St. Joe Resources Company

Read the official release (oshrc.gov)

Plain-English summary

St. Joe 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 for compensation lost after medical removal. The court remanded for calculation of the amounts owed to the employees identified in the citations. The Commission then sent the case to an administrative law judge to make the necessary findings and order payment, 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 order back pay to restore earnings lost when employees are medically removed from lead exposure.

Full text (OSHRC public release)

Docket No. 81-2267

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC, and its LOCAL UNION

8183,

Authorized Employee

Representative.

OSHRC DOCKET NO. 81-2267

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 St. Joe Resources Company 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 St. Joe Resources
Company 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.

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 therefore remanded the case for the Commission to determine the amounts of back
pay owed to the employees identified in the citations issued to St. Joe Resources.

We, in turn, remand this case for an administrative
law judge to make the necessary findings of fact and enter an order requiring payment of
back pay, as directed by the court. 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 and for further proceedings consistent with this
order.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: December 4, 1990

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC, and its LOCAL UNION

8183,

Authorized Employee

Representative.

OSHRC DOCKET No. 81-2267

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

This case involves the medical removal protection
("MRP") 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 the second time. In the
first decision, the commission concluded that St. Joe Resources Company ("St.
Joe") did not violate the standard by failing to include overtime compensation and
shift differential payments in the amounts it paid to an employee under the
provision.[[3/]] 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 said
that the standard was "intended to include within 'earnings' precisely the kind of
premium payments at issue here." United Steelworkers of America v. Schuylkill
Metals Corp. , 828 F.2d 314, 321 (5th Cir. 1987). The court remanded "for further
proceedings attuned to this opinion". Id. at 323.

I

Our first decision set forth the relevant facts, and
we will only briefly summarize them here. An employee at St. Joe's zinc smelter was
removed from his position as "weighman" because of an elevated blood lead level
and was transferred to a position as laborer, a job that did not expose him to excessive
lead. During the removal period, he worked 40 hours per week and was paid at the base
hourly rate he would have received as a weighman. However, had he remained a weighman, the
employee would have worked a certain number of hours of overtime under a schedule
incorporated in St. Joe's collective bargaining agreement with the United Steelworkers of
America. The employee would also have received additional payments ("shift
differentials") for scheduled evening and night work. Also, while employed as a
weighman, the employee had been given the opportunity to work additional hours of overtime
beyond those scheduled, and during his 16 weeks in that position, he had worked 45 hours
of such voluntary overtime. Thus, the employee's weekly pay during the removal period was
less than he would have received if he had remained a weighman.

The Fifth Circuit held that the lead standard's
medical removal protection provision requires an employer to assure that a removed
employee does not suffer economic loss. Under that interpretation, St. Joe was required to
pay its employee at least the scheduled overtime compensation and shift differential
payments he would have earned if not removed.[[4/]] Accordingly, St. Joe failed to comply
with the standard.[[5/]]

II

St. Joe argues that the medical removal protection
provision of the lead standard was invalidly promulgated because the Secretary of Labor
lacked the authority to adopt such a requirement. The Commission members both reject St.
Joe's argument, but for different reasons.

Chairman Buckley believes that Commission
consideration of the argument is foreclosed by the Fifth Circuit's remand order. The
argument raised by St. Joe was 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. In Chairman Buckley's view, this
language demonstrates that the Fifth Circuit considered the validity of the standard to be
an established fact, at least for purposes of this case. Chairman Buckley therefore
concludes that the court's remand order precludes the Commission from ruling on the
validity argument raised by St. Joe.

Commissioner Arey does not believe that the Fifth
Circuit's decision precludes consideration of the issue. She notes that the validity
argument was 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 St. Joe's validity argument, and would reject it on its
merits.[[6/]]

St. Joe's argument contains several prongs. The
company first argues that the Act only authorizes the Secretary to issue standards to
protect employee safety and health, and the MRP provision does not meet this criterion
because it "does not prevent employee illnesses or biological changes in their bodies
resulting from exposure to inorganic lead." Instead, St. Joe contends, the MRP
provision is like a workers' compensation scheme, requiring payments for biological
changes to workers' bodies that have already occurred.

It is true that the Secretary only has the authority
to issue standards that promote workplace safety and health. American Textile
Manufacturers Institute v. Donovan , 452 U.S. 490, 540 101 S.Ct. 2478, 2506 (1981). In
Commissioner Arey's view, however, it is abundantly clear that the medical removal
protection provisions of the lead standard, including the requirement for the payment of
medical removal protection benefits, fulfill this purpose. The standard limits the amount
of lead employees inhale and ingest by establishing a permissible exposure limit for
airborne lead and through other provisions that prevent exposure to lead. However, during
the rulemaking proceedings, the Secretary found that some employees would still have
excessive blood lead levels even if those limits were met. 43 Fed. Reg. 52952, 52963 (Nov.
14, 1978). The Secretary was concerned that these employees, as well as employees who had
medical conditions that would be aggravated by exposure to lead, would have their health
endangered if they remained in jobs where they would be exposed to significant amounts of
lead. Therefore, the Secretary adopted the MRP provision, requiring that such employees be
removed from jobs involving high levels of lead exposure, as a "fall-back mechanism
to protect individual workers in circumstances where other protective mechanisms were
insufficient." 43 Fed. Reg. at 52973.

In order to determine whether an employee's health
would be endangered by continued exposure to lead, it is necessary to measure the
employee's blood lead level and to rely on the employee to disclose other medical
conditions that could lead to medical removal. However, the Secretary found that employees
faced with the potential loss of their income if they cooperate with medical surveillance
will often withhold such cooperation, thereby sacrificing their health for their
paycheck.[[7/]] 43 Fed. Reg. 54354, 54422 (Nov 21, 1978). The requirement for payment of
MRP benefits was therefore included in the standard to eliminate the likelihood that
employees would endanger their physical health to assure their economic health. See
East Penn Manufacturing Co. , OSHRC Docket No. 87-537 (Apr. 27, 1989) (Arey,
concurring).

Commissioner Arey believes that the Secretary's
rulemaking findings, based as they were on an extensive rulemaking record, are entitled to
deference. Id. at n. 5. Moreover, she notes that those findings are supported by common
sense. The vast majority of employees, particularly those in the types of industrial jobs
that involve exposure to lead, can ill afford to be removed from their jobs if this will
result in the loss, or even a decrease, in their paychecks. Commissioner Arey therefore
concludes that the requirement for payment of MRP benefits is directly related to the
protection of employee health, and she rejects St. Joe's contrary argument.

St. Joe also contends that Congress specifically
intended to withhold from the Secretary the authority to require employers to pay MRP
benefits. The company's arguments in support of this claim are the same arguments that
were specifically considered and rejected by the D.C. Circuit, and Commissioner Arey would
reject these arguments for the reasons given by the court. United Steelworkers of
America v. Marshall , 647 F.2d at 1232-36.

III

St. Joe also argues that the citation should be
vacated because the Secretary did not show that abatement of the violation will reduce a
significant risk of harm. St. Joe points out that the purpose of the medical removal
protection provision is to induce employees to cooperate with the lead standard's medical
surveillance provisions, and particularly to consent to blood testing.[[8/]] St. Joe,
however, required its employees to undergo medical surveillance. Failure to
cooperate with medical surveillance would subject an employee to discipline, up to and
including discharge. Therefore, according to the company, the standard's purpose was
achieved in its workplace, and there was no significant risk that the health of its
employees would be endangered by its failure to pay MRP benefits. St. Joe relies on Pratt
& Whitney Aircraft v. Secretary of Labor , 649 F.2d 96 (2d Cir. 1981), for the
proposition that the Secretary must "demonstrate that abatement will reduce a
significant risk of harm."

