“SECRETARY OF LABOR,Complainant,v.SCHUYLKILL METALS CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC, and its LOCAL UNION 8394,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 81-0856_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case involves the medical removal protection provision of the OSHAstandard regulating occupational exposure to lead. That provision, 29C.F.R. ? 1910.1025(k)(2),[[1\/]] requires employers to \”maintain theearnings, seniority, and other employment rights and benefits\” ofemployees they remove from lead exposure because the employees are atparticular risk of suffering lead-related diseases.[[2\/]] The case isbefore the Commission for a second time. In its first decision, theCommission concluded that Schuylkill Metals Corporation (\”Schuylkill\”)complied with the standard by paying employees for a 40-hour work weekat their regular rate of pay, rejecting the Secretary’s argument that\”earnings\” under the standard included overtime compensation andproduction incentive bonuses the employees received before theirtransfers. _Amax Lead Co. of Missouri,_ 12 BNA OSHC 1878, 1986-87 CCHOSHD ? 27,629 (No. 80-1793, 1986). That decision was reversed by theFifth Circuit, which adopted the Secretary’s interpretation of thestandard._United Steelworkers of America v. Schuylkill Metals Corp.,_828 F.2d 314, 321 (5th Cir. 1987).[[3\/]] The court remanded \”for furtherproceedings attuned to this opinion.\” _Id. _at 323.Under the court’s remand order, we must determine whether Schuylkillfailed to comply with the standard.[[4\/]] Schuylkill argues that theemployees it removed from lead exposure were transferred under a programof discipline and retraining, not under the provisions of the leadstandard, and that it was therefore not required to pay them medicalremoval protection benefits. For the reasons that follow, we reject thisargument and conclude that Schuylkill violated the standard.ASchuylkill operates a secondary lead smelter in Louisiana. Lead isrefined in the production area of the plant, where the airborne leadconcentration exceeds the standard’s permissible exposure limit. Atvarious times between January 1, 1980, and December 4, 1981, Schuylkilltemporarily transferred a number of its production employees to thechange house, a locker room facility, where airborne lead concentrationsare low. In the change house, the employees performed janitorial dutiessuch as washing work clothes and repairing respirators.Under the normal work schedule in the production department, employeesworked six 40-hour weeks and two 48-hour weeks in each eight weekperiod. They thus averaged two hours of overtime per week. Productiondepartment employees were also eligible to receive production incentivebonuses, which were based on the daily amount of production in excess ofa certain base amount. The production employees who were transferred tothe change house continued to receive their normal hourly wage rate fora 40-hour week, but they did not receive the overtime compensation orincentive bonuses they would have received if they had remained in theproduction department.As required by the lead standard, Schuylkill took periodic blood samplesfrom the employees working in the production area. If these samples hadshown that an employee’s blood lead level exceeded a certain limit,[[5\/]] Schuylkill would have been required to transfer the employee toan area of low lead exposure while maintaining the \”earnings, seniorityand other employment rights and benefits of [the] employee as though theemployee had not been removed from normal exposure to lead or otherwiselimited.\” Under the Fifth Circuit’s decision, Schuylkill would have hadto pay the employees the overtime compensation and incentive bonusesthey would have earned if they had not been transferred. However, theemployees transferred in this case did not have blood lead levels thatrequired their transfer.Because medical removal of these employees was not \”mandatory,\”Schuylkill’s liability to pay MRP benefits depends on whether the\”voluntary removal provision\” of the standard, 29 C.F.R. ?1910.1025(k)(2)(vii), applied to the removals. This provision states:? 1910.1025 Lead* * *(k)_Medical Removal Protection_* * *(2) _Medical removal protection benefits –_* * *(vii)_Voluntary Removal or Restriction of an Employee. _Where anemployer, although not required by this section to do so, removes anemployee from exposure to lead or otherwise places limitations on anemployee due to the effects of lead exposure on the employee’s medicalcondition, the employer shall provide medical removal protectionbenefits to the employee equal to that required by paragraph (k)(2)(i)of this section.This section requires an employer to pay MRP benefits to an employee itvoluntarily removes from lead exposure whenever the transfer is \”due tothe effects of lead exposure on the employee’s medical condition.\” Theinitial question we must therefore address Is whether Schuylkilltransferred employees from the production area to the change housebecause of the effects of lead exposure on their medical condition.BSchuylkill contends that none of the transferred employees hadlead-related diseases or any medical conditions that placed them atincreased risk of material impairment to health from lead exposure. Thecompany argues that it transferred the workers, not because of theeffects of lead upon any medical condition, but under a program that wasdesigned to protect employees who were found to have elevated levels oflead in their blood by disciplining and retraining the employees toimprove their work habits and hygiene practices. The Secretary contendsthat Schuylkill’s decision to transfer an employee was triggered by anemployee’s elevated blood lead level, that an employee’s blood leadlevel is a \”medical condition\” within the meaning of the standard, andthat Schuylkill was therefore required to pay MRP benefits.Schuylkill’s resident, Anthony, testified that the company’s transferprogram had been started more than 20 years before the OSHA leadstandard went into effect. In Schuylkill’s experience, high blood leadlevels resulted only from poor work habits or failure of supervision.Therefore, when an employee’s blood lead level started to rise, itindicated a need for the employee to be closely watched and, if the risecontinued, for the employee to be removed and retrained in good hygienepractices and the proper use of protective equipment. Anthony testifiedthat removal was triggered by a supervisory decision that the employeerequired retraining, not by an elevated blood lead level alone. Hasse,Schuylkill’s vice-president, administered the company’s removal programand decided who should be removed. He testified that the criteria heused were \”the blood lead level. The rate of acceleration of that level.Observation by a supervisor or a member of management.