Ann McLaughlin Secretary of Labor, and United Steelworkers of America, Afl-Cio-Clc, Petitioner-Intervenor v. Asarco, Inc.

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. § 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 ¶ 27,629 (“Amax Lead ”), the citation was dismissed. The Amax…