To prove that an employer violated an OSHA standard,
the Secretary must establish (1) the applicability of the standard; (2) the employer's
noncompliance with the standard; (3) employee exposure or access to the violative
condition; and (4) that the employer knew or with reasonable diligence could have known of
the violative condition. See Dun-Par Engineered Form Co. , 12 BNA OSHC 1949,
1952, 1986-87 CCH OSHD � 27,650 at p. 36,019 (No. 79-2553, 1986), rev'd on other
grounds , 843 F.2d 1135 (8th Cir. 1988). St. Joe argues that the Secretary should bear
an additional burden by being required to prove that the violation creates a significant
risk of harm to employees. While that burden exists in some cases, this is not such a
case.

Some OSHA standards, by their terms, only require an
employer to take corrective action where a "hazard" or "danger"
exists. For such standards, the Secretary must show that employees are subjected to a
significant risk of harm in order to prove that a hazard exists. Pratt & Whitney
Aircraft v. Donovan , 715 F.2d 57, 63-64 (2d Cir. 1983);[[9/]] Donovan v. General
Motors Corp. , 764 F.2d 32, 35-36 (1st Cir. 1985); Kastalon, Inc. , 12 BNA OSHC
1928, 1937-38, 1986, CCH OSHD � 27,643, p. 35,980 (No. 79-3561, 1986). However, a
standard that does not condition the employer's obligation to take corrective action on
the existence of a hazard presumes that a hazard exists if the standard's terms are not
met. The Secretary need not prove that an employer's violation of such a standard exposes
employees to a significant risk of harm. Modern Drop Forge Co. v. Secretary of Labor, 683
F.2d 1105, 1114-15 (7th Cir. 1982); Bunge Corp. v. Secretary of Labor , 638 F.2d
831, 834 (5th Cir. 1981). Cf . Pratt & Whitney Aircraft v. Donovan , 715
F.2d at 63-64 (discussing distinction between standards that presume the existence of a
hazard and those that do not).

The medical removal protection provision does not
condition an employer's responsibility to pay MRP benefits on proof that employees will be
subjected to a hazard if the payments are not made. The Secretary therefore need not prove
that the employer's failure to make MRP payments exposes employees to a significant risk
of harm. The Secretary met her burden of proof, and we conclude that St. Joe violated the
standard.

St. Joe also argues that its policy of requiring
employees to cooperate with medical surveillance, by eliminating the hazard against which
the standard is directed, renders the violation de minimis . A violation is de
minimis when there is technical noncompliance with a standard, but the departure
bears such a negligible relationship to employee safety or health as to render
inappropriate the assessment of a penalty or the 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). St. Joe argues that the step it has taken to assure employee cooperation
with medical surveillance--mandating such cooperation under threat of discipline--is as
effective as the means required by the standard: payment of MRP benefits. Therefore,
according to the company, it has eliminated the hazard addressed by the standard, and its
failure to pay full MRP benefits bears no relationship to employee safety or health.

St. Joe's argument must be rejected because it
questions the wisdom of the standard. In promulgating the lead standard, the Secretary
rejected the suggestion that the standard should require that employees cooperate with
medical surveillance. Instead, the Secretary chose to encourage such cooperation by
providing for medical removal protection benefits. The de minimis
classification cannot be used to override the Secretary's rulemaking decision. General
Carbon Co. v. OSHRC , 860 F.2d 479, 487 (D.C. Cir. 1988). Therefore, even if we were
persuaded that St. Joe's substitute for MRP benefits would be equally effective in
providing a safe and healthful workplace, we would not find the violation de minimis .

We note, however, that there is another flaw in St.
Joe's argument. St. Joe assumes that mandating employee cooperation with the standard's
medical surveillance provisions will fully accomplish the objective of the medical removal
protection provision. However, the Secretary had an additional concern when he adopted the
MRP standard. Certain types of drugs, called chelating drugs, remove lead from the
bloodstream but have harmful side effects. The Secretary was concerned that mandatory
blood tests would induce employees to resort to chelating drugs to reduce their blood lead
levels if high blood lead levels could lead to loss of income, thereby exposing the
employees to the adverse health effects the drugs can cause.[[10/]] The requirement that
employers pay medical removal protection benefits was not only intended to induce employee
cooperation with medical surveillance, but also to eliminate any reason for employees to
use chelating drugs to reduce their blood lead levels. An employer policy mandating
employee cooperation with medical surveillance might induce employees to endanger their
health by using chelating drugs and would therefore not protect employee health as well as
the payment of MRP benefits.

IV

The administrative law judge found that the violation
was properly classified as serious. We agree. 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 protect employees by eliminating the possibility that they will use
chelating drugs to reduce their blood lead levels and thereby expose themselves to the
serious health risks such drugs can cause.

A violation that could result in serious damage to the health of employees is properly
classified as serious. Phelps Dodge Corp. , 83 OSAHRC 29/A2, 11 BNA OSHC 1441,
1448-49, 1983 CCH OSHD � 26,552, p. 33,925 (No. 80-3203, 1983), aff'd , 725 F.2d
1237 (9th Cir. 1984). The MRP standard is designed to protect particularly susceptible
employees against the serious health risk presented by workplace lead exposure, as well as
avoid serious health risks from the use of chelating drugs. Since the potential for
serious harm exists whenever the MRP standard is violated, we conclude that St. Joe's
violation of the standard was serious.[[11/]]

The Secretary proposed, and the judge assessed, a
penalty of $60. Although the violation was serious, St. Joe exhibited good faith in
implementing a medical surveillance program and in making those MRP benefit payments it
believed were due under its reasonable but erroneous interpretation of the standard's
requirements. We conclude that a penalty of $60 is appropriate.

V

Normally, an 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 St. Joe to pay the removed employee
the specific amounts that were due him but not paid. St. Joe contends that the Commission
lacks the authority to issue such an order. St. Joe also argues that 29 U.S.C. � 659(b)
[[12/]] tolls any requirement for abatement while a contest is pending before the
Commission, and that this provision means that any duty it has to pay overtime
compensation and shift differential payments under the MRP standard cannot apply
retroactively to require it to make the payments withheld in this case.

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".[[13/]] 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 accepting St. Joe's argument 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, paid lunch time, 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 issue an order requiring St.
Joe to pay the amounts it improperly withheld under the terms of the medical removal
protection standard. She believes that the Commission has the authority to issue this type
of order and that such an order is appropriate in this case to resolve the disputed issues
between the parties concerning what St. Joe must do to abate the violation. St. Joe argues
that it need not pay past-due amounts; the Secretary and the Union argue otherwise. The
parties also dispute whether St. Joe is required to make payments for voluntary overtime,
in addition to the payment for scheduled overtime and shift differential payments.
Commissioner Arey believes that the Commission, which sits to resolve disputes that arise
under the Secretary's standards, can and should decide the issues presented by the
parties. If those issues remain unresolved, the uncertainty over St. Joe's abatement
obligation will continue and could result in the issuance of a failure-to-abate
notification if St. Joe does not pay the amounts the Secretary believes are due.
Commissioner Arey believes it would be preferable to define St. Joe's obligation now and
eliminate the need for a potential failure-to-abate proceeding.

