“Docket No. 81-2267 SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and its LOCAL UNION 8183, Authorized Employee Representative.OSHRC DOCKET NO. 81-2267ORDERThis case is before the Commission on remandfrom the United States Court of Appeals for the Fifth Circuit, the second time this casehas been to the Court of Appeals.\u00a0 United Steelworkers v. St. Joe Resources Co.,916 F.2d 294 (5th Cir. 1990).\u00a0 The court has remanded the case for the Commission todetermine the amounts of back pay due St. Joe Resources Company employees who, becausethey had elevated levels of lead in their blood, were transferred to other jobs with lessexposure to lead, as required by the OSHA standard governing exposure to lead.The Secretary of Labor had cited St. JoeResources Company for violating the occupational safety and health standard at 29 C.F.R.? 1910.1025(k)(2),[[1\/]] which requires that employees removed from their positions tolower-exposure jobs must maintain the earnings, rights and benefits they received beforethey were transferred.\u00a0 In its first opinion in this case, the Court of Appealsconcluded that \”earnings\” included not only base pay but also such premiumpayments as paid lunch periods, overtime pay, production bonuses, and shift differentialsfor scheduled night and evening work.\u00a0 United Steelworkers v. Schuylkill Metals,828 F.2d 314, 320 (5th Cir. 1987).\u00a0 On remand, the two-member Review Commission votedto vacate the order of the administrative law judge, but the commissioners split on thedisposition of the case.\u00a0 One of the Commissioners was of the opinion that the ReviewCommission could order the employer to pay back pay.\u00a0 The other held the opinionthat, under the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678, theReview Commission had no such power.In its second decision in this case, the Courtof Appeals has concluded that the Review Commission does have the power to order back pay.\u00a0 The court therefore remanded the case for the Commission to determine the amountsof back pay owed to the employees identified in the citations issued to St. Joe Resources.We, in turn, remand this case for anadministrative law judge to make the necessary findings of fact and enter an orderrequiring payment of back pay, as directed by the court.\u00a0 If it is necessary to doso, the judge may reopen the record to take evidence on this question.Accordingly, this case is remanded to the ChiefAdministrative Law Judge for assignment and for further proceedings consistent with thisorder.Edwin G. Foulke, Jr.ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDated: December 4, 1990SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, and its LOCAL UNION 8183, Authorized Employee Representative.OSHRC DOCKET No. 81-2267DECISIONBefore:\u00a0 BUCKLEY, Chairman, and AREY,Commissioner.BY THE COMMISSION:This case involves the medical removalprotection (\”MRP\”) provision of the OSHA standard regulating occupationalexposure to lead.\u00a0 That provision, 29 C.F.R. ? 1910.1025(k)(2),[[1\/]] requiresemployers to \”maintain the earnings, seniority, and other employment rights andbenefits\” of employees they remove from lead exposure because the employees are atparticular risk of suffering lead-related diseases.[[2\/]]\u00a0 The case is before theCommission for the second time.\u00a0 In the first decision, the Commission concluded thatSt. Joe Resources Company (\”St. Joe\”) did not violate the standard by failing toinclude overtime compensation and shift differential payments in the amounts it paid to anemployee under the provision.[[3\/]]\u00a0 Amax Lead Co. of Missouri, 12 BNA OSHC1878, 1986-87 CCH OSHD ? 27,629 (No. 80-1793, 1986).\u00a0 That decision was reversed bythe Fifth Circuit, which said that the standard was \”intended to include within’earnings’ precisely the kind of premium payments at issue here.\”\u00a0 UnitedSteelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 321 (5th Cir. 1987).\u00a0The court remanded \”for further proceedings attuned to this opinion\”.\u00a0 Id. at 323.IOur first decision set forth the relevant facts,and we will only briefly summarize them here.\u00a0 An employee at St. Joe’s zinc smelterwas removed from his position as \”weighman\” because of an elevated blood leadlevel and was transferred to a position as laborer, a job that did not expose him toexcessive lead.\u00a0 During the removal period, he worked 40 hours per week and was paidat the base hourly rate he would have received as a weighman.\u00a0 However, had heremained a weighman, the employee would have worked a certain number of hours of overtimeunder a schedule incorporated in St. Joe’s collective bargaining agreement with the UnitedSteelworkers of America.