\” According toHasse, the company’s experience showed that proper respirator use andhygiene habits will prevent an employee from getting a high blood leadlevel.Schuylkill’s plant physician, Dr. Lorio, was stipulated to be an experton the effects of lead exposure. Dr. Lorio administered Schuylkill’smedical surveillance program, which included taking blood samples andmedical histories from the company’s lead-exposed employees. At no timedid Dr. Lorio advise Schuylkill that it was medically necessary toremove any employee from lead exposure. According to Dr. Lorio, of theemployees voluntarily removed, none had primary conditions associatedwith occupational lead exposure and none were at an increased healthrisk if they had continued in their jobs.The administrative law judge credited the testimony of Schuylkill’switnesses,[[6\/]] but he nevertheless concluded that the employees inquestion were removed because of the effects of lead exposure on theirmedical condition. Although he found that the decision to remove anemployee was ultimately based on a need for training or discipline, henoted that it was an elevated blood lead level that initiated theprocess. The judge rejected Schuylkill’s argument that an employee hadto exhibit symptoms of a lead-related disease in order to have a\”medical condition\” within the meaning of the voluntary removalprovision, concluding that an elevated blood lead level is a \”medicalcondition\” within the meaning of the standard.We agree with the judge’s holding that an employee’s elevated blood leadlevel is a \”medical condition\” within the meaning of the standard. Theterm \”medical condition\” encompasses an abnormal physiological changethat does not rise to the level of an illness. _See Amoco ChemicalsCorp., _12 BNA OSHC 1849, 1853, 1986-87 CCH OSHD ? 27,621, pp. 35,902-03(No. 78-250, 1986)(requirement that employer record occupationalillnesses does not mean that employer must record \”conditions\” that arenot illnesses). As the Secretary points out, the voluntary removalprovision of the lead standard was intended to preclude employers fromevading the payment of MRP benefits by removing employees when theirblood lead levels began to approach the standard’s limits. 43 Fed. Reg.52952, 54472 (Nov. 21, 1978). Thus, unless an elevated blood lead levelis characterized as a \”medical condition\” within the meaning of thevoluntary removal provision, the provision cannot achieve its purpose.Accordingly, an employee who is removed because of blood lead levelsthat are elevated, but not yet above the standard’s limits, has beenremoved \”due to the effects of lead exposure on the employee’s medicalcondition\” within the meaning of section 1910.1025(k)(2)(vii). Here, theemployees’ elevated blood lead levels played an important part in theemployer’s decision to transfer them to jobs where the airborneconcentrations of lead were low. We therefore conclude that Schuylkillremoved the employees because of the effects of lead exposure on theirmedical conditions, and that Schuylkill was required to pay them MRPbenefits under the standard’s voluntary removal provision.CHaving determined that section 1910.1025(k)(2)(vii) applies to the citedconditions, we must now determine whether Schuylkill complied with itsterms. Schuylkill paid the employees partial MRP benefits. It maintainedtheir regular hourly wage rate when they worked in the change house, butit did not pay them overtime compensation and bonuses they would haveearned if they had remained in the production area. Under the FifthCircuit’s decision, Schuylkill must be found in violation of thestandard for its failure to pay the employees the total amounts theywould have earned if they had not been removed.The judge concluded, however, that Schuylkill had established anaffirmative defense to the alleged violation. The judge found thatSchuylkill’s program was \”a bona fide program of discipline andretraining which is necessary to the effective enforcement of rules ofhygiene and safety . . . .\” The judge observed that the Act _requires_employers to discipline employees who fail to comply with requirementsintended to protect their safety and health,[[7\/]] and noted that suchdiscipline can involve suspension from work with corresponding loss ofpay. He reasoned that the lead standard should not be applied in amanner that would preclude an employer from imposing effectivediscipline on employees who fail to comply with rules and instructionsintended to protect them from absorbing lead into their bodies. Thejudge concluded that requiring Schuylkill to pay overtime and bonuses toemployees who were being disciplined would, by eliminating any economicloss from the discipline, negate the value of that discipline and becontrary to the standard’s purpose. Having found that Schuylkilltransferred the employees under a bona fide discipline and retrainingprogram, the judge concluded that the company did not violate thestandard by failing to pay the transferred employees the overtimecompensation and production bonuses they would have earned if not removed.We conclude that the judge’s result is inconsistent with both thelanguage and the legislative history of the standard. The judge createdan exception not found in the standard itself, which requires MRPpayments _whenever_ an employee is transferred because of the effects oflead upon his medical condition. Before creating an exception not foundin a standard, we would need persuasive evidence that such an exceptionwas mandated by the standard’s overall purpose and was consistent withthe standard’s intent. _See Aaron v. SEC,_ 446 U.S. 680, 700, 100 S.Ct.1945, 1957 (1980)(In the absence of a conflict between a statute’s plainmeaning and its legislative history, the words of the statute mustprevail); _Ulmet v. United States,_ 822 F.2d 1079, 1087 (Fed. Cir.1987)(same). That is not, however, the case here. The standard’slegislative history demonstrates that the Secretary specificallydeclined to include in the standard the very same exception that hasbeen recognized in this case by the judge. In the preamble accompanyingthe standard’s adoption, the Secretary stated:_Personal hygiene and work practice rules._ The LIA [Lead IndustriesAssociation] argued that