SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO- CLC, and its LOCAL UNION
7447-J,

Authorized Employee
Representative.

OSHRC DOCKET NO. 80-1793

ORDER

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

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

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

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

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

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

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: December 4, 1990


SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC, and its LOCAL UNION
7447-J,

Authorized Employee
Representative.

OSHRC DOCKET NO. 80-1793

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

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

I.

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

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

Earnings includes more than just your base wage; it includes overtime, shift differentials, incentives, and other compensation you would have earned if you had not been removed.


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

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

II.

Amax contends that the lead standard was invalidity promulgated for a number of reasons. The company argues that the Secretary did not have the statutory authority to adopt the provision requiring payment of MRP benefits. The company also contends that the provision for payment of MRP benefits is economically infeasible, that the Secretary did not give interested persons adequate notice that a permissible exposure limit ("PEL") of 50 g/m3 would be adopted, that this PEL is technologically and economically infeasible, and that the Secretary improperly relied on outside consultants during the rulemaking proceedings.

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

The lead standard has been challenged by the industry in litigation from its inception. The courts, however, have not proved a receptive audience for the industry's well-orchestrated complaints. The present movement in this seemingly never ending symphony is but a minor variation on the prior themes. Thus, unlike a listener to Haydn, the industry should hardly be surprised at the outcome.

This symphony of lead litigation should not remain forever unfinished. The industry's arguments -- in large measure resting on the policies underlying the lead standard--likely will continue to strike a discordant note in the courts. The industry must either accept legislative and regulatory atonality, or, if too painful for the ears (and pocketbooks) attempt to return the score to the composers of the lead policy for reorchestration.

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

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

Two of Amax's arguments--that the Secretary gave inadequate notice of the 50 g/m3 PEL and that he improperly relied on outside consultants--challenge the procedures the Secretary followed in promulgating the standard. In National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978), the Court of Appeals for the Eighth Circuit held that the validity of the procedures followed by the Secretary in promulgating OSHA standards cannot be challenged in enforcement proceedings. This case arises in the Eighth Circuit, and the Commission's decision is therefore appealable to that court.[[7/]] 29 U.S.C. 660(a) & (b). Commissioner Arey believes that the Commission must follow controlling circuit law, and therefore declines to consider Amax's procedural challenges in this enforcement proceeding.
Although Amax's substantive challenges can be considered under National Industrial Constructors, Commissioner Arey concludes that those challenges lack merit. Amax argues that the Secretary lacked the statutory authority to adopt the provision requiring payment of MRP benefits. Commissioner Arey rejects that argument for the reasons she stated in St. Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).

Amax also argues that the MRP provision is economically infeasible, and that the standard's PEL of 50 g/m3 is both technologically and economically infeasible. Commissioner Arey rejects these arguments because they are not supported by the record. Amax argues that the rulemaking record on which the Secretary based his findings that the standard was feasible does not support the Secretary's findings. Without deciding whether it would ever be proper for the Commission to review findings made by the Secretary on the basis of a rulemaking record, Commissioner Arey observes that the Commission certainly cannot do so here because the rulemaking record is not before it. The burden of proving, in an enforcement proceeding, that a standard is invalid lies with the party challenging the standard's validity. See Atlantic & Gulf Stevedores v. OSHRC, 534 F.2d 541, 548-50 (3d Cir. 1976). Commissioner Arey concludes that Amax has failed to meet its burden of proving that the standard is invalid for the reasons it has stated.

In addition, Commissioner Arey notes that there is a second reason for rejecting Amax's two arguments that challenge the validity of the standard's PEL of 50 g/m3. Amax has not been cited for violating that provision in this case. Yet, under Commission precedent, the Commission will only consider validity challenges that may affect the outcome of a case. DeKalb Forge Co., 13 BNA OSHC 1146, 1151, 1886-87 CCH OSHD 27,842, p. 36,449 (No. 83-299, 1987). Accordingly, Commissioner Arey would reject Amax's challenges to the validity of the PEL for both of the reasons stated above.

III

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

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

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

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

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

D

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

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

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

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

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

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

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: April 27, 1989

 

 

SECRETARY OF LABOR,

Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 7447-J,

Authorized Employee
Representative.

OSHRC Docket No. 80-1793

SECRETARY OF LABOR,

Complainant,

v.

SCHUYLKILL METALS CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 8394,

Authorized Employee
Representative.

OSHRC Docket No. 81-0856

SECRETARY OF LABOR,

Complainant,

v.

ST. JOE RESOURCES COMPANY,

Respondent.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO and LOCAL 8183,

Authorized Employee
Representative.

OSHRC Docket No. 81-2267

DECISION

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

BUCKLEY, Chairman:

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

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

I

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

Before 1975, an OSHA standard limited the amount of airborne lead to which an employee could be exposed to 200 micrograms per cubic meter of air ("g/m3") 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/m3 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/m3 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/m3 for 30 or more days per year. Subsections 1910.1025(j)(1) and (2). If an employee is found to have a blood lead level exceeding a certain amount--50 ug/100g when the standard becomes fully effective--the medical removal protection provisions of the standard come into play. Subsection 1910.1025(k). The employer must remove the employee from exposure to lead above the action level until two consecutive blood tests show that the employee's blood lead level has returned to no more than 40 ug/100g. Subsections 1910.1025(k)(1)(i) and (iii). An employee must also be removed from exposure to lead above the action level without regard to his blood lead level if it is determined that "the employee has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead." Subsection 1910.1025 (k)(1)(ii). Such an employee can be returned to his previous position if it is found that his medical condition has changed such that exposure to lead no longer places him at increased risk of material health impairment. Subsection 1910.1025 (k)(1)(iii)(A)(4).

