“Docket No. 80-1793 SECRETARY OF LABOR, Complainant, v. AMAX LEAD COMPANY OF MISSOURI, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO- CLC, and its LOCAL UNION 7447-J, Authorized Employee Representative.OSHRC DOCKET NO. 80-1793ORDERThis case is before the Commission on remand from theUnited States Court of Appeals for the Fifth Circuit, the second time this case has beento the Court of Appeals. United Steelworkers v. St. Joe Resources Co., 916 F.2d 294(5th Cir. 1990). The court has remanded the case for the Commission to determine theamounts of back pay due Amax Lead Co. of Missouri employees who, because they had elevatedlevels of lead in their blood, were transferred to other jobs with less exposure to lead,as required by the OSHA standard governing exposure to lead.The Secretary of Labor had cited Amax Lead Co. ofMissouri for violating the occupational safety and health standard at 29 C.F.R. ?1910.1025(k)(2),[[1\/]] which requires that employees removed from their positions tolower-exposure jobs must maintain the earnings, rights and benefits they received beforethey were transferred. In its first opinion in this case, the Court of Appeals concludedthat \”earnings\” included not only base pay but also such premium payments aspaid lunch periods, overtime pay, production bonuses, and shift differentials forscheduled night and evening work. United Steelworkers v. Schuylkill Metals, 828F.2d 314, 320 (5th Cir. 1987). On remand, the two-member Review Commission voted to vacatethe order of the administrative law judge, but the commissioners split on the dispositionof the case. One of the commissioners was of the opinion that the Review Commission couldorder the employer to pay back pay. The other held the opinion that, under theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678, the Review Commissionhad no such power.The two commissioners did agree, however, thatemployees who had received paid half-hour lunch periods before they were medically removedto lower-exposure jobs did not have to be given paid lunch periods in their new jobs. TheCommission reasoned that the employees had been paid for eight hours’ work before theremoval and were being paid for eight hours’ work in their new positions, so there was noeconomic loss to the employees.In its second decision in this case, the Court ofAppeals has concluded that the Review Commission does have the power to order back pay.The Court of Appeals disagreed with the Commission’s analysis of the paid lunch periodrequirement. Because the employees were working a half hour longer in their new positionsfor the same amount of money, the court concluded that the employees had suffered areduced rate of pay, which the court found to be an economic loss. The court thereforeordered that the employees concerned be paid for that additional half hour of work pershift.The court remanded the case for the Commission todetermine the amounts of back pay owed to the employees identified in the citations issuedto Amax Lead Co. We, in turn, remand this case to an administrative law judge to make thenecessary findings of fact. If it is necessary to do so, the judge may reopen the recordto take evidence on this question.Accordingly, this case is remanded to the ChiefAdministrative Law Judge for assignment. The judge to whom it is assigned shall enter anorder requiring Amax Lead Co. to pay the appropriate amounts of back pay.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: December 4, 1990SECRETARY OF LABOR, Complainant, v. AMAX LEAD COMPANY OF MISSOURI, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and its LOCAL UNION 7447-J, Authorized Employee Representative.OSHRC DOCKET NO. 80-1793DECISIONBefore: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case involves the medical removal protection provision of the OSHA standardregulating occupational exposure to lead. That provision, 29 C.F.R. ?1910.1025(k)(2),[[1\/]] requires employers to \”maintain the earnings, seniority, andother employment rights and benefits\” of employees they remove from lead exposurebecause the employees are at particular risk of suffering lead- related diseases.[[2\/]]The case is before the Commission for a second time. In its first decision, the Commissionconcluded that Amax Lead Company of Missouri (\”Amax\”) complied with the standardby paying employees for a 40-hour work week at their regular rate of pay, rejecting theSecretary’s argument that \”earnings\” under the standard included overtimecompensation and paid lunch periods the employees received before their transfers. AmaxLead Co. of Missouri, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629 (No. 80-1793,1986). That decision was reversed by the Fifth Circuit, which adopted the Secretary’sinterpretation of the standard. United Steelworkers of America v. Schuylkill MetalsCorp., 828 F.2d 314, 321 (5th Cir. 1987).[[3\/]] The court remanded \”for furtherproceedings attuned to this opinion. Id. at 323.I. The relevant facts are set forth in our prioropinion, and we shall only briefly summarize them here. Six Amax employees weretransferred out of areas of high lead exposure pursuant to the medical removal provisionsof the lead standard. During the transfer period, the employees were paid for a 40-hourwork week at the regular hourly rate of pay they received in their normal jobs. However,they did not have the opportunity to work overtime, as they would have if they had notbeen transferred. They also no longer received compensation during their half-hour lunchbreaks. Thus, in their regular jobs, they had been paid for 8 hours work on a normal shiftbut were allowed to use a half-hour of that shift for lunch. After being transferred,their shift was 8 1\/2 hours long, of which 8 hours was working time and the remaininghalf-hour was an unpaid lunch period.The Fifth Circuit adopted the Secretary’sinterpretation of the standard, which provides:Earnings includes more than just your base wage; it includes overtime, shiftdifferentials, incentives, and other compensation you would have earned if you had notbeen removed.828 F.2d at 323, quoting 29 C.F.R. ? 1910.1025 Appendix B.[[4\/]] In this case, theemployees did not receive the amounts they would have earned if not removed. Afterremoval, they received pay for a 40-hour week at their regular rate of pay. However, ifthey had not been removed, they would have earned additional sums by working overtime.Under the Fifth Circuit’s decision, Amax violated the standard by not paying the employeesthese additional sums.The Secretary also argues that Amax violated thestandard in that employees received paid lunch periods before, but not after, removal. Wedisagree. Under the Secretary’s interpretation, which the Fifth Circuit adopted, theemployer must pay a removed employee the total compensation he would have earned if notremoved. Here, the employees received 8 hours pay per day before removal, and 8 hours payper day after removal at the same hourly rate. Under the Secretary’s argument, theemployees would receive more pay after removal than before. We do not believe that such aresult is consistent with the standard’s objective of assuring that removed employeessuffer no economic loss, nor do we think it is required under the Fifth Circuit’sdecision. [[5\/]]II.Amax contends that the lead standard was invaliditypromulgated for a number of reasons. The company argues that the Secretary did not havethe statutory authority to adopt the provision requiring payment of MRP benefits. Thecompany also contends that the provision for payment of MRP benefits is economicallyinfeasible, that the Secretary did not give interested persons adequate notice that apermissible exposure limit (\”PEL\”) of 50 ?g\/m3 would be adopted,that this PEL is technologically and economically infeasible, and that the Secretaryimproperly relied on outside consultants during the rulemaking proceedings.The Commission members both reject Amax’s validityarguments, but for different reasons. Chairman Buckley believes that Amax’s arguments areforeclosed by the Fifth Circuit’s remand order. Amax’s arguments were considered andrejected by the D. C. Circuit in a pre-enforcement challenge to the standard. UnitedSteelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1230 (D. C. Cir.1980). cert. denied, 453 U.S. 913 (1981). In remanding the case to us, theFifth Circuit noted that its sister circuit had upheld the standard’s validity and said:The lead standard has been challenged by the industry in litigation from itsinception. The courts, however, have not proved a receptive audience for the industry’swell-orchestrated complaints. The present movement in this seemingly never ending symphonyis but a minor variation on the prior themes. Thus, unlike a listener to Haydn, theindustry should hardly be surprised at the outcome.This symphony of lead litigation should not remain forever unfinished. The industry’sarguments — in large measure resting on the policies underlying the lead standard–likelywill continue to strike a discordant 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 the lead policy for reorchestration.828 F.2d at 315-16. This language suggests that the Fifth Circuit considered thevalidity of the standard to be definitively established, at least for purposes of thiscase. Accordingly, Chairman Buckley concludes that the court’s decision precludes furtherconsideration of Amax’s validity arguments.Commissioner Arey does not believe that the FifthCircuit’s decision precludes consideration of Amax’s validity arguments. She notes thatthose arguments were not raised before the court, and believes that the court’s decisioncannot be considered a definitive ruling on an issue it did not explicitly consider.Commissioner Arey would therefore consider Amax’s validity arguments.[[6\/]] She wouldreject them for the following reasons.Two of Amax’s arguments–that the Secretary gaveinadequate notice of the 50 ?g\/m3 PEL and that he improperly relied on outsideconsultants–challenge the procedures the Secretary followed in promulgating the standard.In National Industrial Constructors, Inc. v. OSHRC, 583 F.2d 1048 (8th Cir. 1978),the Court of Appeals for the Eighth Circuit held that the validity of the proceduresfollowed by the Secretary in promulgating OSHA standards cannot be challenged inenforcement proceedings. This case arises in the Eighth Circuit, and the Commission’sdecision is therefore appealable to that court.[[7\/]] 29 U.S.C. ? 