McLaughlin v. ASARCO, Inc.
| Decision Date | 16 March 1988 |
| Docket Number | AFL-CIO-CL,P,No. 87-7088,87-7088 |
| Citation | 841 F.2d 1006 |
| Parties | , 13 O.S.H. Cas.(BNA) 1617, 1988 O.S.H.D. (CCH) P 28,167 Ann McLAUGHLIN, * Secretary of Labor, Petitioner, and United Steelworkers of America,etitioner-Intervenor, v. ASARCO, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jeffrey A. Hennemuth, Dept. of Labor, Washington, D.C., for petitioner.
Jeffrey T. Johnson, Holland & Hart, Denver, Colo., for respondent.
On Petition for Review of an Order of the Occupational Safety and Health Review Commission.
Before WRIGHT, ANDERSON, and SCHROEDER, Circuit Judges.
The Secretary of Labor petitions for review of an order of the Occupational Safety and Health Review Commission ("OSHRC" or "Commission"). The order dismissed the Secretary's citation against ASARCO, a lead smelter operator, for violating the medical removal protection benefits promulgated by the Secretary for the benefit of employees who have suffered occupational exposure to lead. The case arises because of a dispute between the Secretary and the Commission over the proper interpretation of the regulations promulgated by the Secretary. This dispute concerns 29 C.F.R. Sec. 1910.1025(k)(2)(ii), which requires employers to maintain the earnings of employees removed from lead exposure as though the employees had not been removed. The Secretary maintains that this provision entitles removed employees to the overtime pay they would have received in their regular job positions, and cited ASARCO for failure to make such payments. Because the Commission previously had ruled that employees were not entitled to such overtime benefits in Secretary of Labor v. Amax Lead Co./Schuylkill Metals Corp./St. Joe Resources, 1986-87 OSHD p 27,629 ("Amax Lead "), the citation was dismissed. The Amax Lead decision was subsequently reversed by the Fifth Circuit in United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314 (5th Cir.1987).
ASARCO defends the dismissal on the grounds that the Commission's interpretation is entitled to deference under the law of this circuit and is the more reasonable one. It also argues that even if the regulations do say what the Secretary says they mean, the provision is invalid due to lack of notice and opportunity for rulemaking comment. We hold, in line with the Secretary's arguments, that the plain language of the regulation precludes a narrow interpretation. The benefits are intended to prevent an employee from suffering any economic loss due to removal for lead exposure, and this includes protection from loss of overtime. We thus reach a result in accord with that reached by the Fifth Circuit, the only other circuit to address this issue. Schuylkill Metals, 828 F.2d at 314.
The standard regulating occupational exposure to lead is contained in 29 C.F.R. Sec. 1910.1025, promulgated pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 655(b)(2). Under that standard, an employer must remove an employee from excessive lead exposure if the employee's blood lead level exceeds certain limits 1 or if the employee has a medical condition placing the employee at an increased risk of material impairment to his or her health from continued exposure to lead. 2 The standard does not specify what the employer must do with the removed employee, leaving open the possibilities of transferring the employee to another position with a low lead exposure, temporarily laying off the employee, or having the employee work shorter hours at his or her regular position.
Regardless of which option the employer chooses, however, whenever an employee is removed from exposure to lead or otherwise limited, the employer must provide the employee up to eighteen months of "medical removal protection benefits," defined as:
(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.
29 C.F.R. Sec. 1910.1025(k)(2)(ii).
Appendix B to this regulation, which summarizes the provisions for interested employees, states flatly that, "Earnings includes more than just your base wage; it includes overtime, shift differentials, incentives, and other compensation you would have earned if you had not been removed." 29 C.F.R. Sec. 1910.1025 App. B at 806. Thus, if the Appendix accurately summarizes the regulation, then overtime pay is included in medical removal protection benefits.
The facts in this case are straightforward. ASARCO operates a lead smelter in East Helena, Montana. An OSHA compliance officer inspected the plant following a complaint by the United Steelworkers of America that ASARCO was not paying medically removed employees the overtime that they would have earned if not removed. On January 23, 1986, the Secretary issued a citation against ASARCO for not paying three medically removed employees overtime wages as part of their medical removal protection benefits. ASARCO contested the citation before an administrative law judge, and the Union intervened as the authorized employee representative. The parties stipulated to the facts and submitted the matter on the briefs. The administrative law judge dismissed the citation, holding that the overtime pay issue was controlled by OSHRC's previous ruling that removed employees are not entitled to overtime benefits. The ALJ relied on Amax Lead, 1986-87 OSHD at p 27,629, which was recently reversed by the Fifth Circuit. Schuylkill Metals, 828 F.2d at 314. The Secretary petitioned the Commission for discretionary review of the administrative law judge's order, but the Commission did not direct review, and thus the administrative law judge's dismissal became the final order of the Commission on January 5, 1987. The Secretary appeals pursuant to 29 U.S.C. Sec. 660(b).
The position of the Commission, mirrored in the brief of ASARCO, is based upon the use of the word "earnings" in the regulations' definition of medical removal protection benefits. The Commission holds that because that word by itself has no common meaning that would include overtime, we should look for guidance to the first federal law containing MRP benefits provisions, the Federal Coal Mine Health and Safety Act, and subsequent regulations promulgated pursuant to it. This statute required removed employees to be paid the regular "rate of pay" rather than "earnings." 30 U.S.C. Sec. 843(b)(3). This provision was interpreted to mean that a removed worker may be paid only at the hourly wage he or she was receiving prior to transfer, rather than the amount, including overtime and subsequent pay increases, that he or she would have earned if not transferred. See Amax Lead, 1986-87 OSHD at 35,923-24.
The difficulty with this argument is that it focuses solely, and out of context, upon the word "earnings." It ignores the full definition of the medical removal benefit, which is that "earnings" as well as "seniority and other" employment benefits are to be maintained "as though the employee had not been removed from normal exposure to lead or otherwise limited." This means that the employee must not receive less than the employee would have received if he or she had not been removed, and that would include overtime pay.
The preamble and statement of reasons included with the lead standard when it was promulgated in 1978 explain the matter more fully. It states that while in most cases this would simply mean that an employer must maintain the rate of pay of a transferred worker, this standard "uses the all-encompassing phrase 'earnings, seniority, and other employment rights and benefits' to assure that a removed worker suffers neither economic loss nor loss of employment opportunities due to the removal." The preamble made particular reference to the problem of piecework, observing that the regulation obligated the employer to make a good faith estimation of the likely earnings. 3 Piecework involves paying...
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