“SECRETARY OF LABOR,Complainant,v.ERIE COKE CORPORATION,Respondent,UNITED STEELWORKERS OF AMERICA,AFL-C10-CLC, LOCAL 8415, DISTRICT 20,Authorized Employee Representative.OSHRC Docket No. 88-0611_DECISION_Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:At issue in this case is whether, by requiring its employees to pay forthe flame resistant gloves that it makes available to them, Erie CokeCorporation (\”‘Erie\”) has failed to \”provide\” the gloves as required bythe coke oven emissions standard at 29 C.F.R. ? 1910.1029(h)(1)(ii),which states:(h) Protective clothing and equipment–(1) Provision and use. Theemployer shall provide and assure the use of appropriate protectiveclothing and equipment, such as but not limited to:(ii) Flame resistant gloves ….(Emphasis added.)Based on the stipulated record,[[1]] former Commission AdministrativeLaw Judge David J. Knight held that the Secretary’s interpretation of\”provide\” in the standard to mean that the employer must pay for thegloves is reasonable and entitled to deference. He rejected Erie’sargument that the Secretary is estopped from maintaining thatinterpretation in this case, and he found that Erie had violated thestandard.*I. Background*Erie produces coke at its plant in Erie, Pennsylvania, where the companyhas its principal office. About 35 employees who regularly work in theareas of the coke oven batteries, and 50 to 55 employees who potentiallycould work in those areas, wear flame resistant gloves purchased fromErie, as do most of the remaining 130 employees at the plant.The flame resistant gloves, also known as \”hot mill\” gloves, are notindividually sized. Most of the affected employees wear the longgauntlet (six- inch cuff) style, but the gloves also come in a shortgauntlet (two-inch cuff) style. Erie purchases the gloves and then sellsthem to its employees at cost, which was, at the time of thestipulations, $1.70 a pair for the long gauntlet and $1.30 a pair forthe short gauntlet. In exceptional circumstances, such as when thegloves become damaged through no fault of the employee, Erie suppliesreplacement gloves at no cost. As stipulated, the gloves \”last on theaverage between three and four weeks when used by [Erie’s] oven workers.\”In response to a complaint filed by the president of Local 8415, UnitedSteelworkers of America, AFL-CIO-CLC, Local 8415, District 20 (\”theunion\”), concerning Erie’s failure to pay for the gloves, theOccupational Safety and Health Administration (\”OSHA\”) conducted aninspection of the plant in January 1988. As a result, OSHA issued acitation to Erie alleging that it violated the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”) by failing to\”provide\” flame resistant gloves as required by section1910.1029(h)(1)(ii).[[2]] No penalty was proposed. Based on thestipulated record, the judge affirmed the other-than-serious citationand assessed no penalty.Erie contends that the Secretary’s interpretation of \”provide\” torequire it to bear the costs of the gloves is unreasonable because,among other reasons, it is contrary to the objectives of the Act,Commission and court precedent, and the collective bargaining process.Erie also contends that the Secretary is estopped from enforcing thestandard in this case because of previous administrative actions thatshe took involving other coke- producing companies having the sameprincipal owner as Erie. We first consider whether the Secretary’sinterpretation is reasonable. Our inquiry is limited, by Erie’sarguments and the language of the citation, to the Secretary’sinterpretation of \”provide\” only as it relates to flame resistant glovesunder this standard.[[3]] The test for assessing the reasonableness ofthe Secretary’s interpretation is set out in Martin v. OSHRC (CF & ISteel Corp.), 111 S. Ct. 1171, 1178-80 (1991) (\”CF & I Steel\”). In CF &I Steel, the Supreme Court held that reviewing courts must defer to theSecretary’s interpretation of her own regulations where thatinterpretation is reasonable, taking into account such factors as theconsistency with which the interpretation has been applied, \”theadequacy of notice to regulated parties,\” and \”the quality of theSecretary’s elaboration of pertinent policy considerations.\” Id. at1179-80. The Court further noted that \”when embodied in a citation, theSecretary’s interpretation assumes a form expressly provided for byCongress.\” Id. at 1179.*II. Reasonableness of the Secretary’s Interpretation of \”Provide\”*Neither the legislative history of section 1910.1029(h)(1) nor anyCommission or court decision has addressed the issue of whether\”provide\” means \”pay for\” under this standard. Among the dictionarydefinitions of \”provide\” is \”to supply what is needed for sustenance orsupport.\” Webster’s Third New International Dictionary 1827 (1971). Thatdefinition suggests, as does the written interpretation of the citedstandard introduced by the Secretary, that \”provide\” encompasses morethan merely making items available.*A. Secretary’s Written Interpretation*OSHA Instruction STD 1-6.4 (March 12, 1979) (\”the Instruction\”)establishes that the Secretary had, prior to the citation here,interpreted \”provide\” as meaning \”pay for.\” The Instruction is aninternal directive to OSHA’s field staff designed to facilitate uniformenforcement of specific coke oven emissions standards and to establishinternal OSHA policies. It provides:A. _Purpose_. This instruction clarifies the OSHA inspection procedurefor the protective clothing requirement in the Coke Oven EmissionsStandard, 29 CFR 1910.1029(h)(2)(i)-(iii).C. _Action_. OSHA will interpret and enforce the standard as follows:1. The clothing provision and cleaning service are obligations of theemployer at no cost to the employee.E. _Background_. Recently, we have received questions concerning theOSHA’s inspection procedure for the protective clothing requirement in… 29 CFR 1910.1029(h)(2)(i)-(iii). Paragraph (h)(2)(i) states \”Theemployer shall provide the protective clothing required by paragraphs(h)(1)(i) and (ii) of this section in a clean and dry condition at leastweekly.\” Additionally, paragraph (h)(2)(iii) states \”‘The employer shallrepair or replace the protective clothing and equipment as needed tomaintain their effectiveness.\”(Emphasis added.)The Instruction applies by its own terms to section 1910.1029(h)(1)(ii),the cited standard. As Judge Knight noted in his decision, the standardsmentioned in the \”‘Purpose\” portion of the Instruction, 29 C.F.R. ?1910.1029(h)(2)(i)-(iii), which set forth cleaning and maintenancerequirements, by necessity incorporate by reference sections1910.1029(h)(1)(i) (flame resistant jackets and pants, see supra note 3)and (ii) (flame resistant gloves). The Instruction clarifies that\”‘provision\” and \”cleaning\” of the protective clothing under section1910.1029(h) are separate obligations to be borne by the employer at nocost to the employee.[[4]]Erie contends that the Commission cannot consider this writteninterpretation because, when OSHA issued the Instruction, it was taking\”legislative\” action in violation of the notice-and-comment proceduresof the Administrative Procedure Act, 5 U.S.C. ? 553 (1976)(\”APA\”), [[5]](citing Chamber of Commerce of the United States v. OSHA, 636 F.2d 464(D.C. Cir. 1980)). We disagree.In Chamber of Commerce, the court invalidated, based on itsdetermination that it constituted \”legislative\” action, a regulationissued without notice and comment that sought to impose a newrequirement, that employers must pay employees for time spentaccompanying OSHA compliance officers on walkaround inspections. Theregulation was based on the language in section II (c) of the Act, thatemployees have \”an opportunity\” to participate in such inspections. Thecourt distinguished a \”legislative\” rule from an \”interpretive\” rule bystating that an \”interpretive\” rule need not follow the procedures insection 553 of the APA because it is \”no more than an expression of [theagency’s] construction of a statute or rule.\” 636 F.2d a.468.We agree with the judge that the OSHA Instruction here is \”interpretive\”rather than \”legislative\” It merely clarifies and explains whichmeaning, among several ordinary uses, to give the ambiguous term\”provide\” as it is used in the regulation. It does not set forth a newregulatory requirement. See, e.g., American Hospital Ass’n v. Bowen, 834F.2d 1037, 1045 (D.C. Cir. 1987); United Technologies Corp. v. EPA, 821F.2d 714, 718-19 (D.C. Cir. 1987). Accord Bendix Forest Prods Corp. v.Division of Occupational Safety and Health, 600 P.2d 1339 (Cal. Sup. Ct.1979) (California Division of Industrial Safety’s order interpreting\”provide\” and \”furnish\” in CalOSHA provisions to require employers topay for gloves or mittens for lumber movers was specific application ofexisting regulation, not promulgation of new standard). See also AnimalLegal Defense Fund v. Quigg, 932 F.2d 920, 927-29 (Fed. Cir.1991). Wetherefore conclude that in issuing this written interpretation theSecretary did not violate section 553 of the APA. [[6]]*B. Purposes of the Act*Erie contends that it is irrelevant under the Act who pays for therequisite protective clothing and equipment, and, therefore, theSecretary’s interpretation of \”provide\” as requiring imposition of thecost of the gloves on employers is contrary to the objectives of theAct. However, as the judge noted in his decision, several courts haveexamined the relevant legislative history of the Act and determined thatfor employers to bear the costs of protective measures is in accordancewith the Act’s purposes.