Amax Lead Company of Missouri

Read the official release (oshrc.gov)

Plain-English summary

Amax transferred employees with elevated blood lead levels to jobs with less lead exposure. OSHA cited the company under the lead standard's medical removal protection provision, which required the transferred employees to retain their earnings, rights, and benefits. The Fifth Circuit held that the Commission could order back pay and that the employees suffered an economic loss when they worked an additional unpaid half-hour per shift after their transfers. The court remanded for calculation of the amounts owed. The Commission then sent the case to an administrative law judge to make the necessary findings and order Amax to pay the appropriate back pay, with authority to reopen the record if needed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1025(k)(2)
• Outcome: Case remanded to an ALJ to calculate and order payment of medical-removal back pay.
• Key point: The Commission may award back pay, including compensation for an additional unpaid half-hour worked per shift after medical removal.

Full text (OSHRC public release)

Docket No. 80-1793

SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO- CLC, and its LOCAL UNION

7447-J,

Authorized Employee

Representative.

OSHRC DOCKET NO. 80-1793

ORDER

This case is before the Commission on remand from the
United States Court of Appeals for the Fifth Circuit, the second time this case has been
to the Court of Appeals. United Steelworkers v. St. Joe Resources Co. , 916 F.2d 294
(5th Cir. 1990). The court has remanded the case for the Commission to determine the
amounts of back pay due Amax Lead Co. of Missouri employees who, because they had elevated
levels of lead in their blood, were transferred to other jobs with less exposure to lead,
as required by the OSHA standard governing exposure to lead.

The Secretary of Labor had cited Amax Lead Co. of
Missouri for violating the occupational safety and health standard at 29 C.F.R. �
1910.1025(k)(2),[[1/]] which requires that employees removed from their positions to
lower-exposure jobs must maintain the earnings, rights and benefits they received before
they were transferred. In its first opinion in this case, the Court of Appeals concluded
that "earnings" included not only base pay but also such premium payments as
paid lunch periods, overtime pay, production bonuses, and shift differentials for
scheduled night and evening work. United Steelworkers v. Schuylkill Metals , 828
F.2d 314, 320 (5th Cir. 1987). On remand, the two-member Review Commission voted to vacate
the order of the administrative law judge, but the commissioners split on the disposition
of the case. One of the commissioners was of the opinion that the Review Commission could
order the employer to pay back pay. The other held the opinion that, under the
Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678, the Review Commission
had no such power.

The two commissioners did agree, however, that
employees who had received paid half-hour lunch periods before they were medically removed
to lower-exposure jobs did not have to be given paid lunch periods in their new jobs. The
Commission reasoned that the employees had been paid for eight hours' work before the
removal and were being paid for eight hours' work in their new positions, so there was no
economic loss to the employees.

In its second decision in this case, the Court of
Appeals has concluded that the Review Commission does have the power to order back pay.
The Court of Appeals disagreed with the Commission's analysis of the paid lunch period
requirement. Because the employees were working a half hour longer in their new positions
for the same amount of money, the court concluded that the employees had suffered a
reduced rate of pay, which the court found to be an economic loss. The court therefore
ordered that the employees concerned be paid for that additional half hour of work per
shift.

The court remanded the case for the Commission to
determine the amounts of back pay owed to the employees identified in the citations issued
to Amax Lead Co. We, in turn, remand this case to an administrative law judge to make the
necessary findings of fact. If it is necessary to do so, the judge may reopen the record
to take evidence on this question.

Accordingly, this case is remanded to the Chief
Administrative Law Judge for assignment. The judge to whom it is assigned shall enter an
order requiring Amax Lead Co. to pay the appropriate amounts of back pay.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: December 4, 1990

SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC, and its LOCAL UNION

7447-J,

Authorized Employee

Representative.

OSHRC DOCKET NO. 80-1793

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case involves the medical removal protection provision of the OSHA standard
regulating occupational exposure to lead. That provision, 29 C.F.R. �
1910.1025(k)(2),[[1/]] requires employers to "maintain the earnings, seniority, and
other employment rights and benefits" of employees they remove from lead exposure
because the employees are at particular risk of suffering lead- related diseases.[[2/]]
The case is before the Commission for a second time. In its first decision, the Commission
concluded that Amax Lead Company of Missouri ("Amax") complied with the standard
by paying employees for a 40-hour work week at their regular rate of pay, rejecting the
Secretary's argument that "earnings" under the standard included overtime
compensation and paid lunch periods the employees received before their transfers. Amax
Lead Co. of Missouri , 12 BNA OSHC 1878, 1986-87 CCH OSHD � 27,629 (No. 80-1793,
1986). That decision was reversed by the Fifth Circuit, which adopted the Secretary's
interpretation of the standard. United Steelworkers of America v. Schuylkill Metals
Corp. , 828 F.2d 314, 321 (5th Cir. 1987).[[3/]] The court remanded "for further
proceedings attuned to this opinion. Id. at 323.

I.

The relevant facts are set forth in our prior
opinion, and we shall only briefly summarize them here. Six Amax employees were
transferred out of areas of high lead exposure pursuant to the medical removal provisions
of the lead standard. During the transfer period, the employees were paid for a 40-hour
work week at the regular hourly rate of pay they received in their normal jobs. However,
they did not have the opportunity to work overtime, as they would have if they had not
been transferred. They also no longer received compensation during their half-hour lunch
breaks. Thus, in their regular jobs, they had been paid for 8 hours work on a normal shift
but were allowed to use a half-hour of that shift for lunch. After being transferred,
their shift was 8 1/2 hours long, of which 8 hours was working time and the remaining
half-hour was an unpaid lunch period.

The Fifth Circuit adopted the Secretary's
interpretation of the standard, which provides:

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.

828 F.2d at 323, quoting 29 C.F.R. � 1910.1025 Appendix B.[[4/]] In this case, the
employees did not receive the amounts they would have earned if not removed. After
removal, they received pay for a 40-hour week at their regular rate of pay. However, if
they had not been removed, they would have earned additional sums by working overtime.
Under the Fifth Circuit's decision, Amax violated the standard by not paying the employees
these additional sums.

The Secretary also argues that Amax violated the
standard in that employees received paid lunch periods before, but not after, removal. We
disagree. Under the Secretary's interpretation, which the Fifth Circuit adopted, the
employer must pay a removed employee the total compensation he would have earned if not
removed. Here, the employees received 8 hours pay per day before removal, and 8 hours pay
per day after removal at the same hourly rate. Under the Secretary's argument, the
employees would receive more pay after removal than before. We do not believe that such a
result is consistent with the standard's objective of assuring that removed employees
suffer no economic loss, nor do we think it is required under the Fifth Circuit's
decision. [[5/]]

II.

Amax contends that the lead standard was invalidity
promulgated for a number of reasons. The company argues that the Secretary did not have
the statutory authority to adopt the provision requiring payment of MRP benefits. The
company also contends that the provision for payment of MRP benefits is economically
infeasible, that the Secretary did not give interested persons adequate notice that a
permissible exposure limit ("PEL") of 50 �g/m 3 would be adopted,
that this PEL is technologically and economically infeasible, and that the Secretary
improperly relied on outside consultants during the rulemaking proceedings.

The Commission members both reject Amax's validity
arguments, but for different reasons. Chairman Buckley believes that Amax's arguments are
foreclosed by the Fifth Circuit's remand order. Amax's arguments were considered and
rejected by the D. C. Circuit in a pre-enforcement challenge to the standard. United
Steelworkers of America, AFL-CIO-CLC v. Marshall , 647 F.2d 1189, 1230 (D. C. Cir.
1980). cert. denied , 453 U.S. 913 (1981). In remanding the case to us, the
Fifth Circuit noted that its sister circuit had upheld the standard's validity and said:

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 never ending 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--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 the ears (and pocketbooks)
attempt to return the score to the composers of the lead policy for reorchestration.

828 F.2d at 315-16. This language suggests that the Fifth Circuit considered the
validity of the standard to be definitively established, at least for purposes of this
case. Accordingly, Chairman Buckley concludes that the court's decision precludes further
consideration of Amax's validity arguments.

Commissioner Arey does not believe that the Fifth
Circuit's decision precludes consideration of Amax's validity arguments. She notes that
those arguments were not raised before the court, and believes that the court's decision
cannot be considered a definitive ruling on an issue it did not explicitly consider.
Commissioner Arey would therefore consider Amax's validity arguments.[[6/]] She would
reject them for the following reasons.

Two of Amax's arguments--that the Secretary gave
inadequate notice of the 50 �g/m 3 PEL and that he improperly relied on outside
consultants--challenge the procedures the Secretary followed in promulgating the standard.
In National Industrial Constructors, Inc. v. OSHRC , 583 F.2d 1048 (8th Cir. 1978),
the Court of Appeals for the Eighth Circuit held that the validity of the procedures
followed by the Secretary in promulgating OSHA standards cannot be challenged in
enforcement proceedings. This case arises in the Eighth Circuit, and the Commission's
decision is therefore appealable to that court.[[7/]] 29 U.S.C. � 660(a) & (b).
Commissioner Arey believes that the Commission must follow controlling circuit law, and
therefore declines to consider Amax's procedural challenges in this enforcement
proceeding.

Although Amax's substantive challenges can be considered under National Industrial
Constructors, Commissioner Arey concludes that those challenges lack merit. Amax argues
that the Secretary lacked the statutory authority to adopt the provision requiring payment
of MRP benefits. Commissioner Arey rejects that argument for the reasons she stated in St.
Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).