660(a) & (b).Commissioner Arey believes that the Commission must follow controlling circuit law, andtherefore declines to consider Amax’s procedural challenges in this enforcementproceeding. Although Amax’s substantive challenges can be considered under National IndustrialConstructors, Commissioner Arey concludes that those challenges lack merit. Amax arguesthat the Secretary lacked the statutory authority to adopt the provision requiring paymentof MRP benefits. Commissioner Arey rejects that argument for the reasons she stated in St.Joe Resources Corp., OSHRC Docket No. 81-2267 (Apr. 27, 1989).Amax also argues that the MRP provision iseconomically infeasible, and that the standard’s PEL of 50 ?g\/m3 is bothtechnologically and economically infeasible. Commissioner Arey rejects these argumentsbecause they are not supported by the record. Amax argues that the rulemaking record onwhich the Secretary based his findings that the standard was feasible does not support theSecretary’s findings. Without deciding whether it would ever be proper for the Commissionto review findings made by the Secretary on the basis of a rulemaking record, CommissionerArey observes that the Commission certainly cannot do so here because the rulemakingrecord is not before it. The burden of proving, in an enforcement proceeding, that astandard is invalid lies with the party challenging the standard’s validity. See Atlantic& Gulf Stevedores v. OSHRC, 534 F.2d 541, 548-50 (3d Cir. 1976). Commissioner Areyconcludes that Amax has failed to meet its burden of proving that the standard is invalidfor the reasons it has stated.In addition, Commissioner Arey notes that there is asecond reason for rejecting Amax’s two arguments that challenge the validity of thestandard’s PEL of 50 ?g\/m3. Amax has not been cited for violating thatprovision in this case. Yet, under Commission precedent, the Commission will only considervalidity challenges that may affect the outcome of a case. DeKalb Forge Co., 13 BNA OSHC1146, 1151, 1886-87 CCH OSHD ? 27,842, p. 36,449 (No. 83-299, 1987). Accordingly,Commissioner Arey would reject Amax’s challenges to the validity of the PEL for both ofthe reasons stated above.IIIWe must now determine the proper classification ofthe violation and assess an appropriate penalty. The Secretary originally alleged that theviolation was willful and proposed a $1600 penalty. The administrative law judge rejectedthe willful characterization, found that the violation was de minimis, andassessed no penalty. Amax argues that the de minimis classification isproper. The Secretary contends that the violation is willful, or at least serious, innature.We reject the Secretary’s argument that the violationshould be classified as willful. The judge found that the violation was not willful, theSecretary did not seek review of that finding, and the issue was not directed for review.Accordingly, we would normally not reach the issue.[[8\/]] We note, in any event, that theargument is without merit. A violation is willful if \”it was committed voluntarilywith either an intentional disregard for the requirements of the Act or plain indifferenceto employee safety.\” United States Steel Corp., 12 BNA OSHC 1692, 1703 1986-87 CCHOSHD ? 27,517, p. 35,675 (No. 79-1998, 1986); see Donovan v. Mica ConstructionCo., 699 F.2d 431 (8th Cir. 1983). The facts of this case were stipulated, and nothingin the stipulation suggests that Amax acted with either an intentional disregard for therequirements of the Act or plain indifference to employee health. The Secretary bases thewillfulness allegation on the undisputed fact that Amax knew of the lead standard’smedical removal protection provisions. But an employer’s knowledge that a standard existsdoes not establish that the employer knew it was violating the standard. Amax did in factmaintain the hourly wage rate of the employees it removed, but it disputed whether thestandard also required it to maintain the existing levels of overtime compensation andpayments for lunch period. A violation is not willful if an employer has a good faithdifference of opinion with OSHA over what a standard requires. Keco Industries, 13BNA OSHC 1161, 1169, 1986-87 CCH OSHD ? 27,860, p. 36,478 (No. 81-263, 1987).We also reject Amax’s argument that the judgeproperly classified the violation as de minimis. A de minimisviolation is one which bears such a negligible relationship to employee safety or healthas to render inappropriate the assessment of a penalty or entry of an abatement order. ClevelandConsolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ? 27,829, p. 36,429 (No.84-696, 1987). We cannot say that the hazard here was negligible. The lead standard relieson employees consenting to have their blood tested to determine their blood lead level.Blood testing provides early detection of rising blood lead levels and triggers themedical removal of employees before their blood lead levels exceed a certain amount. Seenote 2 supra. The purpose of medical removal protection benefits is to eliminate aneconomic disincentive for employees to consent to blood testing and to otherwise cooperatewith the workplace medical surveillance program required under the lead standard. UnitedSteelworkers of America v. Schuylkill Metals Corp., 828 F.2d at 322. Thus, the hazardaddressed by the standard is not negligible. See St. Joe Resources Co.,OSHRC Docket No. 81-2267 (Apr. 27, 1989).We conclude that the violation is properly classifiedas serious. The serious health hazard presented by metallic lead is well established. TheMRP benefits provision attacks this hazard by removing barriers to complete employeecooperation with medical surveillance. It seeks to protect the employees who face thegravest risk of serious lead-related disease: those who have high blood lead levels andthose who have other medical conditions that would place them at particular risk shouldthey continue to be exposed to lead in the workplace. The standard also seeks to eliminatethe possibility that employees fearing economic loss due to removal from their jobs woulduse chelating drugs, which have dangerous side effects, in an attempt to reduce theirblood lead levels. See St. Joe Resources Co., supra. Since thepotential for serious harm exists whenever the MRP standard is violated, we conclude thatAmax’s violation of the standard was serious.In determining an appropriate penalty, we find thatAmax acted in good faith to protect its employees from the adverse health effects of highblood lead levels. Of the six employees removed from work involving exposure to highairborne lead levels, only one had a blood lead level sufficiently high to requireremoval. Amax transferred the remaining five, and paid them at their normal hourly wagerate, even though their blood lead levels did not require medical removal. Amax didviolate the standard by not paying the removed employees for overtime, but that action wastaken under a good faith interpretation of the standard. We conclude that a penalty of $60is appropriate. DNormally, and order affirming a citation andestablishing a penalty assessment would be sufficient to dispose of the case. However,there is one additional contention that we must address. The Secretary and the Union arguethat the Commission should issue an order requiring Amax to pay the removed employees thespecific amounts that were due them but not paid.The Commission members are divided on the proprietyof 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 Fifth Circuit,are entitled to be paid retroactively for the period of time that they failed to receivefull earnings, he is also of the view that the Review Commission is without authority tomake individual compensatory awards to those employees. Under the Occupational Safety andHealth Act (29 U.S.C. 651 et seq.), the Secretary is authorized to issue citations toemployers alleged to have violated the Act or any standard, rule or regulation promulgatedpursuant to the Act. The citation is required to specify the violation with particularity,and to prescribe a reasonable time for abatement. The Secretary must also notify theemployer of any penalty proposed to be assessed. That Act also created the OccupationalSafety and Health Review Commission and authorized it to hear cases brought before itinvolving safety and health 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 awarded to an employee, and anorder providing for individual compensatory relief to an employee, is clearly not theassessment of a civil penalty (which would be paid into the Treasury of the UnitedStates). Nor is it an \”abatement\” as used in the Act, which he would define asthose actions required to terminate the violative condition. In this case, the failure topay full \”earnings\” would be abated by the commencement to pay them. Nor doesthe awarding of individual compensatory relief to individual workers retroactively forearnings which they failed to receive constitute \”other appropriaterelief\”.[[9\/]] The ordering of back pay is not necessary as an abatement measure tothe termination of the violative condition. In Chairman Buckley’s opinion, the Commissionis without authority to make individual compensatory awards unless expressly so authorizedby Congress (as Congress has done, for example, in the case of awards of attorney’s feesand costs under the Equal Access to Justice Act).Chairman Buckley emphasizes that the Commission’slack of authority to issue backpay orders to compensate employees who failed to receivefull earnings does not leave the employees without a remedy. If the employers fail tocompensate them fully and retroactively, there are forums authorized to resolve suchdisputes. Chairman Buckley’s views on the Commission’s lack of authority to issue awardsof back pay should not be read as meaning that employees are not entitled to retroactivepay, only that the Commission is not the forum to award such pay. He agrees withCommissioner Arey that employees removed under the medical removal protection standard areentitled to continue to receive the full amount of remuneration that they were receivingbefore removal, whether that be contractual or voluntary overtime pay, productionincentive bonuses, or other pay differentials. He stops short of agreeing to consider whatthose amounts are as to each individual employee, or whether they also are entitled tointerest on the unpaid earnings.Commissioner Arey would remand to the judge tocalculate the amounts Amax improperly withheld under the terms of the medical removalprotection standard and to order Amax to pay those amounts. She believes that payment ofamounts improperly withheld is the abatement required when a violation of the MRP benefitsprovision of the standard is found, that ordering such payments is within the Commission’sauthority, and that 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 Commissioner Arey).Official action can be taken on the affirmative voteof at least two Commission members. 29 U.S.C. ? 661(f). The Commission members both agreeto find that Amax committed a serious violation of the cited standard and assess a penaltyof $60. They are divided on the propriety of a \”backpay\” order, and thereforecannot issue such an order.Accordingly, the citation is modified to allege aserious violation of 29 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\u00a0\u00a0SECRETARY OF LABOR, Complainant, v. AMAX LEAD COMPANY OF MISSOURI, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 7447-J, Authorized Employee Representative.OSHRC Docket No. 80-1793SECRETARY OF LABOR, Complainant, v. SCHUYLKILL METALS CORPORATION, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 8394, Authorized Employee Representative.OSHRC Docket No. 81-0856SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 8183, Authorized Employee Representative.OSHRC Docket No. 81-2267DECISIONBEFORE: BUCKLEY, Chairman, RADER and WALL,Commissioners.BUCKLEY, Chairman:These consolidated cases[[1]] are before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”). It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).These cases involve the interpretation of the medicalremoval protection benefits (\”MRP benefits\”) provision of the standard at 29C.F.R. ? 