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

For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited.

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

II.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Secretary argues that the last sentence in the above quotation and a statement elsewhere in the preamble that the MRP provision "uses the all- encompassing phrase 'earnings, seniority and other employment rights and benefits' to assure that a removed worker suffers neither economic loss nor loss of employment opportunities due to removal," 43 Fed. Reg. at 52976 (emphasis by the Secretary) make clear his intention that MRP benefits include premium payments. We do not agree. In light of the Secretary's failure to include a definition of "earnings" in either the standard or the preamble, and the absence of any discussion in the preamble of premium payments, we cannot read these general statements as exhibiting an intention on the Secretary's part that MRP benefits include premium payments.

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

An agency can, of course, deviate from a proposed rule when it issues a final rule, as long as the final rule is a "logical outgrowth" of the rulemaking proceeding. Steelworkers, 647 F.2d at 1221. In order to justify such a deviation however, there must be evidence in the rulemaking record that warrants the change. Id. If there was evidence in the record of the lead rulemaking to justify inclusion of premium payments in MRP benefits, the Secretary did not mention it or rely on it. Thus, even if the Secretary did use the word "earnings" because he meant MRP benefits to include premium payments, it is highly doubtful whether the standard, as so interpreted, would be valid in light of the absence of his reliance on any record evidence justifying the change.
See United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982) (interpretation of statute is favored that avoids question of statute's validity).

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

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: June 25, 1986

 

 

SECRETARY OF LABOR,

Complainant

v.

AMAX LEAD COMPANY OF MISSOURI,

Respondent

UNITED STEELWORKERS OF AMERICA,

Employee Representative

OSHRC DOCKET, 80-1793

REPRESENTING THE COMPLAINANT:

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

REPRESENTING THE RESPONDENT:

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

REPRESENTING THE EMPLOYEES:

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

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

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

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

Willful citation 1 was in two parts:

Item 1

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

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

Item 2

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

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

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

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

THE STIPULATION OF THE PARTIES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The pertinent data pertaining to these employees is as follows:

Name Number Duty Separation Return Bloodlevel
Terry Hogan
(Mine Unit)
1358 Smelter 1/8/80 3/10/80 Exceeded 74 ug/100 ml
James L.
Wilkinson
(Construction)
1809 Smelter 12/10/79 3/14/80 Exceeded 74 ug/100 mI
Ronald D. Lawson 2785 Smelter 1/28/80 4/21/80 Exceeded 74 ug/100 ml

Paul E. Baker

2974 Smelter 2/15/80 4/1/80 Exceeded 74 ug/100 ml
Cary E. Harbison 2702 Smelter 1/23/80 3/24/80 Exceeded 74 ug/100 ml
Billy R. Clinton 2496 Smelter 1/8/80 4/8/80 Exceeded 80 ug/100 ml


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

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

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

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

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

"(ii) Definition of medical removal protection benefits. For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited." [Emphasis Supplied]

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

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

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

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

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

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

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

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

In considering respondent's argument, section (k)(2)(ii), in plain and concise terms, provides that the employer "shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited". [Emphasis Supplied]

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

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

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

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

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

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

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

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

NATURE OF THE VIOLATION

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

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

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

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

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

CONCLUSIONS OF LAW

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

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

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

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

DECISION AND ORDER

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

Paul E. Dixon, Judge, OSHRC

DATE: September 3, 1981


FOOTNOTES:

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

 

[[1/]]That standard requires:
1910.1025 Lead
(k) Medical Removal Protection
(2) Medical removal protection benefits --
(1) Provision of medical removal protection benefits. The employer shall provide to an employee up to eighteen (18) months of medical removal protection benefits on each occasion that an employee is removed from exposure to lead or otherwise limited pursuant to this section.
(ii) Definition of medical removal protection benefits. For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited.

 

[[1/]] Insofar as is relevant here, the standard provides:
1910.1025 Lead
(k) Medical Removal Protection
(2) Medical removal protection benefits--
(i) Provision of medical removal protection benefits. The employer shall provide to an employee up to eighteen (18) months of medical removal protection benefits on each occasion that an employee is removed from exposure to lead or otherwise limited pursuant to this section.
(ii) Definition of medical removal protection benefits. For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited.

[[2/]] The lead standard requires that an employee whose blood lead level exceeds a specified concentration be removed from a work area in which the ambient airborne concentration of lead exceeds a certain amount. Since the expiration of the phase-in period during which higher concentrations were permitted, the standard has required that an employee with a blood lead level at or above 50 ug/100g of whole blood be removed from work having a daily eight hour time-weighted-average exposure to airborne lead at or above 30 g/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/]] In our initial decision in this case, and in the appeal before the Fifth Circuit, this case was consolidated with St. Joe Resources Co., OSHRC Docket No. 81-2267, and Schuylkill Metals Corp., OSHRC Docket No. 81-856. Because the cases no longer involve a single common legal issue, they are hereby severed pursuant to Commission Rule 10, 29 C.F.R. 2200.10.

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

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

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

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

[[8/]] Commission Rule 92(a), 29 C.F.R. 2200.92(a), provides:
2200.92 Review by the Commission;
(a) Jurisdiction of the Commission;
Issues on review
. Unless the Commission orders otherwise, a direction for review establishes jurisdiction in the Commission to review the entire case. The issues to be decided on review are within the discretion of the Commission but ordinarily will be those stated in the direction for review, those raised in the petitions for discretionary review, or those stated in any later order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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