Amax also argues that the MRP provision is
economically infeasible, and that the standard's PEL of 50 �g/m 3 is both
technologically and economically infeasible. Commissioner Arey rejects these arguments
because they are not supported by the record. Amax argues that the rulemaking record on
which the Secretary based his findings that the standard was feasible does not support the
Secretary's findings. Without deciding whether it would ever be proper for the Commission
to review findings made by the Secretary on the basis of a rulemaking record, Commissioner
Arey observes that the Commission certainly cannot do so here because the rulemaking
record is not before it. The burden of proving, in an enforcement proceeding, that a
standard is invalid lies with the party challenging the standard's validity. See Atlantic
& Gulf Stevedores v. OSHRC, 534 F.2d 541, 548-50 (3d Cir. 1976). Commissioner Arey
concludes that Amax has failed to meet its burden of proving that the standard is invalid
for the reasons it has stated.

In addition, Commissioner Arey notes that there is a
second reason for rejecting Amax's two arguments that challenge the validity of the
standard's PEL of 50 �g/m 3 . Amax has not been cited for violating that
provision in this case. Yet, under Commission precedent, the Commission will only consider
validity challenges that may affect the outcome of a case. DeKalb Forge Co., 13 BNA OSHC
1146, 1151, 1886-87 CCH OSHD � 27,842, p. 36,449 (No. 83-299, 1987). Accordingly,
Commissioner Arey would reject Amax's challenges to the validity of the PEL for both of
the reasons stated above.

III

We must now determine the proper classification of
the violation and assess an appropriate penalty. The Secretary originally alleged that the
violation was willful and proposed a $1600 penalty. The administrative law judge rejected
the willful characterization, found that the violation was de minimis , and
assessed no penalty. Amax argues that the de minimis classification is
proper. The Secretary contends that the violation is willful, or at least serious, in
nature.

We reject the Secretary's argument that the violation
should be classified as willful. The judge found that the violation was not willful, the
Secretary did not seek review of that finding, and the issue was not directed for review.
Accordingly, we would normally not reach the issue.[[8/]] We note, in any event, that the
argument is without merit. A violation is willful if "it was committed voluntarily
with either an intentional disregard for the requirements of the Act or plain indifference
to employee safety." United States Steel Corp., 12 BNA OSHC 1692, 1703 1986-87 CCH
OSHD � 27,517, p. 35,675 (No. 79-1998, 1986); see Donovan v. Mica Construction
Co. , 699 F.2d 431 (8th Cir. 1983). The facts of this case were stipulated, and nothing
in the stipulation suggests that Amax acted with either an intentional disregard for the
requirements of the Act or plain indifference to employee health. The Secretary bases the
willfulness allegation on the undisputed fact that Amax knew of the lead standard's
medical removal protection provisions. But an employer's knowledge that a standard exists
does not establish that the employer knew it was violating the standard. Amax did in fact
maintain the hourly wage rate of the employees it removed, but it disputed whether the
standard also required it to maintain the existing levels of overtime compensation and
payments for lunch period. A violation is not willful if an employer has a good faith
difference of opinion with OSHA over what a standard requires. Keco Industries , 13
BNA OSHC 1161, 1169, 1986-87 CCH OSHD � 27,860, p. 36,478 (No. 81-263, 1987).

We also reject Amax's argument that the judge
properly classified the violation as de minimis . A de minimis
violation is one which bears such a negligible relationship to employee safety or health
as to render inappropriate the assessment of a penalty or entry of an abatement order. Cleveland
Consolidated, Inc. , 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD � 27,829, p. 36,429 (No.
84-696, 1987). We cannot say that the hazard here was negligible. The lead standard relies
on employees consenting to have their blood tested to determine their blood lead level.
Blood testing provides early detection of rising blood lead levels and triggers the
medical removal of employees before their blood lead levels exceed a certain amount. See
note 2 supra . The purpose of medical removal protection benefits is to eliminate an
economic disincentive for employees to consent to blood testing and to otherwise cooperate
with the workplace medical surveillance program required under the lead standard. United
Steelworkers of America v. Schuylkill Metals Corp. , 828 F.2d at 322. Thus, the hazard
addressed by the standard is not negligible. See St. Joe Resources Co. ,
OSHRC Docket No. 81-2267 (Apr. 27, 1989).

We conclude that the violation is properly classified
as serious. The serious health hazard presented by metallic lead is well established. The
MRP benefits provision attacks this hazard by removing barriers to complete employee
cooperation with medical surveillance. It seeks to protect the employees who face the
gravest risk of serious lead-related disease: those who have high blood lead levels and
those who have other medical conditions that would place them at particular risk should
they continue to be exposed to lead in the workplace. The standard also seeks to eliminate
the possibility that employees fearing economic loss due to removal from their jobs would
use chelating drugs, which have dangerous side effects, in an attempt to reduce their
blood lead levels. See St. Joe Resources Co. , supra . Since the
potential for serious harm exists whenever the MRP standard is violated, we conclude that
Amax's violation of the standard was serious.

In determining an appropriate penalty, we find that
Amax acted in good faith to protect its employees from the adverse health effects of high
blood lead levels. Of the six employees removed from work involving exposure to high
airborne lead levels, only one had a blood lead level sufficiently high to require
removal. Amax transferred the remaining five, and paid them at their normal hourly wage
rate, even though their blood lead levels did not require medical removal. Amax did
violate the standard by not paying the removed employees for overtime, but that action was
taken under a good faith interpretation of the standard. We conclude that a penalty of $60
is appropriate.

D

Normally, and order affirming a citation and
establishing a penalty assessment would be sufficient to dispose of the case. However,
there is one additional contention that we must address. The Secretary and the Union argue
that the Commission should issue an order requiring Amax to pay the removed employees the
specific amounts that were due them but not paid.

The Commission members are divided on the propriety
of such an order. While Chairman Buckley is of the view that the employees who failed to
receive full "earnings", as that term has been interpreted by the Fifth Circuit,
are entitled to be paid retroactively for the period of time that they failed to receive
full earnings, he is also of the view that the Review Commission is without authority to
make individual compensatory awards to those employees. Under the Occupational Safety and
Health Act (29 U.S.C. 651 et seq.), the Secretary is authorized to issue citations to
employers alleged to have violated the Act or any standard, rule or regulation promulgated
pursuant to the Act. The citation is required to specify the violation with particularity,
and to prescribe a reasonable time for abatement. The Secretary must also notify the
employer of any penalty proposed to be assessed. That Act also created the Occupational
Safety and Health Review Commission and authorized it to hear cases brought before it
involving safety and health violations, and to affirm, modify, or vacate the Secretary's
citation or proposed penalty, or to direct "other appropriate relief". 29 U.S.C.
� 659(c). The determination of the amount of pay to be awarded to an employee, and an
order providing for individual compensatory relief to an employee, is clearly not the
assessment of a civil penalty (which would be paid into the Treasury of the United
States). Nor is it an "abatement" as used in the Act, which he would define as
those actions required to terminate the violative condition. In this case, the failure to
pay full "earnings" would be abated by the commencement to pay them. Nor does
the awarding of individual compensatory relief to individual workers retroactively for
earnings which they failed to receive constitute "other appropriate
relief".[[9/]] The ordering of back pay is not necessary as an abatement measure to
the termination of the violative condition. In Chairman Buckley's opinion, the Commission
is without authority to make individual compensatory awards unless expressly so authorized
by Congress (as Congress has done, for example, in the case of awards of attorney's fees
and costs under the Equal Access to Justice Act).

Chairman Buckley emphasizes that the Commission's
lack of authority to issue backpay orders to compensate employees who failed to receive
full earnings does not leave the employees without a remedy. If the employers fail to
compensate them fully and retroactively, there are forums authorized to resolve such
disputes. Chairman Buckley's views on the Commission's lack of authority to issue awards
of back pay should not be read as meaning that employees are not entitled to retroactive
pay, only that the Commission is not the forum to award such pay. He agrees with
Commissioner Arey that employees removed under the medical removal protection standard are
entitled to continue to receive the full amount of remuneration that they were receiving
before removal, whether that be contractual or voluntary overtime pay, production
incentive bonuses, or other pay differentials. He stops short of agreeing to consider what
those amounts are as to each individual employee, or whether they also are entitled to
interest on the unpaid earnings.

Commissioner Arey would remand to the judge to
calculate the amounts Amax improperly withheld under the terms of the medical removal
protection standard and to order Amax to pay those amounts. She believes that payment of
amounts improperly withheld is the abatement required when a violation of the MRP benefits
provision of the standard is found, that ordering such payments is within the Commission's
authority, and that such an order is generally appropriate to define the employer's
abatement obligation and avoid a potential failure-to-abate proceeding. See St.
Joe Resources Co. , supra (separate views of Commissioner Arey).

Official action can be taken on the affirmative vote
of at least two Commission members. 29 U.S.C. � 661(f). The Commission members both agree
to find that Amax committed a serious violation of the cited standard and assess a penalty
of $60. They are divided on the propriety of a "backpay" order, and therefore
cannot issue such an order.

Accordingly, the citation is modified to allege a
serious violation of 29 C.F.R. � 1910.1025(k)(2) and, as so modified, it is affirmed. A
penalty of $60 is assessed.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: April 27, 1989

SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 7447-J,

Authorized Employee

Representative.

OSHRC Docket No. 80-1793

SECRETARY OF LABOR,

Complainant,

v.

SCHUYLKILL METALS CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 8394,

Authorized Employee

Representative.

OSHRC Docket No. 81-0856

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 8183,

Authorized Employee

Representative.

OSHRC Docket No. 81-2267

DECISION

BEFORE: BUCKLEY, Chairman, RADER and WALL,
Commissioners.

BUCKLEY, Chairman:

These consolidated cases[[1]] are before the Occupational Safety and Health Review
Commission under 29 U.S.C. � 661(j), section 12(j) of the Occupational Safety and Health
Act of 1970, 29 U.S.C. �� 651-678 ("the Act"). The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration ("OSHA"). It was established to resolve disputes
arising out of enforcement actions brought by the Secretary of Labor under the Act and has
no regulatory functions. See section 10(c) of the Act, 29 U.S.C. � 659(c).