*1. Legislative History*In United Steelworkers of America v. Marshall (\”USWA\”), 647 F.2d1189,1231 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981), the courtconcluded that the cost of medical removal protection benefits under thelead standard at 29 C.F.R. ? 1910.1025(k) can be borne by the employer.It relied heavily on three statements in the legislative history of theAct. First, the Report from Senator Williams, Chairman of theSubcommittee on Labor, Committee on Labor and Public Welfare, stated:[M]any employers–particularly smaller ones–simply cannot make thenecessary investment in health and safety, and survive competitively,unless all are compelled to do so. The competitive disadvantage of themore conscientious employer is especially evident where there is a longperiod between exposure to a hazard and manifestation of an illness. Insuch instances a particular employer has no economic incentive to investin current precautions, not even in the reduction of workmen’scompensation costs, because he will seldom have to pay for theconsequences of his own neglect.S. Rep. No. 91-1282, 91st Cong. 2d Sess. 4 (1970), reprinted in SenateComm. on Labor and Public Welfare, 92d Cong., 1st Sess., LegislativeHistory of the Occupational Safety and Health Act of 1970, at 144 (1971)(\”Legislative History\”).Second, Senator Yarborough, Chairman of the Committee on Labor andPublic Welfare, told the Senate during the debate:We need a Federal statute, not to try to federalize things, but toequalize the cost in one industry vis-a-vis another. We know the costswould be put into consumer goods but that is the price we should pay forthe 80 million workers in America.Legislative History at 444. In addition, Senator Eagleton, a member ofthe Subcommittee on Labor, stated in consideration of the ConferenceReport that \”the costs that will be incurred by employers in meeting thestandards of health and safety to be established under this bill are …reasonable and necessary costs of doing business.\” Id. at 1150. TheReport from Senator Williams also stated that \”[f]inal responsibilityfor compliance with the requirements of this act remains with theemployer.\” Id. at 151.In Forging Indus. Ass’n v. Secretary of Labor (\”Forging Indus.\”), 773F.2d 1436, 1451 (4th Cir. 1985) (en banc), the court concluded that theSecretary can, under the Act, require employers to pay for hearingprotectors under the noise standard at 29 C.F.R. ? 1910.95(i)(1), stating:The legislative history clearly indicates \”that Congress understood thatthe Act would create substantial costs for employers, yet intended toimpose such costs when necessary to create a safe and healthful workingenvironment.\” American Textile Manufacturers Institute v. Donovan, 452U.S. 490 at 519-20 (1981). In view of this clear statement, it is onlylogical that OSHA may require employers to absorb such costs.We agree with these courts of appeals that, based on the legislativehistory, Congress intended that the cost of compliance with OSHA wouldbe uniformly reflected in the price of goods and services, so as not toplace the safety-conscious employer at a competitive disadvantage. TheSecretary’s interpretation of \”provide\” in this case to requireemployers to bear the cost of the gloves is certainly not inconsistentwith this intent nor with the stated purposes of the Act.***2. Decisions Relied Upon by Erie Distinguishable*As support for its view that the Secretary’s interpretation is contraryto the purposes of the Act Erie relies on the decisions by theCommission and the Third Circuit[[7]] in The Budd Co., 1 BNA OSHC 1548,1973-74 CCH OSHD ? 17,387 (No. 199, 1974), aff’d, 513 F.2d 201 (3d Cir.1975) (\”Budd\”). In Budd, the Commission determined that the employerneed not pay for safety shoes under the general industry personalprotective standard at 29 C.F.R.? 1910.132(a), requiring that\”[p]rotective equipment … shall be provided,\” in light of the languagein the next subsection, 29 C.F.R. ? 1910.132(b), specifically addressing\”employee-owned [personal protective] equipment.\” The Commission concluded:Our interpretation comports, not only with settled rules of statutoryconstruction, but, also, with the basic objective of the Act. Thepurpose of the Act is \”to assure so far as possible every working manand woman in the Nation safe and healthful working conditions\” (Act,sec. 2(b)). Unlike other labor statutes with essentially economicpurposes (e.g. Fair Labor Standards Act), the Act is concerned solelywith safety and health in the work situation. Prescription of costallocations is not essential to the effectuation of the Act’sobjectives. It is irrelevant for the purposes of the Act who providesand pays for the equipment. Either employer or employee provision isconsistent with the purpose of the Act.1 BNA OSHC at 1550, 1973-84 CCH OSHD at p. 21,915 (footnotes omitted).See Budd, 513 F.2d 201, 205-06 (3d Cir. 1975). Erie places particularreliance on this language.However, neither this language, which is essentially dicta,[[8]] nor therest of the Commission or court decisions In Budd actually supportErie’s claim that the Secretary’s interpretation is unreasonable.In Budd, the Third Circuit found that the Commission’s interpretation ofthe standard did not conflict with \”the provisions of the Act itself\” or\”the attainment of the congressional purpose.\” 513 F.2d at 205-06. But,as the D.C. Circuit noted in USWA, 647 F.2d at 1231-32 n.66, \”the courtthere [in Budd] failed to address the relevant parts of the legislativehistory of the OSH Act.\” Another critical factor distinguishing Buddfrom this case is that in Budd, it was not the Secretary, whoseinterpretation is usually afforded considerable weight, but the unionthat maintained that employers are required to pay for protectivefootwear. The Secretary agreed with the Commission that employers didnot need to pay for safety shoes under section 1910.132(a). 513 F.2d at205 and n.12; 1 BNA OSHC at 1549, 1973-74 CCH OSHD at p. 21,914.The language of section 1910.132(a), the standard at issue in Budd, andits neighboring subsection also distinguish that case from this one.Section 1910.132(a) requires that protective clothing and equipment\”shall be provided.\” It does not specify who is to do the providing,only that it be accomplished. Budd, 513 F.2d at 206.[[9]] In contrast,the standard here states clearly that \”[t]he employer shall provide.\” Inaddition, in finding that the employer was not required to providesafety shoes, the Commission and the Third Circuit in Budd reliedheavily on the language of section 1910.132(b) which requires employersto assure the adequacy of \”’employee-owned equipment.\” There is nocorresponding provision in section 1910.1029(h) involving employee-ownedclothing and equipment.The safety shoes themselves are also distinguishable from the gloves atissue here because they were, in the Commission’s words. \”uniquelypersonal and may be used by the employee when he is away from the job.\”Budd, 1 BNA OSHC at 1550 n.5, 1973-74 CCH OSHD at p. 21,915 n.5. SeeUSWA, 647 F.2d at 1231 n. 66 (special character of shoes an Issue inBudd because they could be worn off as well as on the job). Erie assertsthat the gloves at issue here can be safely worn outside the plant solong as they have been cleaned.[[10]] However, the Secretary and theunion maintain that once the gloves have been used in the workplace theyhave become contaminated and \”are no longer reasonably usable outsidethe workplace.\” Because the gloves are not individually sized and have arelatively brief (three-to-four week) work life, we agree with the judgethat the gloves do not have a 46 uniquely personal\” use such as thesafety shoes in Budd.For the reasons given above we conclude that Budd is distinguishablefrom this case, and we find that the Secretary’s interpretation of\”provide\” as requiring employer payment for the gloves is in accordancewith the purposes of the Act.[[11]]***C. Cost Allocation as Subject of Collective Bargaining*Prior to the citation, Erie and the union had participated in collectivebargaining negotiations on the issue of who pays for the gloves. Theunion had requested that Erie provide flame resistant gloves at no costto the employees, but Erie refused.[[12]] The resultant language in thebargaining agreement stated that protective clothing and equipment\”shall be provided by the Company.