MRP [medical removal protection] should containan explicit provision voiding an employer’s obligation to provide MRPbenefits in the event the employer is somehow prevented fromestablishing and enforcing reasonable personal hygiene and work practicerules. The Battery Council International (BCI) urged that MRP be deniedto workers who violated established work rules. The MRP provisions donot include either of these suggestions since they are neither necessarynor appropriate.It is undisputed that employee personal hygiene and work practices arecrucial to preventing harmful absorption of lead and the final standardcontains numerous provisions specifically addressing these problems.OSHA fully expects that employers will establish reasonable personalhygiene and work practice rules and then enforce them in a fair andnondiscriminatory fashion. OSHA is in full agreement with the followingstatement by the LIA:\”In order to encourage workers to develop good hygiene habits and workpractices, the employer should have the authority to promulgatereasonable rules and regulations concerning hygiene and work practices.Moreover, if an employer is or should be aware that an employee isdisobeying such rules and that his poor hygiene or work practices, ifunchecked, might eventually endanger the employee’s health, the employershould have the authority to warn and then discipline the employee.\”The United Steelworkers of America concurs:\”Obviously, the way of handling poor, personal hygiene practices isthrough education, the furnishing of clean, adequate hygiene facilities,and only as a last resort, disciplinary action.\”The lead record reveals that employers have the ability both toestablish and enforce these types of rules. In view of this power,employers should be fully capable of assuring that employees understandand follow these rules. Permitting employers to deny MRP benefits toemployees who have at some time in the past violated a work rule addsnothing to an employer’s power, but carries the potential for abuse. TheLIA recognized this fact when it stated:\”If, on the other hand, the employer does not take any disciplinary orcorrective action at the time the violation of rules is discovered, heshould not later be able to disclaim responsibility for paying rateretention after it becomes necessary to remove the worker fromoverexposure.\”_As a consequence, the final standard does not permit an employer todeny MRP benefits to an employee on the ground that the employeeviolated a hygiene or work practice rule._43 Fed. Reg. at 54472 (emphasis added; citations to rulemaking recordomitted). As this discussion demonstrates, the Secretary did not intendfor the standard to preclude an employer from establishing work rulesand disciplining employees who violate those rules, as long as thediscipline is imposed when the infraction occurs. If, however, theemployer only imposes discipline when the employee’s blood lead levelhas risen, the discipline could be a subterfuge for avoiding the paymentof MRP benefits; for this reason, the Secretary explicitly declined toinclude an exception in the standard that would permit an employer toavoid paying MRP benefits as a disciplinary measure. In this case,Schuylkill did not discipline employees when they first violated workrules, but only after their blood lead levels began to rise.[[8\/]] OnceSchuylkill relied on blood lead levels to make removal decisions, theremovals were \”due to the effects of lead exposure on the employee’smedical condition\” within the meaning of the standard, and the voluntaryremoval provision of the standard required the payment of MRP benefits.Schuylkill violated the standard by not paying the full amount of MRPbenefits the standard requires.We do not suggest that Schuylkill engaged in a deliberate attempt tocircumvent the standard.[[9\/]] We note that its voluntary removalprogram existed long before the standard was issued, and we believe thatthe company acted in the good faith belief that it was promoting thehealth of its employees. But we cannot create an exception to thestandard that is inconsistent with the Secretary’s rulemaking intent. Wetherefore conclude that Schuylkill violated the standard.We conclude that the violation was serious. The serious health hazardpresented by metallic lead is well established. The MRP benefitsprovision attacks this hazard by removing barriers to complete employeecooperation with medical surveillance. It seeks to protect the employeeswho face the gravest risk of serious lead-related disease: those whohave high blood lead levels and those who have other medical conditionsthat would place them at particular risk should they continue to beexposed to lead in the workplace. The standard also seeks to eliminatethe possibility that employees fearing economic loss due to removal fromtheir jobs would use chelating drugs, which have dangerous side effects,in an attempt to reduce their blood lead levels. _See_ _St. JoeResources Co.,_ OSHRC Docket No. 81-2267 (Apr. 27, 1989). Since thepotential for serious harm exists whenever the MRP standard is violated,we conclude that Schuylkill’s violation of the standard was serious. _Id._The Secretary proposed a penalty of $360. We find that Schuylkill actedin good faith to protect the health of its employees, and the companypartially complied with the standard by maintaining the hourly wagerates of the employees it voluntarily removed from lead exposure. Weconclude that a penalty of $60 is appropriate.DNormally, an order affirming a citation and establishing a penaltyassessment would be sufficient to dispose of the case. However, there isone additional contention that we must address. The Secretary and theUnion argue that the Commission should issue an order requiringSchuylkill to pay the removed employees the specific amounts that weredue them but not paid.The Commission members are divided on the propriety of such an order.While Chairman Buckley is of the view that the employees who failed toreceive full \”earnings\”, as that term has been interpreted by the FifthCircuit, are entitled to be paid retroactively for the period of timethat they failed to receive full earnings, he is also of the view thatthe Review Commission is without authority to make individualcompensatory awards to those employees. Under the Occupational Safetyand Health Act (29 U.S.C. 651 et seq.), the Secretary is authorized toissue citations to employers alleged to have violated the Act or anystandard, rule or regulation promulgated pursuant to the Act. Thecitation is required to specify the violation with particularity, and toprescribe a reasonable time for abatement. The Secretary must alsonotify the employer of any penalty proposed to be assessed. That Actalso created the Occupational Safety and Health Review Commission andauthorized it to hear cases brought before it involving safety andhealth violations, and to affirm, modify, or vacate the Secretary’scitation or proposed penalty, or to direct \”other appropriate relief\”.29 U.S.C. ? 