These cases involve the interpretation of the medical
removal protection benefits ("MRP benefits") provision of the standard at 29
C.F.R. � 1910.1025, which regulates occupational exposure to lead. The lead standard
primarily seeks to protect workers from the adverse effects of lead on their health by
limiting the amount of lead they inhale and ingest. The MRP provision is a
"backup" requirement that is intended to protect employees who are not
adequately protected by the other provisions of the standard. If an employee's blood lead
level exceeds certain limits or if the employee would otherwise experience certain risks
to his health from continued lead exposure, the standard requires the employer to remove
the employee from excessive lead exposure. For an employee transferred under this
requirement, the MRP benefits provision 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 . . . . " 29 C.F.R. � 1910.1025(k)(2)(ii). In these
cases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, and St. Joe Resources
Company transferred certain employees who had elevated blood lead levels from jobs with
high lead exposures to positions outside high lead areas. The employers paid the
transferred employees their regular wage rate for the 40-hour weeks the employees worked
during the periods of transfer. The Secretary of Labor alleges that the employers violated
the MRP benefits provision by not paying the transferred employees for potential overtime,
production bonuses, shift differentials, and paid lunch periods that were incidents of the
jobs they held before their transfers but not of the jobs to which they were transferred.
We conclude that the employers complied with the standard by paying the employees their
regular wage rate for a 40-hour week, and we therefore vacate the citations.

I

It has long been known that lead is highly toxic to
humans. Lead that is inhaled or ingested enters a person's bloodstream, where it is
carried to the various organs throughout the body. In excessive amounts, lead can damage
vital organs, notably the kidneys, the reproductive system, and the central nervous
system.

Before 1975, an OSHA standard limited the amount of
airborne lead to which an employee could be exposed to 200 micrograms per cubic meter of
air ("�g/m 3 ") averaged over an 8-hour day.[[2]] In 1975, the
Secretary of Labor, believing the existing standard was not sufficiently protective,
proposed a new standard that would both lower the permissible exposure limit and adopt a
number of other provisions intended to protect lead-exposed employees. 40 Fed. Reg. 45934
(Oct. 3, 1975). Following lengthy rulemaking proceedings, the Secretary promulgated the
standard here at issue. 43 Fed. Reg. 52952 (Nov. 14, 1978).[[3]]

Because lead reaches vital organs through the
bloodstream, much of the Secretary's rulemaking effort focused on controlling the amount
of lead in workers' blood. The secretary first attempted to determine the maximum
concentration of lead in the blood that would not produce material impairment of workers'
health. He found that serious lead poisoning occurs at blood lead levels of 80 micrograms
per 100 grams of blood ("�g/100g"), 43 Fed. Reg. at 52954, but that other
adverse health effects occur at lower blood lead levels. These levels were referred to in
the rulemaking proceedings as "subclinical effects," and can be defined as
"physiological changes which can be detected by sophisticated laboratory tests, but
not by either ordinary clinical examination or by the patient himself, which may be
irreversible, and which likely bear a causal relationship with overt lead disease." United
Steelworkers of America, AFL- CIO v. Marshall , 647 F.2d 1189, 1249 (D.C. Cir. 1980), cert .
denied , 453 U.S. 913 (1981) (" Steelworkers "). The Secretary found
that these subclinical effects become significant at blood lead levels of 40 ug/100g and
higher. 43 Fed. Reg. at 52954-60. Finding that the presence of subclinical effects
constituted material impairment of health, the Secretary established the objective of
maintaining the blood lead levels of lead-exposed workers at no higher than 40 ug/100g. Id .

The Secretary also found, however, that a blood lead
level at or below 40 ug/100g for all workers could not be feasibly achieved. Because
people differ in the manner in which they absorb lead, at any particular level of airborne
lead a group of workers will exhibit a range of blood lead levels. The Secretary found
that the lowest airborne level the major lead-based industries could feasibly achieve was
50 �g/m 3 and he therefore established that level as the permissible exposure
limit for airborne lead.[[4]] 43 Fed. Reg. at 52963. He also found that approximately 30%
of workers would have blood lead levels over 40 ug/100g when uniform compliance with the
50 �g/m 3 permissible exposure limit was achieved. Id .

In order to protect the health of employees who would
not be adequately protected by the permissible exposure limit, the standard requires
employers to establish programs of medical surveillance. 29 C.F.R. � 1910.1025(j). The
key to medical surveillance is blood testing, which the employer must offer to all
employees exposed to an "action level" of 30 �g/m 3 for 30 or more
days per year. Subsections 1910.1025(j)(1) and (2). If an employee is found to have a
blood lead level exceeding a certain amount--50 ug/100g when the standard becomes fully
effective--the medical removal protection provisions of the standard come into play.
Subsection 1910.1025(k). The employer must remove the employee from exposure to lead above
the action level until two consecutive blood tests show that the employee's blood lead
level has returned to no more than 40 ug/100g. Subsections 1910.1025(k)(1)(i) and (iii).
An employee must also be removed from exposure to lead above the action level without
regard to his blood lead level if it is determined that "the employee has a detected
medical condition which places the employee at increased risk of material impairment to
health from exposure to lead." Subsection 1910.1025 (k)(1)(ii). Such an employee can
be returned to his previous position if it is found that his medical condition has changed
such that exposure to lead no longer places him at increased risk of material health
impairment. Subsection 1910.1025 (k)(1)(iii)(A)(4).

If an employee is removed from exposure to excessive
lead due to an elevated blood lead level or other medical condition, the employer must pay
the employee MRP benefits. Subsection 1910.1025 (k)(2)(ii) provides:

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.

The employer is required to provide MRP benefits,
i.e., "maintain the earnings, seniority and other employment rights and benefits of
an employee." for up to 18 months on each occasion an employee is removed from
excessive lead exposure. Subsection 1910.1925(k)(2)(i). The Secretary included this
requirement in the standard in order to induce employees to cooperate with medical
surveillance. He was concerned that employees, faced with the possible loss of their
income if medical surveillance showed they should be removed from lead exposure, would
refuse to cooperate with the standard's medical surveillance provisions and thereby risk
endangering their health. Thus, "MRP was included in the final standard as a means of
maximizing meaningful participation in medical surveillance provided to lead-exposed
workers." 43 Fed. Reg. at 52973.

II.

A. Amax-Lead Company, Docket No. 80-1793

Amax operated a primary lead smelter in Missouri. In
late 1979 and early 1980, the company transferred six employees from areas of high lead
exposure to low exposure areas[[5]] due to their elevated blood lead levels. After about
three months, the blood lead levels of these employees returned to acceptable levels. Four
of the employees returned to their previous jobs while two bid for and won other jobs in
the facility.

Before their transfers, the six employees worked in
positions that had to be filled during the plant's entire 24-hour workday. For such jobs,
the day was divided into three 8-hour shifts. Each employee was paid for a full 8 hours
but was allowed a half-hour for lunch. The six employees were transferred to the mine/mill
unit, which did not operate during the entire 24 hour day. Workers in this unit therefore
worked 8 1/2 hour shifts, getting paid for 8 hours but not for their half-hour lunch
break.

The transferred employees were paid for their 40-hour
work week at their regular base rate of pay. In their regular jobs, they would also have
had the opportunity to work overtime. The collective bargaining agreement between Amax and
the United Steelworkers of America provided that overtime would be distributed "as
equitably as practical" among employees in each job classification. Available
overtime was offered to employees in order of seniority. They could either accept or
refuse when their turn came. The company kept and posted records showing for each employee
the hours of overtime worked, the hours refused, and the total. Employees unavailable when
overtime was offered, including those transferred to low exposure jobs, were considered to
have refused offers of overtime work. Thus, for each of the six transferred employees, the
company had records showing the amount of overtime they "refused" during their
transfers.

B. Schuylkill Metals Corporation, Docket No.
81-0856

Schuylkill operated a secondary lead smelter in
Louisiana. The plant's production department had a high airborne lead concentration, while
the change house had a low lead concentration. Employees in the change house performed
janitorial duties such as washing work clothes and repairing respirators.

Under the normal work schedule in the production
department, employees worked six 40-hour weeks and two 48-hour weeks in any 8-week period.
They thus averaged two hours of overtime per week. Production department employees were
also eligible to receive production incentive bonuses, which were based on the daily
amount of production in excess of a certain base amount. Production incentive bonuses
varied among the workers on a shift based on performance criteria unique to the
individual. In the change house, employees worked a 40-hour week. They did not work
overtime and were not eligible for production incentive bonuses.

Between January 1, 1980 and December 4, 1981,
Schuylkill temporarily transferred a number of employees from the production department to
the change house. [[6]] While in the change house the employees were paid at the hourly
wage rate they had earned in the production department. They did not, however, receive
either overtime pay or production incentive bonuses.

C. St. Joe Resources Company, Docket No. 81-2267

St. Joe operated a zinc smelter in Pennsylvania. In
1981, the company transferred one employee---Simpson Butler--pursuant to the MRP provision
of the lead standard. Butler had been hired in 1980 as a laborer, a position that did not
involve excessive lead exposure. On April 2, 1981, he was awarded the position of
"weighman" but, on July 17, 1981, he was returned to the Iaborer position due to
an elevated blood load level.

The plant operated 24 hours per day, seven days per
week, and the weighman job had to be covered at all times. To accomplish this, the
weighmen were divided into four shifts that worked 20-week rotating schedules. Each shift
included various amounts of night, weekend, and overtime work, but the actual schedule
would vary during the 20-week rotation.

St. Joe's collective bargaining agreement provided
that weighmen would receive 1.5 times their base rate for scheduled Sunday and sixth day
work ("scheduled overtime"). The agreement further provided for extra hourly pay
("shift differentials") for scheduled evening and night work. A weighman who
worked all of his scheduled time during a 20-week rotation would thus receive a total
amount of compensation, including scheduled overtime and shift differentials, that would
exceed the employee's base rate of pay multiplied by the number of hours actually worked.
However, each employee's pay during any particular two-week pay period would depend on the
hours actually worked during that period, including the scheduled overtime and shift
differentials actually earned.