\”[[13]]Erie contends that the Commission in Budd and two federal courts ofappeals have acknowledged that, unless there is specific language to thecontrary in the applicable standard, allocation of costs of personalprotective equipment and clothing is best resolved through collectivebargaining, citing United Parcel Service of Ohio v. OSHRC (\”UPS\”), 570F.2d 806 (8th Cir. 1978); Leone v. Mobil Oil Corp. (\”Leone\”), 523 F-2d1153 (D.C. Cir. 1975). Erie notes that, after concluding that section1910.132(a) did not require employers to pay for the gloves in light ofsection 1910.132(b), the Commission stated in Budd:The question of cost allocation . . . is a question to be resolvedbetween employer and employee. In our judgment, it is an appropriatesubject for collective bargaining. Cf. Fiberboard Paper Products Corp.v. NLRB (concurring opinion), 379 U.S. 212, 227\” (1964); NLRB v. MillerBrewing Co., 408 F.2d 12, 14 (9th Cir. 1969); NLRB v. Gulf Power Co.,384 F.2d 822, 824-25 (5th Cir. 1967).1 BNA OSHC at 1550, 1973-74 CCH OSHD at p. 21,915. Erie also relies onthe Third Circuit’s only words on this issue in its decision affirmingthe Commission’s decision in Budd: \”Moreover, the cost of the shoes maybe compensated by other items in the collective bargaining settlement.\”513 F.2d at 208 n.20. Erie asserts that its negotiations with the unioninvolved the type of trade-off described by the Third Circuit.We would first note that the portion of the Commission decision in Buddquoted by Erie was not dispositive of that case and is therefore dicta.However, the issue of cost allocation under the Act has been morethoroughly discussed by other courts. In Forging Indus., the FourthCircuit stated:FIA’s argument that this [provision of hearing protectors at no charge]is a traditional area of collective bargaining is unpersuasive. . . .\”In passing a massive worker health and safety statute. Congresscertainly knew it was laying a basis for agency regulations that wouldreplace or obviate worker safety provisions of many collectivebargaining agreements. Congress may have viewed collective bargainingagreements along with state worker’s compensation laws as part of thestatus quo that had failed to provide worker’s sufficient protection.\”773 F.2d at 1451-52 (quoting USWA, 647 F.2d at 1236 (D.C. Cir. 1980)).The decisions upon which Erie relies are distinguishable from this case.In UPS, the issue was not who should pay for safety shoes, but ratherwhat types of shoes at what cost would be adequate under thecircumstances. The Eighth Circuit found that, in light of such factorsas the nature of the business, the small size of the parcels, the lowinjury rate, and the high turnover rate of employees, it was\”unreasonable and an abuse of discretion [for the Commission] to requirethat all of the unloaders and sorters be equipped, either at theirexpense or at the expense of petitioner, with steel-toed safety shoes.\”570 F.2d at 812 (emphasis added). Leone involved a charge initiated byemployees, not the Secretary, requesting payment for time spentparticipating in a walkaround inspection. 523 F.2d at 1154. In Leone,the D.C. Circuit noted that the plaintiffs argued that the 44 policiesof OSHA,\” not the labor agreement or the language of the Act, requirepayment for those \”hours worked\” that are compensable under the FairLabor Standards Act. Id. at 1159.We agree with the reasoning of the courts in Forging Indus. and USWA. Wetherefore conclude that the Secretary’s interpretation of this standardto require coke producing employers to pay for flame resistant gloves isreasonable under the Act, and that it is not affected by the collectivebargaining agreement.We do not base our conclusion on the Secretary’s assertion that Erie andthe union cannot bargain on the issue of the cost of the gloves becauseit relates to the \”creation of a safety disincentive.\” Where the recordhas supported it, the role of safety incentives or disincentives hasbeen found significant in several cases. Cf. United Steelworkers ofAmerica v. Schuylkill Metals Corp., 828 F.2d 314, 322 (5th Cir. 1987)(employer’s failure to maintain premium payments would provide economicdisincentive to voluntary employee cooperation in medical surveillanceprogram); Phelps Dodge Corp., 11 BNA OSHC 1441, 1443, 1983-84 CCH OSHD ?26,552 p. 33,919 (No. 80-3203, 1983), aff’d, 725 F.2d 1237 (9th Cir.1984) (in finding violation of standard requiring that medicalexaminations be \”provided without cost to the employee.\” Commissionnoted that 42 percent of employees failed to go for follow upexaminations when required to bear own transportation costs and use ownpersonal time).However, the Secretary’s safety disincentive argument is not supportedby the record. The Secretary, who has the burden of proving theviolation, acknowledged at the oral argument that there is nothing inthis stipulated record that establishes that Eric’s employees were infact wearing their gloves past their protective life in order to savethemselves money. Common sense dictates that Eric’s employees have theincentive to wear fully protective gloves because they know burns couldotherwise result. The Secretary acknowledged at the oral argument thatthere is a certain point of discomfort at which an employee would changegloves to avoid burns. Moreover, the record indicates that employees dowear the gloves.*D. Work Rule to Address Practical Concerns*Eric asserts that its motive for charging its employees for the glovesis to prevent waste. It claims that its employees do not use as manypairs of gloves when they pay for the gloves themselves. Eric contendsthat the gloves may be used for a number of non-work purposes outsidethe plant, but the record is silent as to whether its employees weredoing this. Eric argues that its interpretation of the standard istherefore more economically feasible than the Secretary’s interpretationbecause it saved money by the reduction in glove purchases compared toits predecessor, the Koppers Corporation. However, the only statisticsErie has introduced to support that claim involve glove use during aseven-week strike that occurred prior to the collective bargaining. Evenif those figures had shown that Erie could save money by not bearing thecosts of the gloves, that does not mean that the Secretary’sinterpretation here is unreasonable. Based on the rulemaking record,OSHA found that \”compliance with the standard (even if the higher costestimate were used) is well within the financial capability at thecoking industry.\” Exposure to Coke Oven Emissions: Final Rule, 41 Fed.Reg. 46,742, 46,751 (1976).The Secretary and the union express their concern that gloves worn inthe regulated areas of Erie’s facility would be contaminated with cokeoven emissions and therefore should not be used by employees outside ofwork. The union avers that most of the coke-producing, employers it hasnegotiated collective bargaining agreements with have work rulesprohibiting employees from taking personal protective clothing andequipment away from the workplace. We conclude that, if such a work rulewere adopted in this case, it would address the health concerns of theSecretary and the union, as well as the economic concerns of Eric.Based on the discussions above, we conclude that the Secretary’sinterpretation of \”provide\” in section 1910.1029(h)(1) to requireemployers to pay for flame resistant gloves is reasonable and entitledto deference.*Ill. Estoppel Defense*Erie contends that, based on prior OSHA positions in two settlementagreements and a discussion with an OSHA regional official involving twoother coke-producing corporations owned by J.D. Crane, Erie’s principalowner, the Secretary has waived her right to interpret the standard torequire employer payment for the gloves and is therefore estopped fromenforcing the standard in this case.The first settlement that Eric points to involved Carondelet CokeCorporation (\”Carondelet\”) of St. Louis, Missouri. In April 1985, theSecretary cited Carondelet for an other-than-serious violation ofsection 1910.1029(h)(1)(ii), the same standard at issue here. During thesettlement discussions, the parties deadlocked only on the issue ofpayment for the gloves. The Secretary and Carondelet finally agreed to asettlement that merely affirmed the item, without any mention of whomust bear the cost of the gloves. For the next two years, until theplant closed, OSHA did not challenge Carondelet’s practice of sellingthe gloves to its employees.The other settlement upon which Erie relies resulted from a citationissued in August 1987, to Toledo Coke Corporation (\”Toledo\”) of Toledo,Ohio, for violating the standard at issue here. The parties agreed thatthe citation item, along with several others, would be vacated on thebasis that \”there is insufficient evidence to establish violations ofthe standards cited at the times and places alleged.\”In addition, Erie contends that, at a meeting in December 1986 withCarondelet representatives, the OSHA Area Director for St. Louis, WarrenHargreaves, advised them that he interpreted section 1910.1029(h)(1)(ii)to not require an employer to provide flame resistant gloves at no costto the employees. The basis for this averment by Erie is an unsignedletter to the company’s vice president from one of Carondelet’srepresentatives who attended the meeting.To establish a traditional estopped defense against a litigant, a partymust prove: \”(1) a misrepresentation by another party; (2) which hereasonably relied upon; (3) to his detriment.