Before: BUCKLEY, Chairman, and AREY, Commissioner.

BUCKLEY, Chairman:

This case requires us to reconsider the Commission's earlier interpretation of the medical removal protection ("MRP") provision of the OSHA lead standard. The lead standard requires employers to remove from continued exposure to high lead levels employees who would be at particular risk of suffering lead-related diseases.[[1/]] The MRP provision requires employers to "maintain the earnings, seniority, and other employment rights and benefits" of removed employees.[[2/]] In Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD 27,629 (No. 80-1793, 1986)("Amax"), rev'd sub nom. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314 (5th Cir. 1987), the Commission held that "earnings" did not include overtime and other amounts beyond the employee's regular hourly wage rate that the employee might have earned if not removed. We now overrule Amax for the reasons stated in this and the concurring opinion. We also conclude, however, that East Penn Manufacturing Company ("East Penn") acted in reasonable reliance on the Commission's Amax decision, and we therefore vacate the citation alleging that East Penn violated the MRP standard.

The facts are not in dispute. [[3/]] On July 14, 1986, East Penn placed an employee on medical removal due to pregnancy.[[4/]] At first, the company continued to pay the employee both her base wages and the overtime she would have earned if she had remained in her previous position. However, in September, 1986, after the Commission issued its decision in Amax, East Penn changed its policy and discontinued the overtime payments, paying the employee only according to the base rate of her former position. After being cited by the Secretary for violating the MRP standard, East Penn moved to dismiss on the basis that the MRP payments it had made were all that were required by Amax. Administrative Law Judge David G. Oringer, being bound to follow the Commission's decision in Amax, granted the motion and vacated the citation.

The Secretary argues, as she did in Amax, that the Commission should adopted her interpretation of the MRP standard. That interpretation, set forth in an informational appendix to the standard, 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.

29 C.F.R. 1910.1025, Appendix B, Sec. IX. In Amax, the Commission noted that the term "earnings . . . is a general term broad enough to encompass the interpretations offered by all of the parties." 12 BNA OSHC at 1882, 1986-87 CCH OSHD at p. 35,922. The Commission therefore looked to the standard's legislative history to discern the Secretary's intent when the standard was promulgated. Because the legislative history consistently used the terms "rate of pay" and "rate retention" in discussing MRP benefits, the Commission concluded that the MRP provision equated "earnings" with "rate of pay" and therefore did not include items, such as overtime, beyond the employee's base wage rate. 12 BNA OSHC at 1884, 1986-87 CCH OSHD at p. 35,924. The Commission also noted that, during the notice-and-comment rulemaking proceedings that culminated in the standard's adoption, the Secretary had not given the public notice that she was considering a broader MRP provision than one providing for "rate retention" and that the subject of overtime and other premium payments engendered no comment or discussion during the rulemaking proceedings. The lack of attention to the subject in the rulemaking proceedings buttressed the Commission's conclusion that the Secretary had not intended for the MRP provision to require overtime and other premium payments. The Commission further concluded that if the Secretary had intended "earnings" to have a broader meaning than "rate of pay," she had not given affected persons adequate notice and an opportunity to be heard as required under notice-and-comment rulemaking procedures. 12 BNA OSHC at 1884-85, 1986-87 CCH OSHD at pp. 35,924-25.

