“SECRETARY OF LABOR,Complainant,v.AMAX LEAD COMPANY OF MISSOURI,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO- CLC, and its LOCAL UNION7447-J,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 80-1793_ORDER_This case is before the Commission on remand from the United StatesCourt of Appeals for the Fifth Circuit, the second time this case hasbeen to the Court of Appeals. _United Steelworkers v. St. Joe ResourcesCo._, 916 F.2d 294 (5th Cir. 1990). The court has remanded the case forthe Commission to determine the amounts of back pay due Amax Lead Co. ofMissouri employees who, because they had elevated levels of lead intheir 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 violatingthe occupational safety and health standard at 29 C.F.R. ?1910.1025(k)(2),[[1\/]] which requires that employees removed from theirpositions to lower-exposure jobs must maintain the earnings, rights andbenefits they received before they were transferred. In its firstopinion in this case, the Court of Appeals concluded that \”earnings\”included not only base pay but also such premium payments as paid lunchperiods, overtime pay, production bonuses, and shift differentials forscheduled night and evening work. _United Steelworkers v. SchuylkillMetals_, 828 F.2d 314, 320 (5th Cir. 1987). On remand, the two-memberReview Commission voted to vacate the order of the administrative lawjudge, but the commissioners split on the disposition of the case. Oneof the commissioners was of the opinion that the Review Commission couldorder 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 hadreceived paid half-hour lunch periods before they were medically removedto lower-exposure jobs did not have to be given paid lunch periods intheir new jobs. The Commission reasoned that the employees had been paidfor eight hours’ work before the removal and were being paid for eighthours’ work in their new positions, so there was no economic loss to theemployees.In its second decision in this case, the Court of Appeals has concludedthat the Review Commission does have the power to order back pay. TheCourt of Appeals disagreed with the Commission’s analysis of the paidlunch period requirement. Because the employees were working a half hourlonger in their new positions for the same amount of money, the courtconcluded that the employees had suffered a reduced rate of pay, whichthe court found to be an economic loss. The court therefore ordered thatthe employees concerned be paid for that additional half hour of workper shift.The court remanded the case for the Commission to determine the amountsof back pay owed to the employees identified in the citations issued toAmax Lead Co. We, in turn, remand this case to an administrative lawjudge to make the necessary findings of fact. If it is necessary to doso, the judge may reopen the record to take evidence on this question.Accordingly, this case is remanded to the Chief Administrative Law Judgefor assignment. The judge to whom it is assigned shall enter an orderrequiring Amax Lead Co. to pay the appropriate amounts of back pay.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: December 4, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.AMAX LEAD COMPANY OF MISSOURI,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC, and its LOCAL UNION7447-J,Authorized EmployeeRepresentative.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 OSHAstandard regulating occupational exposure to lead. That provision, 29C.F.R. ? 1910.1025(k)(2),[[1\/]] requires employers to \”maintain theearnings, seniority, and other employment rights and benefits\” ofemployees they remove from lead exposure because the employees are atparticular risk of suffering lead- related diseases.[[2\/]] The case isbefore the Commission for a second time. In its first decision, theCommission concluded that Amax Lead Company of Missouri (\”Amax\”)complied with the standard by paying employees for a 40-hour work weekat their regular rate of pay, rejecting the Secretary’s argument that\”earnings\” under the standard included overtime compensation and paidlunch periods the employees received before their transfers. _Amax LeadCo. of Missouri_, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629 (No.80-1793, 1986). That decision was reversed by the Fifth Circuit, whichadopted the Secretary’s interpretation of the standard. _UnitedSteelworkers of America v. Schuylkill Metals Corp._, 828 F.2d 314, 321(5th Cir. 1987).[[3\/]] The court remanded \”for further proceedingsattuned to this opinion. _Id._ at 323.I.The relevant facts are set forth in our prior opinion, and we shall onlybriefly summarize them here. Six Amax employees were transferred out ofareas of high lead exposure pursuant to the medical removal provisionsof the lead standard. During the transfer period, the employees werepaid for a 40-hour work week at the regular hourly rate of pay theyreceived in their normal jobs. However, they did not have theopportunity to work overtime, as they would have if they had not beentransferred. They also no longer received compensation during theirhalf-hour lunch breaks. Thus, in their regular jobs, they had been paidfor 8 hours work on a normal shift but were allowed to use a half-hourof that shift for lunch. After being transferred, their shift was 8 1\/2hours long, of which 8 hours was working time and the remaininghalf-hour was an unpaid lunch period.The Fifth Circuit adopted the Secretary’s interpretation of thestandard, which provides:Earnings includes more than just your base wage; it includes overtime,shift differentials, incentives, and other compensation you would haveearned if you had not been removed.828 F.2d at 323, quoting 29 C.F.R. ? 1910.1025 Appendix B.[[4\/]] In thiscase, the employees did not receive the amounts they would have earnedif not removed. After removal, they received pay for a 40-hour week attheir regular rate of pay. However, if they had not been removed, theywould have earned additional sums by working overtime. Under the FifthCircuit’s decision, Amax violated the standard by not paying theemployees these additional sums.The Secretary also argues that Amax violated the standard in thatemployees received paid lunch periods before, but not after, removal. Wedisagree. Under the Secretary’s interpretation, which the Fifth Circuitadopted, the employer must pay a removed employee the total compensationhe would have earned if not removed. Here, the employees received 8hours pay per day before removal, and 8 hours pay per day after removalat the same hourly rate. Under the Secretary’s argument, the employeeswould receive more pay after removal than before. We do not believe thatsuch a result is consistent with the standard’s objective of assuringthat removed employees suffer no economic loss, nor do we think it isrequired under the Fifth Circuit’s decision. [[5\/]]II.Amax contends that the lead standard was invalidity promulgated for anumber of reasons. The company argues that the Secretary did not havethe statutory authority to adopt the provision requiring payment of MRPbenefits. The company also contends that the provision for payment ofMRP benefits is economically infeasible, that the Secretary did not giveinterested persons adequate notice that a permissible exposure limit(\”PEL\”) of 50 ?g\/m^3 would be adopted, that this PEL is technologicallyand economically infeasible, and that the Secretary improperly relied onoutside consultants during the rulemaking proceedings.The Commission members both reject Amax’s validity arguments, but fordifferent reasons. Chairman Buckley believes that Amax’s arguments areforeclosed by the Fifth Circuit’s remand order. Amax’s arguments wereconsidered and rejected by the D. C. Circuit in a pre-enforcementchallenge to the standard. _United Steelworkers of America, AFL-CIO-CLCv. 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 Circuitnoted that its sister circuit had upheld the standard’s validity and said:The lead standard has been challenged by the industry in litigation fromits inception. The courts, however, have not proved a receptive audiencefor the industry’s well-orchestrated complaints. The present movement inthis seemingly never ending symphony is but a minor variation on theprior themes. Thus, unlike a listener to Haydn, the industry shouldhardly 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 policiesunderlying the lead standard–likely will continue to strike adiscordant note in the courts. The industry must either acceptlegislative and regulatory atonality, or, if too painful for the ears(and pocketbooks) attempt to return the score to the composers of thelead policy for reorchestration.828 F.2d at 315-16. This language suggests that the Fifth Circuitconsidered the validity of the standard to be definitively established,at least for purposes of this case. Accordingly, Chairman Buckleyconcludes that the court’s decision precludes further consideration ofAmax’s validity arguments.Commissioner Arey does not believe that the Fifth Circuit’s decisionprecludes consideration of Amax’s validity arguments. She notes thatthose arguments were not raised before the court, and believes that thecourt’s decision cannot be considered a definitive ruling on an issue itdid not explicitly consider. Commissioner Arey would therefore considerAmax’s validity arguments.[[6\/]] She would reject them for the followingreasons.Two of Amax’s arguments–that the Secretary gave inadequate notice ofthe 50 ?g\/m^3 PEL and that he improperly relied on outsideconsultants–challenge the procedures the Secretary followed inpromulgating the standard. In _National Industrial Constructors, Inc. v.OSHRC_, 583 F.2d 1048 (8th Cir. 1978), the Court of Appeals for theEighth Circuit held that the validity of the procedures followed by theSecretary in promulgating OSHA standards cannot be challenged inenforcement proceedings. This case arises in the Eighth Circuit, and theCommission’s decision is therefore appealable to that court.[[7\/]] 29U.S.C. ? 660(a) & (b). Commissioner Arey believes that the Commissionmust follow controlling circuit law, and therefore declines to considerAmax’s procedural challenges in this enforcement proceeding.Although Amax’s substantive challenges can be considered under NationalIndustrial Constructors, Commissioner Arey concludes that thosechallenges lack merit. Amax argues that the Secretary lacked thestatutory authority to adopt the provision requiring payment of MRPbenefits. Commissioner Arey rejects that argument for the reasons shestated in St. Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).Amax also argues that the MRP provision is economically infeasible, andthat the standard’s PEL of 50 ?g\/m^3 is both technologically andeconomically infeasible. Commissioner Arey rejects these argumentsbecause they are not supported by the record. Amax argues that therulemaking record on which the Secretary based his findings that thestandard was feasible does not support the Secretary’s findings. Withoutdeciding whether it would ever be proper for the Commission to reviewfindings made by the Secretary on the basis of a rulemaking record,Commissioner Arey observes that the Commission certainly cannot do sohere because the rulemaking record is not before it. The burden ofproving, in an enforcement proceeding, that a standard is invalid lieswith the party challenging the standard’s validity. See Atlantic & GulfStevedores v. OSHRC, 534 F.2d 541, 548-50 (3d Cir. 1976). CommissionerArey concludes that Amax has failed to meet its burden of proving thatthe standard is invalid for the reasons it has stated.In addition, Commissioner Arey notes that there is a second reason forrejecting Amax’s two arguments that challenge the validity of thestandard’s PEL of 50 ?g\/m^3 . Amax has not been cited for violating thatprovision in this case. Yet, under Commission precedent, the Commissionwill only consider validity challenges that may affect the outcome of acase. DeKalb Forge Co., 13 BNA OSHC 1146, 1151, 1886-87 CCH OSHD ?27,842, p. 36,449 (No. 83-299, 1987). Accordingly, Commissioner Areywould reject Amax’s challenges to the validity of the PEL for both ofthe reasons stated above.IIIWe must now determine the proper classification of the violation andassess an appropriate penalty. The Secretary originally alleged that theviolation was willful and proposed a $1600 penalty. The administrativelaw judge rejected the willful characterization, found that theviolation was _de_ _minimis_, and assessed no penalty. Amax argues thatthe _de_ _minimis_ classification is proper. The Secretary contends thatthe violation is willful, or at least serious, in nature.We reject the Secretary’s argument that the violation should beclassified as willful. The judge found that the violation was notwillful, the Secretary did not seek review of that finding, and theissue was not directed for review. Accordingly, we would normally notreach the issue.[[8\/]] We note, in any event, that the argument iswithout merit. A violation is willful if \”it was committed voluntarilywith either an intentional disregard for the requirements of the Act orplain indifference to employee safety.\” United States Steel Corp., 12BNA 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 thestipulation suggests that Amax acted with either an intentionaldisregard for the requirements of the Act or plain indifference toemployee health. The Secretary bases the willfulness allegation on theundisputed fact that Amax knew of the lead standard’s medical removalprotection provisions. But an employer’s knowledge that a standardexists does not establish that the employer knew it was violating thestandard. Amax did in fact maintain the hourly wage rate of theemployees it removed, but it disputed whether the standard also requiredit to maintain the existing levels of overtime compensation and paymentsfor lunch period. A violation is not willful if an employer has a goodfaith 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 theviolation as _de_ _minimis_. A _de_ _minimis_ violation is one whichbears such a negligible relationship to employee safety or health as torender inappropriate the assessment of a penalty or entry of anabatement order. _Cleveland Consolidated, Inc._, 13 BNA OSHC 1114, 1118,1986-87 CCH OSHD ? 27,829, p. 36,429 (No. 84-696, 1987). We cannot saythat the hazard here was negligible. The lead standard relies onemployees consenting to have their blood tested to determine their bloodlead level. Blood testing provides early detection of rising blood leadlevels and triggers the medical removal of employees before their bloodlead levels exceed a certain amount. _See_ note 2 _supra_. The purposeof medical removal protection benefits is to eliminate an economicdisincentive for employees to consent to blood testing and to otherwisecooperate with the workplace medical surveillance program required underthe lead standard. _United Steelworkers of America v. Schuylkill MetalsCorp._, 828 F.2d at 322. Thus, the hazard addressed by the standard isnot negligible. _See_ _St. Joe Resources Co._, OSHRC Docket No. 81-2267(Apr. 27, 1989).We conclude that the violation is properly classified as serious. Theserious health hazard presented by metallic lead is well established.The MRP benefits provision attacks this hazard by removing barriers tocomplete employee cooperation with medical surveillance. It seeks toprotect the employees who face the gravest risk of serious lead-relateddisease: those who have high blood lead levels and those who have othermedical conditions that would place them at particular risk should theycontinue to be exposed to lead in the workplace. The standard also seeksto eliminate the possibility that employees fearing economic loss due toremoval from their jobs would use chelating drugs, which have dangerousside effects, in an attempt to reduce their blood lead levels. _See__St. Joe Resources Co._, _supra_. Since the potential for serious harmexists whenever the MRP standard is violated, we conclude that Amax’sviolation of the standard was serious.In determining an appropriate penalty, we find that Amax acted in goodfaith to protect its employees from the adverse health effects of highblood lead levels. Of the six employees removed from work involvingexposure to high airborne lead levels, only one had a blood lead levelsufficiently high to require removal. Amax transferred the remainingfive, and paid them at their normal hourly wage rate, even though theirblood lead levels did not require medical removal. Amax did violate thestandard by not paying the removed employees for overtime, but thataction was taken under a good faith interpretation of the standard. Weconclude that a penalty of $60 is appropriate.DNormally, and order affirming a citation and establishing a penaltyassessment would be sufficient to dispose of the case. However, there isone additional contention that we must address. The Secretary and theUnion argue that the Commission should issue an order requiring Amax topay the removed employees the specific amounts that were due them butnot 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 toreceive full \”earnings\”, as that term has been interpreted by the FifthCircuit, are entitled to be paid retroactively for the period of timethat they failed to receive full earnings, he is also of the view thatthe Review Commission is without authority to make individualcompensatory awards to those employees. Under the Occupational Safetyand Health Act (29 U.S.C. 651 et seq.), the Secretary is authorized toissue citations to employers alleged to have violated the Act or anystandard, rule or regulation promulgated pursuant to the Act. Thecitation is required to specify the violation with particularity, and toprescribe a reasonable time for abatement. The Secretary must alsonotify the employer of any penalty proposed to be assessed. That Actalso created the Occupational Safety and Health Review Commission andauthorized it to hear cases brought before it involving safety andhealth violations, and to affirm, modify, or vacate the Secretary’scitation or proposed penalty, or to direct \”other appropriate relief\”.29 U.S.C. ? 659(c). The determination of the amount of pay to be awardedto an employee, and an order providing for individual compensatoryrelief 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 itan \”abatement\” as used in the Act, which he would define as thoseactions required to terminate the violative condition. In this case, thefailure to pay full \”earnings\” would be abated by the commencement topay them. Nor does the awarding of individual compensatory relief toindividual workers retroactively for earnings which they failed toreceive constitute \”other appropriate relief\”.[[9\/]] The ordering ofback pay is not necessary as an abatement measure to the termination ofthe violative condition. In Chairman Buckley’s opinion, the Commissionis without authority to make individual compensatory awards unlessexpressly so authorized by Congress (as Congress has done, for example,in the case of awards of attorney’s fees and costs under the EqualAccess to Justice Act).Chairman Buckley emphasizes that the Commission’s lack of authority toissue backpay orders to compensate employees who failed to receive fullearnings does not leave the employees without a remedy. If the employersfail to compensate them fully and retroactively, there are forumsauthorized to resolve such disputes. Chairman Buckley’s views on theCommission’s lack of authority to issue awards of back pay should not beread as meaning that employees are not entitled to retroactive pay, onlythat the Commission is not the forum to award such pay. He agrees withCommissioner Arey that employees removed under the medical removalprotection standard are entitled to continue to receive the full amountof remuneration that they were receiving before removal, whether that becontractual or voluntary overtime pay, production incentive bonuses, orother pay differentials. He stops short of agreeing to consider whatthose amounts are as to each individual employee, or whether they alsoare entitled to interest on the unpaid earnings.Commissioner Arey would remand to the judge to calculate the amountsAmax improperly withheld under the terms of the medical removalprotection standard and to order Amax to pay those amounts. She believesthat payment of amounts improperly withheld is the abatement requiredwhen a violation of the MRP benefits provision of the standard is found,that ordering such payments is within the Commission’s authority, andthat such an order is generally appropriate to define the employer’sabatement obligation and avoid a potential failure-to-abate proceeding._See_ _St. Joe Resources Co._, _supra_ (separate views of CommissionerArey).Official action can be taken on the affirmative vote of at least twoCommission members. 29 U.S.C. ? 661(f). The Commission members bothagree to find that Amax committed a serious violation of the citedstandard and assess a penalty of $60. They are divided on the proprietyof a \”backpay\” order, and therefore cannot issue such an order.Accordingly, the citation is modified to allege a serious violation of29 C.F.R. ? 