\” United State Asmar (\”Asmar \”), 827 F-2d 907, 912 (3d Cir. 1987); see Heckler v. CommunityHealth Service of Crawford County (\”Crawford\”), 467 U.S. 51, 59 (1984).The Supreme Court recognized in Crawford that the Government may not beestopped on the same terms as any other litigant. Id. at 60. Because theSupreme Court found that the traditional estopped elements had not beenproven, it did not reach the issue, which was before the Third Circuitin Crawford, of what more a party must show to estop the Government. Id.at 60-61. The Third Circuit, to which this case can be appealed, seesupra note 7, and several other federal circuit courts have determinedthat for the Government to be estopped there must be a showing of afourth element called \”affirmative misconduct.\” Asmar, 827 F.2d at 911n.4, 912. See Miami Industries, Inc., 15 BNA OSHC 1258, 1264-66, 1991CCH OSHD ? 29,465, pp. 39,742-43 (No. 88-671, 1991), appeal filed, No.91-4045 (6th Cir. Nov. 7, 1991)Judge Knight concluded in his decision that Erie had failed to establishthe estopped defense because it did not show that OSHA had mademisrepresentations upon which Eric could have reasonably relied, nor didit prove affirmative misconduct. The judge noted that the Carondeletsettlement was silent as to the cost issue and the Toledo settlement hadno information in it that could lead an employer to believe that costallocation was a factor influencing the Secretary’s agreement to vacate.Relying on Crawford, 467 US. at 65-66, the judge concluded that the factthat Hargreaves’ advice was oral instead of written undermined thereasonableness of any reliance on it. He found that a subsequent letterby the Carondelet representative \”confirming\” Hargreaves’ statement atthe informal conference did not transform that statement into anauthority upon which Erie could reasonably rely. The judge also noted,quoting Long Beach Container Terminal Inc. v. OSHRC, 811 F.2d 477, 479(9th Cir. 1987), that an internal staff memorandum written by theemployee who drafted the standard \”expresses the view of a particularstaff member, not the official view of the Secretary….It is theSecretary who promulgates the standards, and the Secretary’s officialstatements must be the guide as to their meaning.\”We agree with the judge’s reasoning. We would add that the settlementsand the alleged misrepresentations in the discussion with Hargreaveswere not made to Erie itself, but rather to other subsidiaries of Itsprincipal owner. Furthermore, as the Secretary suggests, settlementagreements by their nature reflect the give and take, or trading off,particular to a case, and in both the Carondelet and Toledo settlements,numerous citation items were at issue. Those two settlement agreementsreflect the results of the bargaining process with regard to thoseparticular companies and those particular citations. They are thereforenot \”misrepresentations\” that Eric could have \”reasonably relied upon.\”Moreover, the Secretary’s exercise of her discretion not to issue acitation for a particular condition, as she did against Carondelet, doesnot immunize an employer from being cited for the same or a similarcondition in a future enforcement action. E.g., Donovan v. Daniel Marr &Son Co., 763 F.2d 477, 484 (1st Cir. 1985); Cardinal Indus., 14 BNA OSHC1008,1013,1987-90 CCH OSHD ? 28,510, p. 37,803 (No. 82-427,1989), rev’don other grounds, 828 F.2d 373 (6th Cir. 1987); Columbian Art Works,Inc., 10 BNA OSHC 1132 1133,1981 CCH OSHD ? 125,737, p. 37,102 (No.78-29, 1981). See also United States v. City of Menominee, 727 F.Supp.1110, 1121 (W.D. Mich. 1989) (mere inaction by EPA in face of violationsnot affirmative misconduct upon which estopped will lie). The Toledosettlement provides even less support for Erie’s case. OSHA’s decisionthere to agree to have the judge vacate for \”insufficient evidence\”indicates only the deficiency in OSHA’s evidentiary case, not its legalposition. See Deering Milliken, Inc. v. OSHRC, 630 F.2d 1094, 1104-05(5th Cir. 1980) (where Secretary’s failure to proceed due to evidentiaryreasons, employer should have been aware that Secretary’s position wouldbe litigated in future).Concerning the alleged statement by Hargreaves, we note that theSecretary did not stipulate that Hargreaves made the statement. She onlystipulated that \”Respondent [Erie] avers\” that he made the statement.Therefore, the record does not establish that there was any actualrepresentation, and thus no \”misrepresentation.\” Although the Secretaryacknowledged at the oral argument that there could have been somereasonable reliance on Hargreaves’ statement, assuming it was amisrepresentation, we note, as the judge did, that a party is lessjustified in relying on oral rather than written advice. See Crawford,467 US. at 65-66; Henry v. United States, 870 F-2d 634, 637 (Fed. Cir.1989). See generally Schweiker v. Hansen, 450 U.S. 785, 790 (1981)(erroneous information from Social Security field representative\”fall[s] far short\” of conduct that would raise an estopped questionagainst the government); Emery Mining Corp. v. Secretary of Labor, 744F.2d 1411, 1416 (10th Cir. 1984) (to extent company relied oninterpretation of regulations by MSHA officials, it \”assumed the risk\”that interpretation in error). The reasonableness of Erie’s reliance onHargreaves’ alleged statement is further diminished by the fact that,eight months after Hargreaves’ statement, the Secretary issued acitation to Toledo, which resulted in the 1987 settlement discussedabove, that alleged a violation of the cited standard for failure to payfor gloves, an enforcement position contrary to Hargreaves’ statement.Even assuming that Hargreaves had made a misrepresentation upon whichErie reasonably relied, there is no evidence that Erie instituted orchanged its policy of charging for gloves in reliance on what Hargreavesallegedly told it. Instead, as shown by the averment of J.D. Crane,Erie’s principal, \”[d]uring his entire career in the industry [over 40years], no plant under his operation or control has provided hot mill orname resistant gloves at no cost to the employees.\”Even if Erie had established that there was a misrepresentation by theSecretary that it had reasonably relied upon to its detriment, Erie hasthe burden of additionally proving that the misrepresentation rose tothe level of \”affirmative misconduct.\” Asmar, 827 F.2d at 912. It isclear that the record here does not support a finding of the sort of\”active\” misrepresentations and resultant injustice to the estoppelclaimant necessary to establish this element. See Miami Industries, 15BNA OSHC at 1266,1991 CCH OSHD at pp. 39,743-44 (several reinforcing\”active\” misrepresentations constitute \”affirmative misconduct\” whereemployer suffered unfairness and estoppel would not unduly damage thepublic interest).Based on the discussion above, we conclude that Erie failed to provethat the Secretary made misrepresentations to it that it reasonablyrelied upon to its detriment. We therefore reject Erie’s estoppel defense.Having found that the Secretary is not estopped from applying herreasonable interpretation of \”provide\” under this standard with regardto the flame resistant gloves, we conclude that, based on the stipulatedrecord, Erie failed to comply with the terms of section 1910-1029(h)(1)(ii).*IV. Classification of Violation*Under section 10(c) of the Act, 29 U.S.C ? 659(c), the Commission hasthe authority to issue an order \”affirming, modifying, or vacating theSecretary’s citation or proposed penalty, or directing other appropriaterelief.\” Section 9(a) of the Act, 29 U.S.C ? 658(a), provides that \”deminimis\” violations \”have no direct or immediate relationship to safetyand health.\” Based on these sections of the Act, the Commission has theauthority to classify a violation as de minimis where it, has no director immediate relationship to employee safety and health. SuperExcavators, Inc., 15 BNA OSHC 1313, 1314, 1991 CCH OSHD ? 29,498, p.39,802 (No. 89- 2253,1991).Violations have been classified as de minimis where the level ofprotection that the employer afforded employees was not significantlydifferent from that required by technical compliance with the standard.See Super Excavators, 15 BNA OSHC at 1313-14, 1991 CCH OSHC at p.39,801-02 (Commission, upon motion by the Secretary, classifiedviolation as de minimis where employer had developed and implemented awritten hazard communication plan but had not maintained a copy of theplan at a transient worksite); Charles H. Tompkins, 6 BNA OSHC 1045,1047, 1976-77 CCH OSHD ? 1977-78 CCH OSHD ? 22,337, p. 26,918 (No.15428, 1977) (violation was de minimis because employees\” climbingsafety was not \”appreciably diminished\” by additional distance betweenrungs on scaffold bucks). See also Phoenix Roofing, Inc. v. Dole, 874F.2d 1027, 1030-33 (5th Cir. 1989) (violation was de minimis becausesafety monitors provided protection as sufficient as prescribed warninglines for employees four feet from edge of roof). The Commission hasrecognized that its decisions finding violations de mininis are notintended \”to derogate from the Secretary’s rulemaking authority,\” as,for example, where she has made a specific choice from among differentprotective measures. Turner Co., 4 BNA OSHC 1554, 1564, 1976-77 CCH OSHD? 21,023, p. 25,281 (No. 3635, 1976), set aside and rem’d on othergrounds, 561 F.2d 82 (7th Cir. 1977).In this case, the protective measures required by the standard are thatgloves be made available to employees and that employees wear them. Itis undisputed that Erie did make flame resistant gloves available to itsemployees, and that the employees wore the gloves. However, as we notedabove in dismissing the Secretary’s safety disincentive argument, thereis nothing in the stipulated record indicating that employees werewearing torn or otherwise ineffective gloves beyond their useful life inorder to save money, thereby exposing their hands to possible burns andcoke oven emissions in the work environment.Cf. Anoplate Corp., 12 BNAOSHC 1678, 1688, 1986-87 CCH, OSHD ? 