Commissioner Arey would reject St. Joe's argument
that 29 U.S.C. � 659(b) relieves it of responsibility for paying past-due amounts.
Section 659(b) provides that the abatement period does not begin to run in this case until
the Commission enters a final order.[[14/]] St. Joe contends that the meaning of this
statutory provision is that it is only required to make MRP benefit payments for medical
removals that occur after the date of the Commission's final order. However, the Secretary
and the Union argue that the tolling provision controls only the timing of
abatement, not the requirement of abatement, and that abatement of the violation
requires St. Joe to pay the amounts it withheld from the employee whose removal led to
this case.

Commissioner Arey believes that the Secretary and the
Union are correct. The specific violation alleged and proved in this case was St. Joe's
failure to make MRP benefit payments to a single employee, Simpson Butler, during the
period of his medical removal. Butler was removed from his old job as a weighman on or
about July 17, 1981, and he was still in removal status when the citation was issued on
September 11, 1981. That citation ordered St. Joe to abate the violation on or before
September 29, 1981, that is, eighteen days after the citation's issuance. In commissioner
Arey's view, the abatement required under the citation was, and is, payment to Butler of
the benefits that were improperly withheld from him for the work he would have performed
as a weighman between July 17 and September 11, 1981, if he had not been medically removed
from that position. Only by making these specific payments can St. Joe abate the violation
that has been alleged and proved in this case. The effect of section 659(b) and St. Joe's
notice of contest has been to toll this abatement requirement during the pendency of
proceedings before the Commission and its judge. Once the Commission issues its final
order, however, St. Joe's duty to abate will be reinstated. This means that St. Joe will
then have the same period specified in the citation (eighteen days) to abate the violation
by compensating Butler for the MRP benefits it improperly withheld from him for the work
he would have performed between July 17 and September 11, 1981.

Abatement of occupational safety and health
violations can require the expenditure of considerable resources by employers. The tolling
provision in section 659(b) permits employers to obtain a Commission ruling on whether
such expenditures are in fact required by the Act before the employers must make them. But
section 659(b) does not mean that an employer can avoid entirely the need to make
expenditures required by a standard. Commissioner Arey therefore concludes that, once the
Commission issues a final order, St. Joe must pay the amounts it improperly withheld.

Commissioner Arey would also hold that St. Joe is not
only required to pay the removed employee for improperly withheld scheduled overtime and
shift differential payments, as found by the administrative law Judge, but is also
required to compensate him for improperly withheld voluntary overtime payments. In her
view, the standard generally requires the employer to pay a removed employee the same
total amount after removal as before or, in other words, to make the employee whole. East
Penn Manufacturing Co. , OSHRC Docket No. 87-537 (Apr. 27, 1989) (concurring opinion).
Although St. Joe's employee had the right to refuse voluntary overtime, he had a history
of accepting it. Based on this past history and records of the amount of voluntary
overtime that was available during the period of his medical removal, the Commission could
make a reasonably reliable estimate of the amount of voluntary overtime Butler would have
earned if he had not been removed. Accordingly, the judge erred in failing to compensate
the employee for improperly withheld voluntary overtime payments based on his conclusion
that these payments were too speculative to be included in his backpay order.

Official action can only be taken on the affirmative
vote of at least two Commission members. 29 U.S.C. � 661(f). The Commission members both
agree to affirm the serious citation and assess a penalty of $60. They are divided on the
propriety of a "backpay" order, and therefore cannot issue such an order.[[15/]]

Accordingly, the citation alleging a serious
violation of 29 C.F.R. � 1910.1025(k)(2) 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.

ST. JOE RESOURCES COMPANY,

Respondent.

OSHRC DOCKET NO. 81-2267

DECISION AND ORDER

Ditore, J.

PRELIMINARY STATEMENT

As a result of an inspection of Respondent's facility
at Monaca, Pennsylvania, on August 7 and August 20, 1981, by a safety and health officer
of the Occupational Safety and Health Administration, a citation was issued to Respondent
for a serious violation of 29 CFR � 1910.1025(k)(2)(i) with a proposed penalty of $60.00.
Respondent contested the citation and penalty.

The citation alleges:

"An employee removed from exposure to lead, or
otherwise limited pursuant to this section was not provided with medical removal
protection benefits.

(a) Simpson Butler was removed from his assignment as
weighman and reassigned to a clean-up position it approximately $150 per month reduction
in wages.

Subsection (2)(i) of Section 1910.1025(k) is entitled
"(2) Medical removal protection benefits - (i) Provision of medical removal
protection benefits" and provides :

"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."

Subsection (2)(ii) of Section 1910.1025(k) defines
medical removal protection benefits as follows:

"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."

In lieu of a hearing, Complainant, Respondent and the
Union (United Steelworkers of America), the parties to this action, have agreed to submit
the contested issues for resolution on the basis of a Joint Stipulation of facts (Court
Exh. A).

ISSUES

1. Whether the promulgation of Section
   1910.1025(k)(2)(i) Lead Standard was a valid exercise of the Secretary of Labor's
   statutory authority under the Occupational Safety and Health Act of 1970.

2. If it was, whether the standard conflicted with
   Section 4(b)(4) of the Act (29 U.S.C. � 653(b)(4)

3. If it did not, whether Respondent violated the
   standard.

4. If it did, whether the violation was serious.

5. If it was, whether Commission has the authority to
   order an abatement of the violation by means of retroactive "back pay".

6. Is the proposed penalty reasonable and proper.

STATEMENT OF FACTS

For the purposes of convenience the Joint stipulation
of the Parties is set forth verbatim.

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

1. Respondent is a corporation with its principal office and place of business in New York
   City, New York. Respondent maintains an office and place of business at Josephtown Road,
   Monaca, Pennsylvania.

2. An inspection of Respondent's Monaca, Pennsylvania
   facility was conducted between August 7 and August 20, 1981 by a compliance safety and
   health officer from the Pittsburgh, Pennsylvania 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 at its Monaca, Pennsylvania facility in
the business of zinc smelting and refining.

4. Respondent employs approximately 450 employees at
   its Zinc smelting and refining facility in Monaca, Pennsylvania.

5. Respondent utilizes goods, equipment and materials shipped from outside the State of
   Pennsylvania and is engaged in a business affecting commerce. Respondent is, therefore, an
   employer within the meaning of the Occupational Safety and Health Act" ("the
   Act").

6. Following the aforesaid inspection by the
   Secretary's representative, a citation was issued to Respondent. The citation alleged that
   Respondent was in serious violation of the Act; a penalty of sixty dollars ($60.00) was
   proposed. A copy of the Citation and Notice of Proposed Penalty marked Exhibit
   "A", is attached hereto and made a part hereof. The citation alleges a violation
   of paragraph (k)(2)(i) of the provisions of 29 C.F.R. Section 1910.1025, et seq .
   ("the lead standard"). A copy of the lead standard and Appendices A and B
   thereto, marked Exhibit "B", is attached hereto and made a part hereof. Also
   attached as Exhibit "C" are the Preambles to the lead standard published in the
   Federal Register on November 14 and November 21, 1978 and the corrections thereto. In
   stipulating that the Appendices to the lead standard and Exhibit C may be made part of the
   record herein, Respondent agrees that the said documents are available to the public and
   represent statements that the Secretary has made with respect to the lead standard.
   Respondent's agreement to this stipulation does not constitute agreement with or
   acquiescence [sic] in any statement of law or fact made by the Secretary or any other
   person in said documents.

7. The serious citation and proposed assessment of
   penalties were timely contested by Respondent.

8. Jurisdiction of this proceeding is conferred upon
   the Occupation Safety and Health Review Commission Section 10 of the Act.