1910.1025(k)(2) and, as so modified, it is affirmed. Apenalty of $60 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: 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 EmployeeRepresentative.OSHRC Docket No. 80-1793SECRETARY OF LABOR,Complainant,v.SCHUYLKILL METALS CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 8394,Authorized EmployeeRepresentative.OSHRC Docket No. 81-0856SECRETARY OF LABOR,Complainant,v.ST. JOE RESOURCES COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 8183,Authorized EmployeeRepresentative.OSHRC Docket No. 81-2267_DECISION_BEFORE: BUCKLEY, Chairman, RADER and WALL, Commissioners.BUCKLEY, Chairman:These consolidated cases[[1]] are before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”). It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions. _See_ section 10(c) of the Act, 29U.S.C. ? 659(c).These cases involve the interpretation of the medical removal protectionbenefits (\”MRP benefits\”) provision of the standard at 29 C.F.R. ?1910.1025, which regulates occupational exposure to lead. The leadstandard primarily seeks to protect workers from the adverse effects oflead on their health by limiting the amount of lead they inhale andingest. The MRP provision is a \”backup\” requirement that is intended toprotect employees who are not adequately protected by the otherprovisions of the standard. If an employee’s blood lead level exceedscertain limits or if the employee would otherwise experience certainrisks to his health from continued lead exposure, the standard requiresthe employer to remove the employee from excessive lead exposure. For anemployee transferred under this requirement, the MRP benefits provisionrequires the employer to \”maintain the earnings, seniority and otheremployment rights and benefits of an employee as though the employee hadnot been removed . . . . \” 29 C.F.R. ? 1910.1025(k)(2)(ii). In thesecases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, andSt. Joe Resources Company transferred certain employees who had elevatedblood lead levels from jobs with high lead exposures to positionsoutside high lead areas. The employers paid the transferred employeestheir regular wage rate for the 40-hour weeks the employees workedduring the periods of transfer. The Secretary of Labor alleges that theemployers violated the MRP benefits provision by not paying thetransferred employees for potential overtime, production bonuses, shiftdifferentials, and paid lunch periods that were incidents of the jobsthey held before their transfers but not of the jobs to which they weretransferred. We conclude that the employers complied with the standardby paying the employees their regular wage rate for a 40-hour week, andwe therefore vacate the citations.IIt has long been known that lead is highly toxic to humans. Lead that isinhaled or ingested enters a person’s bloodstream, where it is carriedto the various organs throughout the body. In excessive amounts, leadcan 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 towhich an employee could be exposed to 200 micrograms per cubic meter ofair (\”?g\/m^3 \”) averaged over an 8-hour day.[[2]] In 1975, the Secretaryof Labor, believing the existing standard was not sufficientlyprotective, proposed a new standard that would both lower thepermissible exposure limit and adopt a number of other provisionsintended to protect lead-exposed employees. 40 Fed. Reg. 45934 (Oct. 3,1975). Following lengthy rulemaking proceedings, the Secretarypromulgated the standard here at issue. 43 Fed. Reg. 52952 (Nov. 14,1978).[[3]]Because lead reaches vital organs through the bloodstream, much of theSecretary’s rulemaking effort focused on controlling the amount of leadin workers’ blood. The secretary first attempted to determine themaximum concentration of lead in the blood that would not producematerial impairment of workers’ health. He found that serious leadpoisoning occurs at blood lead levels of 80 micrograms per 100 grams ofblood (\”?g\/100g\”), 43 Fed. Reg. at 52954, but that other adverse healtheffects occur at lower blood lead levels. These levels were referred toin the rulemaking proceedings as \”subclinical effects,\” and can bedefined as \”physiological changes which can be detected by sophisticatedlaboratory tests, but not by either ordinary clinical examination or bythe patient himself, which may be irreversible, and which likely bear acausal relationship with overt lead disease.\” _United Steelworkers ofAmerica, AFL- CIO v. Marshall_, 647 F.2d 1189, 1249 (D.C. Cir. 1980),_cert_. _denied_, 453 U.S. 913 (1981) (\”_Steelworkers_\”). The Secretaryfound that these subclinical effects become significant at blood leadlevels of 40 ug\/100g and higher. 43 Fed. Reg. at 52954-60. Finding thatthe presence of subclinical effects constituted material impairment ofhealth, the Secretary established the objective of maintaining the bloodlead 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 below40 ug\/100g for all workers could not be feasibly achieved. Becausepeople differ in the manner in which they absorb lead, at any particularlevel of airborne lead a group of workers will exhibit a range of bloodlead levels. The Secretary found that the lowest airborne level themajor lead-based industries could feasibly achieve was 50 ?g\/m^3 and hetherefore established that level as the permissible exposure limit forairborne lead.[[4]] 43 Fed. Reg. at 52963. He also found thatapproximately 30% of workers would have blood lead levels over 40ug\/100g when uniform compliance with the 50 ?g\/m^3 permissible exposurelimit was achieved. _Id_.In order to protect the health of employees who would not be adequatelyprotected by the permissible exposure limit, the standard requiresemployers to establish programs of medical surveillance. 29 C.F.R. ?1910.1025(j). The key to medical surveillance is blood testing, whichthe employer must offer to all employees exposed to an \”action level\” of30 ?g\/m^3 for 30 or more days per year. Subsections 1910.1025(j)(1) and(2). If an employee is found to have a blood lead level exceeding acertain amount–50 ug\/100g when the standard becomes fullyeffective–the medical removal protection provisions of the standardcome into play. Subsection 1910.1025(k). The employer must remove theemployee from exposure to lead above the action level until twoconsecutive blood tests show that the employee’s blood lead level hasreturned 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 theaction level without regard to his blood lead level if it is determinedthat \”the employee has a detected medical condition which places theemployee at increased risk of material impairment to health fromexposure to lead.\” Subsection 1910.1025 (k)(1)(ii). Such an employee canbe returned to his previous position if it is found that his medicalcondition has changed such that exposure to lead no longer places him atincreased 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 anelevated blood lead level or other medical condition, the employer mustpay the employee MRP benefits. Subsection 1910.1025 (k)(2)(ii) provides:For the purposes of this section, the requirement that an employerprovide medical removal protection benefits means that the employershall maintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.The employer is required to provide MRP benefits, i.e., \”maintain theearnings, seniority and other employment rights and benefits of anemployee.\” for up to 18 months on each occasion an employee is removedfrom excessive lead exposure. Subsection 1910.1925(k)(2)(i). TheSecretary included this requirement in the standard in order to induceemployees to cooperate with medical surveillance. He was concerned thatemployees, faced with the possible loss of their income if medicalsurveillance showed they should be removed from lead exposure, wouldrefuse to cooperate with the standard’s medical surveillance provisionsand thereby risk endangering their health. Thus, \”MRP was included inthe final standard as a means of maximizing meaningful participation inmedical surveillance provided to lead-exposed workers.\” 43 Fed. Reg. at52973.II.A. _Amax-Lead Company, Docket No. 80-1793_Amax operated a primary lead smelter in Missouri. In late 1979 and early1980, the company transferred six employees from areas of high leadexposure to low exposure areas[[5]] due to their elevated blood leadlevels. After about three months, the blood lead levels of theseemployees returned to acceptable levels. Four of the employees returnedto their previous jobs while two bid for and won other jobs in the facility.Before their transfers, the six employees worked in positions that hadto 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 fora full 8 hours but was allowed a half-hour for lunch. The six employeeswere transferred to the mine\/mill unit, which did not operate during theentire 24 hour day. Workers in this unit therefore worked 8 1\/2 hourshifts, 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 theirregular base rate of pay. In their regular jobs, they would also havehad the opportunity to work overtime. The collective bargainingagreement between Amax and the United Steelworkers of America providedthat overtime would be distributed \”as equitably as practical\” amongemployees in each job classification. Available overtime was offered toemployees in order of seniority. They could either accept or refuse whentheir turn came. The company kept and posted records showing for eachemployee the hours of overtime worked, the hours refused, and the total.Employees unavailable when overtime was offered, including thosetransferred to low exposure jobs, were considered to have refused offersof overtime work. Thus, for each of the six transferred employees, thecompany had records showing the amount of overtime they \”refused\” duringtheir transfers.B. _Schuylkill Metals Corporation, Docket No. 81-0856_Schuylkill operated a secondary lead smelter in Louisiana. The plant’sproduction department had a high airborne lead concentration, while thechange house had a low lead concentration. Employees in the change houseperformed janitorial duties such as washing work clothes and repairingrespirators.Under the normal work schedule in the production department, employeesworked six 40-hour weeks and two 48-hour weeks in any 8-week period.They thus averaged two hours of overtime per week. Production departmentemployees were also eligible to receive production incentive bonuses,which were based on the daily amount of production in excess of acertain base amount. Production incentive bonuses varied among theworkers on a shift based on performance criteria unique to theindividual. In the change house, employees worked a 40-hour week. Theydid not work overtime and were not eligible for production incentivebonuses.Between January 1, 1980 and December 4, 1981, Schuylkill temporarilytransferred a number of employees from the production department to thechange house. [[6]] While in the change house the employees were paid atthe hourly wage