The Fifth Circuit reversed the Commission's decision. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314 (5th Cir. 1987). The court agreed with the Commission that the issue could not be resolved on the basis of the plain meaning of "earnings." The court concluded that "earnings" could have either the meaning given it by the Commission or that advanced by the Secretary, but it adopted the Secretary's interpretation because its precedents required it to defer to the Secretary's interpretation of an OSHA standard as long as that interpretation is a reasonable one. Id. at 319. The court relied on several factors in concluding that the Secretary's interpretation was reasonable: (1) the preamble to the standard contained references to deficiencies inherent in limited forms of MRP benefits under other statutes and standards; (2) the preamble indicated an intent that employees removed from the standard sustain no economic loss; (3) failure to include premium payments in MRP benefits would produce a disincentive for employees to cooperate with the standard's medical surveillance provision; and (4) a broad interpretation of "earnings" was necessary to achieve the standard's goal of placing the costs of worker protection on industry rather than the workers themselves. Id. at 320-22. The court further concluded that the Secretary had given adequate notice during the rulemaking proceedings that she might adopt an MRP provision of such broad scope. Id. at 323. The Ninth Circuit has also rejected the Commission's decision in Amax and upheld the Secretary's interpretation of the standard, relying on much of the same factors, but concluding that the Commission's interpretation was unreasonable and thus was not entitled to judicial deference. Secretary of Labor v. Asarco, Inc., 841 F.2d 1006 (9th Cir. 1988).

I have reconsidered our holding in Amax in light of these court decisions. I note that the interpretive question presented is a close one. Moreover, the Commission's Amax decision and the two court decisions readily demonstrate that differing inferences can be drawn from the standard's legislative history. Justice Brandeis once observed that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronodo Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447 (1992) (Brandeis, J., dissenting). I believe that, where the question is this close, the interests that motivated Justice Brandeis's observation--predictability and uniformity in the law's application--are best served by our acquiescence in the adverse court decisions. Accordingly, I agree to overrule Amax and henceforth apply the MRP standard in accordance with the two Courts' interpretation. Henceforth, employers including East Penn must comply with that interpretation.

However, the alleged violation in this case occurred after the Commission issued its decision in Amax and before that decision was reversed by the Fifth Circuit. Moreover, East Penn specifically relied on the Commission's Amax decision, changing its previous policy to conform to that decision. East Penn argues that it would be fundamentally unfair to find it violated the standard when it acted in reliance on Amax. We agree.

Employers are entitled to fair notice of the conduct prohibited or required by OSHA standards. Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986); Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 122-24 (7th Cir. 1981); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-39 (6th Cir. 1978); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161-62 (3d Cir. 1978); Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). As the Fifth Circuit indicated, both the Secretary's and the Commission's interpretations find considerable support in the language and legislative history of the standard. Where the language and legislative history of the standard are ambiguous, as they are here, and the Commission has issued an authoritative administrative interpretation of the standard, employers are entitled to rely on that interpretation unless and until further events cast doubt on its viability.

Accordingly, the judge's decision vacating the citation is affirmed.



DATED: April 27, 1989


AREY, Commissioner, concurring:

In my opinion, the Commission wrongly decided Amax,[[1/]] and I therefore concur in overruling that decision. The language of the medical removal protection standard,[[2/]] read in light of the standard's purpose and its legislative history, requires employers to assure that employees removed from lead exposure for medical reasons suffer no economic loss. Therefore, East Penn's failure to pay its employee for overtime she would have earned it she had not been medically removed from lead exposure was inconsistent with the standard's requirement that employers "maintain the earnings . . . of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited." I believe, however, that the Commission's Amax decision deprived East Penn of fair notice of the standard's requirement for maintaining overtime payments, and that it would be fundamentally unfair to conclude that the company violated the standard when it reasonably relied on Amax. I therefore concur in the vacating of the citation.

In this case and the three consolidated cases involved in the Amax decision, there is one common fact of overriding importance: employees who were transferred from areas of high lead exposure received smaller paychecks than they would have received if they had not been transferred. While the employee East Penn transferred continued to receive her base hourly wage rate for a normal 40-hour week, she did not receive payments overtime she would otherwise have earned.

The question under the standard is whether East Penn maintained the "earnings" of the employee it transferred even though her paycheck was smaller than before. Yet, as I see it, the mere statement of this question suggests the correct answer. Giving the term "earnings" its most common and ordinary meaning, I would conclude that the "earnings" of the employee had been reduced --and therefore not "maintain(ed)"--if she had received a smaller paycheck. And I would reach this conclusion regardless of whether the reduction in the size of the paycheck represented a reduction in the employee's base rate of pay or a withholding of those "premium payments" that would normally be made, such as overtime compensation, shift differential payments, or vacation leave payments.