\u00a0 The employee would also have received additional payments(\”shift differentials\”) for scheduled evening and night work.\u00a0 Also, whileemployed as a weighman, the employee had been given the opportunity to work additionalhours of overtime beyond those scheduled, and during his 16 weeks in that position, he hadworked 45 hours of such voluntary overtime. Thus, the employee’s weekly pay during theremoval period was less than he would have received if he had remained a weighman.The Fifth Circuit held that the lead standard’smedical removal protection provision requires an employer to assure that a removedemployee does not suffer economic loss.\u00a0 Under that interpretation, St. Joe wasrequired to pay its employee at least the scheduled overtime compensation and shiftdifferential payments he would have earned if not removed.[[4\/]]\u00a0 Accordingly, St.Joe failed to comply with the standard.[[5\/]]II St. Joe argues that the medical removalprotection provision of the lead standard was invalidly promulgated because the Secretaryof Labor lacked the authority to adopt such a requirement.\u00a0 The Commission membersboth reject St. Joe’s argument, but for different reasons.Chairman Buckley believes that Commissionconsideration of the argument is foreclosed by the Fifth Circuit’s remand order.\u00a0 Theargument raised by St. Joe was considered and rejected by the D.C. Circuit in apre-enforcement challenge to the standard.\u00a0 United Steelworkers of America,AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1230 (D.C. Cir. 1980), cert. denied,453 U.S. 913 (1981). In remanding the case to us, the Fifth Circuit noted that its sistercircuit had upheld the standard’s validity and said:The lead standard has been challenged by theindustry in litigation from its inception.\u00a0 The courts, however, have not proved areceptive audience for the industry’s well-orchestrated complaints.\u00a0 The presentmovement in this seemingly never ending symphony is but a minor variation on the priorthemes.\u00a0 Thus, unlike a listener to Haydn, the industry should hardly be surprised atthe outcome.This symphony of lead litigation should notremain forever unfinished.\u00a0 The industry’s arguments — in large measure resting onthe policies underlying the lead standard-likely will continue to strike a discordant notein the courts.\u00a0 The industry must either accept legislative and regulatory atonality,or, if too painful for the ears (and pocketbooks) attempt to return the score to thecomposers of the lead policy for reorchestration.828 F.2d at 315-16.\u00a0 In Chairman Buckley’sview, this language demonstrates that the Fifth Circuit considered the validity of thestandard to be an established fact, at least for purposes of this case.\u00a0 ChairmanBuckley therefore concludes that the court’s remand order precludes the Commission fromruling on the validity argument raised by St. Joe.Commissioner Arey does not believe that theFifth Circuit’s decision precludes consideration of the issue.\u00a0 She notes that thevalidity argument was not raised before the court, and believes that the court’s decisioncannot be considered a definitive ruling on an issue it did not explicitly consider.\u00a0 Commissioner Arey would therefore consider St. Joe’s validity argument, and wouldreject it on its merits.[[6\/]]St. Joe’s argument contains several prongs.\u00a0The company first argues that the Act only authorizes the Secretary to issuestandards to protect employee safety and health, and the MRP provision does not meet thiscriterion because it \”does not prevent employee illnesses or biological changes intheir bodies resulting from exposure to inorganic lead.\”\u00a0 Instead, St. Joecontends, the MRP provision is like a workers’ compensation scheme, requiring payments forbiological changes to workers’ bodies that have already occurred.It is true that the Secretary only has theauthority to issue standards that promote workplace safety and health.\u00a0 AmericanTextile Manufacturers Institute v. Donovan, 452 U.S. 490, 540 101 S.Ct. 2478, 2506(1981).\u00a0 In Commissioner Arey’s view, however, it is abundantly clear that themedical removal protection provisions of the lead standard, including the requirement forthe payment of medical removal protection benefits, fulfill this purpose.\u00a0 Thestandard limits the amount of lead employees inhale and ingest by establishing apermissible exposure limit for airborne lead and through other provisions that preventexposure to lead.\u00a0 However, during the rulemaking proceedings, the Secretary foundthat some employees would still have excessive blood lead levels even if those limits weremet.\u00a0 43 Fed. Reg. 52952, 52963 (Nov. 14, 1978).