United Steelworkers of America, AFL-CIO-CLC v. St. Joe Resources, AFL-CIO-CL

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEE, RUBIN and DAVIS; W. EUGENE DAVIS; GEE
Citation916 F.2d 294
Parties, 14 O.S.H. Cas.(BNA) 1889, 1990 O.S.H.D. (CCH) P 29,139 UNITED STEELWORKERS OF AMERICA,etitioner, v. ST. JOE RESOURCES, Amax Lead Co. and Occupational Safety and Health Review Commission, Respondents. Elizabeth DOLE, Secretary of Labor, U.S. Department of Labor, Petitioner, v. AMAX LEAD COMPANY OF MISSOURI and Occupational Safety and Health Review Commission, Respondents. Elizabeth DOLE, Secretary of Labor, U.S. Department of Labor, Petitioner, v. ST. JOE RESOURCES COMPANY, Occupational Safety and Health Review Commission, Respondents.
Decision Date06 November 1990
Docket NumberAFL-CIO-CL,P,89-4817 and 89-4818,Nos. 89-4816

Page 294

916 F.2d 294
59 USLW 2338, 14 O.S.H. Cas.(BNA) 1889,
1990 O.S.H.D. (CCH) P 29,139
UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner,
v.
ST. JOE RESOURCES, Amax Lead Co. and Occupational Safety and
Health Review Commission, Respondents.
Elizabeth DOLE, Secretary of Labor, U.S. Department of
Labor, Petitioner,
v.
AMAX LEAD COMPANY OF MISSOURI and Occupational Safety and
Health Review Commission, Respondents.
Elizabeth DOLE, Secretary of Labor, U.S. Department of
Labor, Petitioner,
v.
ST. JOE RESOURCES COMPANY, Occupational Safety and Health
Review Commission, Respondents.
Nos. 89-4816, 89-4817 and 89-4818.
United States Court of Appeals,
Fifth Circuit.
Nov. 6, 1990.

Page 295

Jeffrey A. Hennemuth, Allen H. Feldman, Steven J. Mandel, Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for petitioners.

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

Wm. A. Ziegler, Sullivan & Cromwell, New York City, W. Scott Railton, Reed Smith, Shaw & McClay; Ray H. Darling, Executive Secretary, Occupational Safety and Health Review Com'n, Washington, D.C., for respondents.

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

Before GEE, RUBIN and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

This case is before us again, this time from our remand to the Occupational Safety & Health Review Commission (Commission). In the earlier appeal we considered the benefits due employees who had been

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temporarily displaced from their regular jobs because of high lead levels in their blood. On remand the Commission held that employees who received paid lunch periods before removal are not entitled to paid lunch periods after removal if that pay increases their total compensation. In addition the Commission refused to order back pay for employees who had not received their full earnings after removal. We reverse on both issues and remand to the Commission for determination of the amounts of back pay owed to the medically removed employees.

I.

In the earlier appeal we reviewed the facts in detail. See United Steel Workers of America v. Schuylkill Metals, 828 F.2d 314 (5th Cir.1987). We summarize them briefly here.

The Secretary of Labor (the Secretary) cited appellees Amax Lead Company (Amax) and St. Joe Resources Company (St. Joe) for violating the medical removal protection (MRP) provision of OSHA's lead standard. See 29 C.F.R. Sec. 1910.1025(k). The MRP provision protects workers who have high lead levels in their blood from continued exposure to lead in the workplace. Under the OSHA standard, an employer must remove such workers to a workplace of lower lead exposure. When an employer moves an employee, he triggers the MRP benefits provision, which requires the employer to "maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed" for up to eighteen months. 29 C.F.R. Sec. 1910.1025(k)(2)(ii).

An administrative law judge (ALJ) found that both Amax and St. Joe had violated the lead standard by failing to pay removed employees all earnings due them. The Commission, however, directed review and vacated both citations. The Commission concluded that the MRP provision requires an employer to maintain only the employee's base rate of pay. We reviewed the Commission's decision in Schuylkill Metals, where we upheld the Secretary's interpretation that "earnings" in the lead regulation includes not only the employee's base rate of pay, but also premium payments. We concluded that premium payments include paid lunch periods, shift differentials (i.e., additional payments for scheduled evening and night work), overtime pay, and production bonuses. 828 F.2d at 320. We then remanded the case to the Commission for further proceedings.

