SECRETARY OF LABOR,
Complainant,

v.

EAST PENN MANUFACTURING COMPANY,
Respondent.

OSHRC DOCKET NO. 87-0537

_DECISION_

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.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

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.

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant,

v.

EAST PENN MANUFACTURING CO., INC.
Respondent.

OSHRC DOCKET No. 87- 0537

Appearances:

_FOR THE COMPLAINANT:_

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

_FOR THE RESPONDENT:_

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

_DECISION AND ORDER_

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.

It is SO ORDERED.

DAVID G. ORINGER,
JUDGE, OSHRC

Dated: _September 9, 1987_
Boston, Massachusetts


FOOTNOTES:

[[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 µg/100g of whole blood
be removed from work having a daily eight hour time-weighted-average
exposure to airborne lead at or above 30 µg/m³. 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.