“SECRETARY OF LABOR,Complainant,v.ASARCO, INC.,Respondent.OSHRC Docket No. 86-0168_REMAND ORDER_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case is before the Commission on remand from the United StatesCourt of Appeals for the Ninth Circuit. _McLaughlin v. ASARCO, Inc._,841 F.2d 1006 (9th Cir. 1988). In the initial decision in this case,Administrative Law Judge William R. Mullins vacated the Secretary’scitation alleging that ASARCO failed to comply with the medical removalprotection (\”MRP\”) provision of the OSHA standard regulatingoccupational exposure to lead, 29 C.F.R. ? 1910.1025.[[1\/]] The judgeconcluded that the standard did not require ASARCO to compensate itsemployees for the overtime pay they would have received had they notbeen transferred from their regular job positions after showingexcessive levels of lead in their blood.[[2\/]] The judge relied onCommission precedent holding that MRP benefits do not include overtimeor premium pay that are incidents of the jobs from which employees havebeen transferred but not of the jobs to which they are assigned. _AmaxLead Co. of Missouri_, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629 (No.80-1793, 1986), _rev’d_, _United Steelworkers of America v. SchuylkillMetals Corp._, 828 F.2d 314, 321 (5th Cir. 1987). The Commission did notreview Judge Mullins’ decision, and it became a final order of theCommission.On appeal, the Ninth Circuit reversed. It agreed with the FifthCircuit’s holding in _Schuylkill_ that the term \”earnings\” in the MRPprovision refers to overtime as well as to regular pay. In accordancewith the court’s order,[[3\/]] we remand this case to a Commissionadministrative law judge for further proceedings consistent with thecourt’s decision that ASARCO failed to comply with the MRP requirementby withholding overtime pay from its removed employees.[[4\/]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 27, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.ASARCO, INCORPORATED,Respondent,UNITED STEELWORKERS OF AMERICALOCAL 72 – AFL-CIO,Authorized Employee Representative.OSHRC DOCKET NO. 86-0168_APPEARANCES:_For the Complainant:H. Alice Jacks, Esq., Office of the Solicitor,U.S. Department of Labor, Kansas City, MissouriFor the Respondent:William O. Hart, Esq., Asarco, Incorporated,New York, New YorkFor the Employees:James P. Reardon, President, United Steelworkersof America, AFL-CIO, East Helena, Montana_DECISION AND ORDER_Mullins, Judge:On January 23, 1986, a citation was issued against the respondent,Asarco, Incorporated, alleging the violation as follows:29 CFR 1910.1025(K)(2)(1): An employee removed from exposure to lead, orotherwise limited pursuant to this section was not provided with medicalremoval protection benefits:(a) Employees on medical removal were not paid for overtime which wouldhave been available to them in their regular job positions.To this citation the respondent has filed Notice of Objection and theemployees were given notice and have entered an appearance through theirauthorized representative, United Steelworkers of America, AFL-CIO,Local 72.On July 3, 1986, the parties submitted to the undersigned a jointstipulation of facts and further agreed that the decision in this mattercould be determined by the undersigned after submission of briefs by theparties. Two extensions of time were granted in which to file the briefsand the briefs of complainant and respondent have been received at thistime; however, no brief has been filed by the representative of theemployees.In both Complainant’s Brief and Respondent’s Brief, there is cited theOccupational Safety and Health Review Commission combined cases of _AmaxLead Co. of Missouri_, _Schuylkill Metals Corp._, and _St. Joe ResourcesCo._, OSHRC Docket Nos. 80-1793, 81-0856, and 81-2267, 12 BNA OSHC 1878,decided in June of 1986.The single issue for determination in this case was whether or notemployees who are receiving medical removal benefits as a result ofexcessive lead levels determined from blood tests would be entitled toovertime pay. This specific issue was addressed in the Amax case citedabove and the Commission clearly has ruled that employees are notentitled to overtime benefits.Therefore, based upon the stipulation of facts and the Commission casecited above, the citation should be dismissed.It is SO ORDERED.William R. MullinsJudge, OSHRCDated: December 3, 1986 SECRETARY OF LABOR,Complainant,v.ASARCO, INC.,Respondent.UNITED STEELWORKERS OF AMERICA,LOCAL 72 – AFL-CIO,Authorized Employee Representative.OSHRC DOCKET NO. 86-0168_FINAL ORDER_The above captioned case was originally submitted on stipulation fordecision on the sole issue of whether respondent was required by 29C.F.R. ? 