rate they had earned in the production department. Theydid not, however, receive either overtime pay or production incentivebonuses.C. _St. Joe Resources Company, Docket No. 81-2267_St. Joe operated a zinc smelter in Pennsylvania. In 1981, the companytransferred one employee—Simpson Butler–pursuant to the MRP provisionof the lead standard. Butler had been hired in 1980 as a laborer, aposition that did not involve excessive lead exposure. On April 2, 1981,he was awarded the position of \”weighman\” but, on July 17, 1981, he wasreturned to the Iaborer position due to an elevated blood load level.The plant operated 24 hours per day, seven days per week, and theweighman job had to be covered at all times. To accomplish this, theweighmen were divided into four shifts that worked 20-week rotatingschedules. Each shift included various amounts of night, weekend, andovertime work, but the actual schedule would vary during the 20-weekrotation.St. Joe’s collective bargaining agreement provided that weighmen wouldreceive 1.5 times their base rate for scheduled Sunday and sixth daywork (\”scheduled overtime\”). The agreement further provided for extrahourly pay (\”shift differentials\”) for scheduled evening and night work.A weighman who worked all of his scheduled time during a 20-weekrotation would thus receive a total amount of compensation, includingscheduled overtime and shift differentials, that would exceed theemployee’s base rate of pay multiplied by the number of hours actuallyworked. However, each employee’s pay during any particular two-week payperiod 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 theplant. Employees signed up if they were interested in voluntary overtimeand would be offered such overtime as the plant’s needs and their skillsallowed. Voluntary overtime did not necessarily involve the employee’sregular duties. During his 16 weeks as a weighman, Butler worked all ofhis regular shifts and also worked 45 hours of voluntary overtime.When Butler was transferred, he was assigned duties as a laborer for an8 hour per day, 40 hour per week shift. As a laborer, Butler was paidthe base rate he received as a weighman, but he worked no scheduledovertime or night shifts and received no overtime pay or shiftdifferentials. He refused the one offer of voluntary overtime he received.IIIThe MRP benefits provision requires that employers maintain the\”earnings, seniority and other employment rights and benefits of anemployee\” who is transferred under the standard’s MRP provisions. Thequestion presented by these cases is what an employer must pay atransferred employee in order to maintain that employee’s \”earnings.\”The employers contend that they need only pay an employee who works anormal 40-hour week after being transferred his regular hourly rate ofpay for those 40 hours, while the Secretary and unions claim theprovision requires the employer to also pay additional amounts theemployee could have earned if he had not been transferred. In theirview, Amax, Schuylkill, and St. Joe violated the standard by not payingtheir transferred employees for potential overtime, shift differentials,production incentives, and paid lunch periods (collectively, \”premiumpayments\”) they would have received but for the transfers.In interpreting a standard, the Commission employs the same rules ofconstruction that are used to discern the meaning of statutes. BungeCorp., 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 mustdetermine the intent of the standard’s drafter, in this case theSecretary, at the time the standard was adopted. The most compellingevidence of a drafter’s intent is, of course, the plain meaning of thewords he used. _Id_. In this case, however, the meaning of the crucialword \”earnings\” is not so plain as to enable us to resolve the disputebetween the parties. \”Earnings\” is not a word of art but is a generalterm broad enough to encompass the interpretations offered by all of theparties. 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 ascompensation for labor or the use of capital.\” _Webster’s Third NewInternational Dictionary_ 714 (1971). Because the issue cannot beresolved on the basis of the word’s plain meaning, we must look to thelegislative history of the standard to discern the Secretary’s intentwhen he promulgated the standard.The lead standard was the first, and is still the only, OSHA standardcontaining a comprehensive MRP benefits provision. However, in adoptingthe standard, the Secretary did not write on an entirely clean slate.The issue of MRP benefits had previously been addressed in severalcontexts, and these provide a background for examining the Secretary’sintent when he included the MRP benefits provision in the lead standard.The first federal law containing a MRP benefits provision was theFederal Coal Mine Health and Safety Act of 1969, 30 U.S.C. ?? 801 etseq. (\”Mine Act\”).[[7]] That statute provides that any miner showingevidence of black lung disease be given the opportunity to transfer to aposition for which the dust level is sufficiently low to prevent furtherdevelopment of disease. 30 U.S.C. ?? 843(b)(1) and (2). Any miner sotransferred must be compensated at \”not less than the regular rate ofpay 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 needonly be paid at the same daily rate he was receiving just prior totransfer, not the amount he would have earned if he had not beentransferred. _Higgins v. Marshall_, 584 F.2d 1035 (D.C. Cir. 1978),_cert_. _denied_, 441 U.S. 931 (1979). When he adopted the OSHA leadstandard, the Secretary was aware of both this provision of the Mine Actand of the interpretation placed on it in _Higgins v. Marshall_, for hediscussed these matters in the preamble to the OSHA standard. 43 Fed.Reg. at 54447-49.The Secretary considered MRP benefits in rulemaking proceedings for twoother standards before the adoption of the lead standard. One of thefirst standards issued by the Secretary after notice-and-commentrulemaking regulated occupational exposure to asbestos. 29 C.F.R. ?1910.1001. That standard contains a limited MRP provision, applicableonly to employees who would be required to wear respirators but who aremedically incapable of doing so.Such employee shall be rotated to another job or given the opportunityto transfer to a different position whose duties he is able to performwith the same employer, in the same geographical area and with the sameseniority, 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). Subsequentrulemakings continued the practice of considering MRP protection asmaintenance of the employee’s \”rate of pay.\” The term \”rate retention,\”implying maintenance of an employee’s \”rate of pay,\” was often used as asynonym for medical removal protection. In promulgating a standardregulating exposure to coke oven emissions, the Secretary considered arecommendation that he adopt a MRP provision. The recommendation wasthat removal of an employee from exposure should \”not result in loss ofearnings or seniority status to the affected employee.\” (Emphasisadded.) The Secretary referred to this recommendation as a \”rateretention provision.\” 41 Fed. Reg. 46780 (Oct. 22, 1976). The Secretarydid not, however, include such a provision in the coke oven standard. 29C.F.R. ? 1910.1029.The next standard promulgation proceeding in which the Secretaryconsidered MRP protection involved the lead standard at issue here. TheSecretary first proposed a standard that did not contain a MRPprovision. 40 Fed. Reg. 45934 (Oct. 3, 1975). After receiving commentsand holding informal public hearings on the proposed standard, theSecretary announced an additional comment period for the submission ofwritten data, views, and arguments on medical removal protection. 42Fed. Reg. 46547 (Sept. 16, 1977). The announcement stated:The medical surveillance provisions of the lead standard should includea requirement for medical removal protection. This requirement wouldmaintain the _rate_ _of_ _pay_, seniority, and other rights of anemployee for the time period, or a portion thereof, that the employee istransferred or removed from his or her job as a result of an increasedhealth risk from exposure to lead. After a follow-up medical examinationand opinion, the following options would be available with no loss of_earnings_ or rights: Return to the original job, assignment to adifferent job (transfer), or continuation of the transfer or removal._Id_. at 46548 (emphasis added). Another passage in the sameannouncement stated: \”Ninety days was mentioned as one time period forearnings protection (‘rate retention’).\” _Id_. at 46549. Thus, theannouncement gave notice that the Secretary was considering thetraditional type of MRP protection in which the employee’s rate of paywould 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 maintainthe \”earnings\” of transferred employees. The Secretary contends that hischoice 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 insteadof 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 somethingdifferent than \”rate of pay.\” As we have noted, in the announcement inwhich MRP protection was injected into the rulemaking proceeding, theSecretary used \”earnings\” synonymously with \”rate of pay.\” Therefore,when he used \”earnings\” in the final standard, the most logicalconclusion 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. Joepoints out, the Secretary is sophisticated in labor matters and knowsthat compensation issues often involve overtime and other premiumpayments. Thus, if the Secretary made a deliberate decision that premiumpayments were to be included in MRP benefits, it is reasonable to inferthat he would have made such an intent explicit. _See_ _United States v.American Trucking Associations_, 310 U.S. 534, 544 (1940) (\”a few wordsof general connotation appearing in the text of statues should not begiven a wide meaning, contrary to a settled policy, ‘except as adifferent purpose is plainly shown’.\”)A further indication that \”earnings\” was not meant to include premiumpayments is the absence of evidence that the subject of premium paymentsreceived any attention in the rulemaking proceedings. As noted above,the announcement that injected MRP into the rulemaking indicated that atraditional \”rate retention\” rule was being considered. The commentssubmitted in response to this announcement reflect that employees hadone overriding concern: that their cooperation with the medicalsurveillance provisions of the standard not lead to the loss of theirjobs. The Secretary cited the testimony of Anthony Mazzocchi, vicepresident of the Oil, Chemical and Atomic Workers Union, that theabsence of an MRP provision would force employees to choose betweentheir jobs and their health. 