Employees were also given the opportunity to work
voluntary overtime. The amount of such overtime available varied with the needs of the
plant. Employees signed up if they were interested in voluntary overtime and would be
offered such overtime as the plant's needs and their skills allowed. Voluntary overtime
did not necessarily involve the employee's regular duties. During his 16 weeks as a
weighman, Butler worked all of his regular shifts and also worked 45 hours of voluntary
overtime.

When Butler was transferred, he was assigned duties
as a laborer for an 8 hour per day, 40 hour per week shift. As a laborer, Butler was paid
the base rate he received as a weighman, but he worked no scheduled overtime or night
shifts and received no overtime pay or shift differentials. He refused the one offer of
voluntary overtime he received.

III

The MRP benefits provision requires that employers
maintain the "earnings, seniority and other employment rights and benefits of an
employee" who is transferred under the standard's MRP provisions. The question
presented by these cases is what an employer must pay a transferred employee in order to
maintain that employee's "earnings." The employers contend that they need only
pay an employee who works a normal 40-hour week after being transferred his regular hourly
rate of pay for those 40 hours, while the Secretary and unions claim the provision
requires the employer to also pay additional amounts the employee could have earned if he
had not been transferred. In their view, Amax, Schuylkill, and St. Joe violated the
standard by not paying their transferred employees for potential overtime, shift
differentials, production incentives, and paid lunch periods (collectively, "premium
payments") they would have received but for the transfers.

In interpreting a standard, the Commission employs
the same rules of construction that are used to discern the meaning of statutes. Bunge
Corp., 86 OSAHRC,12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHD � 27,565, p. 35,804
& n. 12 (No. 77-1622 et al, 1986). Ultimately, we must determine the intent of the
standard's drafter, in this case the Secretary, at the time the standard was adopted. The
most compelling evidence of a drafter's intent is, of course, the plain meaning of the
words he used. Id . In this case, however, the meaning of the crucial word
"earnings" is not so plain as to enable us to resolve the dispute between the
parties. "Earnings" is not a word of art but is a general term broad enough to
encompass the interpretations offered by all of the parties. One dictionary defines
"earnings" as "money earned; wages; profits." Random House
Dictionary of the English Language 448 (1971). Another defines it as "something
(as wages or dividends) earned as compensation for labor or the use of capital." Webster's
Third New International Dictionary 714 (1971). Because the issue cannot be resolved on
the basis of the word's plain meaning, we must look to the legislative history of the
standard to discern the Secretary's intent when he promulgated the standard.

The lead standard was the first, and is still the
only, OSHA standard containing a comprehensive MRP benefits provision. However, in
adopting the standard, the Secretary did not write on an entirely clean slate. The issue
of MRP benefits had previously been addressed in several contexts, and these provide a
background for examining the Secretary's intent when he included the MRP benefits
provision in the lead standard.

The first federal law containing a MRP benefits
provision was the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. �� 801 et
seq. ("Mine Act").[[7]] That statute provides that any miner showing evidence of
black lung disease be given the opportunity to transfer to a position for which the dust
level is sufficiently low to prevent further development of disease. 30 U.S.C. ��
843(b)(1) and (2). Any miner so transferred must be compensated at "not less than the
regular rate of pay received by him immediately prior to his transfer." 30 U.S.C. �
843(b)(3). This provision has been interpreted to mean that a miner need only be paid at
the same daily rate he was receiving just prior to transfer, not the amount he would have
earned if he had not been transferred. Higgins v. Marshall , 584 F.2d 1035 (D.C.
Cir. 1978), cert . denied , 441 U.S. 931 (1979). When he adopted the OSHA lead
standard, the Secretary was aware of both this provision of the Mine Act and of the
interpretation placed on it in Higgins v. Marshall , for he discussed these matters
in the preamble to the OSHA standard. 43 Fed. Reg. at 54447-49.

The Secretary considered MRP benefits in rulemaking
proceedings for two other standards before the adoption of the lead standard. One of the
first standards issued by the Secretary after notice-and-comment rulemaking regulated
occupational exposure to asbestos. 29 C.F.R. � 1910.1001. That standard contains a
limited MRP provision, applicable only to employees who would be required to wear
respirators but who are medically incapable of doing so.

Such employee shall be rotated to another job or
given the opportunity to transfer to a different position whose duties he is able to
perform with the same employer, in the same geographical area and with the same seniority,
status, and rate of pay he had just prior to such transfer, if such a different position
is available.

29 C.F.R. � 1910.1001(d)(2)(iv)(c) (emphasis added).
Subsequent rulemakings continued the practice of considering MRP protection as maintenance
of the employee's "rate of pay." The term "rate retention," implying
maintenance of an employee's "rate of pay," was often used as a synonym for
medical removal protection. In promulgating a standard regulating exposure to coke oven
emissions, the Secretary considered a recommendation that he adopt a MRP provision. The
recommendation was that removal of an employee from exposure should "not result in
loss of earnings or seniority status to the affected employee." (Emphasis added.) The
Secretary referred to this recommendation as a "rate retention provision." 41
Fed. Reg. 46780 (Oct. 22, 1976). The Secretary did not, however, include such a provision
in the coke oven standard. 29 C.F.R. � 1910.1029.

The next standard promulgation proceeding in which
the Secretary considered MRP protection involved the lead standard at issue here. The
Secretary first proposed a standard that did not contain a MRP provision. 40 Fed. Reg.
45934 (Oct. 3, 1975). After receiving comments and holding informal public hearings on the
proposed standard, the Secretary announced an additional comment period for the submission
of written data, views, and arguments on medical removal protection. 42 Fed. Reg. 46547
(Sept. 16, 1977). The announcement stated:

The medical surveillance provisions of the lead
standard should include a requirement for medical removal protection. This requirement
would maintain the rate of pay , seniority, and other rights of an
employee for the time period, or a portion thereof, that the employee is transferred or
removed from his or her job as a result of an increased health risk from exposure to lead.
After a follow-up medical examination and opinion, the following options would be
available with no loss of earnings or rights: Return to the original job,
assignment to a different job (transfer), or continuation of the transfer or removal.

Id . at 46548 (emphasis added). Another passage
in the same announcement stated: "Ninety days was mentioned as one time period for
earnings protection ('rate retention')." Id . at 46549. Thus, the announcement
gave notice that the Secretary was considering the traditional type of MRP protection in
which the employee's rate of pay would be maintained during removal. It used the words
"earnings" and "earnings protection" synonymously with "rate of
pay" and "rate retention."

When he issued the lead standard, the Secretary did not use the terms "rate of
pay" or "rate retention," but mandated that employers maintain the
"earnings" of transferred employees. The Secretary contends that his choice of
the word "earnings" instead of "rate of pay" is significant. He
asserts that if he intended to limit MRP benefits to "rate of pay," he would
have included language such as is found in the Mine Act instead of the language he
actually chose.

We cannot conclude that the Secretary deliberately
used the word "earnings" in the final standard to indicate that he intended
something different than "rate of pay." As we have noted, in the announcement in
which MRP protection was injected into the rulemaking proceeding, the Secretary used
"earnings" synonymously with "rate of pay." Therefore, when he used
"earnings" in the final standard, the most logical conclusion is that he was
again using it as a synonym for "rate of pay," particularly since he did not
express any different intent. As St. Joe points out, the Secretary is sophisticated in
labor matters and knows that compensation issues often involve overtime and other premium
payments. Thus, if the Secretary made a deliberate decision that premium payments were to
be included in MRP benefits, it is reasonable to infer that he would have made such an
intent explicit. See United States v. American Trucking Associations , 310
U.S. 534, 544 (1940) ("a few words of general connotation appearing in the text of
statues should not be given a wide meaning, contrary to a settled policy, 'except as a
different purpose is plainly shown'.")

A further indication that "earnings" was
not meant to include premium payments is the absence of evidence that the subject of
premium payments received any attention in the rulemaking proceedings. As noted above, the
announcement that injected MRP into the rulemaking indicated that a traditional "rate
retention" rule was being considered. The comments submitted in response to this
announcement reflect that employees had one overriding concern: that their cooperation
with the medical surveillance provisions of the standard not lead to the loss of their
jobs. The Secretary cited the testimony of Anthony Mazzocchi, vice president of the Oil,
Chemical and Atomic Workers Union, that the absence of an MRP provision would force
employees to choose between their jobs and their health. 43 Fed. Reg. at 54442. In the
preamble to the lead standard the Secretary noted that the potential loss of one's job
will create a substantial deterrent to an employee's cooperation with the standard's
medical surveillance provisions. However, there is nothing in the preamble to indicate
that the Secretary also believed that the potential loss of premium payments would create
a comparable deterrent. The Secretary simply did not address the subject of premium
payments.

The only indication in the standard's legislative
history that the subject of premium payments was considered at all was a suggestion by the
United Steelworkers of America that the Secretary include a definition of
"earnings" in the standard. The Secretary declined this invitation, saying:

The United Steelworkers of America urged that the
standard include a detailed definition of the term "earnings," listing all the
possible forms of direct and indirect compensation which an employer might have normally
given a worker in the absence of a removal. (Ex. 452, p. 44.) OSHA rejected the adoption
of such a detailed definition because it would likely be confusing to some employers in
light of the many contexts in which the standard will apply. To comply with the standard,
an employer need only maintain the removed worker as though no removal had occurred.

43 Fed. Reg. at 54466. If the Secretary truly
intended that "earnings" would include premium payments, the suggestion by the
Steelworkers that he define "earnings" gave him the opportunity to explicitly
state that intent. His failure to include a definition of "earnings" is a
further indication he intended it to mean no more than his announcement originally
indicated, i.e., "rate of pay."[[8]]

The Secretary argues that the last sentence in the
above quotation and a statement elsewhere in the preamble that the MRP provision
"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 removal ," 43 Fed. Reg. at 52976 (emphasis
by the Secretary) make clear his intention that MRP benefits include premium payments. We
do not agree. In light of the Secretary's failure to include a definition of
"earnings" in either the standard or the preamble, and the absence of any
discussion in the preamble of premium payments, we cannot read these general statements as
exhibiting an intention on the Secretary's part that MRP benefits include premium
payments.