659(c). The determination of the amount of pay to be awardedto an employee, and an order providing for individual compensatoryrelief to an employee, is clearly not the assessment of a civil penalty(which would be paid into the Treasury of the United States) . Nor is itan \”abatement\” as used in the Act, which he would define as thoseactions required to terminate the violative condition. In this case, thefailure to pay full \”earnings\” would be abated by the commencement topay them. Nor does the awarding of individual compensatory relief toindividual workers retroactively for earnings which they failed toreceive constitute \”other appropriate relief\”.[[10\/]] The ordering ofback pay is not necessary as an abatement measure to the termination ofthe violative condition. In Chairman Buckley’s opinion, the Commissionis without authority to make individual compensatory awards unlessexpressly so authorized by Congress (as Congress has done, for example,in the case of awards of attorney’s fees and costs under the EqualAccess to Justice Act).Chairman Buckley emphasizes that the Commission’s lack of authority toissue backpay orders to compensate employees who failed to receive fullearnings does not leave the employees without a remedy. If the employersfail to compensate them fully and retroactively, there are forumsauthorized to resolve such disputes. Chairman Buckley’s views on theCommission’s lack of authority to issue awards of back pay should not beread as meaning that employees are not entitled to retroactive pay, onlythat the Commission is not the forum to award such pay. He agrees withCommissioner Arey that employees removed under the medical removalprotection standard are entitled to continue to receive the full amountof remuneration that they were receiving before removal, whether that becontractual or voluntary overtime pay, production incentive bonuses, orother pay differentials. He stops short of agreeing to consider whatthose amounts are as to each individual employee, or whether they alsoare entitled to interest on the unpaid earnings.Commissioner Arey would remand to the judge to calculate the amountsSchuylkill improperly withheld under the terms of the medical removalprotection standard and to order Schuylkill to pay those amounts. Shebelieves that payment of amounts improperly withheld is the abatementrequired when a violation of the MRP benefits provision of the standardis found, that ordering such payments is within the Commission’sauthority, and that such an order is generally appropriate to define theemployer’s abatement obligation and avoid a potential failure-to-abateproceeding. _See St. Joe Resources Co., supra _(separate views ofCommissioner Arey).Official action can be taken on the affirmative vote of at least twoCommission members. 29 U.S.C. ? 661(f). The Commission members bothagree to affirm the citation and assess a penalty of $60. They aredivided on the propriety of a \”backpay\” order, and therefore cannotissue such an order.Accordingly, the citation alleging a serious violation of 29 C.F.R. ?1910.1025(k)(2)(vii) is affirmed. A penalty of $60 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED: April 27, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.SCHUYLKILL METALSCORPORATION,Respondent,andUNITED STEELWORKERS OFAMERICA, AFL-CIO, and itsLOCAL 8394,Authorized EmployeeRepresentative.OSHRC Docket No. 81- 0856APPEARANCES:Marigny A. Lanier, Esquire, Office of the Solicitor, U.S. Department ofLabor, Dallas, Texas, on behalf of complainant.G. Michael Pharis, Esquire, Taylor, Porter, Brooks and Phillips, BatonRouge, Louisiana, on behalf of respondent.Francis Melancon, Staff Representative, and Darnell Dunn, President ofLocal 8394, United Steelworkers of America, Baton Rouge, Louisiana, onbehalf of authorized employee representative._DECISION AND ORDER_SPARKS, Judge: Schuylkill Metals Corporation is a Louisiana corporationengaged in business as a secondary lead smelter. The smelter convertspreviously refined lead from products such as batteries to reusable leadproducts.Complainant alleges in the alternative that respondent violatedprovisions of the lead standard at 29 C.F.R. ? 1910.1025(k)(2)(i) or 29C.F.R. ? 1910.1025(k)(2)(vii). The Secretary contends that respondent’semployees removed from the production areas to janitorial duties areentitled to maintain their same level of earnings including overtime payand production bonuses. The pertinent provisions state as follows:(k) _Medical Removal Protection._* * *(2)_Medical removal protection benefits._(i) _Provisions of medical removal protection benefits._ The employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(vii) _Voluntary Removal or Restriction of An Employee._ Where anemployer, although not required by this section to do so, removes anemployee from exposure to lead or otherwise places limitations on anemployee due to the effects of lead exposure on the employee’s medicalcondition, the employer shall provide medical removal protectionbenefits to the employee equal to that required by paragraph (k)(2)(i)of this section.Medical 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.\” ? 1910.1025(k)(2)(ii)._FINDINGS OF FACT_The following findings of fact have been stipulated by the parties (Ex.J-1):1. Schuylkill Metals Corporation, hereinafter called respondent, is aLouisiana corporation engaged in business as a secondary lead smelter.The smelter converts previously refined lead from products such asbatteries to reusable lead products.2. The lead which is processed at respondent’s plant is lead within themeaning of 29 C.F.R. ? 