9. Respondent's employee, Simpson Butler, employee

1558, was hired as a Laborer at Respondent's facility on November 17,1980. He had been

employed in the facility prior to its shutdown in December 1979 and was rehired when it
opened again in the Fall of 1980.

10. Pursuant to the provisions of the attached
    collective bargaining agreement between Respondent and the United Steelworkers of America
    ("USW"), Simpson Butler bid to and was awarded the position of Weighman in the
    Sinter Plant at Respondent's facility, which position he assumed on April 2, 1981. A copy
    of the agreement, marked" Exhibit D", is attached hereto.

11. On or about July 17, 1981, Respondent temporarily
    transferred Simpson Butler from his regular work assignment at Respondent's Monaca,
    Pennsylvania facility. In voluntary compliance with the provisions of 29 C.F.R. Section
    1910.1025(k)(1)(i)(C), Respondent removed Butler to a position involving low lead
    exposure. Respondent transferred Butler when blood tests taken by its medical personnel
    indicated that his blood lead level had reached or exceeded 60 micrograms of lead per
    deciliter (dl) of whole blood. Butler's blood lead levels between November 17, 1980 and
    February 23, 1982 were as follows:

Date
Blood lead level in
micro-grams/dl of whole blood

November 17, 1980
34

July 6, 1981
77

July 13, 1981
78

February 23, 1982
44

12. Respondent has, in compliance with the requirements of 29 C.F.R. Section 1910.1025(j),
    conducted a biological monitoring and medical surveillance program at its zinc smelting
    and refining facility in Monaca, Pennsylvania both prior to the cessation of operations in
    December 1979 and subsequent to the recommencement of operations in the Fall of 1980.

13. Respondent presently takes blood lead samples
    from: (1) Simpson Butler on a monthly basis; (2) about twenty-two employees every two
    months: and (3) about forty-two employees every six months.

14. Respondent uses the results of the blood lead
    samples to determine, inter alia , whether employees need to be removed from
    exposure to excessive air leads pursuant to the provisions of 29 C.F.R. Section
    1910.1025(k)(1)(i)(C).

15. The employees are notified periodically that they
    have been scheduled for biological monitoring, and they are expected to report on schedule
    to have their blood samples taken. The notices used for this purpose have informed the
    employees that participation in the program is a requirement of the job and refusal to
    participate will subject them to progressive discipline. Attached hereto as Exhibit
    "E" are copies notification sheets for biological monitoring that were posted in
    the facility.

16. Respondent will not tolerate the refusal of any
    employee to participate in its biological monitoring and surveillance program since such
    refusal would deprive Respondent of the information it needs to determine whether the
    employee is disqualified to work in atmospheres wherein air leads exceed OSHA prescribed
    exposure Iimits.

17. Respondent would exercise its rights pursuant to
    Articles XIV and VI of the agreement between it and the USW (Ex. D) to impose progressive
    discipline up to and including discharge on any employee who refuses to participate in
    Respondent's biological monitoring program. Respondent's position is that an employee's
    refusal to participate in the biological monitoring program is just cause for dismissal.

18. Respondent has had no need to impose discipline
    against any employee at its zinc smelting and refining facility for refusal to participate
    in its biological monitoring program. Instead, Respondent has counseled a small number of
    employees who expressed their reluctance to participate, and the counseling was sufficient
    to obtain their participation in the program.

19. Respondent has, however, warned at least one
    employee who refused to participate in Respondent's air lead monitoring program. The
    warning was documented by way of a letter filed in the employee's Department personnel
    file indicating that he would be given time off without pay for future infractions. The
    letter is attached as Exhibit F.

20. Articles VII, VIII, IX, of the attached
    collective bargaining agreement (Ex.D) , as modified by local agreements (Ex. G),
    represent the procedures followed by Respondent, and agreed to by the USW, regarding hours
    of work, regularly scheduled overtime, voluntary overtime and shift differential pay for
    the job position of Weighman.

(a) A weighman is assigned to one of four
"shifts" of employees. Each "shift" of employees is assigned a
20--week rotating schedule which permits Respondent's facility to operate seven days a
week with three 8-hour time shifts per day (day, evening and night shifts). Exhibit H
hereto shows a typical 20-week rotating schedule for one of the four employee
"shifts". During the 20-week period, an employee assigned this schedule, and who
is available to work at all times, will work:

• 35 daylight shifts;

• 35 evening shifts;

• 35 night shifts.

An employee assigned this schedule will work 15
Sundays and 5 sixth days. An employee who works the entire 20-week schedule will work a
total of 840 actual hours.

(b) The attached collective bargaining agreement (Ex.
D) provides that premium compensation be paid at the rate of 1.5 times an employee's base
rate of pay for scheduled Sunday and sixth day work (referred to also as scheduled
overtime"). Consequently, the total of available "compensable work hours, as
distinguished from hours actually worked, during the 20-week rotating schedule (Ex. H)
will be 920 hours, which is computed as follows:

1. Straight time:

(35 days x 3 x 8 hours per day) less 15 Sundays x 8 hours and 5 sixth days x 8
hours) = 680 hours;

2. Sunday premium:

15 Sundays x 8 hours x 1.5 = 180 hours;

3. Sixth day premium:

5 sixth days x 8 hours x 1.5 = 60 hours.

Thus, during a 20-week period, an employee who works
all scheduled shifts would be compensated for straight time and scheduled over-time
(Sunday and sixth day premium) in an amount equal to the following:

employee's base rate of pay x 920 hours.

(c) In addition, the attached collective bargaining
agreement provides that shift differential premiums be paid for scheduled evening and
night work. Thus, during the same period, if the employee works all scheduled shifts, he
will receive shift differential pay as follows;

35 night shifts x 8 hours per shift x $0.50 per hour
= $140.00

35 evening shifts x 8 hours per shift x $0.30 per
hour = $84.00

The maximum shift differential pay presently available during a 20-week schedule is
$224.00.

(d) On the basis of the above, an employee's wage for
one week of the 20-week scheduled period may be roughly approximated from the following
formula:

(employee's base rate x 920 hours) + $224.00

This formula produces only an approximation because
the employee is paid according to the shifts and days actually worked during a two-week
pay period. For example, if the employee worked all available time during the pay period
composed of weeks 1 and 2 on Exhibit H, he would not be paid for scheduled overtime
because there is none, but he would be paid for one week of night differential and one
week of evening differential. In contrast, during the pay period composed of weeks 3 and
4, the employee would receive only straight time pay for week 3, but would also receive
shift differential pay and premium pay for scheduled overtime for week 4.

21. When Simpson Butler assumed the duties of
    Weighman, he was assigned to the third "shift" of employees (Ex. I) who were
    then in week 14 of the rotating schedule, as shown in Exhibit H. Butler completed the
    remaining 6 weeks of this 20 week schedule with his group, and then commenced a new 20
    week schedule. He was removed from his job position when his employee "shift"
    was in week 10 of the new schedule. Thus, he worked a total of sixteen weeks over two
    20-week rotating schedules. Butler worked all scheduled shifts to which he was assigned
    during these sixteen weeks, working 656 actual hours.

22. Following removal as specified in paragraph 11,
    Butler was assigned Laborer duties at the smelter. He has been offered the opportunity to
    work 8-hour day light shifts, Monday through Friday, continuously since his removal from
    the position of Weighman. 800 hours of work have been available every 20 weeks. Exhibit J
    hereto is a Letter of Intent to supplement Article XII of the contract (Exhibit D) between
    Respondent and the USW.