Finally, if the Secretary did intend
"earnings" to have a broader meaning than "rate of pay," his action
would be contrary to the spirit, and possibly the letter, of notice-and-comment
rulemaking. In conducting such a rulemaking, an agency is required to give the public fair
notice of the rule it proposes to adopt, so that persons affected by the rule will have an
adequate opportunity to make their views known. See Chamber of Commerce of the
United States v. OSHA , 636 F.2d 464, 470-71 (D.C. Cir. 1980). As discussed above, the
Secretary gave the public notice that he was considering adopting a "rate
retention" provision. Had the Secretary given notice that he was also considering a
broader MRP provision, one which would also require premium payments, it could be expected
that he would have received comments addressing the necessity and propriety of such
payments. As it was, nothing in the preamble or the standard indicates that the Secretary
received any comments addressed to premium payments, with the possible exception of the
United Steelworkers' general request, which the Secretary rejected, to include a
definition of "earnings" in the standard.

An agency can, of course, deviate from a proposed
rule when it issues a final rule, as long as the final rule is a "logical
outgrowth" of the rulemaking proceeding. Steelworkers , 647 F.2d at 1221. In
order to justify such a deviation however, there must be evidence in the rulemaking record
that warrants the change. Id . If there was evidence in the record of the lead
rulemaking to justify inclusion of premium payments in MRP benefits, the Secretary did not
mention it or rely on it. Thus, even if the Secretary did use the word
"earnings" because he meant MRP benefits to include premium payments, it is
highly doubtful whether the standard, as so interpreted, would be valid in light of the
absence of his reliance on any record evidence justifying the change.

See United States v. Security Industrial Bank , 459 U.S. 70, 78 (1982)
(interpretation of statute is favored that avoids question of statute's validity).

We conclude that Amax, Schuylkill, and St. Joe
complied with the MRP benefits provision by paying the employees they transferred at their
regular rate of pay for the 40 hours per week the employees worked during the periods of
transfer. Accordingly, the citations are vacated.[[9]]

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: June 25, 1986

SECRETARY OF LABOR,

Complainant

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent

UNITED STEELWORKERS OF AMERICA,

Employee Representative

OSHRC DOCKET, 80-1793

REPRESENTING THE COMPLAINANT:

ROCHELLE G. STERN, Esq., Office of the Solicitor, U.S.

Department of Labor

REPRESENTING THE RESPONDENT:

WILLIAM A. ZIEGLER, Esq., Sullivan and Cromwell.

REPRESENTING THE EMPLOYEES:

MS. MARY-WINN O'BRIEN, Legal Department, United Steelworkers

of America

The parties of this controversy have agreed that it
be decided upon their submitted stipulation.

Following an inspection on February 20-21, 1980, at
respondent's worksite located on Highway KK, two miles south of Highway 32, at Boss,
Missouri, where respondent is engaged in the primary lead smelting business, two citations
were issued respondent.

Citation 1 for willful violation of 29 CFR
1910.1025(k)(2)(i) and (k)(2)(vii), as amended by complainant's complaint, with proposed
penalties of $1,600 and citation 2 for other-than-serious violation, items 1, 2 and 3,
which were subsequently withdrawn without objection.

Willful citation 1 was in two parts:

Item 1

"29 CFR 1920.1025(k)(2)(i): Medical removal
protection benefits, as defined in paragraph (k)(2)(ii) of this section, were not provided
by the employer to an employee(s) on each occasion that an employee(s) was removed from
exposure or otherwise limited pursuant to this section:

a) Employee with payroll No. 2496 was denied certain
benefits since January 8, 1980 which included; 1) overtime pay equivalent to that which
would have been earned if removal had not occurred and; 2) pay for one-half hour (1/2)
lunch breaks; back pay being due computed from date of removal to citation correction date
or prior date of return, and paid to affected employee by March 31, 1980."

Item 2

"29 CFR 1910.1025(k)(2)(vii): Medical removal
protection benefits, as defined in paragraph (k)(2)(ii) of this section, were not provided
by the employer to the employee(s) equal to that required by paragraph (k)(2)(i) of this
section, where the employee(s) were voluntarily removed by the employer from exposure to
lead or otherwise had limitations placed on them due to the effects of lead exposure on
employee's medical condition:

a) Employees with payroll No. 1358, 1809, 2702, 2785, and 2974 were denied certain
benefits since dates of removal which included; 1) overtime pay equivalent to that which
would have been earned if removal had not occurred, and 2) pay for one-half (1/2) hour
lunch breaks; 3) back pay being due computed from dates of removal to citation correction
date, or prior date of return, and paid to effected employees by March 31, 1980 in regard
to removal dates as follows: 12/10/79 for employee with payroll No. 1809; 1/8/80 for
employee with payroll No. 1358; 1/23/80 for employee with payroll No. 2702; 1/28/80 for
employee with payroll No. 2785; and 2/15/80 for employee with payroll No. 2974."

On April 29, 1981, the parties executed a stipulation
of facts, which was filed with the Commission.

The stipulation constitutes the evidentiary record in
this case. The parties have filed briefs, proposed findings of fact and proposed
conclusions of law.

THE STIPULATION OF THE PARTIES

"The parties hereto stipulate and agree that all
proper, necessary and indispensable parties are parties hereto, and to the following
facts, but without prejudice to either party contending that any such fact is irrelevant:

1. Respondent is a corporation with its principal
   office and place of business at Highway KK, 2 miles south of Highway 32, Boss, Missouri.

2. An inspection of respondent's worksite was
   conducted on February 20 and 21, 1980, by a compliance safety and health officer from the
   St. Louis, Missouri Area Office of the Occupational Safety and Health Administration.

3. At the time of the inspection noted above, and at
   all times material hereto, respondent was engaged in the business of primary lead
   smelting.

4. Respondent employs approximately 370 employees at
   its smelter unit in Ross, Missouri.

5. Respondent utilizes goods, equipment and materials
   shipped from outside the State of Missouri and is engaged in a business affecting
   commerce. Therefore respondent is an employer within the meaning of the Act.

6. Following the inspection on February 20 and 21,
   1980 by the Secretary's representative, a citation was issued to respondent alleging a
   willful violation together with proposed penalties.

7. The willful citation and proposed assessment of
   penalties was timely contested by respondent.

8. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health
   Review Commission by section 10(c) of the Act.

9. Respondent's employee Terry D. Hogan, employee number 1358, regular work assignment
   prior to January 8, 1980, was maintenance mechanic in the smelter unit of respondent's
   work place.

10. Respondent's employee James L. Wilkinson, employee number 1809, regular work
    assignment prior to December 10, 1979, was maintenance mechanic in respondent's smelter
    unit.

11. Respondent's employee Ronald D. Lawson, employee
    number 2785, regular work assignment prior to January 28, 1980, was refinery kettleman on
    the refinery production floor in the smelter unit of respondent's workplace.

12. Respondent's employee Paul E. Baker, employee
    number 2974, regular work assignment prior to February 15, 1980, was maintenance mechanic
    in air handling in the smelter unit of respondent's workplace.

13. Respondent's employee Gary E. Harbison, employee
    number 2702, regular work assignment prior to January 23, 1980, was maintenance mechanic
    in the smelter unit of respondent's workplace.

14. Respondent's employee Billy R. Clinton, employee
    number 2496, regular work assignment prior to January 8, 1980, was maintenance mechanic in
    the smelter unit of respondent's workplace.

15. Because of their respective work classifications
    described in stipulation numbers 9-10, 12-14, overtime listings for employees Hogan,
    Wilkinson, Baker, Harbison and Clinton were, prior to the respective dates above,
    maintained by respondent in the smelter maintenance record-keeping [sic] groups.

16. Because of his work classification described in stipulation No. 11, Ronald Lawson's
    overtime listings were maintained by respondent in a record-keeping group other than
    smelter maintenance.

17. On January 8, 1980, respondent temporarily
    removed Terry Hogan, employee number 1358, from his regular work assignment in the smelter
    to a work assignment in the mine/mill unit of respondent's worksite. Respondent
    voluntarily removed Hogan to the mine/mill unit, designated by respondent as a low lead
    exposure area, pursuant to its program of transferring employees from exposure to high
    lead levels when blood tests taken by the respondent's medical personnel indicated that
    the employee's blood lead level exceeded 74 ug of lead per 100 ml. of whole blood.

18. On January 28, 1980, Ronald Lawson, employee
    number 2785, was temporarily removed from his regular work assignment as refinery
    kettleman, production department, to a work assignment in the mine/mill unit of
    respondent's worksite. Lawson was voluntarily removed to the mine/mill unit, designated by
    respondent as a low lead exposure area, pursuant to its program of transferring its
    employees from exposure to high lead levels when blood tests taken by respondent's medical
    personnel indicated that the employee's blood lead level exceeded 74 ug of lead per 100
    ml. of whole blood.

19. On December 10, 1979, James Wilkinson, employee number 1809, was temporarily removed
    from his regular work assignment in the smelter unit to a work assignment in the mine/mill
    unit, designated by respondent as a low lead exposure area. Wilkinson's transfer was
    pursuant to respondent's program of voluntarily removing employees from exposure to high
    lead levels when blood tests taken by respondent's medical personnel indicated that the
    employee's blood lead level exceeded 74 ug of lead per 100 ml. of whole blood.