Of course, it is possible that the Secretary used the term "earnings" as a "term of art" designed to preserve only the employee's base rate of pay. However, I would not adopt such a strained interpretation of the standard and its language unless the legislative history of the standard clearly revealed that this was the Secretary's intent. Here, in my opinion, the legislative history does not show such an intent but rather shows the contrary, i.e., that the Secretary gave the term "earnings" its usual and customary meaning when he drafted this standard.

A standard must be interpreted to give effect to the Secretary's intent in drafting it insofar as that intent is consistent with the standard's language. Phelps Dodge Corp., 83 OSAHRC 29/A2, 11 BNA OSHC 1441, 1444, 1983-84 CCH OSHD 26,552, pp. 33,920-21 (No. 80-3203, 1983), aff'd, 725 F.2d 1237 (9th Cir. 1984). Here, the preamble to the standard indicates the Secretary's intent that "earnings" encompasses more than an employee's base wage rate when additional payments are necessary to prevent economic loss to the employee:

[T]he employer must maintain the earnings, seniority, and other employment rights and benefits of a worker as though the worker had not been removed . . . In most cases this will simply mean that an employer must maintain the rate of pay of a worker transferred . . . The standard, however, uses the all-encompassing phrase "earnings, seniority, and other employment rights and benefits" to assure that a removed worker suffers neither economic loss nor loss of employment opportunities due to the removal.

43 Fed. Reg. at 54466 (Nov. 14, 1978) (Emphasis added). An employee whose total pay decreases as a result of medical removal suffers an economic loss. Thus, the Secretary intended that, in a situation where an employee is normally paid amounts beyond the employee's base rate, such amounts must be included in medical removal protection benefits.

Interpreting the standard to protect employees against economic loss is also necessary to accomplish the standard's objective. Medical removal is a way of protecting employees who have excessive blood lead levels or who are otherwise at special risk of suffering lead-related diseases.[[3/]] They are protected by being removed from lead exposure until either their blood lead level returns to an acceptable concentration or their medical condition improves to the point where additional exposure will not present an unacceptable risk.[[4/]]

Since medical removal is triggered either by an abnormally high blood-lead level or by other medical information, it can only protect employees who have their blood tested or are otherwise medically evaluated. However, when employee cooperation with medical surveillance creates the possibility of financial loss due to transfer out of an existing job, employees may well withhold such cooperation, sacrificing their physical health for their economic health.[[5/]] Medical removal protection benefits were intended to eliminate such a "Hobson's choice." By assuring employees that their "earnings" would be maintained, the Secretary eliminated the need for employees to choose between their paycheck and their health.

But the choice is only truly eliminated if a medically removed employee continues to receive the same total amount of pay after removal as before. A worker's family budget is based on the total amount of money that the employee is accustomed to bringing home. Any decrease in that amount, even if the decrease is relatively small, will strain the family budget and create the very disincentive to cooperate with medical surveillance that the Secretary sought to avoid. Therefore, the standard can only achieve its goal if interpreted to require the employer to pay a removed employee the same total amount after removal as before. Accordingly, the standard expressly states that the employee's earnings must be maintained "as though the employee had not been removed . . . or otherwise limited."