Paragraph 9 of the Letter provides that employees who
are removed from exposure to excessive levels of a toxic substance and who are assigned to
other duties will have their rate protected during the reassignment. Butler's rate as a
Weighman has been protected since he was removed, i.e., he has received and continues to
receive his base rate of pay as a Weighman for hours he has worked as a Laborer. He did
not receive scheduled overtime work and he was not paid for such work, nor did he receive
shift differential pay. On the basis of the above, the wage for one week of a 20-week
period worked by Simpson Butler as a Laborer since he was removed may be represented by
the following formula:

employee's base rate x 800 hours

23. Voluntary overtime work, which is distinct from
    "scheduled" overtime (Sunday and sixth day work), is made available from time to
    time to employees who are assigned to a rotating schedule. Employees who desire to work
    voluntary overtime indicate their interest by signing up for this work on sheets used for
    that purpose. However, voluntary overtime work is not available on a regular basis. When
    it does become available, moreover, it varies in nature depending entirely on production
    and maintenance needs. The work offered to an employee may, and often does, involve duties
    different from those of his normal job position. The work is offered only to persons
    qualified and available to perform it. An employee may refuse an offer of voluntary
    overtime.

24. Simpson Butler worked 45 hours of voluntary
    overtime during the sixteen week period he worked as a Weighman. He accepted 16 hours of
    such work on two consecutive days in April, 1981, 8 hours on one day in May, 8 hours
    spread over two consecutive days in, June, and 13 hours spread over two separate days in
    July, 1981. The total of his voluntary overtime hours represents 6.86 percent of his total
    "scheduled" work time (656 hours) during this period. Butler received premium
    pay for his voluntary overtime hours in accordance with the terms of the attached
    collective bargaining agreement and related agreements. (Exs. D and G).

25.The amount of available voluntary overtime declined subsequent to Simpson Butler's
removal from his Weighman position. During the period he was a Weighman, 892.5 voluntary
overtime hours were worked in the Sinter Plant and 12,371 hours of scheduled time were
worked. Thus, the ratio of voluntary time to scheduled time was 7.21 percent. Thereafter,
during, the period beginning on July 27, 1981, and ending on April 26, 1982, 1,292.3
voluntary overtime hours were worked in the Sinter Plant and 34,222.7 scheduled hours were
worked. Accordingly, the ratio of voluntary time to scheduled time was 3.78 Percent
following his removal.

26. Simpson Butler was not routinely offered
    available non-scheduled overtime work following his removal. He was, however, offered one
    such overtime opportunity, but he declined the offer. Butler has not, therefore, received
    premium pay for voluntary overtime work subsequent to his removal.

27. Simpson Butler took one week of vacation from
    August 31 through September 4, 1981, and he did not work December 14 through December 18,
    1981 because of personal illness. For purposes of the procedures set forth herein
    (regarding hours of work, regularly scheduled overtime, voluntary overtime and shift
    differential pay), vacation and personal illness days are noncompensable time for all
    employees at Respondent's facility.

28. The parties stipulate and agree that Simpson Butler's base rate of pay was $9.78 per
    hour from the date of his removal until August 1, 1981 and has been $10.08 per hour since
    that date.

29. The parties stipulate and agree that the $10.08 rate shall be used to calculate
    overtime premium pay in the event the Commission enters a final order that either
    scheduled overtime premium pay or voluntary overtime premium pay or both are required
    under 29 C.F.R. �1910.1025(k)(2).

30. The scheduled average weekly overtime premium
    pay, calculated by subtracting the weekly wage figure generated by the formula in
    paragraph 22 from the weekly wage figure generated by the formula in paragraph 20(d), is
    $71.68.

31. The maximum weekly average voluntary overtime
    premium pay Butler could have earned since his removal had he been offered and accepted
    all such opportunities offered to him using the sinter plant average set out in the last
    sentence of Paragraph 25 herein is $22.86.

32. The parties stipulate and agree that either or
    both of the weekly average premium pay figures set forth in Paragraphs 30 and 31 will be
    used to calculate "back pay" if the Commission determines that back pay is
    required in its final order in this matter. The term "back pay" as used herein
    means that overtime premium pay whether scheduled, voluntary or both which the Commission
    might determine is required under 29 C.F.R. �1910.1025(k)(2) and which Butler did not
    receive during the period of this contest.

33. The parties stipulate and agree further that in the event the commission enters a
    final order requiring the payment of scheduled overtime or voluntary overtime premium pay
    prospectively as distinguished from retroactive or back pay, the pay figures appearing in
    this stipulation may be adjusted as appropriate to reflect the conditions that prevail as
    of such date.

34. The parties stipulate and agree further that in
    the event the Commission enters a final order in this matter requiring Respondent to pay
    Butler scheduled overtime premium pay, voluntary, overtime premium pay, or both regardless
    whether such order requires back pay or prospective pay or both, Respondent shall not be
    required to compensate him for time he was not available to perform work.

35. The parties also stipulate and agree that nothing
    said herein shall be construed to preclude Respondent from seeking a stay including a
    judicial stay of any final order of the Commission that might require the payment of
    overtime premium payment under 29 C.F.R. � 1910.1025(k)(2).

FACTUAL SUMMARY

In summary, on, April 2, 1981, Respondent's employee
Simpson Butler started work as a Weighman in the Sinter Plant of Respondent's facility
(Stip. � 10)*. On or about July 17, 1981, Butler was removed from, his position as
Weighman and transferred to the low lead exposure position of laborer. The removal and
transfer were based on blood tests taken by Respondent's medical personnel, which revealed
that Butler's blood lead level had reached or exceeded 60 micrograms of lead per deciliter
(dl) of whole blood. Butler's removal was mandated by Section 1910.1025(k)(1)(i)(C) (Stip.
� 11).

As a Weighman,Butler's earnings consisted of base or
straight time pay, shift differential pay, Sunday premium pay, 6th day premium pay
(scheduled overtime) and voluntary overtime pay (Stip. �'s 20, 21, 22, 23). Respondent
paid Butler the base rate of pay of a Weighman for all the hours he worked as a laborer
during the removal period (Stip. � 22). Respondent did not pay Butler shift differential
pay, scheduled overtime pay or voluntary overtime pay after his removal from the Weighman
position (Stip. (P0 22, 24, 26). Butler as a laborer worked 8 eight hours a day, Monday
through Friday, with no shift differential or scheduled overtime pay (Stip. � 22).

The basic issue is whether Respondent violated 29
C.F.R. 1910.1025 (k)(2)(i) by failing to pay Butler the scheduled overtime pay, shift
differential pay and voluntary overtime pay he would have earned if he had not been
removed from his position as Weighman.

The facts are not disputed Respondent has raised several legal arguments attacking the
validity and applicability of Section 1910.1025 (k)(2)(i)

First, Respondent argues that Section 1910.1025 (k)(2)(i) is invalid because the medical
removal protection benefits provision (MRPB) is beyond OSHA's statutory authority
(Respondent's brief pp 8-19) Respondent's posits its argument on the ground that the
Occupational Safety and Health Act (OSH) contains no express grant of authority to OSHA,
to require employers to maintain the earnings of a removed employee at the pre-removal
level. Respondent contends that Congress was well aware of the concept of the MRPB since
it had less than a year prior to the enactment of the OSH Act, granted such authority
under the Federal Mine Safety and Health Act. Therefore, Congress did not intend to grant
such authority to OSHA.