20. On February 15, 1980, Paul Baker, employee number
    2974, was temporarily removed from his regular work assignment in the smelter unit to a
    work assignment in the mine/mill unit, designated by respondent as a low lead exposure
    area. Baker's transfer was pursuant to respondent's program of voluntarily removing
    employees from exposure to high lead levels when blood tests taken by respondent's medical
    personnel indicated that the employee's blood lead level exceeded 74 ug of lead per 100
    ml. of whole blood.

21. On January 23, 1980, Gary E. Harbison, employee
    number 2702, was temporarily removed from his regular work assignment in the smelter unit
    to a work assignment in the mine/mill unit, designated by respondent as a low lead
    exposure area. Harbison's transfer was pursuant to respondent's; program of voluntarily
    removing employees from exposure to high lead levels when blood tests taken by
    respondent's medical personnel indicated that the employee's blood lead level exceeded 74
    ug of lead per 100 ml. of whole blood.

22. On January 8, 1980, Billy R. Clinton, employee
    number 2496, was temporarily removed from his regular work assignment in the smelter unit
    to a work assignment in the mine/mill unit, designated by respondent as a low lead
    exposure area. Clinton's transfer was pursuant to the requirements of the standard at 29
    CFR 1910.1025(k)(1)(i)(A). The respondent transferred Clinton when blood tests taken by
    its medical personnel indicated that his blood lead level had reached or exceeded 80 ug of
    lead per 100 ml. of whole blood.

23. On March 24, 1980, employee Harbison was returned
    to work assignment in the smelter unit. On April 1, 1980 employee Baker was returned to
    work assignment in the smelter unit. On April 8, 1980, employee Clinton was returned to
    work assignment in the smelter unit. On March 10, 1980, employee Hogan successfully [sic]
    bid for and was assigned to a job in the mine. On April 21, 1980, employee Lawson was
    returned to work assignment as refinery kettleman.

24. On March 14, 1980, employee Wilkinson
    successfully bid for and was assigned to a construction job at respondent's work site.

25. The parties stipulate and agree that Article 12
    and Appendix C of the attached collective bargaining agreement between Amax Lead Company
    of Missouri and United Steelworkers of America represent the procedures followed by
    respondent regarding hours of work and overtime and guidelines for the six employees
    listed herein and each of whom was at all times material herein covered thereby.

26. Prior to their transfer to low exposure,
    employees Hogan, Lawson, Harbison, Wilkinson, Clinton, and Baker were scheduled for eight
    hour shifts which included a paid half hour lunch break within the eight hours. The jobs
    to which they were assigned prior to their transfer to low exposure were scheduled on a
    twenty-four hour a day continuous shift basis. In those circumstances three eight-hour
    shifts, which include

a paid one-half hour lunch break, are therefore scheduled.

27. During the period in which employees Hogan, Lawson, Harbison, Wilkinson, Clinton and
    Baker were transferred to the mine/mill unit, they performed work in the maintenance
    department on the surface (as opposed to underground) and were scheduled eight and half
    hours, one-half hour of which was an unpaid half hour lunch break.

28. At all times material herein: There have been approximately 80 maintenance employees
    permanently assigned to the mine/mill unit. 41 of them have worked regularly on the
    surface. The remaining 39 have worked both on the surface and underground. All of them
    have, when working on the surface, been scheduled for eight and a half hours, one-half
    hour of which has been an unpaid lunch break. Surface maintenance is not scheduled on a
    twenty-four hour a day continuous shift basis. In the case of work not scheduled on a
    twenty-four hour a day continuous shift basis, respondent has preferred to schedule and
    has scheduled eight and a half hour shifts which include a half hour unpaid lunch break.

29. During their periods of low exposure transfer, the transferred employees were paid the
    same base wage rates as if they had not been transferred.

30. When employees Lawson, Harbison, Clinton and Baker returned from the mine/mill unit to
    the smelter unit, they were charged with overtime hours so that each was the same number
    of hours below the high man in his recordkeeping group as he was when he was transferred.
    The said number of hours were charged as having been offered and refused by the employee
    during the period of transfer to low exposure.

31. Employee Hogan and employee Wilkenson bid for and were assigned to jobs at
    respondent's worksite other than those from which they were transferred. Therefore, Hogan
    and Wilkenson were at the time of such assignment charged with overtime hours to make
    their overtime equal to the overtime of the high man in the recordkeeping group to which
    they were thus assigned.

32. Respondent maintained overtime standings for
    employees Hogan, Wilkinson, Harbison, Clinton, Baker and Lawson which show hours worked,
    hours refused and total hours.

33. Employees Hogan, Wilkinson, Lawson, Harbison.
    Clinton and Baker were not offered and were not paid any overtime hours during the period
    of their transfer to low exposure.

34. An adjustment period ends an May 31 and November
    30 of each year. It is the time at which employees are paid at time and one-half their
    base rate for the number of hours on their overtime record which is more than 24 hours or
    32 hours (depending on their recordkeeping group) less than that of the high man in their
    recordkeeping group at that time. The overtime record of all employees is then brought to
    zero at the beginning of the new adjustment period. The applicable adjustment period for
    the employees listed herein ended on November 30, 1979.

35. On March 6, 1981 the Secretary of Labor informed
    respondent for the first time that and the parties herewith stipulate for purposes of this
    case that if it is finally determined on the basis of the facts herein that the employees
    listed herein should have received overtime pay and pay for lunch periods which they were
    not paid, the following formula can be used to compute that pay.

Based on the overtime standing records maintained by
respondent which contain overtime hours worked, overtime hours refused and total hours
offered, the percentage of overtime actually worked (obtained by dividing the total number
of hours worked by the total number of hours offered) by each employee for the last full
adjustment period prior to their transfer multiplied times the number of hours that were
charged (or in the case of employees Hogan and Wilkinson would have been charged if they
had returned to the jobs from which they were transferred to low exposure) to each
transferred employee by respondent as refused hours during the transfer period.

One half hour pay at straight time for each full
eight hour shift the employee worked during his period of transfer to low exposure.

36. Until March 6, 1981 the Secretary of Labor had
    not by regulation or otherwise given respondent in particular or employers in general any
    guidance how, if it is determined they are required as part of medical removal protection
    benefits to make payments in lieu of overtime and payments an [sic] account of different
    lunch period arrangements, those amounts of pay should be calculated. To date, respondent
    has been the only employer which the Secretary of Labor has cited for alleged failure to
    make such payments in lieu of overtime or such payments on account of different lunch
    period arrangements.

37. At all times stated herein: Occupational Safety
    and Heath Administration regulations have purported to require respondent to at no cost to
    the employees issue freshly laundered coveralls each workday to employees working in the
    smelter unit and to require them to be worn. Respondent has so supplied then and required
    them to be worn. The six employees listed herein were so supplied them while working in
    the smelter unit before their transfer to low exposure in the mine/mill unit. All
    employees working in the mine/mill unit have provided their own working attire and had it
    laundered, all at their own expense. While the six employees listed herein worked on low
    exposure assignment in the mine/mill unit, respondent did not provide them with coveralls
    or have their work clothing laundered.

38. Respondent's not providing the employees listed
    herein with clean work clothing during the period of their low exposure transfer was one
    of the employee complaints investigated by the Occupational Safety and Health
    Administration at the same time as the employee complaints which resulted in the citation
    at issue here. On the basis of its legal counsel's advice that the governing law does not
    support the complaint regarding work clothing, the Occupational Safety and Health
    Administration found that complaint to be invalid and no citation issued on account of
    that complaint."

The issue presented is the application of the Medical Removal Protection Plan, as it is
relevant to six of respondent's employees who worked in the smelter area, and who were
voluntarily removed by respondent following bloodlevel testing.

The pertinent data pertaining to these employees is
as follows:

Name
Number
Duty
Separation

Return
Bloodlevel

Terry Hogan

(Mine Unit)
1358
Smelter
1/8/80
3/10/80
Exceeded 74 ug/100 ml

James L.

Wilkinson

(Construction)
1809
Smelter
12/10/79
3/14/80
Exceeded 74 ug/100 mI

Ronald D. Lawson
2785
Smelter
1/28/80
4/21/80
Exceeded 74 ug/100 ml

Paul E. Baker
2974
Smelter
2/15/80
4/1/80
Exceeded 74 ug/100 ml

Cary E. Harbison
2702
Smelter
1/23/80
3/24/80
Exceeded 74 ug/100 ml

Billy R. Clinton
2496
Smelter
1/8/80
4/8/80
Exceeded 80 ug/100 ml

The voluntary removal of the affected employees resulted in their being paid the regular
rates for their new assigned duties, and conversely to lose the difference in wage rates
that would have been paid at their old job duties, which entailed the payment of hours for
overtime and the payment for a one-half hour lunch break. This, due to a differential in
the work schedules and structure, is contained in the collective bargaining agreement
between respondent and its employees (J-39) executed June 1, 1978, or prior to the
effective date of the alleged standard.

Section 29 CFR 1910.1025(k) contains the provisions
of lead standard in establishing the Medical Removal Protection Plan. These provisions
became effective March 1, 1979 (Table 1), 29 CFR 1910.1025 (Appendix B, XIV).

Section 29 CFR 1010.1025(k)(2)(i), as defined in
paragraph (k)(2)(ii) of that section, provides in pertinent it part:

"(k) Medical Removal Protection.

(2) Medical removal protection benefits.

(i) Provision of medical removal protection benefits. The employer shall provide to an
employee up to eighteen (18) months of medical removal protection benefits on each
occasion that an employee is removed from exposure to lead on otherwise limited pursuant
to this section",

and, as defined in paragraph (k)(2)(ii) of that
section:

"(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."
[Emphasis Supplied]

Section 29 CFR 1910.1025(k)(2)(vii), as defined in
paragraph (k)(2)(ii), provides:

"(vii) Voluntary Removal or Restriction of An
Employee. Where an employer, although not required by this section to do so, removes an
employee from exposure to lead or otherwise places limitations on an employee due to the
effects of lead exposure on the employee's medical condition, the employer shall provide
medical removal protection benefits to the employee equal to that required by paragraph
(k)(2)(i) of this section."