East Penn argues that an interpretation of the standard that includes payments beyond an employee's base wage rate fails to provide employers fair notice of what "earnings" includes. According to East Penn, if the standard requires payment of more than an employee's base wage rate, the only apparent limitation on the forms of compensation contemplated by the standard would be "the Secretary's imagination." This argument is without merit. There may be situations in which an employee receives overtime or other incentive payments that vary week-by-week, so that his or her paycheck also varies from week-to-week. However, in most situations, such payments are based on some business purpose that is fairly predictable and repetitive, so that the payments required under the MRP standard can be easily calculated. In this case, for example, East Penn has not disputed the Secretary's calculation that the company withheld from the removed employee $1,150.85 in overtime payments. While the amount of overtime may not be calculable to the penny in all cases, the principle that employees not suffer economic loss due to removal, coupled with an employee's earnings history, provides adequate guidance to employers. See United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 323 (5th Cir. 1987) ("Schuylkill").

East Penn further argues that, if the standard is interpreted to require MRP payments beyond an employee's "rate of pay," then the Commission must conclude that the standard was invalidly promulgated. The company argues that the Secretary did not give affected persons notice that such a broad MRP provision was being contemplated and that this defect in the notice given violated the Act's notice and comment rulemaking procedures. East Penn relies on the dissenting opinion of Judge Jones in Schuylkill. However, the majority in Schuylkill and the Ninth Circuit in McLaughlin v. Asarco, Inc., 841 F.2d 1006 (9th Cir. 1988), rejected the argument. Despite my own reservations about the adequacy of this issue by the two courts that have already considered it. As Chairman Buckley notes in the lead opinion, the objective of predictability in the law's application is best served by our adherence to appellate court decisions. Both courts relied on the well-established principle that a standard issued following notice-and-comment rulemaking may differ from the proposed standard as long as the final rule is a "logical outgrowth" of the rulemaking proceedings. Asarco, 841 F.2d at 1010; Schuylkill, 828 F.2d at 317-18. Here, the courts, common conclusion that provision for overtime payments was a logical outgrowth of the rulemaking proceedings seems reasonable because, as stated earlier, any economic loss to an employee would reduce the incentive to cooperate with medical surveillance and could limit the effectiveness of the entire lead standard.[[6/]]

Although I conclude that the arguments discussed above should be rejected, I agree with East Penn's contention that it would be unfair to find it in violation of the standard in the circumstances of this case. Before the Commission issued its decision in Amax, East Penn paid its employee for overtime, as required under the interpretation I have outlined. After the Commission issued Amax, the company relied on that decision and discontinued the overtime payments.

An employer who adheres to its own legal position despite adverse adjudicatory decisions does so at its own peril, regardless of whether it holds its position in good faith. RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir. 1985). An employer should not, however, be required to act at its peril when it follows the most authoritative decision on a point. See Diebold, Inc. v. Marshall, 585 F.2d 1327, 1336-37 (6th Cir. 1978) (citation vacated because employer was deprived of fair notice of standard's requirement by several factors, including rulings favorable to employer's position by clear majority of Commission administrative law judges); Bethlehem Steel Corp., 82 OSAHRC 19/C8, 10 BNA OSHC 1470, 1473, 1982 CCH OSHD 25,982 (No. 79-310, 1982)(same). The Commission issues its decisions with the hope and the intent that employers will conform their conduct to the legal principles stated in its decisions. We would be working at cross-purposes with our own goals if we were to punish employers like East Penn that conformed their conduct to comply with a Commission decision.[[7/]] I therefore agree that the Commission's decision in Amax deprived East Penn of fair notice that the standard required it to pay its employee for overtime she would have received if not removed and that the citation should be vacated on that basis.




OSHRC DOCKET No. 87- 0537



Marshall H. Harris, Esquire, Regional Solicitor;
Covette Rooney, Esquire, of Counsel,
Office of the Solicitor
U. S. Department of Labor


Morgan, Lewis & Bockius, Esquires
Kenneth D. Kleinman, Esquire, of Counsel
Dennis J. Morikawa, Esquire, of Counsel


ORINGER, JUDGE: On March 18, 1987, the Secretary served a citation upon the respondent for an other than serious violation, alleging therein that respondent, violated the standard set forth at 29 C.F.R. 1910.1025(k)(2)(i) in that an employee removed from exposure from lead was not provided with medical removal protection benefits as defined in 29 C.F.R. 1910.1025(k)(2)(ii) on or about January 9, 1987 and proposed therefore a $0 penalty.