43 Fed. Reg. at 54442. In the preamble tothe lead standard the Secretary noted that the potential loss of one’sjob will create a substantial deterrent to an employee’s cooperationwith the standard’s medical surveillance provisions. However, there isnothing in the preamble to indicate that the Secretary also believedthat the potential loss of premium payments would create a comparabledeterrent. The Secretary simply did not address the subject of premiumpayments.The only indication in the standard’s legislative history that thesubject of premium payments was considered at all was a suggestion bythe United Steelworkers of America that the Secretary include adefinition of \”earnings\” in the standard. The Secretary declined thisinvitation, saying:The United Steelworkers of America urged that the standard include adetailed definition of the term \”earnings,\” listing all the possibleforms of direct and indirect compensation which an employer might havenormally given a worker in the absence of a removal. (Ex. 452, p. 44.)OSHA rejected the adoption of such a detailed definition because itwould likely be confusing to some employers in light of the manycontexts in which the standard will apply. To comply with the standard,an employer need only maintain the removed worker as though no removalhad occurred.43 Fed. Reg. at 54466. If the Secretary truly intended that \”earnings\”would include premium payments, the suggestion by the Steelworkers thathe define \”earnings\” gave him the opportunity to explicitly state thatintent. His failure to include a definition of \”earnings\” is a furtherindication he intended it to mean no more than his announcementoriginally indicated, i.e., \”rate of pay.\”[[8]]The Secretary argues that the last sentence in the above quotation and astatement elsewhere in the preamble that the MRP provision \”uses the_all- encompassing phrase_ ‘earnings, seniority and other employmentrights and benefits’_to assure that a removed worker suffers neithereconomic loss nor loss of employment opportunities due to removal_,\” 43Fed. Reg. at 52976 (emphasis by the Secretary) make clear his intentionthat MRP benefits include premium payments. We do not agree. In light ofthe Secretary’s failure to include a definition of \”earnings\” in eitherthe standard or the preamble, and the absence of any discussion in thepreamble of premium payments, we cannot read these general statements asexhibiting an intention on the Secretary’s part that MRP benefitsinclude premium payments.Finally, if the Secretary did intend \”earnings\” to have a broadermeaning than \”rate of pay,\” his action would be contrary to the spirit,and possibly the letter, of notice-and-comment rulemaking. In conductingsuch a rulemaking, an agency is required to give the public fair noticeof the rule it proposes to adopt, so that persons affected by the rulewill 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 publicnotice that he was considering adopting a \”rate retention\” provision.Had the Secretary given notice that he was also considering a broaderMRP provision, one which would also require premium payments, it couldbe expected that he would have received comments addressing thenecessity and propriety of such payments. As it was, nothing in thepreamble or the standard indicates that the Secretary received anycomments addressed to premium payments, with the possible exception ofthe 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 afinal rule, as long as the final rule is a \”logical outgrowth\” of therulemaking proceeding. _Steelworkers_, 647 F.2d at 1221. In order tojustify such a deviation however, there must be evidence in therulemaking record that warrants the change. _Id_. If there was evidencein the record of the lead rulemaking to justify inclusion of premiumpayments in MRP benefits, the Secretary did not mention it or rely onit. Thus, even if the Secretary did use the word \”earnings\” because hemeant MRP benefits to include premium payments, it is highly doubtfulwhether the standard, as so interpreted, would be valid in light of theabsence 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 ofstatute’s validity).We conclude that Amax, Schuylkill, and St. Joe complied with the MRPbenefits provision by paying the employees they transferred at theirregular rate of pay for the 40 hours per week the employees workedduring the periods of transfer. Accordingly, the citations are vacated.[[9]]FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: June 25, 1986 SECRETARY OF LABOR,Complainantv.AMAX LEAD COMPANY OF MISSOURI,RespondentUNITED STEELWORKERS OF AMERICA,Employee RepresentativeOSHRC DOCKET, 80-1793REPRESENTING THE COMPLAINANT:ROCHELLE G. STERN, Esq., Office of the Solicitor, U.S.Department of LaborREPRESENTING THE RESPONDENT:WILLIAM A. ZIEGLER, Esq., Sullivan and Cromwell.REPRESENTING THE EMPLOYEES:MS. MARY-WINN O’BRIEN, Legal Department, United Steelworkersof AmericaThe parties of this controversy have agreed that it be decided upontheir submitted stipulation.Following an inspection on February 20-21, 1980, at respondent’sworksite located on Highway KK, two miles south of Highway 32, at Boss,Missouri, where respondent is engaged in the primary lead smeltingbusiness, 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 proposedpenalties 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, asdefined in paragraph (k)(2)(ii) of this section, were not provided bythe employer to an employee(s) on each occasion that an employee(s) wasremoved from exposure or otherwise limited pursuant to this section:a) Employee with payroll No. 2496 was denied certain benefits sinceJanuary 8, 1980 which included; 1) overtime pay equivalent to that whichwould have been earned if removal had not occurred and; 2) pay forone-half hour (1\/2) lunch breaks; back pay being due computed from dateof removal to citation correction date or prior date of return, and paidto affected employee by March 31, 1980.\”_Item 2_\”29 CFR 1910.1025(k)(2)(vii): Medical removal protection benefits, asdefined in paragraph (k)(2)(ii) of this section, were not provided bythe employer to the employee(s) equal to that required by paragraph(k)(2)(i) of this section, where the employee(s) were voluntarilyremoved by the employer from exposure to lead or otherwise hadlimitations placed on them due to the effects of lead exposure onemployee’s medical condition:a) Employees with payroll No. 1358, 1809, 2702, 2785, and 2974 weredenied certain benefits since dates of removal which included; 1)overtime pay equivalent to that which would have been earned if removalhad 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 correctiondate, or prior date of return, and paid to effected employees by March31, 1980 in regard to removal dates as follows: 12\/10\/79 for employeewith 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 withpayroll No. 2785; and 2\/15\/80 for employee with payroll No. 2974.\”On April 29, 1981, the parties executed a stipulation of facts, whichwas filed with the Commission.The stipulation constitutes the evidentiary record in this case. Theparties have filed briefs, proposed findings of fact and proposedconclusions of law._THE STIPULATION OF THE PARTIES_\”The parties hereto stipulate and agree that all proper, necessary andindispensable parties are parties hereto, and to the following facts,but without prejudice to either party contending that any such fact isirrelevant:1. Respondent is a corporation with its principal office and place ofbusiness at Highway KK, 2 miles south of Highway 32, Boss, Missouri.2. An inspection of respondent’s worksite was conducted on February 20and 21, 1980, by a compliance safety and health officer from the St.Louis, Missouri Area Office of the Occupational Safety and HealthAdministration.3. At the time of the inspection noted above, and at all times materialhereto, respondent was engaged in the business of primary lead smelting.4. Respondent employs approximately 370 employees at its smelter unit inRoss, Missouri.5. Respondent utilizes goods, equipment and materials shipped fromoutside the State of Missouri and is engaged in a business affectingcommerce. Therefore respondent is an employer within the meaning of the Act.6. Following the inspection on February 20 and 21, 1980 by theSecretary’s representative, a citation was issued to respondent alleginga willful violation together with proposed penalties.7. The willful citation and proposed assessment of penalties was timelycontested by respondent.8. Jurisdiction of this proceeding is conferred upon the OccupationalSafety and Health Review Commission by section 10(c) of the Act.9. Respondent’s employee Terry D. Hogan, employee number 1358, regularwork assignment prior to January 8, 1980, was maintenance mechanic inthe 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 maintenancemechanic in respondent’s smelter unit.11. Respondent’s employee Ronald D. Lawson, employee number 2785,regular work assignment prior to January 28, 1980, was refinerykettleman on the refinery production floor in the smelter unit ofrespondent’s workplace.12. Respondent’s employee Paul E. Baker, employee number 2974, regularwork assignment prior to February 15, 1980, was maintenance mechanic inair 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 maintenancemechanic 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 maintenancemechanic in the smelter unit of respondent’s workplace.15. Because of their respective work classifications described instipulation numbers 9-10, 12-14, overtime listings for employees Hogan,Wilkinson, Baker, Harbison and Clinton were, prior to the respectivedates above, maintained by respondent in the smelter maintenancerecord-keeping [sic] groups.16. Because of his work classification described in stipulation No. 11,Ronald Lawson’s overtime listings were maintained by respondent in arecord-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 toa work assignment in the mine\/mill unit of respondent’s worksite.Respondent voluntarily removed Hogan to the mine\/mill unit, designatedby respondent as a low lead exposure area, pursuant to its program oftransferring employees from exposure to high lead levels when bloodtests taken by the respondent’s medical personnel indicated that theemployee’s blood lead level exceeded 74 ug of lead per 100 ml. of wholeblood.18. On January 28, 1980, Ronald Lawson, employee number 2785, wastemporarily removed from his regular work assignment as refinerykettleman, production department, to a work assignment in the mine\/millunit of respondent’s worksite. Lawson was voluntarily removed to themine\/mill unit, designated by respondent as a low lead exposure area,pursuant to its program of transferring its employees