Based upon the foregoing stipulations of the parties,
there is raised the issues involved in this case of whether or not respondent violated the
medical removal protection requirements of the lead standard by failing to compensate the
mentioned transferred employees for the loss of available overtime and charge of overtime
refused to employees while on low exposure status and the loss of paid-for lunch period,
and if so, the nature of the violation.

The respondent essentially reiterates in the first
portion of its brief those same arguments which were presented by the numerous petitioners
challenging the validity of the standard, including the section pertaining to medical
removal protection, and where the respective petitions were transferred to the District of
Columbia Court of Appeals and consolidated, and where in a most extensive decision the
very same arguments raised by respondent in its brief were rejected, these arguments
pertaining to the invalidity of the standard, improper evidence, notice of rule making,
technological and economic feasibility, etc., along with the effect of the medical removal
earnings protection provision as affecting workman's compensation laws. United
Steelworkers of America, AFL-CIO-CLC, Petitioner v. Ray Marshall, Secretary of Labor, U.S.
Department of Labor and Doctor Eula Bingham, Asst. Secretary of Labor, O.S.H.A.,
Respondents , Docket 78-2452, January 10, 1979, 592 F.2d 693 (3rd Cir., 1979); United
Steelworkers of America, AFL-CIO, CLC, Petitioner v. F. Ray Marshall, et al (D.C.
Cir., August 15, 1980), Docket 79-1048, 8 BNA OSHC 1810, CCH OSHD � 24,717 (1980).

In the Court's decision of August 15, 1980, the Court
upheld the lead standard, including the Medical Removal Protection Program, remanding the
record to complainant for reconsideration of the feasibility of the standard for certain
specified industries. United Steelworkers of America, AFL-CIO-CLC v. Marshall et al ,
Docket 79-1048, supra .

Petitions of certiorari were filed in the U.S.
Supreme Court, and following an application for stay of the lead standard in the Court of
Appeals decision, the Supreme Court on December 8, 1980, entered its order staying certain
portions of the lead standard. However, the Court did not include the medical removal
protection benefit standard in its stay. The motion as to this portion of the standard was
denied. Lead Industries Association, Inc., et al v. Ray Marshall , 101 S. Ct 603
(1980), L.Ed (1980).

The progress of the lead standard through the courts
has resulted in its review by the Court of Appeals on two occasions and by the Supreme
Court, and finally a refusal by the Supreme Court to further consider the petitions of the
parties by the Supreme Court's denial of certiorari June 29, 1981, in United
Steelworkers of America, et al , Docket 79-1048 supra ., leaving the medical
removal protection benefits of the lead standard to remain in full force and in effect
since March 1, 1979. Respondent's validity arguments as herein mentioned are rejected.

The respondent further argues that because the
standard does not refer to overtime pay or lunch-pay periods, its medically removed
employees should be denied this portion of their pay, which was included at the time of
their removal as smelter employees, with respondent arguing a rule of reason, and a
suggestion that it would be inequitable to enforce the standard against the respondent.

In considering respondent's argument, section
(k)(2)(ii), in plain and concise terms, provides 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". [Emphasis Supplied]

The above-quoted succinctly and plainly states in
plain and unequivocal language that an employee so removed shall suffer no diminution of
his job rights as they existed at the time of the removal.

The removed employees were a part of a job group
specifically designated and structured by respondent and employees' collective bargaining
agreement as to duty, benefits and pay for the various job classification, and these
affected employees, voluntarily removed by respondent for excess blood lead concentrations
are as such entitled to all the pay and benefits incurred by that classified group to
which they belonged at the time they were medically removed.

The event of medical removal was not an event caused
or created by the employee, but rather a result of the respondent's operations. See
Exhibit J-39, section 1201 (Hours of Work and Overtime, Schedule A, Appendix, Job
Classifications and Hourly Rates).

To interpret this provision of the standard otherwise
would be to completely ignore the legislative history of the inactment of the lead
standard (43 Federal Register 5441), the intent and purposes for the inactment of the
medical removal protection benefits standard, the analysis of the standard by the Court of
Appeals and Supreme Court, and in short would operate as an absolute, economic deterrent
for employees who are the subject matter to be protected by the standard or to take
advantage of the medical removal provisions of the law.

So too, is respondent's argument of vagueness as to
earnings, rights and benefits. The law does not make any distinction between the job
classification which precipitated the employee's removal from excessive lead exposure to
that job to which he is assigned thereafter, insofar as reallocation of pay and benefits,
except to state that his pay and benefit shall be the same as if he had not been removed,
and the argument that he would intend to return to excess lead exposure cannot be
entertained as a serious argument.

There can be no vagueness where the respondent and
the employees' representative have clearly established a job title, duty, pay
classification system. In fact, no system could be more clear to apply, with the caveat,
that in the unlikely event that collective bargaining classifications should be in
conflict with the standard the collective bargaining agreement would by law be subservient
to the standard to guarantee the protection of the affected workers.

So too, any consideration, that overtime available to
a medically removed employee should be charged against him as having been offered and
refused would act as a detriment and a discouragement to an employee to take advantage of
the medically removal protection benefits.

To so charge an employee by virtue of the fact that
the employee has been removed to low exposure employment and is thus denied the
opportunity to participate in high exposure overtime, would completely negate the
beneficial and protective concept of wage retention and must therefore be rejected.

NATURE OF THE VIOLATION

The complainant strenuously argues that respondent
should be held in willful violation for not paving the full earnings, seniority and other
employment rights and benefits of the employees, based upon its alleged participation in
various OSHA hearings with respect to challenging the inactment of the standard and along
with other collateral case citations pertaining to other remedial legislation. However, we
are bound by the Commission's definition of willful violation; namely, a determination of
whether or not a respondent has consciously, deliberately, intentionally and voluntarily
violated the Act or has acted in careless disregard of employees' safety. Secretary v.
Constructors Maza, Inc. , Dockets 13680 and 14509, 78 OSHRC 6/E2, 6 BNA OSHC 1309
(1977-1978), CCH OSHD � 22,487.

Until the Supreme Court's final action of June 29,
1981, there was still a cloud over the finality of the standard. All acts of the
respondent in denying the employees medical removal benefits were taken prior to this
date, and it is not felt that it would be a willful violation of a standard under
litigation. Therefore, the violation is found to be de minimis, in that the violation had
no direct relationship to occupational safety or health, or imposed any additional hazard
to the employees.

The complainant further requests that an order be
entered directing payment by respondent of backpay of the overtime equivalent to that
which the affected employees would have earned had they not been medically transferred and
for the affected employees' half-hour lunch breaks, and in so doing has joined with the
respondent in a stipulated formula to be used.

However, it is felt that a finding of violation is
sufficient, with directions to the parties to exercise their stipulated formula to achieve
the desired abatement.

Failing this, and should there be affirmation of this
decision, respondent would be in continuing violation so long an the salary and benefits
are withheld the affected employees and be subjected to further citation for failure to
abate. It is felt that this is sufficient to resolve the issue until such time as
legislation is inacted to clearly enable the Commission to assess costs and as here,
perhaps contemplate the assessment of interest. John W. McGowan, Petitioner v. F. Ray
Marshall, Secretary of Labor & OSHRC, Respondents , Docket 77-3495, 604 F.2d 885
(5th Cir., 1979).

CONCLUSIONS OF LAW

1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and Health
   Review Commission by section 10(c) of the Act.

2. AMAX Lead Company of Missouri, in transferring five of its employees to a position
   within respondent's company, designated as low exposure, without compensating said
   employees for overtime equivalent to that which they would have earned had they not been
   medically transferred, resulted in respondent violating 29 CFR 1910.1025(k)(2)(i) and
   (k)(2)(vii).

3. AMAX Lead Company of Missouri, in transferring six
   of its employees to a position within respondent's company, designated as low exposure,
   without compensating said employees for their half-hour lunch breaks for which they would
   have been paid had they not been medically transferred from employment in the smelting
   area of respondent's plant, respondent has violated 29 CFR 1910.1025(k)(2)(i) and
   (k)(2)(vii).

4. The definition of medical removal protection
   benefits includes compensation for lost overtime work opportunities and straight time pay
   for half-hour lunch breaks.

DECISION AND ORDER

The violations of 29 CFR 1910.1025(k)(2)(i) and
(k)(2)(vii) are de minimis, and no penalty is assessed.

Paul E. Dixon, Judge, OSHRC

DATE: September 3, 1981

FOOTNOTES:

[[1]] Docket Nos. 80-1793 and 81-2267 have previously
been consolidated by order of the Commission. Because Docket No. 81-856 involves questions
of law and fact similar to those in the other two cases, we consolidate all three cases
for decisional purposes. Commission Rule of Procedure 9, 29 C.F.R. � 2200.9.

[[1/]]That standard requires:

� 1910.1025 Lead

(k) Medical Removal Protection

(2) Medical removal protection benefits --

(1) Provision of medical removal protection benefits . The employer shall provide to
an employee up to eighteen (18) months of medical removal protection benefits on each
occasion that an employee is removed from exposure to lead or otherwise limited pursuant
to this section.

(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.

[[1/]] Insofar as is relevant here, the standard
provides:

�1910.1025 Lead

(k) Medical Removal Protection

(2) Medical removal protection benefits --

(i) Provision of medical removal protection benefits . The employer shall provide to
an employee up to eighteen (18) months of medical removal protection benefits on each
occasion that an employee is removed from exposure to lead or otherwise limited pursuant
to this section.

(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.