A timely notice of contest was filed by respondent.

Thereafter on June 1, 1987, the Secretary filed his complaint with the Review Commission alleging therein that respondent violated section 5(a)(2) of the Act and in particular, the standard set forth at 29 C.F.R. 1910.1025(k)(2)(i). Complainant further alleged that an employee who was placed on a voluntary medical removal program for lead on August 23, 1986 was not provided medical protection benefits as defined in 29 C.F R. 1910.1025(k)(2)(ii) on or about January 9, 1987.

The Secretary failed to describe either in its citation or in its complaint in what manner the respondent had violated the standard set forth at 29 C.F.R. 1910.1025(k)(2)(ii). The Secretary, on page 3, in subparagraph (d) of his complaint stated:

"respondent's employees were exposed or had access to this violation in that an employee was not paid according to the same wages that she had been making while performing the enveloping job".

Subsequent to the complaint being filed, in lieu of filing an answer, the respondent otherwise pleaded by filing a motion to dismiss the complaint. The motion to dismiss read as follows:

"The citation issued in this case alleges that East Penn failed to pay appropriate medical removal protection benefits under the occupational exposure to lead standard, 29 C.F.R 1910.1025(k)(2)(ii), because East Penn failed to include the overtime earnings of the position from which the employee was removed in the medical removal protection rate".

The respondent's motion was predicated upon the Commission decision in Secretary of Labor against Amax Lead Company of Missouri 12 BNA OSHC 1878 (docket no. 80-1793) (1986) which decision held that medical removal protection benefits need not include overtime payments.

The problem with the original motion was that nowhere in either the Secretary's citation or complaint was it revealed that the citation was based upon the fact that the medical removal protection benefits paid to the employee did not include overtime or incentive payments.

Normally this would have made the motion premature in that an answer should have been filed. and interrogatories or requests for admissions directed to the Secretary to show that its violation was based upon the failure to pay overtime payments, however, the Secretary's response in opposition to respondent's motion to dismiss the complaint removed any doubt as to what the violation was based upon. Page one of the Secretary's memorandum in support of complainant's response in opposition to respondent's motion to dismiss the complaint, states in pertinent part, as follows:

"...The factual basis for the issuance of this citation was that respondent failed to pay to an employee, subject to medical renewal (sic) protection ("MRP") benefits, the overtime payments the employee would have reviewed (sic) but for the removal. Respondent does not dispute that it failed to pay this employee overtime payments that he (sic) would have earned but for the removal. Respondent defends its position on the grounds that, the Review Commission in Secretary of Labor v. Amex Lead Company Of Missouri [[1/]] held that such payments are not included within the definition of "earnings" maintained for MRP employees." (footnote omitted)

The remainder of the memorandum of law argued that the Commission decision was incorrect, urged that the complaint should not be dismissed and that respondent should be ordered to answer the complaint. The Secretary described the Commission's approach as characterized by "tortuous construction of the term 'earnings' and a misreading of the rule-making history".

Accordingly, while the Secretary was avoiding in its citation and complaint the impact of the decision in Amax and, as a result, the motion to dismiss by respondent was in fact premature, his admission in his memorandum of law that the citation was based upon the failure to pay overtime benefits cures the defect and makes this question ripe for decisional purposes at this time.

Both parties, in their briefs, cite the Review Commission decision in Amax Lead Company of Missouri, the respondent relying on it in its motion to dismiss and the Secretary taking issue with it in its affidavit in opposition to the motion to dismiss.