from exposure tohigh lead levels when blood tests taken by respondent’s medicalpersonnel indicated that the employee’s blood lead level exceeded 74 ugof lead per 100 ml. of whole blood.19. On December 10, 1979, James Wilkinson, employee number 1809, wastemporarily removed from his regular work assignment in the smelter unitto a work assignment in the mine\/mill unit, designated by respondent asa low lead exposure area. Wilkinson’s transfer was pursuant torespondent’s program of voluntarily removing employees from exposure tohigh lead levels when blood tests taken by respondent’s medicalpersonnel indicated that the employee’s blood lead level exceeded 74 ugof lead per 100 ml. of whole blood.20. On February 15, 1980, Paul Baker, employee number 2974, wastemporarily removed from his regular work assignment in the smelter unitto a work assignment in the mine\/mill unit, designated by respondent asa low lead exposure area. Baker’s transfer was pursuant to respondent’sprogram of voluntarily removing employees from exposure to high leadlevels when blood tests taken by respondent’s medical personnelindicated that the employee’s blood lead level exceeded 74 ug of leadper 100 ml. of whole blood.21. On January 23, 1980, Gary E. Harbison, employee number 2702, wastemporarily removed from his regular work assignment in the smelter unitto a work assignment in the mine\/mill unit, designated by respondent asa low lead exposure area. Harbison’s transfer was pursuant torespondent’s; program of voluntarily removing employees from exposure tohigh lead levels when blood tests taken by respondent’s medicalpersonnel indicated that the employee’s blood lead level exceeded 74 ugof lead per 100 ml. of whole blood.22. On January 8, 1980, Billy R. Clinton, employee number 2496, wastemporarily removed from his regular work assignment in the smelter unitto a work assignment in the mine\/mill unit, designated by respondent asa low lead exposure area. Clinton’s transfer was pursuant to therequirements of the standard at 29 CFR 1910.1025(k)(1)(i)(A). Therespondent transferred Clinton when blood tests taken by its medicalpersonnel indicated that his blood lead level had reached or exceeded 80ug of lead per 100 ml. of whole blood.23. On March 24, 1980, employee Harbison was returned to work assignmentin the smelter unit. On April 1, 1980 employee Baker was returned towork assignment in the smelter unit. On April 8, 1980, employee Clintonwas returned to work assignment in the smelter unit. On March 10, 1980,employee Hogan successfully [sic] bid for and was assigned to a job inthe mine. On April 21, 1980, employee Lawson was returned to workassignment as refinery kettleman.24. On March 14, 1980, employee Wilkinson successfully bid for and wasassigned to a construction job at respondent’s work site.25. The parties stipulate and agree that Article 12 and Appendix C ofthe attached collective bargaining agreement between Amax Lead Companyof Missouri and United Steelworkers of America represent the proceduresfollowed by respondent regarding hours of work and overtime andguidelines for the six employees listed herein and each of whom was atall 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 hourshifts which included a paid half hour lunch break within the eighthours. The jobs to which they were assigned prior to their transfer tolow exposure were scheduled on a twenty-four hour a day continuous shiftbasis. In those circumstances three eight-hour shifts, which includea 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 (asopposed 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 80maintenance employees permanently assigned to the mine\/mill unit. 41 ofthem have worked regularly on the surface. The remaining 39 have workedboth on the surface and underground. All of them have, when working onthe surface, been scheduled for eight and a half hours, one-half hour ofwhich has been an unpaid lunch break. Surface maintenance is notscheduled on a twenty-four hour a day continuous shift basis. In thecase of work not scheduled on a twenty-four hour a day continuous shiftbasis, respondent has preferred to schedule and has scheduled eight anda half hour shifts which include a half hour unpaid lunch break.29. During their periods of low exposure transfer, the transferredemployees were paid the same base wage rates as if they had not beentransferred.30. When employees Lawson, Harbison, Clinton and Baker returned from themine\/mill unit to the smelter unit, they were charged with overtimehours so that each was the same number of hours below the high man inhis recordkeeping group as he was when he was transferred. The saidnumber of hours were charged as having been offered and refused by theemployee during the period of transfer to low exposure.31. Employee Hogan and employee Wilkenson bid for and were assigned tojobs at respondent’s worksite other than those from which they weretransferred. Therefore, Hogan and Wilkenson were at the time of suchassignment charged with overtime hours to make their overtime equal tothe overtime of the high man in the recordkeeping group to which theywere 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 werenot offered and were not paid any overtime hours during the period oftheir transfer to low exposure.34. An adjustment period ends an May 31 and November 30 of each year. Itis the time at which employees are paid at time and one-half their baserate for the number of hours on their overtime record which is more than24 hours or 32 hours (depending on their recordkeeping group) less thanthat of the high man in their recordkeeping group at that time. Theovertime record of all employees is then brought to zero at thebeginning of the new adjustment period. The applicable adjustment periodfor the employees listed herein ended on November 30, 1979.35. On March 6, 1981 the Secretary of Labor informed respondent for thefirst time that and the parties herewith stipulate for purposes of thiscase that if it is finally determined on the basis of the facts hereinthat the employees listed herein should have received overtime pay andpay for lunch periods which they were not paid, the following formulacan be used to compute that pay.Based on the overtime standing records maintained by respondent whichcontain overtime hours worked, overtime hours refused and total hoursoffered, the percentage of overtime actually worked (obtained bydividing the total number of hours worked by the total number of hoursoffered) by each employee for the last full adjustment period prior totheir transfer multiplied times the number of hours that were charged(or in the case of employees Hogan and Wilkinson would have been chargedif they had returned to the jobs from which they were transferred to lowexposure) to each transferred employee by respondent as refused hoursduring the transfer period.One half hour pay at straight time for each full eight hour shift theemployee worked during his period of transfer to low exposure.36. Until March 6, 1981 the Secretary of Labor had not by regulation orotherwise given respondent in particular or employers in general anyguidance how, if it is determined they are required as part of medicalremoval protection benefits to make payments in lieu of overtime andpayments an [sic] account of different lunch period arrangements, thoseamounts of pay should be calculated. To date, respondent has been theonly employer which the Secretary of Labor has cited for alleged failureto make such payments in lieu of overtime or such payments on account ofdifferent lunch period arrangements.37. At all times stated herein: Occupational Safety and HeathAdministration regulations have purported to require respondent to at nocost to the employees issue freshly laundered coveralls each workday toemployees working in the smelter unit and to require them to be worn.Respondent has so supplied then and required them to be worn. The sixemployees listed herein were so supplied them while working in thesmelter unit before their transfer to low exposure in the mine\/millunit. All employees working in the mine\/mill unit have provided theirown working attire and had it laundered, all at their own expense. Whilethe six employees listed herein worked on low exposure assignment in themine\/mill unit, respondent did not provide them with coveralls or havetheir work clothing laundered.38. Respondent’s not providing the employees listed herein with cleanwork clothing during the period of their low exposure transfer was oneof the employee complaints investigated by the Occupational Safety andHealth Administration at the same time as the employee complaints whichresulted in the citation at issue here. On the basis of its legalcounsel’s advice that the governing law does not support the complaintregarding work clothing, the Occupational Safety and HealthAdministration found that complaint to be invalid and no citation issuedon account of that complaint.\”The issue presented is the application of the Medical Removal ProtectionPlan, as it is relevant to six of respondent’s employees who worked inthe smelter area, and who were voluntarily removed by respondentfollowing bloodlevel testing.The pertinent data pertaining to these employees is as follows:Name \tNumber \tDuty \tSeparation \tReturn \tBloodlevelTerry Hogan(Mine Unit) \t1358 \tSmelter \t1\/8\/80 \t3\/10\/80 \tExceeded 74 ug\/100 mlJames L.Wilkinson(Construction) \t1809 \tSmelter \t12\/10\/79 \t3\/14\/80 \tExceeded 74 ug\/100 mIRonald D. Lawson \t2785 \tSmelter \t1\/28\/80 \t4\/21\/80 \tExceeded 74 ug\/100 mlPaul E. Baker\t2974 \tSmelter \t2\/15\/80 \t4\/1\/80 \tExceeded 74 ug\/100 mlCary E. Harbison \t2702 \tSmelter \t1\/23\/80 \t3\/24\/80 \tExceeded 74 ug\/100 mlBilly R. Clinton \t2496 \tSmelter \t1\/8\/80 \t4\/8\/80 \tExceeded 80 ug\/100 mlThe voluntary removal of the affected employees resulted in their beingpaid the regular rates for their new assigned duties, and conversely tolose the difference in wage rates that would have been paid at their oldjob duties, which entailed the payment of hours for overtime and thepayment for a one-half hour lunch break. This, due to a differential inthe work schedules and structure, is contained in the collectivebargaining agreement between respondent and its employees (J-39)executed June 1, 1978, or prior to the effective date of the allegedstandard.Section 29 CFR 1910.1025(k) contains the provisions of lead standard inestablishing the Medical Removal Protection Plan. These provisionsbecame 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) ofthat section, provides in pertinent it part:\”(k) Medical Removal Protection.(2) Medical removal protection benefits.