\u00a0 The Secretary was concernedthat these employees, as well as employees who had medical conditions that would beaggravated by exposure to lead, would have their health endangered if they remained injobs where they would be exposed to significant amounts of lead.\u00a0 Therefore, theSecretary adopted the MRP provision, requiring that such employees be removed from jobsinvolving high levels of lead exposure, as a \”fall-back mechanism to protectindividual workers in circumstances where other protective mechanisms wereinsufficient.\”\u00a0 43 Fed. Reg. at 52973.In order to determine whether an employee’shealth would be endangered by continued exposure to lead, it is necessary to measure theemployee’s blood lead level and to rely on the employee to disclose other medicalconditions that could lead to medical removal. However, the Secretary found that employeesfaced with the potential loss of their income if they cooperate with medical surveillancewill often withhold such cooperation, thereby sacrificing their health for theirpaycheck.[[7\/]] 43 Fed. Reg. 54354, 54422 (Nov 21, 1978).\u00a0 The requirement forpayment of MRP benefits was therefore included in the standard to eliminate the likelihoodthat employees would endanger their physical health to assure their economic health.\u00a0 See East Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27,1989) (Arey, concurring).Commissioner Arey believes that the Secretary’srulemaking findings, based as they were on an extensive rulemaking record, are entitled todeference.\u00a0 Id. at n. 5. Moreover, she notes that those findings are supportedby common sense.\u00a0 The vast majority of employees, particularly those in the types ofindustrial jobs that involve exposure to lead, can ill afford to be removed from theirjobs if this will result in the loss, or even a decrease, in their paychecks.\u00a0Commissioner Arey therefore concludes that the requirement for payment of MRPbenefits is directly related to the protection of employee health, and she rejects St.Joe’s contrary argument.St. Joe also contends that Congress specificallyintended to withhold from the Secretary the authority to require employers to pay MRPbenefits.\u00a0 The company’s arguments in support of this claim are the same argumentsthat were specifically considered and rejected by the D.C. Circuit, and Commissioner Areywould reject these arguments for the reasons given by the court.\u00a0 UnitedSteelworkers of America v. Marshall, 647 F.2d at 1232-36. IIISt. Joe also argues that the citation should bevacated because the Secretary did not show that abatement of the violation will reduce asignificant risk of harm.\u00a0 St. Joe points out that the purpose of the medical removalprotection provision is to induce employees to cooperate with the lead standard’s medicalsurveillance provisions, and particularly to consent to blood testing.[[8\/]]\u00a0 St.Joe, however, required its employees to undergo medical surveillance.\u00a0 Failureto cooperate with medical surveillance would subject an employee to discipline, up to andincluding discharge.\u00a0 Therefore, according to the company, the standard’s purpose wasachieved in its workplace, and there was no significant risk that the health of itsemployees would be endangered by its failure to pay MRP benefits.\u00a0 St. Joe relies on Pratt& Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981), for theproposition that the Secretary must \”demonstrate that abatement will reduce asignificant risk of harm.\”To prove that an employer violated an OSHAstandard, the Secretary must establish (1) the applicability of the standard; (2) theemployer’s noncompliance with the standard; (3) employee exposure or access to theviolative condition; and (4) that the employer knew or with reasonable diligence couldhave known of the violative condition.\u00a0 See Dun-Par Engineered Form Co.,12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD ? 27,650 at p. 36,019 (No. 79-2553, 1986), rev’don other grounds, 843 F.2d 1135 (8th Cir. 1988).\u00a0 St. Joe argues that theSecretary should bear an additional burden by being required to prove that the violationcreates a significant risk of harm to employees.\u00a0 While that burden exists in somecases, this is not such a case.Some OSHA standards, by their terms, onlyrequire an employer to take corrective action where a \”hazard\” or\”danger\” exists.\u00a0 For such standards, the Secretary must show thatemployees are subjected to a significant risk of harm in order to prove that a hazardexists.\u00a0 Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 63-64 (2d Cir.1983);[[9\/]] Donovan v. General Motors Corp., 764 F.2d 32, 35-36 (1st Cir. 1985); Kastalon,Inc., 12 BNA OSHC 1928, 1937-38, 1986, CCH OSHD ? 