1910.1025, which regulates occupational exposure to lead. The lead standardprimarily seeks to protect workers from the adverse effects of lead on their health bylimiting the amount of lead they inhale and ingest. The MRP provision is a\”backup\” requirement that is intended to protect employees who are notadequately protected by the other provisions of the standard. If an employee’s blood leadlevel exceeds certain limits or if the employee would otherwise experience certain risksto his health from continued lead exposure, the standard requires the employer to removethe employee from excessive lead exposure. For an employee transferred under thisrequirement, the MRP benefits provision requires the employer to \”maintain theearnings, seniority and other employment rights and benefits of an employee as though theemployee had not been removed . . . . \” 29 C.F.R. ? 1910.1025(k)(2)(ii). In thesecases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, and St. Joe ResourcesCompany transferred certain employees who had elevated blood lead levels from jobs withhigh lead exposures to positions outside high lead areas. The employers paid thetransferred employees their regular wage rate for the 40-hour weeks the employees workedduring the periods of transfer. The Secretary of Labor alleges that the employers violatedthe MRP benefits provision by not paying the transferred employees for potential overtime,production bonuses, shift differentials, and paid lunch periods that were incidents of thejobs they held before their transfers but not of the jobs to which they were transferred.We conclude that the employers complied with the standard by paying the employees theirregular wage rate for a 40-hour week, and we therefore vacate the citations.IIt has long been known that lead is highly toxic tohumans. Lead that is inhaled or ingested enters a person’s bloodstream, where it iscarried to the various organs throughout the body. In excessive amounts, lead can damagevital organs, notably the kidneys, the reproductive system, and the central nervoussystem.Before 1975, an OSHA standard limited the amount ofairborne lead to which an employee could be exposed to 200 micrograms per cubic meter ofair (\”?g\/m3\”) averaged over an 8-hour day.[[2]] In 1975, theSecretary of Labor, believing the existing standard was not sufficiently protective,proposed a new standard that would both lower the permissible exposure limit and adopt anumber of other provisions intended to protect lead-exposed employees. 40 Fed. Reg. 45934(Oct. 3, 1975). Following lengthy rulemaking proceedings, the Secretary promulgated thestandard here at issue. 43 Fed. Reg. 52952 (Nov. 14, 1978).[[3]]Because lead reaches vital organs through thebloodstream, much of the Secretary’s rulemaking effort focused on controlling the amountof lead in workers’ blood. The secretary first attempted to determine the maximumconcentration of lead in the blood that would not produce material impairment of workers’health. He found that serious lead poisoning occurs at blood lead levels of 80 microgramsper 100 grams of blood (\”?g\/100g\”), 43 Fed. Reg. at 52954, but that otheradverse health effects occur at lower blood lead levels. These levels were referred to inthe rulemaking proceedings as \”subclinical effects,\” and can be defined as\”physiological changes which can be detected by sophisticated laboratory tests, butnot by either ordinary clinical examination or by the patient himself, which may beirreversible, and which likely bear a causal relationship with overt lead disease.\” UnitedSteelworkers of America, AFL- CIO v. Marshall, 647 F.2d 1189, 1249 (D.C. Cir. 1980), cert.denied, 453 U.S. 913 (1981) (\”Steelworkers\”). The Secretary foundthat these subclinical effects become significant at blood lead levels of 40 ug\/100g andhigher. 43 Fed. Reg. at 52954-60. Finding that the presence of subclinical effectsconstituted material impairment of health, the Secretary established the objective ofmaintaining the blood lead levels of lead-exposed workers at no higher than 40 ug\/100g. Id.The Secretary also found, however, that a blood leadlevel at or below 40 ug\/100g for all workers could not be feasibly achieved. Becausepeople differ in the manner in which they absorb lead, at any particular level of airbornelead a group of workers will exhibit a range of blood lead levels. The Secretary foundthat the lowest airborne level the major lead-based industries could feasibly achieve was50 ?g\/m3 and he therefore established that level as the permissible exposurelimit for airborne lead.[[4]] 43 Fed. Reg. at 52963. He also found that approximately 30%of workers would have blood lead levels over 40 ug\/100g when uniform compliance with the50 ?g\/m3 permissible exposure limit was achieved. Id.In order to protect the health of employees who wouldnot be adequately protected by the permissible exposure limit, the standard requiresemployers to establish programs of medical surveillance. 29 C.F.R. ? 1910.1025(j). Thekey to medical surveillance is blood testing, which the employer must offer to allemployees exposed to an \”action level\” of 30 ?g\/m3 for 30 or moredays per year. Subsections 1910.1025(j)(1) and (2). If an employee is found to have ablood lead level exceeding a certain amount–50 ug\/100g when the standard becomes fullyeffective–the medical removal protection provisions of the standard come into play.Subsection 1910.1025(k). The employer must remove the employee from exposure to lead abovethe action level until two consecutive blood tests show that the employee’s blood leadlevel has returned to no more than 40 ug\/100g. Subsections 1910.1025(k)(1)(i) and (iii).An employee must also be removed from exposure to lead above the action level withoutregard to his blood lead level if it is determined that \”the employee has a detectedmedical condition which places the employee at increased risk of material impairment tohealth from exposure to lead.\” Subsection 1910.1025 (k)(1)(ii). Such an employee canbe returned to his previous position if it is found that his medical condition has changedsuch that exposure to lead no longer places him at increased risk of material healthimpairment. Subsection 1910.1025 (k)(1)(iii)(A)(4).If an employee is removed from exposure to excessivelead due to an elevated blood lead level or other medical condition, the employer must paythe employee MRP benefits. Subsection 1910.1025 (k)(2)(ii) provides:For the purposes of this section, the requirement that an employer provide medicalremoval protection benefits means that the employer shall maintain the earnings, seniorityand other employment rights and benefits of an employee as though the employee had notbeen removed from normal exposure to lead or otherwise limited.The employer is required to provide MRP benefits,i.e., \”maintain the earnings, seniority and other employment rights and benefits ofan employee.\” for up to 18 months on each occasion an employee is removed fromexcessive lead exposure. Subsection 1910.1925(k)(2)(i). The Secretary included thisrequirement in the standard in order to induce employees to cooperate with medicalsurveillance. He was concerned that employees, faced with the possible loss of theirincome if medical surveillance showed they should be removed from lead exposure, wouldrefuse to cooperate with the standard’s medical surveillance provisions and thereby riskendangering their health. Thus, \”MRP was included in the final standard as a means ofmaximizing meaningful participation in medical surveillance provided to lead-exposedworkers.\” 43 Fed. Reg. at 52973.II.A. Amax-Lead Company, Docket No. 80-1793Amax operated a primary lead smelter in Missouri. Inlate 1979 and early 1980, the company transferred six employees from areas of high leadexposure to low exposure areas[[5]] due to their elevated blood lead levels. After aboutthree months, the blood lead levels of these employees returned to acceptable levels. Fourof the employees returned to their previous jobs while two bid for and won other jobs inthe facility.Before their transfers, the six employees worked inpositions that had to be filled during the plant’s entire 24-hour workday. For such jobs,the day was divided into three 8-hour shifts. Each employee was paid for a full 8 hoursbut was allowed a half-hour for lunch. The six employees were transferred to the mine\/millunit, which did not operate during the entire 24 hour day. Workers in this unit thereforeworked 8 1\/2 hour shifts, getting paid for 8 hours but not for their half-hour lunchbreak.The transferred employees were paid for their 40-hourwork week at their regular base rate of pay. In their regular jobs, they would also havehad the opportunity to work overtime. The collective bargaining agreement between Amax andthe United Steelworkers of America provided that overtime would be distributed \”asequitably as practical\” among employees in each job classification. Availableovertime was offered to employees in order of seniority. They could either accept orrefuse when their turn came. The company kept and posted records showing for each employeethe hours of overtime worked, the hours refused, and the total. Employees unavailable whenovertime was offered, including those transferred to low exposure jobs, were considered tohave refused offers of overtime work. Thus, for each of the six transferred employees, thecompany had records showing the amount of overtime they \”refused\” during theirtransfers.B. Schuylkill Metals Corporation, Docket No.81-0856Schuylkill operated a secondary lead smelter inLouisiana. The plant’s production department had a high airborne lead concentration, whilethe change house had a low lead concentration. Employees in the change house performedjanitorial duties such as washing work clothes and repairing respirators.Under the normal work schedule in the productiondepartment, employees worked six 40-hour weeks and two 48-hour weeks in any 8-week period.They thus averaged two hours of overtime per week. Production department employees werealso eligible to receive production incentive bonuses, which were based on the dailyamount of production in excess of a certain base amount. Production incentive bonusesvaried among the workers on a shift based on performance criteria unique to theindividual. In the change house, employees worked a 40-hour week. They did not workovertime and were not eligible for production incentive bonuses.Between January 1, 1980 and December 4, 1981,Schuylkill temporarily transferred a number of employees from the production department tothe change house. [[6]] While in the change house the employees were paid at the hourlywage rate they had earned in the production department. They did not, however, receiveeither overtime pay or production incentive bonuses.C. St. Joe Resources Company, Docket No. 81-2267St. Joe operated a zinc smelter in Pennsylvania. In1981, the company transferred one employee—Simpson Butler–pursuant to the MRP provisionof the lead standard. Butler had been hired in 1980 as a laborer, a position that did notinvolve excessive lead exposure. On April 2, 1981, he was awarded the position of\”weighman\” but, on July 17, 1981, he was returned to the Iaborer position due toan elevated blood load level.The plant operated 24 hours per day, seven days perweek, and the weighman job had to be covered at all times. To accomplish this, theweighmen were divided into four shifts that worked 20-week rotating schedules. Each shiftincluded various amounts of night, weekend, and overtime work, but the actual