(i) Provision of medical removal protection benefits. The employer shallprovide to an employee up to eighteen (18) months of medical removalprotection benefits on each occasion that an employee is removed fromexposure 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 thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer _shallmaintain the earnings, seniority and other employment rights andbenefits 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 anemployer, although not required by this section to do so, removes anemployee from exposure to lead or otherwise places limitations on anemployee due to the effects of lead exposure on the employee’s medicalcondition, the employer shall provide medical removal protectionbenefits 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 raisedthe issues involved in this case of whether or not respondent violatedthe medical removal protection requirements of the lead standard byfailing to compensate the mentioned transferred employees for the lossof available overtime and charge of overtime refused to employees whileon 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 briefthose same arguments which were presented by the numerous petitionerschallenging the validity of the standard, including the sectionpertaining to medical removal protection, and where the respectivepetitions were transferred to the District of Columbia Court of Appealsand consolidated, and where in a most extensive decision the very samearguments raised by respondent in its brief were rejected, thesearguments pertaining to the invalidity of the standard, improperevidence, notice of rule making, technological and economic feasibility,etc., along with the effect of the medical removal earnings protectionprovision as affecting workman’s compensation laws. _United Steelworkersof America, AFL-CIO-CLC, Petitioner v. Ray Marshall, Secretary of Labor,U.S. Department of Labor and Doctor Eula Bingham, Asst. Secretary ofLabor, O.S.H.A., Respondents_, Docket 78-2452, January 10, 1979, 592F.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 leadstandard, including the Medical Removal Protection Program, remandingthe record to complainant for reconsideration of the feasibility of thestandard for certain specified industries. _United Steelworkers ofAmerica, AFL-CIO-CLC v. Marshall et al_, Docket 79-1048, _supra_.Petitions of certiorari were filed in the U.S. Supreme Court, andfollowing an application for stay of the lead standard in the Court ofAppeals decision, the Supreme Court on December 8, 1980, entered itsorder staying certain portions of the lead standard. However, the Courtdid not include the medical removal protection benefit standard in itsstay. The motion as to this portion of the standard was denied. _LeadIndustries 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 itsreview by the Court of Appeals on two occasions and by the SupremeCourt, and finally a refusal by the Supreme Court to further considerthe petitions of the parties by the Supreme Court’s denial of certiorariJune 29, 1981, in _United Steelworkers of America, et al_, Docket79-1048 _supra_., leaving the medical removal protection benefits of thelead 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 referto overtime pay or lunch-pay periods, its medically removed employeesshould be denied this portion of their pay, which was included at thetime of their removal as smelter employees, with respondent arguing arule of reason, and a suggestion that it would be inequitable to enforcethe standard against the respondent.In considering respondent’s argument, section (k)(2)(ii), in plain andconcise terms, provides that the employer \”shall _maintain the earnings,seniority and other employment rights and benefits_ of an employee _asthough the employee had not been removed_ from normal exposure to leador otherwise limited\”. [Emphasis Supplied]The above-quoted succinctly and plainly states in plain and unequivocallanguage that an employee so removed shall suffer no diminution of hisjob rights as they existed at the time of the removal.The removed employees were a part of a job group specifically designatedand structured by respondent and employees’ collective bargainingagreement as to duty, benefits and pay for the various jobclassification, and these affected employees, voluntarily removed byrespondent for excess blood lead concentrations are as such entitled toall the pay and benefits incurred by that classified group to which theybelonged at the time they were medically removed.The event of medical removal was not an event caused or created by theemployee, but rather a result of the respondent’s operations. SeeExhibit 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 tocompletely ignore the legislative history of the inactment of the leadstandard (43 Federal Register 5441), the intent and purposes for theinactment of the medical removal protection benefits standard, theanalysis of the standard by the Court of Appeals and Supreme Court, andin short would operate as an absolute, economic deterrent for employeeswho are the subject matter to be protected by the standard or to takeadvantage of the medical removal provisions of the law.So too, is respondent’s argument of vagueness as to earnings, rights andbenefits. The law does not make any distinction between the jobclassification which precipitated the employee’s removal from excessivelead exposure to that job to which he is assigned thereafter, insofar asreallocation of pay and benefits, except to state that his pay andbenefit shall be the same as if he had not been removed, and theargument that he would intend to return to excess lead exposure cannotbe entertained as a serious argument.There can be no vagueness where the respondent and the employees’representative have clearly established a job title, duty, payclassification system. In fact, no system could be more clear to apply,with the caveat, that in the unlikely event that collective bargainingclassifications should be in conflict with the standard the collectivebargaining agreement would by law be subservient to the standard toguarantee the protection of the affected workers.So too, any consideration, that overtime available to a medicallyremoved employee should be charged against him as having been offeredand refused would act as a detriment and a discouragement to an employeeto take advantage of the medically removal protection benefits.To so charge an employee by virtue of the fact that the employee hasbeen removed to low exposure employment and is thus denied theopportunity to participate in high exposure overtime, would completelynegate the beneficial and protective concept of wage retention and musttherefore be rejected._NATURE OF THE VIOLATION_The complainant strenuously argues that respondent should be held inwillful violation for not paving the full earnings, seniority and otheremployment rights and benefits of the employees, based upon its allegedparticipation in various OSHA hearings with respect to challenging theinactment of the standard and along with other collateral case citationspertaining to other remedial legislation. However, we are bound by theCommission’s definition of willful violation; namely, a determination ofwhether or not a respondent has consciously, deliberately, intentionallyand voluntarily violated the Act or has acted in careless disregard ofemployees’ safety. _Secretary v. Constructors Maza, Inc._, Dockets 13680and 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 stilla cloud over the finality of the standard. All acts of the respondent indenying the employees medical removal benefits were taken prior to thisdate, and it is not felt that it would be a willful violation of astandard under litigation. Therefore, the violation is found to be deminimis, in that the violation had no direct relationship tooccupational safety or health, or imposed any additional hazard to theemployees.The complainant further requests that an order be entered directingpayment by respondent of backpay of the overtime equivalent to thatwhich the affected employees would have earned had they not beenmedically transferred and for the affected employees’ half-hour lunchbreaks, and in so doing has joined with the respondent in a stipulatedformula to be used.However, it is felt that a finding of violation is sufficient, withdirections to the parties to exercise their stipulated formula toachieve the desired abatement.Failing this, and should there be affirmation of this decision,respondent would be in continuing violation so long an the salary andbenefits are withheld the affected employees and be subjected to furthercitation for failure to abate. It is felt that this is sufficient toresolve the issue until such time as legislation is inacted to clearlyenable the Commission to assess costs and as here, perhaps contemplatethe assessment of interest. _John W. McGowan, Petitioner v. F. RayMarshall, Secretary of Labor & OSHRC, Respondents_, Docket 77-3495, 604F.2d 885 (5th Cir., 1979)._CONCLUSIONS OF LAW_1. Jurisdiction of this proceeding is conferred upon the OccupationalSafety and Health Review Commission by section 10(c) of the Act.2. AMAX Lead Company of Missouri, in transferring five of its employeesto a position within respondent’s company, designated as low exposure,without compensating said employees for overtime equivalent to thatwhich 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 employeesto a position within respondent’s company, designated as low exposure,without compensating said employees for their half-hour lunch breaks forwhich they would have been paid had they not been medically transferredfrom employment in the smelting area of respondent’s plant, respondenthas violated 29 CFR 1910.1025(k)(2)(i) and (k)(2)(vii).4. The definition of medical removal protection benefits includescompensation for lost overtime work opportunities and straight time payfor half-hour lunch breaks._DECISION AND ORDER_The violations of 29 CFR 1910.1025(k)(2)(i) and (k)(2)(vii) are deminimis, and no penalty is assessed.Paul E. Dixon, Judge, OSHRCDATE: September 3, 1981FOOTNOTES:[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidatedby order of the Commission. Because Docket No. 81-856 involves questionsof law and fact similar to those in the other two cases, we consolidateall 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 employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal 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 employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employee whose blood leadlevel exceeds a specified concentration be removed from a work area inwhich the ambient airborne concentration of lead exceeds a certainamount. Since the expiration of the phase-in period during which higherconcentrations were permitted, the standard has required that anemployee with a blood lead level at or above 50 ug\/100g of whole bloodbe removed from work having a daily eight hour time-weighted-averageexposure to airborne lead at or above 30 ?g\/m^3 . 