27,519, p. 35,686 (No. 80-4109,1986) (de minimis violation of 29 C.F.R. ? 1904.2(a) where no evidencethat employer’s failure to list injured employees’ job titles anddepartments, hindered OSHA investigation, and all employees knew detailsanyway). Had the Secretary introduced any evidence that Erie’s employeeswere not adequately protected by the gloves they wore, she could haveestablished that Erie’s practice of charging its employees for thegloves did have a direct relationship to the safety and health of theemployees.In the absence of such evidence, we conclude that, based on thisparticular stipulated record, including the collective bargainingagreement between Erie and the union, Erie’s employees have not beenshown to have suffered any direct impairment of their safety and healthas a result of having to pay for the gloves. We therefore characterizeErie’s violation as de minimis with regard to these particularemployees. A de minimis violation carries no penalty and requires noabatement. See Super Excavators, 15 BNA OSHC at 1315, 1991 CCH OSHD atp. 39,803.*V. Order*We therefore affirm the citation insofar as it alleged that Ericviolated section 1910.1029(h)(1)(ii) by requiring its employees to payfor the flame resistant gloves, and we find that the violation is deminimis.Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma MontoyaCommissionerDated: April 10, 1992————————————————————————ANN McLAUGHLIN, SECRETARY OF LABOR,UNITED STATES DEPARTMENT OF LABOR,Complainant,v.ERIE COKE CORPORATION,and its successors,Respondent.OSHRC Docket No. 88-0611Appearances:Mark V. Swirsky, Esq., for ComplainantJohn J. Gazzoli, Jr., Esq., for Respondent_DECISION AND ORDER_This is a proceeding brought under section 10(c) of the OccupationalSafety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. ? 651 et seq.,hereinafter sometimes referred to as ‘the Act’) to review a citationissued by the Secretary of Labor pursuant to section 9(a) of the Act.Due to a complaint filed by the president of the local unionrepresenting respondent’s employees, an investigation of respondent’sErie, Pennsylvania, coke plant facility was conducted between January15, 1988 and January 29, 1988. One citation was issued on February 17,1988, alleging an other- than-serious violation of the coke ovenemissions standard at 29 CFR ? 1910.1029 (h)(1)(ii). No penalty wasassessed. Respondent timely filed with a representative of the Secretaryof Labor a notification of intent to contest the citation on March 30, 1988.The parties submitted the case on the basis of a stipulated record onDecember 15, 1988, pursuant to Commission Rule 107, 29 CFR ?2200.107.Both parties filed proposed conclusions of law on January 26, 1989._*Background*_Respondent, Erie Coke Corporation (\”Erie\”), is a corporation engaged inthe operation of a coke plant, using coke oven batteries, with itsprincipal office and place of business located at Foot of East Avenue,Erie, Pennsylvania (Stipulation of Parties, ? 1). Respondent is anemployer engaged in a business affecting commerce within the meaning ofsections 3(3) and 3(5) of the Act (Stipulation ? 3).Respondent employs approximately 130 employees at its Erie coke plant,of which approximately 35 work in regulated areas involving coke ovenbatteries; there is the potential for approximately 50 to 55 employeesto work in these areas (Stipulation ? 7).Respondent acquired the Erie, Pennsylvania coke oven facility in April,1987 (Stipulation ? 6, ? 9). The former owner and operator of the plant,Koppers Corporation, provided flame resistant gloves at no cost toemployees; respondent did not adopt Koppers’ collective bargainingagreement with the United Steelworkers of America (\”USWA\”) (Stipulation? 6, ? 9).All of respondent’s employees who work in proximity to the coke ovenbatteries are provided and wear flame resistant, or \”hot mill\” gloves asrequired by 29 CFR ?1910.1029(h)(1)(ii) (see Exhibit K) These gloves aresold by respondent to employees at cost (Stipulation ? 8). In the eventthat an employee’s gloves become inadvertently damaged, replacementgloves are furnished by the employer at no cost to the employee(Stipulation ? 8).The parties agree that OSHA considers coke oven emissions to becarcinogenic; oven workers and affected employees have been soinstructed (Stipulation ? 24, ? 25; see Exhibit L of Stipulation ofParties: 41 Fed. Reg. 46744 (1976)).The sole issue in this case is whether the employer must bear the costfor provision of the flame resistant gloves required under the standard._*Discussion*_The standard at 29 CFR ? 1910.1029(h)(1)(ii) provides:(h) Protective clothing and equipment – (1) Provision and use. Theemployer shall provide and assure the use of appropriate protectiveclothing and equipment, such as but not limited to:(ii) Flame resistant gloves;29 CFR ? 1910.1029(h)(1)(ii).The Secretary and the employee representative, Robert M. Kostek,president of local 8415, USWA AFL- CIO, contend that the standardrequires that the employer provide flame resistant gloves at no cost tothe employee. The Respondent argues that the standard is silent on theissue of cost allocation for personal protective equipment, and thatcompliance with the standard is accomplished by providing gloves foremployees to purchase and assuring their use.The standard does not specifically assign responsibility for payment ofthe cost of flame resistant gloves to either the employer or theemployee. The Preamble to the standard is equally silent on this issue.(See Exhibit L: 41 Fed. Reg., 46775 (October 22, 1976) (‘The standardrequires the employer to provide and ensure that employees useprotective clothing and equipment in order to minimize three types ofhazards’).[[1]]The Secretary contends that OSHA has consistently interpreted thestandard as requiring the employer to assume the cost of flame resistantgloves. She submits two documents to buttress this assertion: OSHAInstruction STD 1-6.4, issued on March 12, 1979 (Exhibit M) and amemorandum from the Directorate of Compliance Programs, dated October31, 1988, which upholds the current validity of the OSHA Instruction(Exhibit N).OSHA Instruction STD 1-6.4 clarified the OSHA inspection procedure forthe protective clothing requirement found at 29 CFR ? 1910.1029 (h) (2)(i) (iii).[[2]] It stated that OSHA would interpret and enforce thestandard as follows:1. The clothing provision and cleaning service are obligations of theemployer at no cost to the employee.(see Exhibit M).This instruction was later referred to in a memorandum, dated October31, 1988, written in response to a request for an interpretation of thecoke oven emissions standard, and whether or not the employer mustfurnish the equipment identified in this standard at no cost to theemployee. The memorandum reiterated the interpretation given in the OSHAInstruction by stating that the clothing provision and cleaningrequirements of that section were obligations of the employer at no costto the employee (see Exhibit N).Joseph Hopkins, author of this memorandum, is a Mechanical Engineer withOSHA’s Directorate of Compliance Programs Office of Health ComplianceAssistance. Since 1980, he has had principal oversight responsibilityfor coke oven emissions standard compliance and enforcement for OSHA. Heavers that during his tenure at OSHA, it has been \”OSHA’s nationalenforcement policy that all protective clothing and equipment listed in29 CFR ?1910.1029(h)(1) in an obligation of the employer to provide atno cost to the employee.\” (Stipulation ? 33).Erie contends that these agency interpretations, by imposing such costson employers, are an attempt at \”legislating\” rather than\”interpretation\” and must, therefore, be vacated for failure to complywith the notice-and-comment rulemaking requirements of theAdministrative Procedure Act, 5 U.S.C. ?553. See, _Chamber of Commerceof the United States v. OSHA_, 636 F.2d 464 (D.C. Cir. 1980).In _Chamber of Commerce_, an \”interpretive rule and general statement ofpolicy\” promulgated by the Assistant Secretary of Labor declared that\”an employer’s failure to pay employees for time during which they areengaged in walkaround inspections is discriminatory under section 11(c)\”of the Act. 646 F.2d 464, 467. This regulation was codified at 29 CFR ?1977.21 (1979) (42 Fed.Reg. 47344-47345 (1978)) without publicproceedings. The D.C. Circuit held this action to supplement rather thanto construe the Act, and was thus a legislative rather than aninterpretive rule. The regulation was vacated as improperly promulgatedin absence of full public notice-and-comment procedures under theAdministrative Procedure Act.The D.C. Circuit distinguished an interpretive from a legislative rule:\”A rule is interpretive, rather than legislative, if it is not ‘issuedpursuant to legislatively delegated power to make rules having the forceof law’ or if the agency intends the rule to be no more than anexpression of its construction of a statute or rule.