Respondent to support its conclusion as to
Congressional intent, utilizes the principle that "[w]here a statute with respect to
one subject contains given provisions, the omission of such a provision from a similar
statute is significant to show a different intention existed", citing case authority
including American Textile Manufacturers Institute v. Donovan * 452 U.S. 490, 101
S.Ct. 2478 (1981) (Respondent's brief p. 10). This issue, among others, was fully
litigated and argued before the D.C. Circuit in United Steelworkers v. Marshall
647 F.2d 1189 (1980), cert. denied, 453 U.S. 913 (1981), where the validity of the lead
standard, as promulgated, was challenged. Respondent was a party to that action
(Respondent's brief pp 22-23).

Chief Judge J. Skelly Wright writing for a majority
of the Court after an exhaustive analysis of the MRPB provision concluded that [t]he
substantive provisions of the lead standard, including the medical removal protection
program .... fall within the scope of OSHA's statutory power and are reasonable exercises
of that power. 647 F.2d at pages 1223-1234, 1311.

Respondent contends that the Court's decision in United
Steelworkers is incorrect and should not be followed. We do not agree with this
contention. We fully concur in the majority's decision including the Court's analysis
distinguishing the case relied on by Respondent in its brief here, Whirlpool
Corporation v. Secretary of Labor , 445 U.S. 1, 100 S. CT. 883 (1980).

The Secretary of Labor in promulgating the Lead
Standard has devised a comprehensive regulatory program to protect workers from the
dangerous hazards of overexposure to lead. The program requires the removal with attendant
benefits, of employees whose lead blood levels have reached and exceeded permissible
limits. See 29 C.F.R. 1910.1025 and sections thereunder.

In American Textile Manufacturers Institute Inc. , v. Donovan , 452 U.S. 490,
101 S.Ct. 2478 (1981), the United States Supreme Court had before it a challenge to the
validity of the cotton dust standard promulgated by the Secretary of Labor. Included
within the challenge was one made to OSHA's authority under that Act, to require employers
to guarantee that employees suffer no loss of earnings or other employment rights or
benefits when transferred due to exposure to cotton dust above a certain level.

The Court held that the Secretary of Labor in his
"Summary and Explanation of the Standard" never explained the wage guarantee
provision as an approach, designed to contribute to increased health protection but
explained it as solely designed "to minimize any adverse economic impact on an
employee. The Court concluded that since "the Act in no way authorized OSHA to repair
general unfairness to employees that is unrelated to achievement of health and safety
goals", it was beyond OSHA's statutory authority to promulgate the wage guarantee
regulation. 101 S.Ct. at 2505-2506.

The Court did acknowledge that a wage guarantee
provision if health related, may very well have merit but that the "health
related" contention must be properly articulated in the Secretary's determination or
statement of reasons and supported by substantial evidence. The Secretary of Labor failed
in these latter requirements when he promulgated the cotton dust wage guarantee provision,
101 S.Ct. at 2505 nn. 72 & 73 and 2506 n. 74. It is reasonable to infer that if the
Secretary of Labor had formulated and articulated the health related" rationale and
supported it by substantial evidence, the Court might have reached a different conclusion.

It is interesting to further note that the United
States Supreme Court rendered its decision in American Textile on June 17, 1981. On
June 29, 1981, twelve days later, the Court denied certiorari in the United
Steelworkers case. 453 U.S. 9131, 101 S.Ct. 3148. Although one may not draw
substantive conclusions that the Court was from a denial of certiorari, one can infer that
the Court was aware of provisions dealing with earnings protection benefits and the issues
involved as they relate to the Occupational Safety and Health Act.

Aside from the economic impact the earnings
protection benefits provision of the Lead Standard may have on employees, it is health
related. The MRPB is designed and intended in the overall program of worker protection, to
reduce an employee's exposure or continued exposure to lead poisoning by eliminating
possible attempts by employees to defeat other provisions of the lead standard and thereby
increase their exposure to lead poisoning.

The promulgation of the medical removal protection benefits standard is valid and within
the statutory authority of the Secretary of Labor.

Respondent argues in Point II of its brief (pp 19-24)
that OSHA's lead standards and Respondent's compliance with these standards, other than
the medical removal protection benefits provision, insures that the exposure of its
employees to lead is reduced or eliminated.* Respondent states that all of its employees
who are exposed to the hazards of lead must participate in Respondent's mandatory blood
lead monitoring program or suffer disciplinary action. Therefore, Respondent reasons, the
medical removal protection benefits provisions neither contributes to the reduction or
elimination of the lead hazard nor reduces or eliminates an employee's risk of exposure to
lead.

Respondent's approach is somewhat simplistic and
fails to consider or overlooks the underlying basis established by OSHA, as to the reasons
the medical removal protection benefits provision is necessary to insure the efficacy of
the other lead standards relating to medical surveillance and medical removal. (See Exhs.
C(i)(a), p. 52973, C(i)(b) pp 54446-54447).

The Court in United Steelworkers of America v.
Marshall , 647 F. 2d 1189, 1237 (1980), clearly sets forth OSHA's findings and basis
for the medical removal protection benefits provision.

"OSHA found, however, that unless workers were guaranteed all their wage and
seniority rights upon removal, they would resist co-operating with the medical
surveillance program that determined the need for removal, since they reasonably might
fear being fired or sent to lower-paying jobs if they revealed dangerously high blood-lead
levels. 54442/2-54446/2.[[x]] The record showed that workers often consumed
self-prescribed chelating agents, and lied to physicians about their subjective symptoms,
all because they held job security more dear than their health. 54446/3-54447/1 (citing
evidence). OSHA also found existing earnings protection programs in private bargaining
agreements too few and too limited. 54444/2. Moreover, exercising its statutory authority
to rely on experience gained under a congressionally-mandated earnings protection program
like the one that is part of the Federal Coal Mine Health and Safety Act, see text and
notes at notes 67-68 supra, workers-perhaps because they were not guaranteed the seniority
rights and pay increases of their high-exposure jobs - frequently refused to co-operate in
medical review. 54447/1-54449/1."

It is clear from the evidence and case authority,
that the medical removal protection benefits provision is health related and is an
integral part of the Lead Standard's objective to reduce or eliminate employee exposure to
lead.

In Point III A of its brief (pp 24-36), Respondent
contends that Section 4(b)(4) of the Act prohibits the Commission from interpreting the
medical removal protection benefits provision to increase Respondent's liability beyond
that set by the State of Pennsylvania's workmen's compensation laws.

Section 4(b)(4) of the Act states:

"Nothing in this Act shall be construed to
superceded or in any manner affect any workmen's compensation law. . . "

(29 U.S.C. � 653(b)(4)).

The court in United Steelworkers , supra ,
at pages 1235-36, after determining that protection benefits provision did not violate
Section 4(b)(4) of the Act, stated:

"The question remains, then, what does
Section 4(b)(4) mean, if it does not mean that OSHA is barred from creating
medical removal protection? We see two plausible meanings. First, as courts have already
held, Section 4(b)(4) bars workers from asserting a private cause of action against
employers under OSHA standards. Jeter v. St. Regis Paper Co. , 507 F.2d 973
(5th Cir. 1975); Byrd v. Fieldcrest Mills, Inc. , 496 F.2d 1323 (4th Cir.
1974). Second, when a worker actually asserts a claim under workmen's compensation law or
some other state law, Section 4(b)(4) intends that neither the worker nor the party
against whom the claim is made can assert that any OSHA regulation or the OSH Act itself
preempt any element of the state law. For example, where OSHA protects a worker
against a form of disablement not compensable under state law, the worker cannot obtain
state relief for that disablement. Conversely, where state law covers a wider range of
disablements than OSHA aims to prevent, an employer cannot escape liability under state
law for a disablement not covered by OSHA. In short, OSHA cannot legally preempt
state compensation law, even if it practically preempts it in some situations.