29 C.F.R. ?1910.1025(k)(1)(i). [This case, however, arose during the phase-inperiod.] The standard also requires removal if a \”final medicaldetermination\” establishes that an employee has a \”detected medicalcondition which places the employee at increased risk of materialimpairment 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 beforethe Fifth Circuit, this case was consolidated with _St. Joe ResourcesCo._, OSHRC Docket No. 81-2267, and _Schuylkill Metals Corp._, OSHRCDocket No. 81-856. Because the cases no longer involve a single commonlegal issue, they are hereby severed pursuant to Commission Rule 10, 29C.F.R. ? 2200.10.[[4\/]] We must apply the Fifth Circuit’s interpretation as the \”law ofthe case.\” _See_ _In re Progressive Farmers Ass’n_, 829 F.2d 651, 655(8th Cir. 1987), _cert_. _denied_ _sub nom_. _South Central Enterprisesv. 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 theCommission’s interpretation of the medical removal protection provisionwith 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 inthe payments and benefits that employees are entitled to receive underthe standard. 828 F.2d at 320-22 & n. 4. However, we read this languageto be consistent with the remainder of the court’s decision, whichfocused on assuring that employees suffer no economic loss. As noted inthe text, the court approved the Secretary’s interpretation, whichstates that employees must receive the compensation they would haveearned 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 removedemployee for paid lunch periods when failing to do so would reduce theemployee’s total compensation. We do not read either the court’s opinionor the standard to require employers to pay employees _more_ than theywould have earned if not removed.[[6\/]] Because she rejects each of the arguments either on its merits orby applying the law of the circuit, Commissioner Arey finds itunnecessary to consider the arguments of the parties directed to theCommission’s authority to rule on validity challenges the argument thatAmax’s challenge is barred by collateral estoppel, and Amax’s contentionthat the Secretary untimely raised the collateral estoppel issue.[[7\/]] The cited workplace and Amax’s principal place of business arelocated in Missouri, which is in the Eighth Circuit. Although this casewas previously appealed to the Fifth Circuit, that court only hadjurisdiction because this case was consolidated with another case thatarose in the Fifth Circuit. The cases have now been severed, and theymust 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 directionfor review establishes jurisdiction in the Commission to review theentire case. The issues to be decided on review are within thediscretion of the Commission but ordinarily will be those stated in thedirection for review, those raised in the petitions for discretionaryreview, or those stated in any later order.[[9\/]] In _RSR Corp. v. Donovan_, 733 F.2d 1142 (5th Cir. 1984), thecourt adverted to, but did not discuss or define, \”other appropriaterelief\” in the one instance in which the Commission has issued whatamounted to a retroactive pay order: the Commission ordered a remand ofcertain cases for a determination of the amount of medical removalprotection benefits due the employees. However, the Commission had notsaid that it was ordering \”other appropriate relief;\” in fact, theCommission did not give any attention to what authority it had to issuesuch an order. _RSR Corp._, 83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1983-84CCH OSHD ? 26,429 (No. 79-3813, 1983). The court’s reference to thatterm has little application here since the court was addressing onlywhether the Commission’s decision was a final order from which theemployer could appeal. Despite the remand for determination of benefitsdue, the employer wanted court review of the foundational portions ofthe Commission decision the Commission’s affirmance of the underlyingcitations and penalties. The Secretary moved to dismiss the appeal onthe ground that the Commission’s decision was not final. On this thecourt 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 andmodified in part both citations and penalties simply because the issueof what other (and additional) relief is appropriate has been remandedfor determination.\” 733 F.2d at 1144. The court denied the Secretary’sMotion to Dismiss. Whether the Commission had authority to orderretroactive pay was not before the court, and the court gave thequestion no attention. Accordingly, Chairman Buckley declines to assignto the court’s decision authority for the Commission to make individualcompensatory awards.[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidatedby order of the Commission. Because Docket No. 81-0856 involvesquestions of law and fact similar to those in the other two cases, weconsolidate all three cases for decisional purposes. Commission Rule ofProcedure 9, 29 C.F.R. ? 2200.9.[[2]] The pre-1975 standard was derived from a standard issued by theAmerican National Standards Institute. The Secretary promulgated itunder section 6(a) of the Act, 29 U.S.C. ? 655(a), which authorized theSecretary to adopt national consensus standards as OSHA standardswithout notice-and-comment rulemaking proceedings within two years ofthe Act’s effective date.[[3]] In promulgating the new standard, the Secretary acted undersection 6(b) of the Act, 29 U.S.C. ?655(b), which authorizes theSecretary to promulgate occupational safety and health standardsfollowing notice-and-comment rulemaking proceedings.[[4]] Due to feasibility constraints, certain of the standard’sprovisions, including the permissible exposure limit, are phased in overa 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 ineffect after the standard is fully phased in. Certain of the valuesgiven were not in effect at the time the alleged violations in thesecases occurred, but this is not significant for purposes of this decision.[[5]] The words \”high\” and \”low\” are, of course, relative. For purposesof this decision, we use them to distinguish between airborne leadconcentrations from which employees with elevated blood lead levels mustbe removed, and concentrations to which such employees may permissiblybe exposed.[[6]] The employees Schuylkill transferred did not have blood leadlevels sufficiently high to require their removal under the standard.They did, however, have blood lead levels higher than the plantwideaverage. According to Schuylkill, the company measured the blood leadlevel of employees and, when a particular employee was found to have alevel above average, the employee was observed closely to determine thecause of the increase. If it was found that the increase was due to poorhygiene habits or failure to wear a respirator properly, the employeewas transferred from the production area to the change house forpurposes of discipline and retraining.The Secretary contends that Schuylkill was required to pay MRP benefitseven though the transferred employees did not have blood lead levelshigh enough to require their removal. The Secretary points to subsection1910.1025(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 placeslimitations on an employee due to the effects of lead exposure on theemployee’s medical condition, the employer shall provide medical removalprotection benefits to the employee equal to that required by paragraph(k)(2)(i) of this section.The Secretary argues that the employees Schuylkill transferred weretransferred because they had rising blood lead levels, that thetransfers were therefore a result of the effects of lead exposure on theemployees’ medical condition, and that this section therefore requiresSchuylkill to pay MRP benefits to the employees. Schuylkill argues thatthe transfers were for the purpose of discipline and retraining, and nota result of the effects of lead exposure on the employees’ medicalcondition. Schuylkill points to the testimony of its plant physicianthat none of the employees had primary conditions associated withoccupational lead exposure and none were at an increased risk to theirhealth if they had continued in their jobs.We find it unnecessary to resolve this dispute. Under our interpretationof the standard, even assuming Schuylkill was required to pay MRPbenefits, the payments it made to the transferred employees wereadequate to discharge that obligation.[[7]] The Mine Act was subsequently amended and redesignated the FederalMine 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 includepremium payments, his statement that he did not include such adefinition because it would be likely to confuse some employers isdifficult to credit. About a year after he adopted the lead standard,the Secretary published appendices that were intended to summarize keyprovisions of the standard for employees. 44 Fed. Reg. 60980 (Oct. 23,1979). Section IX of Appendix B discusses medical removal protection andstates: \”Earnings includes more than just your base wage; it includesovertime, shift differentials, incentives, and other compensation youwould have earned if you had not been removed.\” Id. at 60987. TheSecretary’s ability to draft such a clear and concise definition for theinformation of employees suggests he could have also drafted adefinition that would not have confused employers if he indeed intendedto include premium payments in \”earnings\” when he adopted the standard.Thus we conclude, from the fact that he did not do so when adopting thestandard, that he did not intend \”‘earnings\” to include the premiumpayments to which he later referred in this summarization for employees.We do not accord dispositive weight to this summarization because it wasnot composed when the standard was promulgated and thus is not acontemporaneous explanation and interpretation. _L.E. Myers Co._, 86OSAHRC__ 12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ? 27,476, p. 35,604n.9 (No. 82-1137, 1986). Moreover, it is inconsistent with the historyof the standard we have cited.[[9]] Amax and St. Joe argue that the lead standard is invalid and thatpromulgation of the MRP provision exceeds the Secretary’s authority. TheSecretary counters that the principle of collateral estoppel precludesthe employers from challenging the standard’s validity in thisproceeding, 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 withparties to that case. Because of our disposition, we need not reacheither the validity arguments raised by the employers or the collateralestoppel argument made by the Secretary.”