Wherefore, the sole salient issue in determination of this case is whether or not employees who are receiving medical removal benefits as a result of excessive lead levels determined from blood tests would be entitled to overtime pay. This specific issue was addressed in Amax Lead Company of Missouri, Schuylkill Metals Corp., and St. Joseph Resources Co., OSHRC docket numbers 80-1793, 81-0856 and 81-2267, all found at 12 BNA OSHC 1878, decided in June of 1986. In those decisions, the Commission clearly and unequivocally ruled that employees are not entitled to overtime benefits as part of medical removal benefits.

It has been long settled Commission law that administrative law judges must follow Commission rules and that they also must follow precedents established by the Commission. Continental Steel Corporation 1 BNA OSHC 1726 (1974) Accordingly, the judge is constrained to follow the Commission precedent annunciated in Amax in the instant cause.

Wherefore, in accordance with Commission precedent, as above related, the citation is VACATED.



Dated: September 9, 1987
Boston, Massachusetts


[[1/]] The lead standard requires that an employee whose blood lead level exceeds a specified concentration be removed from a work area where the airborne lead concentration is more than a certain amount. Since the expiration of the initial phase-in period during which higher concentrations were permitted, the standard has required that an employee with a blood lead level at or above 50 g/100g of whole blood be removed from work having a daily eight hour time-weighted-average exposure to airborne lead at or above 30 g/m. 29 C.F.R. 1910.1025(k)(1)(i). 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).

[[2/]] Insofar as is relevant here, the MRP provision states:

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.

[[3/]] After the Secretary filed a complaint, East Penn moved to dismiss the complaint. Attached to the motion was the affidavit of Steven Burgert, East Penn's Director of Regulatory Compliance. The Secretary does not dispute any facts stated in Mr. Burgert's affidavit and, indeed, bases her own arguments on those facts. The facts stated in Mr. Burgert's affidavit are sufficient to resolve all issues presented by the case.

[[4/]] Pregnancy is not a mandatory basis for removal. See note 1 supra. However, the standard requires that MRP payments be made when an employer voluntarily removes an employee from lead exposure "due to the effects of lead exposure on the employee's medical condition." 29 C.F.R. 1910.1025(k)(2)(vii).v   

[[1/]] Amax Lead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD 27,629 (No. 80-1793, 1986). rev'd sub nom. United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314 (5th Cir. 1987).

[[2/]] See note 2 of the lead opinion.

[[3/]] See note 1 of the lead opinion.

[[4/]] 29 C.F.R. 1910.1025(k)(1)(iii). In extreme cases, a person's medical condition may make it unreasonably dangerous for the person to be exposed to any amount of lead. If a "final medical determination is made that the employee is incapable of ever safely returning to his or her former job status," the employer may discontinue paying medical removal protection benefits. 29 C.F.R. 1910.1025(k)(2)(vi)(C).

[[5/]] The Secretary's finding to this effect, 43 Fed. Reg. 54354, 54422 (Nov. 21, 1978), based on his review of the rulemaking record, is entitled to deference by the Commission in interpreting and applying the standard. See United Steelworkers of America v. Schuylkill Metals Corp., 825 F.2d 314, 322-23 (5th Cir. 1987) (rejection of argument that payments are not necessary to induce employee cooperation).

[[6/]] The Commission, in Amax, placed great emphasis on the Secretary's use of the terms "rate of pay" and "rate retention" in the rulemaking proceedings to conclude that the Secretary intended the standard to only require the employer to maintain the employee's hourly wage rate. However, language used in the proposed rule or in supplementary notices issued for the purpose of soliciting information that will help shape the final rule are at best uncertain guides to the intent underlying the final rule. Indeed, since the purpose of a notice of proposed rulemaking is to solicit a wide range of views as to the content of the final standard, it is inappropriate to place too much emphasis on the words used such a notice. Whatever the Secretary was thinking when soliciting comments on an MRP provision, the words of the final standard, read in conjunction with the preamble and the standard's purpose, make it clear that the Secretary intended the final standard to protect employees against any economic loss.

[[7/]] I do not see any remedial purpose that would be served by upholding this particular citation under the novel circumstances of this case.