1910.1025(k)(2)(ii)[[1]] to compensate employees removed fromlead exposure for overtime they would have worked had they not beenremoved. The prior Administrative Law Judge vacated the Secretary’scitation based on Commission precedent holding that employees were notentitled to such overtime benefits, citing _Amax Lead Co. of Missouri,Schuylkill Metals Corp., St. Joe Resources, Co._, 12 BNA OSHC 1878 (Nos.80-1793, 81-0856, 81-2267, 1986).The Secretary filed a Petition for Discretionary Review with theCommission on December 23, 1986. No Commission Member directed review,and the decision became a final order of the Commission on January 5,1987, pursuant to ? 12(j) of the Act.On appeal, the Ninth Circuit reversed, finding that the Commission’sinterpretation was in conflict with the plain meaning of the medicalremoval standards, which require a continuation of \”earnings\” including\”overtime, shift differentials, incentives and other compensation\”.[[2]]_McLaughlin v. ASARCO, Inc._, 841 F.2d 1006 (9th Cir. 1988).The order was remanded to this judge for further proceedings consistentwith the Court’s decision.The parties have submitted a Stipulation of Resolution setting forthspecific amounts of overtime compensation due affected employees andproviding for the manner of payment._ORDER_Overtime compensation is due respondent’s employees as follows:L. Cox $1,980.75R. Mahr $1,324.50Payment will be made as set forth in the stipulation.James H. BarkleyJudge, OSHRCFOOTNOTES:[[1\/]] The pertinent provision of this standard requires as follows:? 1910.1025 _Lead_.* * *(k) _Medical Removal Protection_* * *(2) _Medical removal protection benefits_ –(i) _Provision of medical removal protection benefits_.The employer shall provide to an employee up to eighteen (18) months ofmedical removal protection benefits on each occasion that an employee isremoved from exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employee whose blood leadlevel exceeds a specified concentration be removed from a work areawhere the airborne lead concentration is more than a certain amount. 29C.F.R. ? 1910.1025(k)(1)(i). The standard also requires removal if a\”final medical determination\” establishes that an employee has a\”detected medical condition which places the employee at increased riskof material impairment to health from exposure to lead.\” 29 C.F.R. ?1910.1025(k)(1)(ii)(A).[[3\/]] We must apply the Ninth Circuit’s interpretation as the \”law ofthe case.\” _See_ _In re Progressive Farmers Ass’n_, 829 F.2d 651, 655(8th Cir. 1987), _cert. denied_, _South Central Enterprises v.Farrington_, 108 S.Ct. 1574 (1988). In _East Penn Manufacturing Co._,OSHRC Docket No. 87-0537 (Apr. 27, 1989), we overruled the Commission’sdecision in _Amax_ and aligned the Commission’s interpretation of themedical. removal provision with that of the Fifth Circuit in_Schuylkill_ and the Ninth Circuit in this case.[[4\/]] The Commission members are divided on whether the Commission hasauthority to issue an order requiring ASARCO to pay the removedemployees the specific amounts that were due but not paid. For theCommission members’ views on this question, see _St. Joe ResourcesCorp._, OSHRC Docket No. 81-2267 ( Apr. 27, 1989).[[1]] The pertinent provisions state:1910.1025 _Lead_.* * *(k) _Medical Removal Protection_* * *(2) _Medical removal protection benefits_ -(i) _protection of benefits_. The employer shall provide to an employeeup to eighteen (18; months of medical removal protection benefits oneach occasion that an employee is removed from exposure to lead orotherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurpose of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[2]] ? 1910.1025 Appendix B, ? IX ?(K)”