\” _Chamber ofCommerce_, supra, at 468. They are \”‘statements as to what theadministrative officer thinks the statute or regulation means.’\”_Chamber Of Commerce_, supra, at 469, citing _Citizens to Save SpencerCounty v. United States Environmental Protection Agency_, 600 F.2d 844,876 (D.C. Cir. 1979) (quoting Gibson Wine Co. v. Snyder, 194 F.2d 329,331 (D.C. Cir. 1952)).In the instant case, the OSHA Instruction was not a promulgation of anew regulation or standard, but an application of an existing standard.See _Bendix Forest, Products Corp. v. Division of Occupational Safetyand Health_, 25 Cal. 3d 465, 158 Cal.Rptr. 882, 600 P.2d 1339, (1979)(employer required to pay for protective gloves under California law, asDivision of Industrial Safety had authority to issue order whichinterpreted \”‘furnish\” or \”provide\” safety equipment as requiringemployer to do so at its expense). The OSHA Instruction served toprovide a \”clarification of statutory language\”, and was, thus,interpretive rather than legislative. _Chamber of Commerce_, citing_Joseph v. United States Civil Service Commissioning_, 554 F.2d 1140,1153 (1977).In this case, the Secretary must interpret, must come to a conclusion.Is the union correct: \”shall provide\” means the employer must pay thecost of the gloves? Is the respondent correct: \”shall provide\” meansonly to make available? In either case, the Secretary interprets thestandard. The question of what \”shall provide\” means lurks in thestandard itself and its answer is not something superimposed there butonly removes a doubt.Unlike the situation in _Chamber of Commerce_, supra, where the employerhad no role to play concerning the employees’ rights during thewalk-around inspection (see 636 F.2d at 467), here, the employer isdirectly and necessarily involved. One way or another, cost-wise, theemployee must wear the gloves; but for an employee to accompany theinspecting officer is only permissive[[3]] by statute [29 U.S.C.?657(e)]. Since the Act is silent as to the employee cost ofaccompaniment, to force it on the employer is a superimposition, i.e.,there was no such \”existing duty\” (see 636 F.2d at 469), and suchcompulsion is an exercise of legislative power.But here, providing the gloves is a requirement and who bears the costmerely implements that requirement. Thus, the OSHA Instruction STD1-6.4 must qualify as \” … rule…no more than an expression of its[i.e. the Secretary’s] construction of a statute or rule\”, 636 F.2d at468, and it is not a legislative implementation.*_Legislative History of the Act_*In the _Chamber of Commerce_ decision, the D.C. Circuit reasoned thatOSHA could not have been clarifying the Act’s language in issuing itsinterpretive rule, as the Act \”neither prohibits nor compels pay forwalkaround time.\” Congress had not \”‘legislated and indicated itswill’\” on the question of walkaround pay, thus, the agency did more than\”exercise its ‘power to fill up the details.’ \”_Chamber of Commerce_,supra, citing _United States v. Grimaud_, 220 U.S. 506, 517, 31 S.Ct.480, 483, 55 L.Ed. 563 (1911) (quoting Wayman v. Southard, 23 U.S. (10Whear.) 1, 43, 6 L.Ed. 253 (1825)).As the Secretary notes, the legislative history of the Act indicatesthat Congress intended that \”[f]inal responsibility for compliance withthe requirements of this act remains with the employer.\” S. Rep. No.91-1282, 91st Cong., 2d Sess. 4 (1970). Congress contemplated that thisresponsibility would include the assumption of costs by employers whennecessary to create a safe and healthful working environment. _ForgingIndustry Ass’n v. Secretary of Labor_, 773 F.2d 1436 (4th Cir. 1985)(citing _American Textile Manufacturers Institute v. Donovan_, 452 U.S.490 at 519-520, 101 S.Ct. 2478, 2495-96, 69 L.Ed 2d 185 (1981)).The report of the Senate subcommittee on Labor and Public Welfare fromwhich the Act emerged \”stressed the need to place the cost of standardson employers, noting thatmany employers–particularly smaller ones–simply cannot make thenecessary investment in health and safety, and survive competitively,unless all are compelled to do so. The competitive disadvantage of themore conscientious employer is especially evident where there is a longperiod between exposure to a hazard and manifestation of an illness. Insuch instances a particular employer has no economic incentive to investin current precautions, not even in the reduction of workman’scompensation costs, because he will seldom have to pay for theconsequences of his own neglect._United Steelworkers of America. Etc. v. Marshall_, 647 F.2d 1189, 1231(D.C. Cir. 1980), cert. denied 453 U.S. 913, 101 S.Ct. 3148 (1981),quoting S. Rep. No. 91-1282, 91st Cong. 2d Sess. 4 (1970).Further indication that Congress intended to place financialresponsibility for compliance with the Act on the employer is found inthe statement of Senator Eagleton, a member of the subcommittee:[t]he costs that will be incurred by employers in meeting the standardsof health and safety to be established under this bill are… reasonableand necessary costs of doing business.USWA v. Marshall, supra.*_Costs of Doing Business_*Respondent refers to the language of the Review Commission decision inBudd Co., 1 BNA OSHC 1548 (1974), to support its claim, that costallocation is irrelevant to fulfillment of the Act’s purposes:Unlike other labor statutes with essentially economic purposes, the Actis concerned solely with safety and health in the work situation.Prescription of cost allocations is not essential to the effectuation ofthe Act’s objectives …. The question of cost allocation, on the otherhand, is a question to be resolved between employer and employee. In ourjudgment, it is an appropriate subject for collective bargaining.[footnotes omitted]._Budd Co. v. Occupational Safety & Health Rev, Com’n_, 513 F.2d 201, 203(3rd Cir. 1975) quoting 1 BNA OSHC 1548 (Rev. Comm. 1974).[[4]]The Review Commission in Budd Co. held that the word \”provide\” in thestandard at 29 CFR ? 1910.132(a) [[5]] did not require the employer topay for foot protection (safety shoes) for its employees. The Secretaryof Labor had endorsed this interpretation of the standard as it appliedto safety shoes.The rationale for this decision was based primarily on a reading of theentire section in question, and the \”uniquely personal\” nature of safetyshoes. Upon appeal by the union (\”UAW\”), the Third Circuit affirmed theCommission decision as \”a reasonable reading of the language of1910.132(a).\” Budd, supra, 513 F.2d 210, 206. The Secretarydistinguishes the Budd decision on the two fundamental levels whichserved as the basis for the Third Circuit’s decision. For the followingreasons, I agree with the Secretary’s analysis.*_Language of the Standard_*The Review Commission, and later, the Third Circuit, looked to thelanguage of section 132. Section 132(b) stated the requirements foremployee-owned equipment. The Commission determined that to require theemployer to pay for protective equipment under subpart (a) would rendersubpart (b) \”superfluous.\” Further, the regulation did not explicitlycompel the employer to bear the cost of the protective equipment. \”Theverbs — ‘provided, used and maintained’– set forth in subsection (a),are all phrased in the passive voice, without specifying who is toperform these functions. At least one of the items of conduct — use –must be carried out by the employees.\” Budd, supra, at p.206.In contrast, the standard at 1029(h) does not delineate requirements for\”employee-owned\” equipment. Moreover, as the Secretary notes, thestandard is phrased in the active voice: \”The employer shall provide andassure.\” 29 CFR ? 1910.1029(h)(1).*_Personal v. Capital Equipment_*The Review Commission emphasized the personal nature of protectivedevices which were characterized by their ability to be worn off-the-jobas well as at work. As it explained in footnote 5 of its decision:We do not imply that an employer is not to bear the cost of things suchas capital equipment which is ordinarily his responsibility to assume.We are here considering the cost-allocation of personal equipment….[W]e note that the most universally used foot protective equipment isthe steel-toed shoe. Thus, the most universally used type of protectionis uniquely personal and may be used by the employee when he is awayfrom the job.Budd-Co., supra, at p.203, quoting 1 BNA OSHC 1548.The \”uniquely personal\” nature of safety shoes was a critical factor inthe Commission’s determination. The Secretary and Erie, in the instantcase, disagree on the non-work utility and, thus, the characterizationof hot mill gloves an \”personal\” equipment.Erie asserts that hot mill gloves may be used outside the workplace bothbefore and after having been used at the coke plant (Stipulation ? 11,12(b)). The Secretary and employee representative aver that these glovesmay not reasonably be used outside the workplace after having becomesoiled and contaminated by carcinogenic coke oven battery emissions(Stipulation ? 