schedulewould vary during the 20-week rotation.St. Joe’s collective bargaining agreement providedthat weighmen would receive 1.5 times their base rate for scheduled Sunday and sixth daywork (\”scheduled overtime\”). The agreement further provided for extra hourly pay(\”shift differentials\”) for scheduled evening and night work. A weighman whoworked all of his scheduled time during a 20-week rotation would thus receive a totalamount of compensation, including scheduled overtime and shift differentials, that wouldexceed the employee’s base rate of pay multiplied by the number of hours actually worked.However, each employee’s pay during any particular two-week pay period would depend on thehours actually worked during that period, including the scheduled overtime and shiftdifferentials actually earned.Employees were also given the opportunity to workvoluntary overtime. The amount of such overtime available varied with the needs of theplant. Employees signed up if they were interested in voluntary overtime and would beoffered such overtime as the plant’s needs and their skills allowed. Voluntary overtimedid not necessarily involve the employee’s regular duties. During his 16 weeks as aweighman, Butler worked all of his regular shifts and also worked 45 hours of voluntaryovertime.When Butler was transferred, he was assigned dutiesas a laborer for an 8 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 scheduled overtime or nightshifts and received no overtime pay or shift differentials. He refused the one offer ofvoluntary overtime he received.IIIThe MRP benefits provision requires that employersmaintain the \”earnings, seniority and other employment rights and benefits of anemployee\” who is transferred under the standard’s MRP provisions. The questionpresented by these cases is what an employer must pay a transferred employee in order tomaintain that employee’s \”earnings.\” The employers contend that they need onlypay an employee who works a normal 40-hour week after being transferred his regular hourlyrate of pay for those 40 hours, while the Secretary and unions claim the provisionrequires the employer to also pay additional amounts the employee could have earned if hehad not been transferred. In their view, Amax, Schuylkill, and St. Joe violated thestandard by not paying their transferred employees for potential overtime, shiftdifferentials, production incentives, and paid lunch periods (collectively, \”premiumpayments\”) they would have received but for the transfers.In interpreting a standard, the Commission employsthe same rules of construction 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 must determine the intent of thestandard’s drafter, in this case the Secretary, at the time the standard was adopted. Themost compelling evidence of a drafter’s intent is, of course, the plain meaning of thewords he used. Id. In this case, however, the meaning of the crucial word\”earnings\” is not so plain as to enable us to resolve the dispute between theparties. \”Earnings\” is not a word of art but is a general term broad enough toencompass the interpretations offered by all of the parties. One dictionary defines\”earnings\” as \”money earned; wages; profits.\” Random HouseDictionary of the English Language 448 (1971). Another defines it as \”something(as wages or dividends) earned as compensation for labor or the use of capital.\” Webster’sThird New International Dictionary 714 (1971). Because the issue cannot be resolved onthe basis of the word’s plain meaning, we must look to the legislative history of thestandard to discern the Secretary’s intent when he promulgated the standard.The lead standard was the first, and is still theonly, OSHA standard containing a comprehensive MRP benefits provision. However, inadopting the standard, the Secretary did not write on an entirely clean slate. The issueof MRP benefits had previously been addressed in several contexts, and these provide abackground for examining the Secretary’s intent when he included the MRP benefitsprovision in the lead standard.The first federal law containing a MRP benefitsprovision was the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. ?? 801 etseq. (\”Mine Act\”).[[7]] That statute provides that any miner showing evidence ofblack lung disease be given the opportunity to transfer to a position for which the dustlevel is sufficiently low to prevent further development of disease. 30 U.S.C. ??843(b)(1) and (2). Any miner so transferred must be compensated at \”not less than theregular rate of pay received by him immediately prior to his transfer.\” 30 U.S.C. ?843(b)(3). This provision has been interpreted to mean that a miner need only be paid atthe same daily rate he was receiving just prior to transfer, not the amount he would haveearned if he had not been transferred. Higgins v. Marshall, 584 F.2d 1035 (D.C.Cir. 1978), cert. denied, 441 U.S. 931 (1979). When he adopted the OSHA leadstandard, the Secretary was aware of both this provision of the Mine Act and of theinterpretation placed on it in Higgins v. Marshall, for he discussed these mattersin the preamble to the OSHA standard. 43 Fed. Reg. at 54447-49.The Secretary considered MRP benefits in rulemakingproceedings for two other standards before the adoption of the lead standard. One of thefirst standards issued by the Secretary after notice-and-comment rulemaking regulatedoccupational exposure to asbestos. 29 C.F.R. ? 1910.1001. That standard contains alimited MRP provision, applicable only to employees who would be required to wearrespirators but who are medically incapable of doing so.Such employee shall be rotated to another job orgiven the opportunity to transfer to a different position whose duties he is able toperform with the same employer, in the same geographical area and with the same seniority,status, and rate of pay he had just prior to such transfer, if such a different positionis available.29 C.F.R. ? 1910.1001(d)(2)(iv)(c) (emphasis added).Subsequent rulemakings continued the practice of considering MRP protection as maintenanceof the employee’s \”rate of pay.\” The term \”rate retention,\” implyingmaintenance of an employee’s \”rate of pay,\” was often used as a synonym formedical removal protection. In promulgating a standard regulating exposure to coke ovenemissions, the Secretary considered a recommendation that he adopt a MRP provision. Therecommendation was that removal of an employee from exposure should \”not result inloss of earnings or seniority status to the affected employee.\” (Emphasis added.) TheSecretary referred to this recommendation as a \”rate retention provision.\” 41Fed. Reg. 46780 (Oct. 22, 1976). The Secretary did not, however, include such a provisionin the coke oven standard. 29 C.F.R. ? 1910.1029.The next standard promulgation proceeding in whichthe Secretary considered MRP protection involved the lead standard at issue here. TheSecretary first proposed a standard that did not contain a MRP provision. 40 Fed. Reg.45934 (Oct. 3, 1975). After receiving comments and holding informal public hearings on theproposed standard, the Secretary announced an additional comment period for the submissionof written data, views, and arguments on medical removal protection. 42 Fed. Reg. 46547(Sept. 16, 1977). The announcement stated:The medical surveillance provisions of the leadstandard should include a requirement for medical removal protection. This requirementwould maintain the rate of pay, seniority, and other rights of anemployee for the time period, or a portion thereof, that the employee is transferred orremoved from his or her job as a result of an increased health risk from exposure to lead.After a follow-up medical examination and opinion, the following options would beavailable with no loss of earnings or rights: Return to the original job,assignment to a different job (transfer), or continuation of the transfer or removal.Id. at 46548 (emphasis added). Another passagein the same announcement stated: \”Ninety days was mentioned as one time period forearnings protection (‘rate retention’).\” Id. at 46549. Thus, the announcementgave notice that the Secretary was considering the traditional type of MRP protection inwhich the employee’s rate of pay would be maintained during removal. It used the words\”earnings\” and \”earnings protection\” synonymously with \”rate ofpay\” and \”rate retention.\”When he issued the lead standard, the Secretary did not use the terms \”rate ofpay\” or \”rate retention,\” but mandated that employers maintain the\”earnings\” of transferred employees. The Secretary contends that his choice ofthe word \”earnings\” instead of \”rate of pay\” is significant. Heasserts that if he intended to limit MRP benefits to \”rate of pay,\” he wouldhave included language such as is found in the Mine Act instead of the language heactually chose.We cannot conclude that the Secretary deliberatelyused the word \”earnings\” in the final standard to indicate that he intendedsomething different than \”rate of pay.\” As we have noted, in the announcement inwhich MRP protection was injected into the rulemaking proceeding, the Secretary used\”earnings\” synonymously with \”rate of pay.\” Therefore, when he used\”earnings\” in the final standard, the most logical conclusion is that he wasagain using it as a synonym for \”rate of pay,\” particularly since he did notexpress any different intent. As St. Joe points out, the Secretary is sophisticated inlabor matters and knows that compensation issues often involve overtime and other premiumpayments. Thus, if the Secretary made a deliberate decision that premium payments were tobe included in MRP benefits, it is reasonable to infer that he would have made such anintent explicit. See United States v. American Trucking Associations, 310U.S. 534, 544 (1940) (\”a few words of general connotation appearing in the text ofstatues should not be given a wide meaning, contrary to a settled policy, ‘except as adifferent purpose is plainly shown’.\”)A further indication that \”earnings\” wasnot meant to include premium payments is the absence of evidence that the subject ofpremium payments received any attention in the rulemaking proceedings. As noted above, theannouncement that injected MRP into the rulemaking indicated that a traditional \”rateretention\” rule was being considered. The comments submitted in response to thisannouncement reflect that employees had one overriding concern: that their cooperationwith the medical surveillance provisions of the standard not lead to the loss of theirjobs. The Secretary cited the testimony of Anthony Mazzocchi, vice president of the Oil,Chemical and Atomic Workers Union, that the absence of an MRP provision would forceemployees to choose between their jobs and their health. 