[[2/]] The lead standard requires that an employee
whose blood lead level exceeds a specified concentration be removed from a work area in
which the ambient airborne concentration of lead exceeds a certain amount. Since the
expiration of the phase-in period during which higher concentrations were permitted, the
standard has required that an employee with a blood lead level at or above 50 ug/100g of
whole blood be removed from work having a daily eight hour time-weighted-average exposure
to airborne lead at or above 30 �g/m 3 . 29 C.F.R. � 1910.1025(k)(1)(i). [This
case, however, arose during the phase-in period.] The standard also requires removal if a
"final medical determination" establishes that an employee has a "detected
medical condition which places the employee at increased risk of material impairment to
health from exposure to lead." 29 C.F.R. � 1910.1025(k)(1)(ii)(A).

[[3/]] In our initial decision in this case, and in
the appeal before the Fifth Circuit, this case was consolidated with St. Joe Resources
Co. , OSHRC Docket No. 81-2267, and Schuylkill Metals Corp. , OSHRC Docket No.
81-856. Because the cases no longer involve a single common legal issue, they are hereby
severed pursuant to Commission Rule 10, 29 C.F.R. � 2200.10.

[[4/]] We must apply the Fifth Circuit's
interpretation as the "law of the case." See In re Progressive Farmers
Ass'n , 829 F.2d 651, 655 (8th Cir. 1987), cert . denied sub nom . South
Central Enterprises v. Farrington , 108 S.Ct. 1574 (1988). In another decision issued
today, East Penn Manufacturing Co. , OSHRC Docket No. 87-537 (Apr. 27, 1989), we
have overruled the Commission's decision in Amax and aligned the Commission's
interpretation of the medical removal protection provision with that of the Fifth Circuit
in United Steelworkers of America  v. Schuylkill Metals Corp.

[[5/]] The Fifth Circuit said that paid lunch periods
may be included in the payments and benefits that employees are entitled to receive under
the standard. 828 F.2d at 320-22 & n. 4. However, we read this language to be
consistent with the remainder of the court's decision, which focused on assuring that
employees suffer no economic loss. As noted in the text, the court approved the
Secretary's interpretation, which states that employees must receive the compensation they
would have earned if not removed. The court also relied on the standard's preamble, which
it found demonstrated a "near obsession that workers sustain no 'economic loss'
because of removal . . . . " Id . at 322. Accordingly, we read the court's
opinion to require employers to compensate a removed employee for paid lunch periods when
failing to do so would reduce the employee's total compensation. We do not read either the
court's opinion or the standard to require employers to pay employees more than
they would have earned if not removed.

[[6/]] Because she rejects each of the arguments
either on its merits or by applying the law of the circuit, Commissioner Arey finds it
unnecessary to consider the arguments of the parties directed to the Commission's
authority to rule on validity challenges the argument that Amax's challenge is barred by
collateral estoppel, and Amax's contention that the Secretary untimely raised the
collateral estoppel issue.

[[7/]] The cited workplace and Amax's principal place
of business are located in Missouri, which is in the Eighth Circuit. Although this case
was previously appealed to the Fifth Circuit, that court only had jurisdiction because
this case was consolidated with another case that arose in the Fifth Circuit. The cases
have now been severed, and they must be appealed separately wherever jurisdiction lies.

[[8/]] Commission Rule 92(a), 29 C.F.R. �
2200.92(a), provides:

� 2200.92 Review by the Commission ;

(a) Jurisdiction of the Commission;

Issues on review . Unless the Commission orders otherwise, a direction for review
establishes jurisdiction in the Commission to review the entire case. The issues to be
decided on review are within the discretion of the Commission but ordinarily will be those
stated in the direction for review, those raised in the petitions for discretionary
review, or those stated in any later order.

[[9/]] In RSR Corp. v. Donovan , 733 F.2d 1142
(5th Cir. 1984), the court adverted to, but did not discuss or define, "other
appropriate relief" in the one instance in which the Commission has issued what
amounted to a retroactive pay order: the Commission ordered a remand of certain cases for
a determination of the amount of medical removal protection benefits due the employees.
However, the Commission had not said that it was ordering "other appropriate
relief;" in fact, the Commission did not give any attention to what authority it had
to issue such an order. RSR Corp. , 83 OSAHRC 6/A2, 11 BNA OSHC 1163, 1983-84 CCH
OSHD � 26,429 (No. 79-3813, 1983). The court's reference to that term has little
application here since the court was addressing only whether the Commission's decision was
a final order from which the employer could appeal. Despite the remand for determination
of benefits due, the employer wanted court review of the foundational portions of the
Commission decision the Commission's affirmance of the underlying citations and penalties.
The Secretary moved to dismiss the appeal on the ground that the Commission's decision was
not final. On this the court replied, "Only a crabbed reading of section 10(c) [29
U.S.C. � 659(c)] would forbid review of an order that affirmed in part and modified in
part both citations and penalties simply because the issue of what other (and additional)
relief is appropriate has been remanded for determination." 733 F.2d at 1144. The
court denied the Secretary's Motion to Dismiss. Whether the Commission had authority to
order retroactive pay was not before the court, and the court gave the question no
attention. Accordingly, Chairman Buckley declines to assign to the court's decision
authority for the Commission to make individual compensatory awards.

[[1]] Docket Nos. 80-1793 and 81-2267 have previously
been consolidated by order of the Commission. Because Docket No. 81-0856 involves
questions of law and fact similar to those in the other two cases, we consolidate all
three cases for decisional purposes. Commission Rule of Procedure 9, 29 C.F.R. � 2200.9.

[[2]] The pre-1975 standard was derived from a
standard issued by the American National Standards Institute. The Secretary promulgated it
under section 6(a) of the Act, 29 U.S.C. � 655(a), which authorized the Secretary to
adopt national consensus standards as OSHA standards without notice-and-comment rulemaking
proceedings within two years of the Act's effective date.

[[3]] In promulgating the new standard, the Secretary
acted under section 6(b) of the Act, 29 U.S.C. �655(b), which authorizes the Secretary to
promulgate occupational safety and health standards following notice-and-comment
rulemaking proceedings.

[[4]] Due to feasibility constraints, certain of the
standard's provisions, including the permissible exposure limit, are phased in over a
period of time. In our description of the provisions of the standard, we have for the sake
of clarity used those numerical values that are in effect after the standard is fully
phased in. Certain of the values given were not in effect at the time the alleged
violations in these cases occurred, but this is not significant for purposes of this
decision.

[[5]] The words "high" and "low"
are, of course, relative. For purposes of this decision, we use them to distinguish
between airborne lead concentrations from which employees with elevated blood lead levels
must be removed, and concentrations to which such employees may permissibly be exposed.

[[6]] The employees Schuylkill transferred did not
have blood lead levels sufficiently high to require their removal under the standard. They
did, however, have blood lead levels higher than the plantwide average. According to
Schuylkill, the company measured the blood lead level of employees and, when a particular
employee was found to have a level above average, the employee was observed closely to
determine the cause of the increase. If it was found that the increase was due to poor
hygiene habits or failure to wear a respirator properly, the employee was transferred from
the production area to the change house for purposes of discipline and retraining.

The Secretary contends that Schuylkill was required
to pay MRP benefits even though the transferred employees did not have blood lead levels
high enough to require their removal. The Secretary points to subsection
1910.1025(k)(2)(vii), which provides:

Where an employer, although not required by this section to do so, removes an employee
from exposure to lead or otherwise places limitations on an employee due to the effects of
lead exposure on the employee's medical condition, the employer shall provide medical
removal protection benefits to the employee equal to that required by paragraph (k)(2)(i)
of this section.

The Secretary argues that the employees Schuylkill
transferred were transferred because they had rising blood lead levels, that the transfers
were therefore a result of the effects of lead exposure on the employees' medical
condition, and that this section therefore requires Schuylkill to pay MRP benefits to the
employees. Schuylkill argues that the transfers were for the purpose of discipline and
retraining, and not a result of the effects of lead exposure on the employees' medical
condition. Schuylkill points to the testimony of its plant physician that none of the
employees had primary conditions associated with occupational lead exposure and none were
at an increased risk to their health if they had continued in their jobs.

We find it unnecessary to resolve this dispute. Under our interpretation of the standard,
even assuming Schuylkill was required to pay MRP benefits, the payments it made to the
transferred employees were adequate to discharge that obligation.

[[7]] The Mine Act was subsequently amended and
redesignated the Federal Mine Safety and Health Act of 1977. Pub.L. 95-164, 91 Stat. 1290
(Nov. 9, 1977). The amendments did not affect the Act's MRP provision.

[[8]] We also note that, if the Secretary intended
"earnings" to include premium payments, his statement that he did not include
such a definition because it would be likely to confuse some employers is difficult to
credit. About a year after he adopted the lead standard, the Secretary published
appendices that were intended to summarize key provisions of the standard for employees.
44 Fed. Reg. 60980 (Oct. 23, 1979). Section IX of Appendix B discusses medical removal
protection and states: "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." Id. at 60987. The Secretary's ability to draft such a
clear and concise definition for the information of employees suggests he could have also
drafted a definition that would not have confused employers if he indeed intended to
include premium payments in "earnings" when he adopted the standard. Thus we
conclude, from the fact that he did not do so when adopting the standard, that he did not
intend "'earnings" to include the premium payments to which he later referred in
this summarization for employees. We do not accord dispositive weight to this
summarization because it was not composed when the standard was promulgated and thus is
not a contemporaneous explanation and interpretation. L.E. Myers Co. , 86 OSAHRC__
12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD � 27,476, p. 35,604 n.9 (No. 82-1137, 1986).
Moreover, it is inconsistent with the history of the standard we have cited.

[[9]] Amax and St. Joe argue that the lead standard
is invalid and that promulgation of the MRP provision exceeds the Secretary's authority.
The Secretary counters that the principle of collateral estoppel precludes the employers
from challenging the standard's validity in this proceeding, pointing out that the D. C.
Circuit in Steelworkers rejected the employers' validity arguments and arguing that
Amax and St. Joe were either parties to Steelworkers or were in privity with
parties to that case. Because of our disposition, we need not reach either the validity
arguments raised by the employers or the collateral estoppel argument made by the
Secretary.