12(a)).Employees wear two types of flame resistant gloves: short gauntlet andlong gauntlet, with nearly all affected employees donning the latter(Stipulation ? 8, Exhibit K). The gloves are not individually sized, andhave an approximately three to four week work life (Stipulation ?26).As the Secretary points out, the coke oven emissions standard has ascheme of precautionary requirements intended to separate contaminatedprotective clothing and equipment. All oven workers and other hourlyemployees have clean clothes lockers and dirty clothes lockers which areseparated, as required by the coke oven emissions standard, by a 15 to20 foot hallway. From their initial use to final disposal, flameresistant gloves are kept by respondent’s employees in their dirtyclothes locker, with used work clothing and other used personalprotective equipment, when not in use (Stipulation 122). [[6]]While Erie alludes to the potential for outside use of hot mill gloves,it does not aver that such use, in fact, occurs. [[7]]I find that hot mill gloves, unlike safety shoes under section 132(a),do not have a uniquely personal use. Given the exposure of these glovesto coke oven emissions and their relatively brief work life, it is notreasonable to assume that this type of protective clothing may be usedoutside the workplace.While the Third Circuit in Budd found that the Commission’sinterpretation of 132(a) was not unreasonable, it made clear that itexpressed no opinion on cost allocation for other protective devices.\”We need not now decide whether the Commission could reasonably concludethat the employer is not obligated to bear the cost of other mandatoryprotective equipment.\” Budd, supra, at p.206. For the foregoing reasons,I find the circumstances in the present case to fall within the specterof those which the Third Circuit declined to address, and are thusdistinguishable from those presented in the Budd decision.*_Deference to Agency Interpretation_*\”When construing a statute or regulation, the courts show greatdeference to the interpretation of the officers or administrative bodiescharged with its administration.\” Brock v. Schwarz-Jordan. Inc., 777F.2d 195 (5th Cir. 1985); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct.792, 801, 13 L.Ed 2d 616 (1965). The Third Circuit in Budd reiteratedthe principle expressed in Udall v. Tallman, that \”When the constructionof an administrative regulation rather than a statute is in issue,deference is even more clearly in order.\” Budd, supra, at p.205.Erie contends that reasonableness is gleaned from weighing thesurrounding circumstances, and sets forth several factors in support ofthis determination which are predominantly based on cost-efficiency. Itcharges that hot mill glove purchases decreased when employees wereobligated to purchase them (Stipulation 12, 13; Exhibit C). In addition,respondent does not make a profit on gloves, and will pay to replacethem if they are ruined by no fault of the employee. Respondentprovides, free of charge, all other protective equipment, includingrespiratory protection and clothing, except for hot mill gloves andsafety shoes, to employees (Stipulation ? 8, ? 28, ? 29 ? 31). Eriecontends that employees be required, at least, to submit the issue ofpayment to collective bargaining (Respondent’s Brief, p.13). [[8]]The Secretary argues that its interpretation of the standard isreasonable and consistent with prior agency interpretation, and morelikely to effectuate the purpose of the Act. \”[A]n agency’sinterpretation of a regulation ‘is deemed of controlling weight as longas it is one of several reasonable interpretations … even though thechosen exegesis may not appear quite as reasonable as some otherconstruction.’\” Budd Co., supra, at p. 205, n.11, quoting Roy BryantCattle Co. v. United States, 463 F.2d 418, 420 (5th Cir. 1972). andother cases cited therein.The record reflects that the agency has interpreted the standard torequire the employer to provide safety gloves at no cost to employees.This is not inconsistent with either prior case law or the purposes ofthe Act. While respondent’s cost efficiency arguments are well stated, Ifind the Secretary’s interpretation to be reasonable and entitled togreat weight.*_Respondent’s Affirmative Defense: Waiver and Estoppel_*Respondent seeks to vacate this item on the basis of two priorenforcement actions involving citations under 29 CFR ?1910.1029(h)(1)(ii) against coke plants operated by respondent’sreplace or obviate worker safety provisions of many collectivebargaining agreements. Congress may well have viewed collectivebargaining agreements along with state worker’s compensation laws aspart of the status quo that had failed to provide workers sufficientprotection.Forging Industry, supra, quoting USWA v. Marshall, supra, at p.1236.principal, J.D. Crane, and a statement made by the former OSHA AreaDirector in St. Louis, Missouri. Respondent argues that the Secretaryshould be estopped from enforcing the regulation against it in theinstant case.In the first case (OSHRC Docket No. 85-0448), Carondelet CokeCorporation was issued a citation, in part, for an other than seriousviolation of 29 CFR ? 11910.1029(h)(1)(ii). A settlement agreementensued in which this item was affirmed, however, Carondelet refused topay for the gloves as a condition of settlement; Secretary’s counselreiterated her position that the employer had the burden of paying forflame resistant gloves under this standard (Stipulation ? 14; Exhibit E).The parties, however, agreed to a settlement that affirmed the citationwithout any mention of the issue of cost.The second citation, issued against Toledo Coke Corporation, (OSHRCDocket No. 87- 1388) involved, in part, an other than serious violationof this standard. As part of a subsequent settlement agreement, thisitem was vacated on the grounds \”that there is insufficient evidence toestablish violations of the standard(s) cited at the times and placesalleged.\” (Stipulation ? 16; Exhibit H).Respondent avers that St. Louis OSHA Area Director Warren Hargreaves, ina December 1986 meeting with Carondelet representatives, advised that itwas his interpretation that paragraph (h)(1)(ii) of 29 CFR ? 1910.1029did not require an employer to provide hot mill gloves at his expense.(Stipulation 15; Exhibit F).The Supreme Court has declined to hold that there are no cases in whichthe government may be estopped, but estoppel against the governmentrequires more than proof of the traditional elements of this affirmativedefense. Montana v, Kennedy, 366 U.S. 308, 81 S.Ct. 1336 (1961).To succeed in a traditional estoppel defense, a party must prove: \”(1) amisrepresentation by another party; (2) which he reasonably relied upon;(3) to his detriment.\” United States v. Asmar, 827 F.2d 907, 912 (3rdCir. 1987); Heckler v. Community Health Services of Crawford County, 467U.S. 51, 104 S.Ct. 2218, 81 L.Ed 2d 42 (1984). A fourth element,\”affirmative misconduct,\” must also be proven to succeed in agovernmental estoppel action. Wagner v. Director, Federal EmergencyManagement Agency, 847 F.2d 515 (9th Cir. 1988).The respondent in this case has failed to carry its burden. Erie did notshow affirmative misconduct on the part of the Secretary, nor did itdemonstrate that its reliance on the aforementioned enforcement actionsand the oral opinion of an OSHA Area Director was reasonable.In the first citation, the Secretary maintained its position that thestandard required the employer to provide hot mill gloves to employeesat its expense. The citation was sustained by the terms of thesettlement agreement, and was silent on the issue of cost.The second citation was vacated for lack of sufficient evidence. Thesettlement agreement is devoid of any information upon which theemployer would be led to believe that the issue of cost allocation was afactor in the Secretary’s determination. Therefore, respondent did notshow upon what facts it relied, and how such reliance was reasonable.As the Secretary notes, the Supreme Court in Crawford County, supra,expressed that reliance on oral opinions is not to be given much weight.Although John Gazzoli, Jr. of Carondelet Coke Corporation confirmedHargreaves’ statement at the informal conference in a subsequent memo,it cannot be considered an authoritative source upon which Erie’sreliance could reasonably have rested. \”The memo expresses the view of aparticular staff member, not the official view of the Secretary …. Itis the Secretary who promulgates the standards, and the Secretary’sofficial statements must be the guide an to their meaning.\”Long BeachContainer Terminal, Inc. v. O.S.H.R.C., 811 F.2d 477 (9th Cir. 1987);See Secretary’s Brief, p.16._ORDER:_Based on the parties’ stipulation of facts and the conclusions of lawbased thereon, as stated herein, the citation issued February 17, 1988,alleging a non- serious violation of 29 CFR ?1910.1029(h)(1)(ii) be, andit is hereby affirmed.DAVID J.KNIGHTJudge, OSHRCDated:Boston, MassachusettsFOOTNOTES:[[1]] In lieu of a hearing, the parties agreed to submit this case tothe judge based on stipulations and accompanying exhibits. SeeCommission Rule 61, 29 C.F.R. ? 2200-61. The stipulations were signed byall the parties. including the United Steelworkers of America,AFL-CIO-CLC. Local 8415, District 20.