We conclude that though MRP may indeed have a great practical effect on workmen's
compensation claims, it leaves the state schemes wholly intact as a legal matter,
and so does not violate Section 4(b)(4)." (Emphasis in original).

We agree with the Court's determination and fail to see how Section 4(b)(4) of the Act,
legally affects or supercedes Pennsylvania's workmen's compensation laws. The amount of
compensation that Butler or any other employee could receive under Pennsylvania's
workmen's compensation law, is neither increased or decreased by the amount due the
employee under the medical removal protection benefits provision. This provision does not
alter, supercede or preempt the state's law, and imposes no burden on the state to award
more or less than its laws require. Nor does it increase Respondent's liability under
state law. The affect of the medical removal protection benefits provision is on the
employer's liability under the OSH Act. It requires the employer to make up the difference
between what is granted an employee under state law and what is calculated to be due him
under federal law (see, 29 CFR �1910.1025(k)(2)(iv)).

Respondent's liability under both laws is no indication that Pennsylvania's workmen's
compresentation law, per se , has been altered or superceded. Respondent
mistakenly equates its dual liability under federal and state law as a supersession of the
state law by OSHA's MRPB provision.

In Point III B of its brief (pp 29-33), Respondent
further contends that any interpretation of the medical removal protection benefits
standards, requiring payment of shift differential and overtime pay to a removed worker,
is impermissible, discriminatory, would reward workers for hours not worked and would
encourage others to become leaded in order to receive more pay for less work. We have held
that the medical removal benefits protection benefits standard is valid and properly
within the statutory authority of the Secretary of Labor.

Section 1910.10(?) (k)(2)(iv) defines medical removal
protection benefits to mean that "the employer shall maintain the earnings, . . . of
an employee as though the employee had not been removed from normal exposure to lead or
otherwise." The definition is clear on its face. The word "earnings"
unqualified and unlimited means all earnings. An employee removed because of lead exposure
is to continue to receive all the earnings he would have received if he had not been
removed. The Secretary understood this when he explained in the Preamble to the Lead
Standard, that medical removal protection benefits:

"In most cases will simply mean the rate of pay
of a worker transferred to a low-lead-exposure job. The standard however, 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."

(Exh. C(i)(a) p. 52976, Col. 1).

Applying the standard and definition to this case, it means that Butler's earnings are to
continue and are to be maintained as if he still was employed as a Weighman. It does not
mean that Butler is to receive more than he would have received if he was not removed.
Butler is entitled only to the amount he would have earned if he continued working as a
Weighman. This in turn must be tempered by reason and be achievable by means other than
speculation.

Respondent is mistaken in believing that earnings
mean only the worker's pre-removal base rate of pay. "Earnings" is a broad
concept and includes not only the base rate of pay but all other ascertainable earnings
that could have been earned by a worker prior to his removal.

The question here is not what "earnings"
mean but how are they to be calculated so that Butler does not receive more than he would
have received if not removed.

Butler could have been, carried on the company records as a Weighman for earnings
purposes. His shift differential and scheduled overtime pay, could have been calculated
during the removal period, based on the four 'shifts', 20 weeks rotating schedule. (Stip.
� 20). Deductions during that time could have been made against the earnings amount for
uncompensable time. (Stip. � 27).

Respondent states without further support (brief pp
34-35) that "it would be extremely difficult to calculate the overtime opportunities
Simpson Butler would have. Therefore, the parties agreed to an artificial formula to
calculate shift differential and scheduled overtime due Butler after he was removed.
(Stip. �'s 20(d), 30).

Whatever method is used, Butler is entitled to the
shift differential and scheduled overtime earnings that would have accrued to him if he
had not been removed.

Voluntary overtime present a different and more
difficult problem. Voluntary work is not available on a regular basis, may differ from the
normal job duties of an employee, is offered only to qualified persons available to
perform it and depends on the subjective determination of the employee to accept it. The
amount of available overtime declined subsequent to Butler's removal and he was not
routinely offered such work. The one offer made to him he declined to accept. During his
sixteen weeks of work as a Weighman, Butler accepted 45 hours of voluntary overtime work
(Stip. �'s 23, 24, 25, 26).

No set formula can properly determine what voluntary
work would have been available, offered to and accepted by Butler if he had not been
removed. Butler is not entitled to voluntary overtime pay during his removal period on any
set formula. He is entitled only to voluntary overtime that was available, offered to him
and accepted by him during the removal period.

In part C of Point III of the brief (pp 33-36,
Respondent argues that it had no notice that "earnings" in Section 1910.1025
(k)(2)(i) meant anything other than the base rate of pay since it does not mention
overtime or shift differential pay. The standard does not refer specifically to overtime
or shift differential pay nor does it refer specifically to base rate of payment. It
speaks of "earnings" which is an all-inclusive term and as indicated previously,
means all ascertainable earnings that a worker would have received if he continued to
perform the same work that he performed before his removal. In Butler's case, this meant
his base rate of pay, shift differential and scheduled overtime pay but not voluntary
overtime.

Voluntary overtime pay was excluded from earnings because of its speculative character and
because it depended upon the worker's subjective option to accept or decline it.
Nonetheless, the standard, and its definition gave ample notice to Respondent that it
meant not only the base rate of pay but all other ascertainable earnings.

Respondent also contends (brief pp 36-37), assuming
the validity and applicability of the standard, that a violation of the standard is de
minimus because the failure to pay shift differential and overtime pay has no
direct or immediate relationship to occupational safety and health. This argument has
facial appeal because Butler was removed from exposure to lead pursuant to other lead
standards prior to the violation of standard herein. Therefore, reasons Respondent, any
violation of the "earnings" benefit standard could not expose Butler to lead
hazards and had no direct or immediate relationship to his health.

Respondent misconstrues the purpose of the standard
and reads it in isolation. The Lead Standard consists of a comprehensive set of
regulations promulgated to protect and prevent employees in the lead industry from being
overexposed to the hazards of lead. The sections of the Lead Standard interrelate to carry
out the purpose and intent of the Standard.

The Lead Standard is only as strong as its component parts. If compliance with, and
enforcement of any section is weakened, the Standard as a whole loses its optimum effect.
It has been established, supra , (p. 23), that worker participation in the
regulatory scheme is essential to its operation. To insure this participation, economic
considerations which could cause an employee to thwart the objectives of the Standard were
eliminated.

No one can seriously question that the exposure of an
employee to the hazards of lead could cause serious physical harm or death to the
employee. Any violation of any part of the Lead Standard which reduces or could possibly
reduce the health protection intended by the Lead Standard, is serious because it could
increase the risk of overexposure to lead.

Finally, Respondent argues (brief pp 37-44), that the
Commission has no authority to order a "back pay award" because it is not
authorized to do so under the civil penalty sections of the Act (29 U.S.C. � 666).
Further, the Commission has no authority to order retroactive abatement.

Respondent is correct in stating that the Commission
is only authorized to assess civil penalties as prescribed in Section 17 of the Act (29
U.S.C. � 666). Civil penalties are imposed upon an employer for violating an occupational
safety and health standard. Abatement is the means or methods an employer must employ to
correct a violation of a standard.

Abatement and civil penalty are not synonymous. They are entirely separate excepts under
the Act. The issue in this case is not one for "back pay", per se ,
but whether Respondent violated the Act and if it did what abatement is necessary to
correct the violation.