1910.1025(b).3. Respondent is an employer engaged in a business affecting commercewithin the meaning of section 3(5) of the Occupational Safety and HealthAct.4. Respondent’s employees are represented by the United Steelworkers,Local 8394.5. The period covered by the citation and complaint at issue herein isJanuary 1, 1980, to December 4, 1981.6. Respondent has had a removal program called the voluntary removalprogram under which employees are transferred from work in various areasof its plant where there is exposure to lead to work in the change houseof the plant.7. This case deals with removal of employees from areas in theproduction department where there is an average daily eight-hourexposure to airborne concentrations of lead which has exceeded andexceeds 200 ug\/m^3 without regard to the use of respirators.8. The change house is the locker room facility where respondent’semployees change from street clothes to work clothes and respirators andvice versa and shower. Change house employees are engaged in washingwork clothes, janitorial duties in the change house and lunchroom andmaintenance and repair of respirators.9. The change house has a low air lead concentration.10. Employees are removed from the production area and transferred tothe change house based on blood tests or medical or managementobservation which lead management to conclude that those employees havedeveloped poor hygiene habits, repeatedly have problems with respiratorfit or have what is considered to an abnormal rise in blood lead levels.By entering into stipulation number ten, respondent is not restrictedfrom putting on further evidence of the exact reasons why employees havebeen removed.11. Employees transferred from the production area to the change houseare given education and training in methods, procedures and safetyequipment and proper personal hygiene habits which protect them fromlead exposure in the plant.12. Participation in the voluntary removal program is mandatory foremployees selected by respondent for transfer to the change house.13. Respondent’s voluntary removal program is a continuing program whichhas been in effect during the period covered by this case.14. When an employee who has been removed to the change house completeshis education and training, as determined by management and medicalobservation and blood test, he is transferred out of the voluntaryremoval program and into a plant department.15. Employees in the change house on the voluntary removal program donot work over 40 hours per week except in isolated instances. They workeither a locked shift or a rotating shift. The locked shift employeeswork 7:00 a.m. to 3:00 p.m. and begin their workweek on Tuesday and workten straight days, then have four days off. The rotating shift employeeswork the same schedule as the Production employees except they arelimited to working a maximum of five days in the workweek.16. Production area employees work the following shifts:Work six shifts 7:00 a.m. to 3:00 p.m., off two days, then work sixshifts 3:00 p.m. to 11:00 p.m., off two days; then work six shifts 11:00p.m. to 7:00 a.m., off two days. Repeat. As a result, productiondepartment employees work two 18-hour workweeks out of every eight weeks.17. Respondent’s workweek begins on Sunday at 7:00 a.m.18. Employees working in the production area are eligible to receive aproduction incentive bonus and a discretionary bonus in addition totheir usual wages.19. Employees who are put on the voluntary removal program and moved tothe change house receive the same wage rate as they did in theproduction area and are eligible for the discretionary bonus. They arenot eligible for the production incentive bonus while they are in thevoluntary removal program.20. The following is a description of the production incentive bonus:Earned daily, paid each pay period by employees crushing batteries,working on the blast and reverbatory furnaces, kettle floors, andcasting crew in the production area. Amount of bonus is based onquantity of production produced above a base amount. These employeesmust also satisfactorily cornplete all elements of their job to be eligible.The materials attached hereto and marked exhibit A pertain to anddescribe the production incentive bonus. The production incentive bonusmay vary from person to person and week to week based on the applicationof a performance criteria which would reduce the amount of the bonus.The performance criteria are: accuracy, alertness, creativity,personality, absenteeism, housekeeping, dependability, job knowledge,quantity of work, courtesy, and overall performance.21. Exhibit B lists employees removed from the production area to thechange house, their period of removal, job status at removal and bloodlead level on removal and on return. The list provided in exhibit B ofindividuals on the voluntary removal program may not be exhaustive inthat there may be individuals who were removed but who have not beenidentified in discovery in this case.22. Exhibit C is the collective bargaining agreement in effect duringthe relevant period of this case. Article IX, Section 9 defines overtimework. Article IX, Section 10 defines premium time work.23. Exhibit D contains the payroll records for employees removed to thechange house during the period January 1, 1980, to December 4, 1981.They show the pay periods, rates of pay, straight time hours, overtimehours, premium hours, holidays worked and total pay. The total payfigure includes the discretionary bonus if received.24. Exhibit E contains the production bonuses paid to all employees inthe production area each pay period ending from January 5, 1980, throughJune 20, 1981.25. Exhibit F contains the production bonus histories of all employeesremoved to the change house on respondent’s voluntary removal programfor the payroll periods ending January 5, 1979, to December 22, 1979.The information which is relevant to this case in exhibit F is limitedto bonuses paid to Goldman England, George Coleman, Benjamin Jarvis,Eddie Clark, William Waldon, Lucious Jefferson, King Bell, Lee Willis,Evans Raby and Oreal Spears.26. Respondent does not maintain records which would identify specificindividuals who replaced individuals removed from the production area tothe change house on the voluntary removal program. Respondent does notuse job descriptions and does not replace one employee with another. Inmost cases of personnel vacancies, the vacating person’s work tasks aredivided among the balance of the employees in his department or area. Insome cases where this division is impractical, the vacating person canbe replaced by as many as five different people in as short a period assix weeks. In time periods of normal removal, there is no \”one for one\”replacement of a vacating person.27. This case does not address problems, if any, of removal from themaintenance, construction, or yard departments to the change house onthe voluntary removal program.28. Respondent employed approximately 225 persons at the time of theOSHA inspection in June 1980.29. Prior to the inspection which began June 1980, respondent wasinspected on eight occasions by OSHA.