[[2]] The purposes of the glove requirement in section 1910.1029(h)(1)are to protect exposed employees from: (1) repeated skin contact withcoke oven emissions, which are carcinogenic; and (2) burn hazards thatmay result from \”direct body contact with flame, or hot objects such asa piece of coke, or from the clothes of a coke oven worker catchingfire.\” Exposure to Coke (Oven Emissions: Final Rule, 41 Fed Reg. 46,742,46,744, 46,775 (1976).[[3]]In addition to flame resistant gloves. section 1910.1029(h)(1)requires employers to \”provide\” other types of protective clothing andequipment as follows:(i) Flame resistant jacket(s) and pants;. …(iii) Face shields or vented goggles ….(iv) Footwear providing insulation from hot surfaces ….(v) Safety shoes …. and(vi) Protective helmets ….It was stipulated that Erie provides its employees, at no cost to them.with all of the protective clothing and equipment listed in thestandard. except for flame resistant gloves and safety shoes.[[4]] The instruction was specifically referred to in a memorandumissued on October 31. 1988 by OSHNs Directorate of Compliance to an OSHARegional Administrator. This memorandum responded to the question ofwhether employers must furnish all the equipment listed under section1910.1029(h)(1)(i)-(vi) free of cost to their employees. The memorandumreiterated and clarified the Instruction’s interpretation that theemployer is obligated to provide that clothing and equipment withoutcharge. However, because the memorandum was issued about eight monthsafter the February 1988 citation in this case, we cannot consider it asrelevant in determining the reasonableness, of the Secretary’sinterpretation under CF & I Steel.[[5]] That provision states that except for interpretive rules orgeneral policy statements, notice of proposed rulemaking must bepublished in the Federal Register, and interested persons must be givenan opportunity to participate.[[6]] In a related matter, Erie notes that the Secretary hasspecifically required employers to provide protective equipment \”at nocost to the employee\” in eight other standards in this Subpart: sections1910.1001(h), 1018(j), 1025(g), 1028(h), 1044(j), 10450(j), 1047(g)(4),and. 1048(h). Citing Rusello v. United States, 464 U.S. 16, 23 (1983),Erie contends that the inclusion of that phrase was intentional in thosestandards, and, therefore, the absence of such language in the standardat issue must be presumed intentional as well. Erie argues that byincluding the \”no cost to employee\” language in other Subpart Zstandards, the Secretary cannot assign that meaning to the word\”provide\” here, especially considering that there were fouropportunities to do so when the coke oven emissions standard wasotherwise amended in 1977, 1980, 1985, and 1989.We reject Erie’s argument. We note that, as the Secretary points out,the eight other standards in the Subpart were issued subsequent to thecoke oven emission standard, which was promulgated in 1976. Erie’scontentions ignore the fact that, as discussed above in OSHA InstructionSTD 1-6.4, issued in 1979, the Secretary interpreted the word \”provide\”in section 1910.1029(h)(1)(ii) to require employers to pay for thegloves. The subsequent inclusion of \”no cost to the employee\” languagein the other standards clarifies the policy that had been applied withregard to those standards.[[7]] This case can be appealed to the Third Circuit because the allegedviolative condition and the principal office of the company are inPennsylvania.[[8]] This same passage was also dicta in the decision in which itoriginally appeared, Ryder Truck Lines, Inc., 1 BNA OSHC 1326, 1329,1973-74 CCH OSHD ? 16,669, p. 21,453 (No. 391, 1973), aff’d 497 F.2d 230(5th Cir. 1974) (under section 1910.132(a), employer must require itsemployer to use protective footwear, but it need not pay for the shoes).[[9]] The Third Circuit in Budd specifically limited its decision toprotective shoes under section 1910.132(a), noting that it \”need not nowdecide whether the Commission could reasonably conclude that theemployer is not obligated to bear the cost of other mandatory protectiveequipment.\” 513 F.2d at 205. See USWA, 647 F-2d at 1231 n.66.[[10]]On this basis, Erie also distinguishes flame resistant gloves fromthe following types of \”special purpose gloves.\” which it does provideat no cost to its employees: high temperature gloves for ovenmaintenance workers: leather gloves for welders; and rubber gloves forjanitors.[[11]]As the Secretary notes, the phrase \”provision of readers\” in the\”reasonable accommodation\” regulations implementing section 504 of theRehabilitation Act of 1973, as amended, 29 U.S.C. ? 794, has been foundto mean that the employer must pay for readers. or their mechanicalequivalent. to accommodate its qualified blind employees, unless it canshow that such costs would pose an undue burden. Nelson v. Thornburgh,567 F. Supp. 369, 379-82 (E.D. Pa. 1993), aff’d, 732 F.2d 146 (3d Cir.1984) (unpublished), cert. denied, 469 U.S. 1188 (1985).[[12]] An agreement to provide the gloves at no cost would have beenconsistent with the union’s contract with Erie’s immediate predecessor.the Koppers Corporation.[[13]]The fourteen collective bargaining agreements with other cokeproducers that are contained in the record here show that. asstipulated. the union has made the issue of who pays for protectiveclothing and equipment (of different types) the subject of collectivebargaining. However, there is nothing in the record that shows thatflame resistant gloves. in particular. are always the subject ofcollective bargaining, The union averred that most employers in theindustry have provided flame resistant gloves free of charge to theiremployees since the promulgation of the coke oven emissions standard,and the language in the respective bargaining agreements should beviewed as memorializing the practice of those employers to provide thegloves at no cost. Erie argues that in none of those fourteen agreementshas the Secretary’s interpretation of \”provide\” in this case beenadopted. We note that neither do any of the agreements express Erie’sinterpretation of the standard. [[1]] The preamble to the standard noted, in a section entitled\”Economic Considerations\”, that the economic feasibility of thethen-proposed standard for coke oven emissions was the subject ofextensive studies by OSHA; several days of hearings were held whichfocused primarily on issues relating to the economic impact of coke ovenemissions control. 41 Fed.Reg. 46748 (1976). OSHA concluded thatcompliance with the standard was \”well within the financial capabilityof the coking industry\” and that \”these costs are necessary in order toadequately protect employees from the hazards associated with coke ovenemissions.\” 41 Fed.Reg. 46751.[[2]] Respondent argues that the OSHA Instruction does not specificallyaddress flame resistant gloves, but rather, discusses \”laundryrequirements and other issues totally unrelated to gloves\” and,therefore, did not intend to refer to cost allocation of these items. Idisagree. The Instruction applies to 1910.1029(h)(2)(i) through (iii),which necessarily incorporate paragraphs (h)(1)(i) (‘Flame resistantjacket and pants’) and (h)(1)(ii) (‘Flame resistant gloves’). Further,the Instruction distinguishes the clothing provision and the cleaningservice as separate \”obligations\” of the employer.[[3]] Absence of an employee representative requires the officer toconsult with a reasonable number of employees concerning health andsafety. 29 U.S.C. ? 657(e).[[4]] The D.C. Circuit in United Steelworkers of America, Etc. v.Marshall, supra, criticized this decision as having \”failed to addressthe relevant parts of the legislative history of the OSH Act.\” 647 F.2d1189, 1231-1232, n. 66.[[5]] This standard provides in pertinent part, \”Protective equipment,including personal protective equipment… protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained….\”[[6]] The employee representative further argues that most otheremployers operating coke ovens have work rules prohibiting employeesfrom taking personal protective equipment out of the workplace. (seeStipulation ? 17 and Exhibit I). The USWA has agreed to this practicebecause of the contamination of this equipment caused by its proximityto coke oven batteries (Stipulation ? 19).[[7]] The Secretary notes that respondent’s answer to complainant’sInterrogatory 8 states: \”Respondent does not contend that its employeesuse their flame resistant gloves outside the workplace.\” (Secretary’sBrief, p.10; C-1).[[8]] The USWA has made this issue the subject of collective bargaining(Stipulation ? 17, Exhibit I). The employee representative avers thatmost employers have provided flame resistant gloves at no cost toemployees at all times since the coke oven emissions standard waspromulgated and that subsequent contract language \”merely memorializedexisting practice in this respect.\” (Stipulation ? 18).In collective bargaining negotiations with Erie, the USWA requested thatit provide hot mill gloves at no cost to employees, to which it refused(See Exhibit J).But see, Forging Industry, supra:In passing a massive worker health and safety statute, Congresscertainly knew it was laying a basis for agency regulations that would”