinished. The industry's arguments--in large measure resting on the policies underlying the lead standard-

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--likely will continue to strike a discordant note in the courts. The industry must either accept legislative and regulatory atonality, or, if too painful for their ears (and pocketbooks), attempt to return the score to the composers of the lead policy for reorchestration.

I. Factual and Regulatory Background

The stipulated facts are not in dispute. In 1975, when the Secretary first issued a notice of proposed rulemaking (NPRM) regarding the lead standard, there was no proposal relating to MRP or MRP benefits. 42 Fed.Reg. 46547. Informed by comments relating to the absence of an MRP provision, on September 16, 1977, the Secretary issued a supplemental NPRM relating solely to this issue. After holding extensive informal hearings and receiving substantial commentary, the Secretary issued a final standard with a comprehensive MRP provision. 43 Fed.Reg. 52952 (Nov. 14, 1978). This standard was accompanied by a lengthy preamble, which exhaustively set forth the Secretary's findings and reasons for promulgating this new standard. Id.; 43 Fed.Reg. 54354 (Nov. 21, 1978).

The standard contains a permissible exposure level (PEL) and an action level. 29 C.F.R. Secs. 1910.1025(b), (c)(1). If airborne lead exposure surpasses the action level for more than 30 days annually, the employer must conduct biological and medical surveillance of the exposed employees. The employer must monitor employees' blood-lead levels and must administer medical examinations to determine whether the employees are at risk from lead exposure. 29 C.F.R. Sec. 1910.1025(j)(2), (3).

The MRP provision mandates that, if biological tests or medical surveillance reveal that a worker has an especially high blood-lead level or may suffer a physical disability, he or she must be removed to a workplace area of relatively low lead exposure. 29 C.F.R. Sec. 1910.1025(k). Alternatively, the employer may choose to reduce the number of hours the employee works or simply to lay off the employee. Id. But irrespective of the employer's choice, the MRP benefits provision instructs that "the employer shall maintain the earnings, seniority rights and other employment rights and benefits of an employee as though the employee had not been removed" for up to 18 months. 29 C.F.R. Sec. 1910.1025(k)(2)(ii).

Before the Secretary had a chance to implement this nascent standard, the industry and the labor movement brought a pre-enforcement challenge on myriad substantive and procedural grounds. United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C.Cir.1980), cert. denied sub nom. Lead Industries Ass'n v. Donovan, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981). Judge Skelly Wright, in a painstaking and protracted opinion, upheld the standard in virtually every respect. Id. at 1203 & n. 6, 1311. Although the MRP benefits provision was "[o]ne of the most vigorously contested issues in the case," id. at 1228, the meaning and operative scope of this provision--the issue before this court--was not directly at issue there.

Acting under his enforcement power derived from Sec. 9 of the Act, 29 U.S.C. Sec. 658, the Secretary issued a citation against Amax Lead Company of Missouri (Amax) on March 17, 1980, charging that Amax had willfully violated the MRP benefits provision and assessing a civil penalty of $1,600. The company had removed six employees from areas of relatively high exposure to areas of low exposure, but, while paying the removed workers their pre-transfer base hourly wages, had failed to compensate the employees for overtime and for one-half hour lunch breaks that they would have earned but for the removal. Amax contested the citation before an administrative law judge (ALJ), who found a violation. The ALJ, however, found the violation to be de minimis rather than willful, and therefore vacated the civil penalty. The Secretary, the USWA, which had intervened as the collective bargaining representative of the employees, and Amax all requested review before the Commission.

On September 11, 1981, the Secretary issued a citation assessing a $60 civil penalty against St. Joe Resources Company (St. Joe), also alleging that the company had failed to pay a medically removed employee

Page 317

the mandated MRP benefits. St. Joe failed to pay one employee the overtime pay and shift differential that he would have earned had he remained at his pre-transfer position. An ALJ affirmed the citation and the civil penalty, and ordered the company to make the employee whole. St. Joe appealed to the Commission.

On March 9, 1981, the Secretary issued a similar citation against Schuylkill Metals Corporation (Schuylkill), alleging that Schuylkill failed to comply with the MRP provision by refusing to pay premium payments to transferred employees. These premium payments consisted of overtime pay and production bonuses that the employees would have earned but for their removal, and the Secretary assessed a civil penalty of $3,960 for this "serious" violation. The ALJ found that the employees were transferred under a bona fide program of discipline and retraining. 1 The Secretary and the USWA sought review by the Commission.

OSHRC granted review, consolidated the cases and, on June 26, 1985, issued a decision. OSHRC found that the premium payments at issue were not comprehended by the term "earnings" in the definition of MRP benefits. The Commission reasoned that "earnings" was a term of art that could only be defined contextually and that the rulemaking history did not support the Secretary's interpretation that, when he promulgated the modified final standard, "earnings" contemplated such payments. The Commission also suggested that, if the Secretary had intended "earnings" to include such premium payments, "his action would be contrary to the spirit, and possibly the letter of notice-and-comment rulemaking," because the Secretary failed "to give the public fair notice" of this intent. Decision at 18-19 (citation omitted). The Secretary and the USWA take this appeal.

II. Notice

The Commission suggested, and appellees assert, that, even were it reasonable to have included premium payments within "earnings" in the final rule, the Secretary failed to provide adequate notice in the supplemental NPRM that "earnings" contemplated such payments. Appellees accurately assert that the Secretary used the terms "rate of pay" and "earnings" interchangeably, and allegedly synonomously, in this NPRM. They therefore contend that the notice was inadequate.

This syllogism is faulty. Before promulgating a rule, the Secretary must provide interested parties with notice in the Federal Register and an opportunity to comment. Such notice must "include[ ] either 'the terms or substance of the proposed rule or a description of the subjects and issues involved.' " Action For Children's Television v. FCC, 564 F.2d 458, 470 (D.C.Cir.1977) (quoting 5 U.S.C. Sec. 553(b)). "The notice need not specifically identify 'every precise proposal which [the agency] may ultimately adopt as a rule.' " American Transfer & Storage Co. v. ICC, 719 F.2d 1283, 1303 (5th Cir.1983) (quoting Action For Children's Television, 564 F.2d at 470 (quoting California Citizens Band Association v. United States, 375 F.2d 43, 48 (9th Cir.), cert. denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (1967)). Rather, "[t]he proper test is whether the notice would fairly appraise interested persons of the subjects and issues the agency was considering." American Transfer, 719 F.2d at 1303; see also Pennzoil Co. v. FERC, 645 F.2d 360, 371 (5th Cir.1981), cert....

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