Generally, abatement methods or means in occupational
safety and health cases involve the production, utilization or installation,
prospectively, of protective devices, engineering controls, etc. They all involve the
expenditure of money by an employer to achieve the end result. The very nature of this
type of abatement does not permit retroactive application. An employer, for example,
cannot install or utilize engineering controls retroactively to the date the violation
occurred, even if the evidence established that the violation was a continuing one.

Shift differential and scheduled overtime payments
although different in nature from the usual forms of abatement, are nevertheless a method
of abatement. This type of abatement lends itself to retroactive application because of
its nature (money payment) and because here the evidence established that the violation
was a continuing one. The violation occurred when Butler's first weeks earnings were due
after, his removal which was on or about July 17, 1981. The citation was issued,
approximately a month and a half later on September 11, 1981, well within the limitation
clause of the Act (Section 9(c), 29 U.S.C. � 658(c)). Although the type of abatement here
is novel, it is well within the statutory authority of the Commission.

Based on the record and a consideration of the
factors set forth in Section 17(j) of the Act, the penalty of $60.00 proposed by the
Secretary of Labor is reasonable and proper.

FINDINGS OF FACT

The relevant and material facts have been stipulated
by the parties in their Joint Stipulation (Court Exh. A, supra , pp 4-16).

CONCLUSIONS OF LAW

1. Section 1910.1025(k)(2)(i) of the Lead Standard is valid and within the statutory
   authority of the Secretary of Labor.

2. Section 1910.1025(k)(2)(i) of the Lead Standard does not conflict with Section 4(b)(4)
   of the Act.

3. From September 11, 1981, and for approximately a month and a half prior thereto,
   Respondent was in violation of Section 5(a)(2) of the Act (29 U.S.C. � 654(a)(2) for
   failing to comply with 29 CFR � 1910.1025(k)(2)(i).

4. A "back pay" retroactive money payment is the proper method of abatement to
   correct the violation herein.

5. The violation of the standard by Respondent is
   serious.

6. A penalty of $60.00 is assessed for the violation.

ORDER

Due deliberation having been had on the whole record,
it is hereby

ORDERED that the citation for a violation of 29 CFR
� 1910.1025(k)(2)(i) is affirmed, it is further

ORDERED that abatement of the violation is to be made
consistent with the Decision herein, it is further

ORDERED that the proposed penalty of $60.00, is
affirmed.

JEROME C. DITORE

JUDGE, OSHRC

Dated: February 14, 1983

New York, New York

FOOTNOTES:

[[1/]] That 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.

[[1/]] � 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 where
the airborne lead concentration is more than a certain amount. Since the expiration of the
initial 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 ug/m3. 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/]] For that decision, this case was consolidated
with Amax Lead Co. of Missouri , OSHRC Docket No. 80-1793, and Schuylkill Metals
Corp. , OSHRC Docket No. 81-856. Because the cases no longer involve a single common
legal question, we hereby sever them pursuant to Commission Rule 10, 29 C.F.R. � 2200.10.

[[4/]] The administrative law judge who first heard
the case held that St. Joe was required to pay the employee for scheduled overtime, but
not for voluntary overtime because the amount of voluntary overtime was too speculative to
calculate. The Fifth Circuit's decision holds that the standard requires payments for
"over-time," but the court did not expressly address the distinction between
scheduled and voluntary overtime. We interpret the court's decision as holding that the
standard requires payments in this case for the scheduled overtime and shift
differentials. We read the Fifth Circuit's decision as leaving open the voluntary overtime
issue and we will discuss that issue later in this decision.

[[5/]] 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 Enterprise 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 provision with that of the Fifth Circuit in United Steelworkers of
America v. Schuylkill Metals Corp .

[[6/]] Because she rejects the argument on its
merits, 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
St. Joe's challenge is barred by collateral estoppel, and St. Joe's contention that the
Secretary untimely raised collateral estoppel issue.

[[7/]] As will be discussed later in this opinion,
the Secretary was also concerned that, if excessively high blood lead levels could lead to
loss of income, employees would resort to chelating drugs, which remove lead from the
blood but have dangerous side effects.

[[8/]] " United Steelworkers.of America v.
Schuylkill Metals Corp. , 828 F.2d at 320.

[[9/]] This Pratt & Whitney case is a
later decision in the same Pratt & Whitney case on which St. Joe relies. The
second Pratt & Whitney decision was issued after St. Joe filed its review
brief.

[[10/]] United Steelworkers of America,
AFL-CIO-CLC v. Marshall , 647 F.2d at 1237 & n.73.

[[11/]] Although we conclude that violations of the
lead standard's MRP provisions are serious, we do not agree with the judge's broad
statement that "[a]ny violation of any part of the Lead Standard which reduces or
could possibly reduce the health protection intended by the Lead Standard, is serious
because it could increase the risk of overexposure to lead." Presumably, all
provisions of the lead standard are intended to reduce the risk of lead exposure to some
extent. However, for some provisions, the reduction in risk to employees may be so limited
that a serious classification would not be justified. For example, 29 C.F.R. �
1910.1025(n) contains detailed recordkeeping requirements. Technical violations of those
requirements would not be serious violations. See RSR Corp. , 83 OSAHRC 6/A2,
11 BNA OSHC 1163, 1180, 1983-84 CCH OSHD � 26,429, p. 33,558 (No. 79-3813, 1983)
(violation of section 1910.1025(n)(4)(ii) affirmed as other than serious).

[[12]] 29 U.S.C. � 659(b) provides that the
abatement period for a violation "shall not begin to run until the entry of a final
order by the Commission in the case of any review proceedings under this section initiated
by the employer in good faith and not solely for delay or avoidance of penalties."

[[13/]] 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.

[[14/]] There is no question that St. Joe contested
the citation in good faith, and thus satisfied the condition established in section 659(b)
for tolling the abatement date.

[[15/]] When the Commission is divided on an issue
resolved by the administrative law judge, they will normally agree to affirm the judge's
action and accord it the precedential value of an unreviewed judge's decision. St.
Regis Paper Co. , 84 OSAHRC 40/D3, 11 BNA OSHC 2208, 2210-11, 1984-85 CCH OSHD �
27,032, p. 34,805 (No. 77-1385, 1984). In this case, the judge concluded that "[a]
'back pay' retroactive money payment is the proper method of abatement to correct the
violation herein," and he ordered that the violation be abated consistent with his
decision. For the reasons stated in the text, Chairman Buckley would not enter such an
order. Commissioner Arey also would not uphold the judge's order because the order does
not compensate the removed employee for voluntary overtime. Therefore, neither member
would adopt the the backpay order issued by the judge.

[[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.

[[*]] Reference key: Stip. - refers to Joint Stipulation of the Parties.

�      - refers to paragraph of the Joint Stipulation.

Exh. - refers to accompanying the Joint Stipulation.

[[*]] It is interesting to note that the U.S. Supreme Court may have adhered to this
principle in striking down the cost benefit analysis provision of the Cotton Dust Standard
but did not in its consideration of a similar MRPB provision in that standard. 101 S.Ct.
at 2491-2492 and 2504-2506.

[[*]] Respondent also argues that the medical removal
protection benefits provision does not encourage the implementation of engineering
controls (brief pp 22-24). We do not reach this argument since the provision is found to
be health related on other grounds.

[[x]] These numerical citations reflect page numbers
of the "Attachments to the Preamble to the Final [lead] Standard" which is
Exhibit C(i)(b) herein.