43 Fed. Reg. at 54442. In thepreamble to the lead standard the Secretary noted that the potential loss of one’s jobwill create a substantial deterrent to an employee’s cooperation with the standard’smedical surveillance provisions. However, there is nothing in the preamble to indicatethat the Secretary also believed that the potential loss of premium payments would createa comparable deterrent. The Secretary simply did not address the subject of premiumpayments.The only indication in the standard’s legislativehistory that the subject of premium payments was considered at all was a suggestion by theUnited Steelworkers of America that the Secretary include a definition of\”earnings\” in the standard. The Secretary declined this invitation, saying:The United Steelworkers of America urged that thestandard include a detailed definition of the term \”earnings,\” listing all thepossible forms of direct and indirect compensation which an employer might have normallygiven a worker in the absence of a removal. (Ex. 452, p. 44.) OSHA rejected the adoptionof such a detailed definition because it would likely be confusing to some employers inlight of the many contexts in which the standard will apply. To comply with the standard,an employer need only maintain the removed worker as though no removal had occurred.43 Fed. Reg. at 54466. If the Secretary trulyintended that \”earnings\” would include premium payments, the suggestion by theSteelworkers that he define \”earnings\” gave him the opportunity to explicitlystate that intent. His failure to include a definition of \”earnings\” is afurther indication he intended it to mean no more than his announcement originallyindicated, i.e., \”rate of pay.\”[[8]]The Secretary argues that the last sentence in theabove quotation and a statement 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 neither economic loss norloss of employment opportunities due to removal,\” 43 Fed. Reg. at 52976 (emphasisby the Secretary) make clear his intention that MRP benefits include premium payments. Wedo not agree. In light of the Secretary’s failure to include a definition of\”earnings\” in either the standard or the preamble, and the absence of anydiscussion in the preamble of premium payments, we cannot read these general statements asexhibiting an intention on the Secretary’s part that MRP benefits include premiumpayments.Finally, if the Secretary did intend\”earnings\” to have a broader meaning than \”rate of pay,\” his actionwould be contrary to the spirit, and possibly the letter, of notice-and-commentrulemaking. In conducting such a rulemaking, an agency is required to give the public fairnotice of the rule it proposes to adopt, so that persons affected by the rule will have anadequate opportunity to make their views known. See Chamber of Commerce of theUnited States v. OSHA, 636 F.2d 464, 470-71 (D.C. Cir. 1980). As discussed above, theSecretary gave the public notice that he was considering adopting a \”rateretention\” provision. Had the Secretary given notice that he was also considering abroader MRP provision, one which would also require premium payments, it could be expectedthat he would have received comments addressing the necessity and propriety of suchpayments. As it was, nothing in the preamble or the standard indicates that the Secretaryreceived any comments addressed to premium payments, with the possible exception of theUnited Steelworkers’ general request, which the Secretary rejected, to include adefinition of \”earnings\” in the standard.An agency can, of course, deviate from a proposedrule when it issues a final rule, as long as the final rule is a \”logicaloutgrowth\” of the rulemaking proceeding. Steelworkers, 647 F.2d at 1221. Inorder to justify such a deviation however, there must be evidence in the rulemaking recordthat warrants the change. Id. If there was evidence in the record of the leadrulemaking to justify inclusion of premium payments in MRP benefits, the Secretary did notmention it or rely on it. Thus, even if the Secretary did use the word\”earnings\” because he meant MRP benefits to include premium payments, it ishighly doubtful whether 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 of statute’s validity).We conclude that Amax, Schuylkill, and St. Joecomplied with the MRP benefits provision by paying the employees they transferred at theirregular rate of pay for the 40 hours per week the employees worked during the periods oftransfer. Accordingly, the citations are vacated.[[9]]FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED: June 25, 1986\u00a0\u00a0SECRETARY OF LABOR, Complainant v. AMAX LEAD COMPANY OF MISSOURI, Respondent UNITED 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 Steelworkers of AmericaThe parties of this controversy have agreed that itbe decided upon their submitted stipulation.Following an inspection on February 20-21, 1980, atrespondent’s worksite located on Highway KK, two miles south of Highway 32, at Boss,Missouri, where respondent is engaged in the primary lead smelting business, two citationswere issued respondent.Citation 1 for willful violation of 29 CFR1910.1025(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 removalprotection benefits, as defined in paragraph (k)(2)(ii) of this section, were not providedby the employer to an employee(s) on each occasion that an employee(s) was removed fromexposure or otherwise limited pursuant to this section:a) Employee with payroll No. 2496 was denied certainbenefits since January 8, 1980 which included; 1) overtime pay equivalent to that whichwould have been earned if removal had not occurred and; 2) pay for one-half hour (1\/2)lunch breaks; back pay being due computed from date of removal to citation correction dateor prior date of return, and paid to affected employee by March 31, 1980.\”Item 2\”29 CFR 1910.1025(k)(2)(vii): Medical removalprotection benefits, as defined in paragraph (k)(2)(ii) of this section, were not providedby the employer to the employee(s) equal to that required by paragraph (k)(2)(i) of thissection, where the employee(s) were voluntarily removed by the employer from exposure tolead or otherwise had limitations 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 were denied certainbenefits since dates of removal which included; 1) overtime pay equivalent to that whichwould have been earned if removal had not occurred, and 2) pay for one-half (1\/2) hourlunch 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 March 31, 1980 in regardto removal dates as follows: 12\/10\/79 for employee with payroll No. 1809; 1\/8\/80 foremployee with payroll No. 1358; 1\/23\/80 for employee with payroll No. 2702; 1\/28\/80 foremployee with payroll No. 2785; and 2\/15\/80 for employee with payroll No. 2974.\”On April 29, 1981, the parties executed a stipulationof facts, which was filed with the Commission.The stipulation constitutes the evidentiary record inthis case. The parties have filed briefs, proposed findings of fact and proposedconclusions of law.THE STIPULATION OF THE PARTIES\”The parties hereto stipulate and agree that allproper, necessary and indispensable parties are parties hereto, and to the followingfacts, but without prejudice to either party contending that any such fact is irrelevant:1. Respondent is a corporation with its principaloffice and place of business at Highway KK, 2 miles south of Highway 32, Boss, Missouri.2. An inspection of respondent’s worksite wasconducted on February 20 and 21, 1980, by a compliance safety and health officer from theSt. Louis, Missouri Area Office of the Occupational Safety and Health Administration.3. At the time of the inspection noted above, and atall times material hereto, respondent was engaged in the business of primary leadsmelting.4. Respondent employs approximately 370 employees atits smelter unit in Ross, Missouri. 5. Respondent utilizes goods, equipment and materialsshipped from outside 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 the Secretary’s representative, a citation was issued to respondent alleging awillful violation together with proposed penalties.7. The willful citation and proposed assessment ofpenalties was timely contested by respondent. 8. Jurisdiction of this proceeding is conferred upon the Occupational Safety and HealthReview Commission by section 10(c) of the Act. 9. Respondent’s employee Terry D. Hogan, employee number 1358, regular work assignmentprior to January 8, 1980, was maintenance mechanic in the smelter unit of respondent’swork place.10. Respondent’s employee James L. Wilkinson, employee number 1809, regular workassignment prior to December 10, 1979, was maintenance mechanic in respondent’s smelterunit.11. Respondent’s employee Ronald D. Lawson, employeenumber 2785, regular work assignment prior to January 28, 1980, was refinery kettleman onthe refinery production floor in the smelter unit of respondent’s workplace.12. Respondent’s employee Paul E. Baker, employeenumber 2974, regular work assignment prior to February 15, 1980, was maintenance mechanicin air handling in the smelter unit of respondent’s workplace.13. Respondent’s employee Gary E. Harbison, employeenumber 2702, regular work assignment prior to January 23, 1980, was maintenance mechanicin the smelter unit of respondent’s workplace.14. Respondent’s employee Billy R. Clinton, employeenumber 2496, regular work assignment prior to January 8, 1980, was maintenance mechanic inthe smelter unit of respondent’s workplace.15. Because of their respective work classificationsdescribed in stipulation numbers 9-10, 12-14, overtime listings for employees Hogan,Wilkinson, Baker, Harbison and Clinton were, prior to the respective dates above,maintained by respondent in the smelter maintenance record-keeping [sic] groups.16. Because of his work classification described in stipulation No. 11, Ronald Lawson’sovertime listings were maintained by respondent in a record-keeping group other thansmelter maintenance.17. On January 8, 1980, respondent temporarilyremoved Terry Hogan, employee number 1358, from his regular work assignment in the smelterto a work assignment in the mine\/mill unit of respondent’s worksite. Respondentvoluntarily removed Hogan to the mine\/mill unit, designated by respondent as a low leadexposure area, pursuant to its program of transferring employees from exposure to highlead levels when blood tests taken by the respondent’s medical personnel indicated thatthe employee’s blood lead level exceeded 74 ug of lead per 100 ml. of whole blood.18. On January 28, 1980, Ronald Lawson, employeenumber 2785, was temporarily removed from his regular work assignment as refinerykettleman, production department, to a work assignment in the mine\/mill unit ofrespondent’s worksite. Lawson was voluntarily removed to the mine\/mill unit, designated byrespondent as a low lead exposure area, pursuant to its program of transferring itsemployees from exposure to high lead levels when blood tests taken by respondent’s medicalpersonnel indicated that the employee’s blood lead level exceeded 74 ug of lead per 100ml. of whole blood.19. On December 10, 1979, James Wilkinson, employee number 1809, was temporarily removedfrom his regular work assignment in the smelter unit to a work assignment in the mine\/millunit, designated by respondent as a low lead exposure area. Wilkinson’s transfer waspursuant to respondent’s program of voluntarily removing employees from exposure to highlead levels when blood tests taken by respondent’s medical personnel indicated that theemployee’s blood lead level exceeded 74 ug of lead per 100 ml. of whole blood.20. On February 15, 1980, Paul Baker, employee number2974, was temporarily removed from his regular work assignment in the smelter unit to awork assignment in the mine\/mill unit, designated by respondent as a low lead exposurearea. Baker’s transfer was pursuant to respondent’s program of voluntarily removingemployees from exposure to high lead levels when blood tests taken by respondent’s medicalpersonnel indicated that the employee’s