(NOTE: Exhibits A, B, C, D, E and F are omitted from the findings butare established facts contained in the record.)The following additional findings of fact are found based upon theevidence of record:30. Respondent has established and maintained for about 25 years acontinuing and effective program for reducing and minimizing the adversemedical effects of occupational exposure to lead (Tr. 67-81, 103-104,114, 127-128).31. The program consists of reducing the concentration of lead in theambient air, medical monitoring, counseling and enforcement of ruleswhich require protective equipment such as a respirator and good hygiene(Tr. 70-71, 98, 104).32. Employees do not experience adverse effects from exposure to lead solong as the rules are rigidly enforced by management and adhered to bythe employees (Tr. 68-71, 84, 114).33. Periodically employees are reassigned from the production areas ofthe facility to janitorial duties in the change house. Some employeesare so assigned because illness or injury make them fit for \”light duty\”only and others are transferred to the change house to provide a fullcomplement of workers to operate the facility. Most employees, however,are transferred to the change house after blood tests show elevatedlevels of lead (Tr. 69-70, 74, 84-85, 86, 114).34. There is no set level of blood lead which will cause an employee tobe transferred automatically to the change house. The principal reasonfor such transfers is the determination by management that discipline orretraining is necessary to ensure compliance with rules concerninghygiene and the proper wearing of a respirator (Tr. 70, 76-78, 79-80,84-84, 114).35. The reassignment of employees to the change house whose blood leadlevel has remained elevated is an integral part of respondent’s programto minimize the effect of occupational exposure to lead. It is anecessary and effective method for respondent to enforce its rules bydiscipline and retraining concerning the personal hygiene and thewearing of respirators (Tr. 68-71, 77-80, 84).36. A decline of lead in the blood is accomplished by a diminishedintake with increased excretion (Tr. 123).37 . None of the employees transferred to the change house hadexperienced any primary or secondary medical problems caused by exposureto lead (Tr. 74, 110-111, 113, 119-120)._DISCUSSION _Complainant has established that certain of respondent’s employees wereremoved from the production area of the plant where exposure to leadexceeded 200 ug\/m^3 on an average daily eight-hour basis to the \”changehouse\” where there was a low level of exposure to lead. The blood leadlevel of none of the employees was sufficiently high to trigger therequirements for mandatory removal from exposure to lead pursuant to 29C.F.R. ? 1910.1025(k)(2)(i), so the issue is whether employees areentitled to medical removal protection benefits as provided in 29 C.F.R.? 1910.1025(k)(2)(vii), which states as follows:_Voluntary Removal or Restriction of An Employee._ Where an employer,although not required by this section to do so, removes an employee fromexposure to lead or otherwise places limitations on an employee due tothe effects of lead exposure on the employee’s medical condition, theemployer shall provide medical removal protection benefits to theemployee equal to that required by paragraph (k)(2)(i) of this section.There are few areas of sharp conflict over the significant facts in thecase. Mr. Darnell Dunn, president of Local Union 8394, testified thatemployees were selected for removal when their blood level of lead waswithin 10 ug\/m^3 of the standard which required mandatory removal. Forinstance, when the regulation required medical removal when the level ofblood lead reached 80 ug\/m^3 , the company voluntarily removes employeeswhose blood level was at 70 ug\/m^3 (Tr. 18-19, 38-39). Company officialsacknowledged that an elevated level of blood lead caused them to closelysupervise the employee to determine defects in his work habits, but theblood lead level did not automatically trigger removal into the changehouse. The decision was based ultimately on whether the employee neededadditional training or discipline. The testimony of respondent’switnesses, Anthony Hesse and Dr. Lorio, is given greater weight on thatissue because they were involved in making and implementing the policyand were in a better position to know the details of its operation.Complainant argues that \”Respondent’s obligations to pay MRP benefitsarise any time there is a removal from exposure to lead\” (Comp. brief p.9). Respondent, on the other hand, emphasizes that the medical removalprotection benefits are payable only when the removal is \”due to theeffects of lead upon an employee’s medical condition …\” (Resp. briefpp. 3-4). The evidence does not show that any of the employees sufferedgastric difficulties, anemia or kidney disorders which are the mostcommon and early symptoms of lead problems. The evidence is notconvincing that employees were assigned to the change houseautomatically if the blood lead level was within 10 ug\/m^3 of themandatory removal level, but does establish that an elevated level ofblood lead was the principal screening device for selection and transferinto the change house. The blood level of those selected for transfer tothe change house was \”elevated\” in relation to other employees althoughnot \”elevated\” above the level required for mandatory removal. It isentirely believable that, based upon its experience as to theeffectiveness of its rules concerning hygiene and the wearing ofrespirators, management viewed reassignment into the change house aseffective and necessary for discipline and retraining.The Secretary’s interpretation of the regulations states that\”Respondent’s obligations to pay MRP benefits arise any time there is aremoval from exposure to lead\” (Comp. brief p. 9). Under the facts foundin this case, the central issue is whether an elevated blood lead levelis a \”medical condition\” within the meaning of 29 C.F.R. ?1910.1025(k)(2)(vii). There is a little question but that the blood leadlevel of all or nearly all employees exceeds that of the averagepopulation (Tr. 124). A literal reading of the term \”medical condition\”would include an elevated blood lead level as found in the employeesassigned to the change rooms. Other sections of the lead standard usethe term \”medical condition\” in different contexts.1. Section 1910.1025(k)(ii) of 29 C.F.R. requires that an employee beremoved from exposure to lead upon a \”medical finding, determination, oropinion that the employee has a detected medical condition which placesthe employee at increased risk of material impairment to health fromexposure to lead.