On remand the Commission severed the two cases but then issued virtually identical opinions. See Secretary of Labor v. Amax Lead Co. of Missouri, 1989 OSAHRC LEXIS 46, 13 OSHC (BNA) 2169 (1989); Secretary of Labor v. St. Joe Resources Co., 1989 OSAHRC LEXIS 49, 13 OSHC (BNA) 2193 (1989). Two commissioners sat as a quorum. See 29 U.S.C. Sec. 661(f). They held that Amax did not violate the lead standard by refusing to give medically removed employees a paid lunch period, even though those employees had received paid lunch periods before removal. According to the commission employers must pay a medically removed employee for lunch periods only "when failing to do so would reduce the employee's total compensation." Amax, 1989 OSAHRC LEXIS

In addition the commissioners agreed that the employees were entitled to back pay. They disagreed, however, about the propriety of issuing a "back pay" order. Chairman Buckley thought that Congress had not authorized the Commission to make "individual compensatory awards." Amax, 1989 OSAHRC LEXIS 46, * 18; St. Joe, 1989 OSAHRC LEXIS 49, * 22. He concluded that "the failure to pay full 'earnings' would be abated by the commencement to pay them." Amax, 1989 OSAHRC LEXIS 46, * 18; St. Joe, 1989 OSAHRC LEXIS 49, * 21. He determined that awarding individual compensatory relief to workers affected by the employer's past failure to follow the standard was not necessary to abate the violation.

Commissioner Arey, on the other hand, thought that "payment of amounts improperly withheld is the abatement required when a violation of the MRP benefits provision

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of the standard is found." Amax, 1989 OSAHRC LEXIS 46, * 20; St. Joe, 1989 OSAHRC LEXIS 49, * 23-* 24. She further concluded that the commission had authority to order the employer to make such payments "and that such an order is generally appropriate to define the employer's abatement obligation and avoid a potential failure to abate proceeding." Amax, 1989 OSAHRC LEXIS 46, * 20; St. Joe, 1989 OSAHRC LEXIS 49, * 24.

When two commissioners sitting as a quorum divide on an issue resolved by an ALJ, they ordinarily affirm the ALJ's order. In this case, however, neither commissioner agreed with the ALJ's ruling. The ALJ had concluded that a " 'back pay' retroactive money payment is the proper method of abatement to correct the violation." St. Joe, 1989 OSAHRC LEXIS 49, * 28 n. 15 (quoting the ALJ's record). Chairman Buckley thought that the Commission lacked authority to issue a "back pay" order. And Commissioner Arey, despite finding authority for a "back pay" order, voted to vacate the ALJ's order on the ground that the Commission should order back pay not only for scheduled overtime and shift differentials, but also for voluntary overtime. Because both commissioners disagreed with the ALJ's order, they agreed to vacate that order and refused to order Amax and St. Joe to reimburse medically removed employees for back overtime pay and shift differentials.

On appeal, the Secretary contends that the Commission erred in: (1) concluding that Amax did not violate the MRP benefits requirement by refusing to maintain paid lunch periods for its medically removed employees, and (2) in refusing to require Amax and St. Joe to pay the employees back compensation to abate the violation of improperly withholding MRP benefits. We consider each issue in turn.

II.

A.

Six Amax employees lost paid lunch breaks after removal from areas of high lead exposure. Before the transfer, the employees worked 7 1/2 hours, took a half-hour for lunch, and received eight hours pay. After the transfer, the employees continued to receive eight hours pay, but their shift increased to 8 1/2 hours, including a half-hour unpaid lunch break.

In Schuylkill Metals we approved the Secretary's argument that paid lunch breaks are "benefits" protected by the MRP provisions of OHSA's lead standard. Nevertheless, the Commission denied recovery to the Amax employees for the additional half-hour of wages per day. The Commission reasoned that the employees "suffer[ed] no economic loss" because they "received 8 hours pay per day before removal, and 8 hours pay per day after removal at the...

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