blood lead level exceeded 74 ug of lead per 100ml. of whole blood.21. On January 23, 1980, Gary E. Harbison, employeenumber 2702, was temporarily removed from his regular work assignment in the smelter unitto a work assignment in the mine\/mill unit, designated by respondent as a low leadexposure area. Harbison’s transfer was pursuant to respondent’s; program of voluntarilyremoving employees from exposure to high lead levels when blood tests taken byrespondent’s medical personnel indicated that the employee’s blood lead level exceeded 74ug of lead per 100 ml. of whole blood.22. On January 8, 1980, Billy R. Clinton, employeenumber 2496, was temporarily removed from his regular work assignment in the smelter unitto a work assignment in the mine\/mill unit, designated by respondent as a low leadexposure area. Clinton’s transfer was pursuant to the requirements of the standard at 29CFR 1910.1025(k)(1)(i)(A). The respondent transferred Clinton when blood tests taken byits medical personnel indicated that his blood lead level had reached or exceeded 80 ug oflead per 100 ml. of whole blood.23. On March 24, 1980, employee Harbison was returnedto work assignment in the smelter unit. On April 1, 1980 employee Baker was returned towork assignment in the smelter unit. On April 8, 1980, employee Clinton was returned towork assignment in the smelter unit. On March 10, 1980, employee Hogan successfully [sic]bid for and was assigned to a job in the mine. On April 21, 1980, employee Lawson wasreturned to work assignment as refinery kettleman.24. On March 14, 1980, employee Wilkinsonsuccessfully bid for and was assigned to a construction job at respondent’s work site.25. The parties stipulate and agree that Article 12and Appendix C of the attached collective bargaining agreement between Amax Lead Companyof Missouri and United Steelworkers of America represent the procedures followed byrespondent regarding hours of work and overtime and guidelines for the six employeeslisted herein and each of whom was at all times material herein covered thereby.26. Prior to their transfer to low exposure,employees Hogan, Lawson, Harbison, Wilkinson, Clinton, and Baker were scheduled for eighthour shifts which included a paid half hour lunch break within the eight hours. The jobsto which they were assigned prior to their transfer to low exposure were scheduled on atwenty-four hour a day continuous shift basis. In those circumstances three eight-hourshifts, which includea paid one-half hour lunch break, are therefore scheduled.27. During the period in which employees Hogan, Lawson, Harbison, Wilkinson, Clinton andBaker were transferred to the mine\/mill unit, they performed work in the maintenancedepartment on the surface (as opposed to underground) and were scheduled eight and halfhours, one-half hour of which was an unpaid half hour lunch break.28. At all times material herein: There have been approximately 80 maintenance employeespermanently assigned to the mine\/mill unit. 41 of them have worked regularly on thesurface. The remaining 39 have worked both on the surface and underground. All of themhave, when working on the surface, been scheduled for eight and a half hours, one-halfhour of which has been an unpaid lunch break. Surface maintenance is not scheduled on atwenty-four hour a day continuous shift basis. In the case of work not scheduled on atwenty-four hour a day continuous shift basis, respondent has preferred to schedule andhas scheduled eight and a half hour shifts which include a half hour unpaid lunch break.29. During their periods of low exposure transfer, the transferred employees were paid thesame base wage rates as if they had not been transferred.30. When employees Lawson, Harbison, Clinton and Baker returned from the mine\/mill unit tothe smelter unit, they were charged with overtime hours so that each was the same numberof hours below the high man in his recordkeeping group as he was when he was transferred.The said number of hours were charged as having been offered and refused by the employeeduring the period of transfer to low exposure.31. Employee Hogan and employee Wilkenson bid for and were assigned to jobs atrespondent’s worksite other than those from which they were transferred. Therefore, Hoganand Wilkenson were at the time of such assignment charged with overtime hours to maketheir overtime equal to the overtime of the high man in the recordkeeping group to whichthey were thus assigned.32. Respondent maintained overtime standings foremployees Hogan, Wilkinson, Harbison, Clinton, Baker and Lawson which show hours worked,hours refused and total hours.33. Employees Hogan, Wilkinson, Lawson, Harbison.Clinton and Baker were not offered and were not paid any overtime hours during the periodof their transfer to low exposure.34. An adjustment period ends an May 31 and November30 of each year. It is the time at which employees are paid at time and one-half theirbase rate for the number of hours on their overtime record which is more than 24 hours or32 hours (depending on their recordkeeping group) less than that of the high man in theirrecordkeeping group at that time. The overtime record of all employees is then brought tozero at the beginning of the new adjustment period. The applicable adjustment period forthe employees listed herein ended on November 30, 1979.35. On March 6, 1981 the Secretary of Labor informedrespondent for the first time that and the parties herewith stipulate for purposes of thiscase that if it is finally determined on the basis of the facts herein that the employeeslisted herein should have received overtime pay and pay for lunch periods which they werenot paid, the following formula can be used to compute that pay.Based on the overtime standing records maintained byrespondent which contain overtime hours worked, overtime hours refused and total hoursoffered, the percentage of overtime actually worked (obtained by dividing the total numberof hours worked by the total number of hours offered) by each employee for the last fulladjustment period prior to their transfer multiplied times the number of hours that werecharged (or in the case of employees Hogan and Wilkinson would have been charged if theyhad returned to the jobs from which they were transferred to low exposure) to eachtransferred employee by respondent as refused hours during the transfer period.One half hour pay at straight time for each fulleight hour shift the employee worked during his period of transfer to low exposure.36. Until March 6, 1981 the Secretary of Labor hadnot by regulation or otherwise given respondent in particular or employers in general anyguidance how, if it is determined they are required as part of medical removal protectionbenefits to make payments in lieu of overtime and payments an [sic] account of differentlunch period arrangements, those amounts of pay should be calculated. To date, respondenthas been the only employer which the Secretary of Labor has cited for alleged failure tomake such payments in lieu of overtime or such payments on account of different lunchperiod arrangements.37. At all times stated herein: Occupational Safetyand Heath Administration regulations have purported to require respondent to at no cost tothe employees issue freshly laundered coveralls each workday to employees working in thesmelter unit and to require them to be worn. Respondent has so supplied then and requiredthem to be worn. The six employees listed herein were so supplied them while working inthe smelter unit before their transfer to low exposure in the mine\/mill unit. Allemployees working in the mine\/mill unit have provided their own working attire and had itlaundered, all at their own expense. While the six employees listed herein worked on lowexposure assignment in the mine\/mill unit, respondent did not provide them with coverallsor have their work clothing laundered.38. Respondent’s not providing the employees listedherein with clean work clothing during the period of their low exposure transfer was oneof the employee complaints investigated by the Occupational Safety and HealthAdministration at the same time as the employee complaints which resulted in the citationat issue here. On the basis of its legal counsel’s advice that the governing law does notsupport the complaint regarding work clothing, the Occupational Safety and HealthAdministration found that complaint to be invalid and no citation issued on account ofthat complaint.\”The issue presented is the application of the Medical Removal Protection Plan, as it isrelevant to six of respondent’s employees who worked in the smelter area, and who werevoluntarily removed by respondent following bloodlevel testing.The pertinent data pertaining to these employees isas follows: Name Number Duty Separation Return Bloodlevel Terry Hogan (Mine Unit) 1358 Smelter 1\/8\/80 3\/10\/80 Exceeded 74 ug\/100 ml James L. Wilkinson (Construction) 1809 Smelter 12\/10\/79 3\/14\/80 Exceeded 74 ug\/100 mI Ronald D. Lawson 2785 Smelter 1\/28\/80 4\/21\/80 Exceeded 74 ug\/100 ml Paul E. Baker 2974 Smelter 2\/15\/80 4\/1\/80 Exceeded 74 ug\/100 ml Cary E. Harbison 2702 Smelter 1\/23\/80 3\/24\/80 Exceeded 74 ug\/100 ml Billy R. Clinton 2496 Smelter 1\/8\/80 4\/8\/80 Exceeded 80 ug\/100 ml The voluntary removal of the affected employees resulted in their being paid the regularrates for their new assigned duties, and conversely to lose the difference in wage ratesthat would have been paid at their old job duties, which entailed the payment of hours forovertime and the payment for a one-half hour lunch break. This, due to a differential inthe work schedules and structure, is contained in the collective bargaining agreementbetween respondent and its employees (J-39) executed June 1, 1978, or prior to theeffective date of the alleged standard.Section 29 CFR 1910.1025(k) contains the provisionsof lead standard in establishing 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 inparagraph (k)(2)(ii) of that section, provides in pertinent it part:\”(k) Medical Removal Protection.(2) Medical removal protection benefits.(i) Provision of medical removal protection benefits. The employer shall provide to anemployee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead on otherwise limited pursuantto this section\”,and, as defined in paragraph (k)(2)(ii) of thatsection:\”(ii) Definition of medical removal protectionbenefits. For the purposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shall maintain theearnings, seniority and other employment rights and benefits of an employee as though theemployee had not been removed from normal exposure to lead or otherwise limited.\”[Emphasis Supplied]Section 29 CFR 1910.1025(k)(2)(vii), as defined inparagraph (k)(2)(ii), provides:\”(vii) Voluntary Removal or Restriction of AnEmployee. Where an employer, although not required by this section to do so, removes anemployee from exposure to lead or otherwise places limitations on an employee due to theeffects of lead exposure on the employee’s medical condition, the employer shall providemedical removal protection benefits to the employee equal to that required by paragraph(k)(2)(i) of this section.