\”2. Section 1910.1025(k)(iii)(A)(4) of 29 C.F.R. provides that anemployee who has been removed pursuant to the mandatory removalprovisions shall be returned to his former job status when \”. . . theemployee no longer has a detected medical condition which places theemployee at increased risk of material impairment to health fromexposure to lead.\”Respondent contends that the term \”medical condition\” should be read asmodified by the language in the two provisions above, i.e., a medicalcondition\”. . . which places the employee at increased risk of materialimpairment to health from exposure to lead.\” Respondent’s expert medicalwitness, Dr. Lorio, repeatedly testified that none of the employees whowere transferred to the change house would have been placed at anyincreased risk of significant impairment to his health had he remainedat his workplace (Tr. 113, 119-120) He further testified that none ofthe employees had any primary medical condition associated withoccupational lead exposure (Tr. 111, 113).Dr. Lorio described respondent’s removal program as administrativeaction which could deal with potential problems before reaching thestage that a medical condition would develop (Tr. 114).The two subsections which respondent relies upon in modifying the term\”medical condition\”, 29 C.F.R. ? 1910.1025(k)(2)(iii) and (iii)(A)(4)are contained in a portion of the lead standard relating to mandatoryremoval of employees, not voluntary removal. That fact and the omissionof modifying language in the pertinent subsection lead to the conclusionthat the term \”medical condition\” used in ? 1910.1025(k)(2)(vii)regarding voluntary removal should be given a literal interpretation toinclude an elevated blood lead level without the necessity for a findingof increased risk (Tr. 106). Without question, the elevated blood leadreadings were due to the occupational exposure to lead at respondent’sfacility (Tr. 124-125)._Medical Removal Protection Benefits_Employees who are voluntarily removed are entitled to medical removalprotection benefits equal to those of employees who are removed underthe mandatory requirements of the standards. The benefits are tomaintain the earnings and benefits of an employee as though the employeehad not been removed from normal exposure to lead or otherwise limited(29 C.F.R. ? 1910.1025(k)(2)(ii)). No question is raised concerning theseniority or rates of pay of employees voluntarily transferred into thechange house. Complainant contends that such employees are entitled toovertime pay for an average of two hours per week and a share of theproduction bonus. Complainant retained the services of RPC Corporationto ascertain the amount of unpaid earnings and the parties have agreedto compute the amounts of such unpaid earnings should the issues beresolved in favor of the complainant (Tr. 40-65, 133). The employees didnot work the two overtime hours nor did they perform production worknecessary to qualify for the production bonus. So far as is known, otheremployees working in the change house including those on \”light duty\”and those necessary to meet the manpower needs of the change housefacility also were not paid overtime pay nor a production bonus.Respondent has a collective bargaining agreement with the union, a partyto this proceeding, which provides for rates of pay and permits thetransfer of employees by management. There is no contention that theterms of the agreement have been abridged.The record establishes that production employees are regularly scheduledto work 48 hours in two workweeks of each eight resulting in an averageof two hours of overtime pay each workweek (Finding of Fact 16; Tr.45-47). The production bonus was paid to employees based upon aproduction in excess of a quota and on evaluation of the employee’sindividual performance (Finding of Fact 20; Tr. 50-52). From theseguidelines and records of the employees’ past earnings, the amount oflost earnings can be estimated with a reasonable degree of accuracy.Respondent forcefully states that to pay employees on the basissuggested by the Secretary would lead to an unwarranted result.Respondent argues that \”[w]here discipline and close supervision isnecessary, it seems ridiculous to argue that the recipient be rewardedwith unearned overtime and production bonuses while being disciplined\”(Resp. brief p. 7), Dr. Lorio also expressed the view that to makedrastic changes in respondent’s administrative practices \”… would bearguing with success\” (Tr. 114).The record reflects, without contradiction, that respondent’s programhas been successful in reducing the level of blood lead (Ex. R-7; Tr.127-130). Dr. Lorio testified as follows (Tr. 114):It’s relevant history that the efficacy of this methodology, bothadministrative and with medical overview, is reflected by the fact thatwith implementation of the standard in March of 1979, where 80micrograms percent was a permissable [sic] limit, the plant average atSchuylkill was 57.And then the subsequent three years of the standard it has been reducedto 45 and to make drastic changes in such a regimen, without a database, would be arguing with success.The Review Commission has often indicated that safety rules must beenforced to be effective. A system of discipline is often essential toan effective system of enforcement. It is common for systems ofdiscipline for breaking safety rules to include suspensions from workwhich involve loss of pay. The loss of pay is regarded as a penaltywhich is reasonable and necessary to ensure that the safety rules arefollowed.In this case, does the requirement that earnings be maintained prohibitdiscipline which involves some reduction in total earnings? If possible29 C.F.R. ? 