\”Based upon the foregoing stipulations of the parties,there is raised the issues involved in this case of whether or not respondent violated themedical removal protection requirements of the lead standard by failing to compensate thementioned transferred employees for the loss of available overtime and charge of overtimerefused to employees while on low exposure status and the loss of paid-for lunch period,and if so, the nature of the violation.The respondent essentially reiterates in the firstportion of its brief those same arguments which were presented by the numerous petitionerschallenging the validity of the standard, including the section pertaining to medicalremoval protection, and where the respective petitions were transferred to the District ofColumbia Court of Appeals and consolidated, and where in a most extensive decision thevery same arguments raised by respondent in its brief were rejected, these argumentspertaining to the invalidity of the standard, improper evidence, notice of rule making,technological and economic feasibility, etc., along with the effect of the medical removalearnings protection provision as affecting workman’s compensation laws. UnitedSteelworkers of America, AFL-CIO-CLC, Petitioner v. Ray Marshall, Secretary of Labor, U.S.Department of Labor and Doctor Eula Bingham, Asst. Secretary of Labor, O.S.H.A.,Respondents, Docket 78-2452, January 10, 1979, 592 F.2d 693 (3rd Cir., 1979); UnitedSteelworkers 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 Courtupheld the lead standard, including the Medical Removal Protection Program, remanding therecord to complainant for reconsideration of the feasibility of the standard for certainspecified industries. United Steelworkers of America, AFL-CIO-CLC v. Marshall et al,Docket 79-1048, supra.Petitions of certiorari were filed in the U.S.Supreme Court, and following an application for stay of the lead standard in the Court ofAppeals decision, the Supreme Court on December 8, 1980, entered its order staying certainportions of the lead standard. However, the Court did not include the medical removalprotection benefit standard in its stay. The motion as to this portion of the standard wasdenied. Lead Industries Association, Inc., et al v. Ray Marshall, 101 S. Ct 603(1980), _L.Ed_ (1980).The progress of the lead standard through the courtshas resulted in its review by the Court of Appeals on two occasions and by the SupremeCourt, and finally a refusal by the Supreme Court to further consider the petitions of theparties by the Supreme Court’s denial of certiorari June 29, 1981, in UnitedSteelworkers of America, et al, Docket 79-1048 supra., leaving the medicalremoval protection benefits of the lead standard to remain in full force and in effectsince March 1, 1979. Respondent’s validity arguments as herein mentioned are rejected.The respondent further argues that because thestandard does not refer to overtime pay or lunch-pay periods, its medically removedemployees should be denied this portion of their pay, which was included at the time oftheir removal as smelter employees, with respondent arguing a rule of reason, and asuggestion that it would be inequitable to enforce the standard against the respondent.In considering respondent’s argument, section(k)(2)(ii), in plain and concise terms, provides that the employer \”shall maintainthe earnings, seniority and other employment rights and benefits of an employee asthough the employee had not been removed from normal exposure to lead or otherwiselimited\”. [Emphasis Supplied]The above-quoted succinctly and plainly states inplain and unequivocal language that an employee so removed shall suffer no diminution ofhis job rights as they existed at the time of the removal.The removed employees were a part of a job groupspecifically designated and structured by respondent and employees’ collective bargainingagreement as to duty, benefits and pay for the various job classification, and theseaffected employees, voluntarily removed by respondent for excess blood lead concentrationsare as such entitled to all the pay and benefits incurred by that classified group towhich they belonged at the time they were medically removed. The event of medical removal was not an event causedor created by the employee, but rather a result of the respondent’s operations. SeeExhibit J-39, section 1201 (Hours of Work and Overtime, Schedule A, Appendix, JobClassifications and Hourly Rates).To interpret this provision of the standard otherwisewould be to completely ignore the legislative history of the inactment of the leadstandard (43 Federal Register 5441), the intent and purposes for the inactment of themedical removal protection benefits standard, the analysis of the standard by the Court ofAppeals and Supreme Court, and in short would operate as an absolute, economic deterrentfor employees who 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 toearnings, rights and benefits. The law does not make any distinction between the jobclassification which precipitated the employee’s removal from excessive lead exposure tothat job to which he is assigned thereafter, insofar as reallocation of pay and benefits,except to state that his pay and benefit shall be the same as if he had not been removed,and the argument that he would intend to return to excess lead exposure cannot beentertained as a serious argument.There can be no vagueness where the respondent andthe 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 bargaining classifications should be inconflict with the standard the collective bargaining agreement would by law be subservientto the standard to guarantee the protection of the affected workers.So too, any consideration, that overtime available toa medically removed employee should be charged against him as having been offered andrefused would act as a detriment and a discouragement to an employee to take advantage ofthe medically removal protection benefits.To so charge an employee by virtue of the fact thatthe employee has been removed to low exposure employment and is thus denied theopportunity to participate in high exposure overtime, would completely negate thebeneficial and protective concept of wage retention and must therefore be rejected.NATURE OF THE VIOLATIONThe complainant strenuously argues that respondentshould be held in willful violation for not paving the full earnings, seniority and otheremployment rights and benefits of the employees, based upon its alleged participation invarious OSHA hearings with respect to challenging the inactment of the standard and alongwith other collateral case citations pertaining to other remedial legislation. However, weare bound by the Commission’s definition of willful violation; namely, a determination ofwhether or not a respondent has consciously, deliberately, intentionally and voluntarilyviolated the Act or has acted in careless disregard of employees’ safety. Secretary v.Constructors Maza, Inc., Dockets 13680 and 14509, 78 OSHRC 6\/E2, 6 BNA OSHC 1309(1977-1978), CCH OSHD ? 22,487.Until the Supreme Court’s final action of June 29,1981, there was still a cloud over the finality of the standard. All acts of therespondent in denying the employees medical removal benefits were taken prior to thisdate, and it is not felt that it would be a willful violation of a standard underlitigation. Therefore, the violation is found to be de minimis, in that the violation hadno direct relationship to occupational safety or health, or imposed any additional hazardto the employees.The complainant further requests that an order beentered directing payment by respondent of backpay of the overtime equivalent to thatwhich the affected employees would have earned had they not been medically transferred andfor the affected employees’ half-hour lunch breaks, and in so doing has joined with therespondent in a stipulated formula to be used.However, it is felt that a finding of violation issufficient, with directions to the parties to exercise their stipulated formula to achievethe desired abatement.Failing this, and should there be affirmation of thisdecision, respondent would be in continuing violation so long an the salary and benefitsare withheld the affected employees and be subjected to further citation for failure toabate. It is felt that this is sufficient to resolve the issue until such time aslegislation is inacted to clearly enable the Commission to assess costs and as here,perhaps contemplate the assessment of interest. John W. McGowan, Petitioner v. F. RayMarshall, Secretary of Labor & OSHRC, Respondents, Docket 77-3495, 604 F.2d 885(5th Cir., 1979).CONCLUSIONS OF LAW1. Jurisdiction of this proceeding is conferred upon the Occupational Safety and HealthReview Commission by section 10(c) of the Act.2. AMAX Lead Company of Missouri, in transferring five of its employees to a positionwithin respondent’s company, designated as low exposure, without compensating saidemployees for overtime equivalent to that which they would have earned had they not beenmedically transferred, resulted in respondent violating 29 CFR 1910.1025(k)(2)(i) and(k)(2)(vii). 3. AMAX Lead Company of Missouri, in transferring sixof its employees to a position within respondent’s company, designated as low exposure,without compensating said employees for their half-hour lunch breaks for which they wouldhave been paid had they not been medically transferred from employment in the smeltingarea of respondent’s plant, respondent has violated 29 CFR 1910.1025(k)(2)(i) and(k)(2)(vii).4. The definition of medical removal protectionbenefits includes compensation for lost overtime work opportunities and straight time payfor half-hour lunch breaks.DECISION AND ORDERThe violations of 29 CFR 1910.1025(k)(2)(i) and(k)(2)(vii) are de minimis, and no penalty is assessed.Paul E. Dixon, Judge, OSHRCDATE: September 3, 1981FOOTNOTES: [[1]] Docket Nos. 80-1793 and 81-2267 have previouslybeen consolidated by order of the Commission. Because Docket No. 81-856 involves questionsof law and fact similar to those in the other two cases, we consolidate all three casesfor decisional purposes. Commission Rule of Procedure 9, 29 C.F.R. ? 2200.9.\u00a0[[1\/]]That standard requires:? 1910.1025 Lead(k) Medical Removal Protection(2) Medical removal protection benefits –(1) Provision of medical removal protection benefits. The employer shall provide toan employee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead or otherwise limited pursuantto this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.\u00a0[[1\/]] Insofar as is relevant here, the standardprovides:?1910.1025 Lead(k) Medical Removal Protection(2) Medical removal protection benefits–(i) Provision of medical removal protection benefits. The employer shall provide toan employee up to eighteen (18) months of medical removal protection benefits on eachoccasion that an employee is removed from exposure to lead or otherwise limited pursuantto this section.(ii) Definition of medical removal protection benefits. For the purposes of thissection, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employeewhose blood lead level exceeds a specified concentration be removed from a work area inwhich the ambient airborne concentration of lead exceeds a certain amount. Since theexpiration of the phase-in period during which higher concentrations were permitted, thestandard has required that an employee with a blood lead level at or above 50 ug\/100g ofwhole blood be removed from work having a daily eight hour time-weighted-average exposureto airborne lead at or above 30 ?g\/m3. 29 C.F.R. ? 