1910.1025(k)(2)(i) and (vi) should be interpreted toeffectuate the purposes of the lead standard, which is to prevent theadverse effects on employees of occupational exposure to lead. Havingfound that removal to the change house is a bona fide program ofdiscipline and retraining which is necessary to the effectiveenforcement of rules of hygiene and safety, it is concluded that thefailure to pay for overtime hours not worked and a production bonus notearned is not a violation of the regulations. In a literal sense, thereduced compensation received by employees in the change house is notthe result of reduced pay, but the lost opportunity for additionalearnings. The purposes of the Act and the standard are not served byrewarding or making whole the employees so transferred. Some employeesdesire to remain in the change house, and, although not in the record,it is possible that working conditions, in addition to a lowerconcentration of lead, are otherwise less onerous in the change housethan in the production area. In other words, it may be possible to makeit more attractive to be assigned to the change house than theproduction jobs with adverse effects on moral and production and withresults opposite to those intended (Tr. 80)._CONCLUSIONS OF LAW_1. The Review Commission has jurisdiction of the parties and the subjectmatter.2. An elevated level of blood lead is a \”medical condition\” within themeaning of 29 C.F.R. ? 1910.1025(k)(2)(vii).3. Employees assigned to the change house for discipline and retrainingare not entitled to be paid in the same amount such employees earned inthe production areas of the facility.4. Respondent did not violate 29 C.F.R. ? 1910.1025(k)(2)(i) or (vii)._ORDER _The complaint is dismissed and the citation vacated.Dated this 24th day of June, 1982.JOE D. SPARKSJudge————————————————————————FOOTNOTES:[[1\/]] ? 1910.1025 _Lead _* * *(k) _Medical Removal Protection_* * *(2) _Medical removal protection benefits –_(i) _Provision of medical removal protection benefits._ The employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits._ For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employee whose blood leadlevel exceeds a specified concentration be removed from a work areawhere the airborne lead concentration is more than a certain amount.Since the expiration of the initial phase-in period during which higherconcentrations were permitted, the standard has required that anemployee with a blood lead level at or above 50 ug\/100g of whole bloodbe removed from work having a daily eight hour time-weighted-averageexposure to airborne lead at or above 30 ug\/m^3 . 29 C.F.R. ?1910.1025(k)(1)(i). [This case, however, arose during the phase-inperiod. See note 5_infra._] 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\/]] In our initial decision in this case, and in the appeal beforethe Fifth Circuit, this case was consolidated with _St. Joe ResourcesCo.,_ OSHRC Docket No. 81-2267, and _Amax Lead Co. of Missouri,_ OSHRCDocket No. 80-1793. Because the cases no longer involve a single commonlegal issue, they are hereby severed pursuant to Commission Rule 10, 29C.F.R. ? 2200.10.[[4\/]] We must apply the Fifth Circuit’s interpretation as the \”law ofthe case.\” _See In re Progressive Farmers Ass’n,_ 829 F.2d 651, 655 (8thCir. 1987), _cert. denied sub nom._ _South Central Enterprises v.Farrington,_ 108 S.Ct. 1574 (1988). In another decision issued today,_East Penn Manufacturing Co.,_ OSHRC Docket No. 87-537 (Apr. 27, 1989),we have overruled the Commission’s decision in _Amax_ and aligned theCommission’s interpretation of the medical removal provision with thatof the Fifth Circuit in _United Steelworkers of America v. SchuylkillMetals Corp._[[5\/]] During the time period covered by the citation, the blood leadlevel that would have triggered removal was 70 mg\/100g part of the time,and 80 mg\/100g the remainder of the time.[[6\/]] The judge specifically credited Schuylkill’s witnesses in theirdenial of testimony presented by the Secretary that Schuylkill’s policywas to remove employees whenever their blood lead levels got within 10ug\/100g of the level permitted by the standard.[[7\/]] _See_,_e.g._, _Atlantic & Gulf Stevedores, _75 OSAHRC 47\/A2, 3BNA OSHC 1003, 1974-75 CCH OSHD ? 19,526 (No. 2818, 1975), _aff’d,_ 534F.2d 541 (3d Cir. 1976).[[8\/]] Schuylkill asserts that observations made of the employees aftertheir blood lead levels had risen indicated the need for the employeesto be disciplined and retrained. We therefore infer that whateverviolations of workrules the employees were committing were detectable byvisual observation and could have been detected before blood testsdemonstrated the rising blood lead levels.[[9\/]] Commissioner Arey notes, however, that Schuylkill’s removalprogram appears to be poorly designed to achieve its stated goals ofdisciplining and retraining the employees. Apparently, the duration ofremoval did not depend on the gravity of the employee’s work ruleinfractions but rather on the length of time it took for the employee’selevated blood lead level to decline. Moreover, Commissioner Areyquestions how much retraining the employees could have been provided inan artificial work environment where the low levels of lead in theatmosphere presumably meant that the employees were not even required towear respirators.[[10\/]] In _RSR Corp. v. Donovan,_ 733 F 2d 1142 (5th Cir. 1984), thecourt adverted to, but did not discuss or define, \”other appropriaterelief\” in the one instance in which the Commission has issued whatamounted to a retroactive pay order: the Commission ordered a remand ofcertain cases for a determination of the amount of medical removalprotection benefits due the employees. However, the Commission had notsaid that it was ordering \”other appropriate relief;\” in fact, theCommission did not give any attention to what authority it had to issuesuch an order. _RSR Corp.,_ 83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1983-84CCH OSHD ? 26,429 (No. 79-3813, 1983). The court’s reference to thatterm has little application here since the court was addressing onlywhether the Commission’s decision was a final order from which theemployer could appeal. Despite the remand for determination of benefitsdue, the employer wanted court review of the foundational portions ofthe Commission decision — the Commission’s affirmance of the underlyingcitations and penalties. The Secretary moved to dismiss the appeal onthe ground that the Commission’s decision was not final. On this thecourt replied, \”Only a crabbed reading of section 10(c) [29 U.S.C. ?659(c)] would forbid review of an order that affirmed in part andmodified in part both citations and penalties simply because the issueof what other (and additional) relief is appropriate has been remandedfor determination.\” 733 F.2d at 1144. The court denied the Secretary’sMotion to Dismiss. Whether the Commission had authority to orderretroactive pay was not before the court, and the court gave thequestion no attention. Accordingly, Chairman Buckley declines to assignto the court’s decision authority for the Commission to make individualcompensatory awards.”