1910.1025(k)(1)(i). [Thiscase, however, arose during the phase-in period.] The standard also requires removal if a\”final medical determination\” establishes that an employee has a \”detectedmedical condition which places the employee at increased risk of material impairment tohealth from exposure to lead.\” 29 C.F.R. ? 1910.1025(k)(1)(ii)(A).[[3\/]] In our initial decision in this case, and inthe appeal before the Fifth Circuit, this case was consolidated with St. Joe ResourcesCo., OSHRC Docket No. 81-2267, and Schuylkill Metals Corp., OSHRC Docket No.81-856. Because the cases no longer involve a single common legal issue, they are herebysevered pursuant to Commission Rule 10, 29 C.F.R. ? 2200.10.[[4\/]] We must apply the Fifth Circuit’sinterpretation as the \”law of the case.\” See In re Progressive FarmersAss’n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. SouthCentral Enterprises v. Farrington, 108 S.Ct. 1574 (1988). In another decision issuedtoday, East Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989), wehave overruled the Commission’s decision in Amax and aligned the Commission’sinterpretation of the medical removal protection provision with that of the Fifth Circuitin United Steelworkers of America\u00a0 v. Schuylkill Metals Corp.[[5\/]] The Fifth Circuit said that paid lunch periodsmay be included in the payments and benefits that employees are entitled to receive underthe standard. 828 F.2d at 320-22 & n. 4. However, we read this language to beconsistent with the remainder of the court’s decision, which focused on assuring thatemployees suffer no economic loss. As noted in the text, the court approved theSecretary’s interpretation, which states that employees must receive the compensation theywould have earned if not removed. The court also relied on the standard’s preamble, whichit found demonstrated a \”near obsession that workers sustain no ‘economic loss’because of removal . . . . \” Id. at 322. Accordingly, we read the court’sopinion to require employers to compensate a removed employee for paid lunch periods whenfailing to do so would reduce the employee’s total compensation. We do not read either thecourt’s opinion or the standard to require employers to pay employees more thanthey would have earned if not removed.[[6\/]] Because she rejects each of the argumentseither on its merits or by applying the law of the circuit, Commissioner Arey finds itunnecessary to consider the arguments of the parties directed to the Commission’sauthority to rule on validity challenges the argument that Amax’s challenge is barred bycollateral estoppel, and Amax’s contention that the Secretary untimely raised thecollateral estoppel issue.[[7\/]] The cited workplace and Amax’s principal placeof business are located in Missouri, which is in the Eighth Circuit. Although this casewas previously appealed to the Fifth Circuit, that court only had jurisdiction becausethis case was consolidated with another case that arose in the Fifth Circuit. The caseshave now been severed, and they must be appealed separately wherever jurisdiction lies.[[8\/]] Commission Rule 92(a), 29 C.F.R. ?2200.92(a), provides:? 2200.92 Review by the Commission;(a) Jurisdiction of the Commission; Issues on review. Unless the Commission orders otherwise, a direction for reviewestablishes jurisdiction in the Commission to review the entire case. The issues to bedecided on review are within the discretion of the Commission but ordinarily will be thosestated in the direction 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), the court adverted to, but did not discuss or define, \”otherappropriate relief\” in the one instance in which the Commission has issued whatamounted to a retroactive pay order: the Commission ordered a remand of certain cases fora determination of the amount of medical removal protection benefits due the employees.However, the Commission had not said that it was ordering \”other appropriaterelief;\” in fact, the Commission did not give any attention to what authority it hadto issue such an order. RSR Corp., 83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1983-84 CCHOSHD ? 26,429 (No. 79-3813, 1983). The court’s reference to that term has littleapplication here since the court was addressing only whether the Commission’s decision wasa final order from which the employer could appeal. Despite the remand for determinationof benefits due, the employer wanted court review of the foundational portions of theCommission decision the Commission’s affirmance of the underlying citations and penalties.The Secretary moved to dismiss the appeal on the ground that the Commission’s decision wasnot final. On this the court replied, \”Only a crabbed reading of section 10(c) [29U.S.C. ? 659(c)] would forbid review of an order that affirmed in part and modified inpart both citations and penalties simply because the issue of what other (and additional)relief is appropriate has been remanded for determination.\” 733 F.2d at 1144. Thecourt denied the Secretary’s Motion to Dismiss. Whether the Commission had authority toorder retroactive pay was not before the court, and the court gave the question noattention. Accordingly, Chairman Buckley declines to assign to the court’s decisionauthority for the Commission to make individual compensatory awards.[[1]] Docket Nos. 80-1793 and 81-2267 have previouslybeen consolidated by order of the Commission. Because Docket No. 81-0856 involvesquestions of law and fact similar to those in the other two cases, we consolidate allthree cases for decisional purposes. Commission Rule of Procedure 9, 29 C.F.R. ? 2200.9.[[2]] The pre-1975 standard was derived from astandard issued by the American National Standards Institute. The Secretary promulgated itunder section 6(a) of the Act, 29 U.S.C. ? 655(a), which authorized the Secretary toadopt national consensus standards as OSHA standards without notice-and-comment rulemakingproceedings within two years of the Act’s effective date.[[3]] In promulgating the new standard, the Secretaryacted under section 6(b) of the Act, 29 U.S.C. ?655(b), which authorizes the Secretary topromulgate occupational safety and health standards following notice-and-commentrulemaking proceedings.[[4]] Due to feasibility constraints, certain of thestandard’s provisions, including the permissible exposure limit, are phased in over aperiod of time. In our description of the provisions of the standard, we have for the sakeof clarity used those numerical values that are in effect after the standard is fullyphased in. Certain of the values given were not in effect at the time the allegedviolations in these cases occurred, but this is not significant for purposes of thisdecision.[[5]] The words \”high\” and \”low\”are, of course, relative. For purposes of this decision, we use them to distinguishbetween airborne lead concentrations from which employees with elevated blood lead levelsmust be removed, and concentrations to which such employees may permissibly be exposed.[[6]] The employees Schuylkill transferred did nothave blood lead levels sufficiently high to require their removal under the standard. Theydid, however, have blood lead levels higher than the plantwide average. According toSchuylkill, the company measured the blood lead level of employees and, when a particularemployee was found to have a level above average, the employee was observed closely todetermine the cause of the increase. If it was found that the increase was due to poorhygiene habits or failure to wear a respirator properly, the employee was transferred fromthe production area to the change house for purposes of discipline and retraining.The Secretary contends that Schuylkill was requiredto pay MRP benefits even 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 employeefrom exposure to lead or otherwise places limitations on an employee due to the effects oflead exposure on the employee’s medical condition, the employer shall provide medicalremoval protection benefits to the employee equal to that required by paragraph (k)(2)(i)of this section.The Secretary argues that the employees Schuylkilltransferred were transferred because they had rising blood lead levels, that the transferswere therefore a result of the effects of lead exposure on the employees’ medicalcondition, and that this section therefore requires Schuylkill to pay MRP benefits to theemployees. Schuylkill argues that the transfers were for the purpose of discipline andretraining, and not a result of the effects of lead exposure on the employees’ medicalcondition. Schuylkill points to the testimony of its plant physician that none of theemployees had primary conditions associated with occupational lead exposure and none wereat an increased risk to their health if they had continued in their jobs.We find it unnecessary to resolve this dispute. Under our interpretation of the standard,even assuming Schuylkill was required to pay MRP benefits, the payments it made to thetransferred employees were adequate to discharge that obligation.[[7]] The Mine Act was subsequently amended andredesignated the Federal Mine Safety and Health Act of 1977. Pub.L. 95-164, 91 Stat. 1290(Nov. 9, 1977). The amendments did not affect the Act’s MRP provision.[[8]] We also note that, if the Secretary intended\”earnings\” to include premium payments, his statement that he did not includesuch a definition because it would be likely to confuse some employers is difficult tocredit. About a year after he adopted the lead standard, the Secretary publishedappendices that were intended to summarize key provisions of the standard for employees.44 Fed. Reg. 60980 (Oct. 23, 1979). Section IX of Appendix B discusses medical removalprotection and states: \”Earnings includes more than just your base wage; it includesovertime, shift differentials, incentives, and other compensation you would have earned ifyou had not been removed.\” Id. at 60987. The Secretary’s ability to draft such aclear and concise definition for the information of employees suggests he could have alsodrafted a definition that would not have confused employers if he indeed intended toinclude premium payments in \”earnings\” when he adopted the standard. Thus weconclude, from the fact that he did not do so when adopting the standard, that he did notintend \”‘earnings\” to include the premium payments to which he later referred inthis summarization for employees. We do not accord dispositive weight to thissummarization because it was not composed when the standard was promulgated and thus isnot a contemporaneous explanation and interpretation. L.E. Myers Co., 86 OSAHRC__12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ? 27,476, p. 35,604 n.9 (No. 82-1137, 1986).Moreover, it is inconsistent with the history of the standard we have cited.[[9]] Amax and St. Joe argue that the lead standardis invalid and that promulgation of the MRP provision exceeds the Secretary’s authority.The Secretary counters that the principle of collateral estoppel precludes the employersfrom challenging the standard’s validity in this proceeding, pointing out that the D. C.Circuit in Steelworkers rejected the employers’ validity arguments and arguing thatAmax and St. Joe were either parties to Steelworkers or were in privity withparties to that case. Because of our disposition, we need not reach either the validityarguments raised by the employers or the collateral estoppel argument made by theSecretary.”