27,643, p. 35,980 (No. 79-3561,1986).\u00a0 However, a standard that does not condition the employer’s obligation to takecorrective action on the existence of a hazard presumes that a hazard exists if thestandard’s terms are not met.\u00a0 The Secretary need not prove that an employer’sviolation of such a standard exposes employees to a significant risk of harm.\u00a0 ModernDrop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1114-15 (7th Cir. 1982); BungeCorp. v. Secretary of Labor, 638 F.2d 831, 834 (5th Cir. 1981).\u00a0 Cf. Pratt& Whitney Aircraft v. Donovan, 715 F.2d at 63-64 (discussing distinction betweenstandards that presume the existence of a hazard and those that do not).The medical removal protection provision doesnot condition an employer’s responsibility to pay MRP benefits on proof that employeeswill be subjected to a hazard if the payments are not made.\u00a0 The Secretary thereforeneed not prove that the employer’s failure to make MRP payments exposes employees to asignificant risk of harm.\u00a0 The Secretary met her burden of proof, and we concludethat St. Joe violated the standard.St. Joe also argues that its policy of requiringemployees to cooperate with medical surveillance, by eliminating the hazard against whichthe standard is directed, renders the violation de minimis.\u00a0 Aviolation is de minimis when there is technical noncompliance with astandard, but the departure bears such a negligible relationship to employee safety orhealth as to render inappropriate the assessment of a penalty or the entry of an abatementorder.\u00a0 Cleveland Consolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD? 27,829, p. 36,429 (No. 84-696, 1987).\u00a0 St. Joe argues that the step it has takento assure employee cooperation with medical surveillance–mandating such cooperation underthreat of discipline–is as effective as the means required by the standard: payment ofMRP benefits.\u00a0 Therefore, according to the company, it has eliminated the hazardaddressed by the standard, and its failure to pay full MRP benefits bears no relationshipto employee safety or health.St. Joe’s argument must be rejected because itquestions the wisdom of the standard.\u00a0 In promulgating the lead standard, theSecretary rejected the suggestion that the standard should require that employeescooperate with medical surveillance.\u00a0 Instead, the Secretary chose to encourage suchcooperation by providing for medical removal protection benefits.\u00a0 The de minimisclassification cannot be used to override the Secretary’s rulemaking decision. GeneralCarbon Co. v. OSHRC, 860 F.2d 479, 487 (D.C. Cir. 1988).\u00a0 Therefore, even if wewere persuaded that St. Joe’s substitute for MRP benefits would be equally effective inproviding a safe and healthful workplace, we would not find the violation de minimis.We note, however, that there is another flaw inSt. Joe’s argument.\u00a0 St. Joe assumes that mandating employee cooperation with thestandard’s medical surveillance provisions will fully accomplish the objective of themedical removal protection provision.\u00a0 However, the Secretary had an additionalconcern when he adopted the MRP standard.\u00a0 Certain types of drugs, called chelatingdrugs, remove lead from the bloodstream but have harmful side effects.\u00a0 The Secretarywas concerned that mandatory blood tests would induce employees to resort to chelatingdrugs to reduce their blood lead levels if high blood lead levels could lead to loss ofincome, thereby exposing the employees to the adverse health effects the drugs cancause.[[10\/]]\u00a0 The requirement that employers pay medical removal protection benefitswas not only intended to induce employee cooperation with medical surveillance, but alsoto eliminate any reason for employees to use chelating drugs to reduce their blood leadlevels.\u00a0 An employer policy mandating employee cooperation with medical surveillancemight induce employees to endanger their health by using chelating drugs and wouldtherefore not protect employee health as well as the payment of MRP benefits.IV The administrative law judge found that theviolation was properly classified as serious.\u00a0 We agree.\u00a0 The serious healthhazard presented by metallic lead is well established.\u00a0 The MRP benefits provisionattacks this hazard by removing barriers to complete employee cooperation with medicalsurveillance.\u00a0 It seeks to protect the employees who face the gravest risk of seriouslead-related disease:\u00a0 those who have high blood lead levels and those who have othermedical conditions that would place them at particular risk should they continue to beexposed to lead in the workplace.\u00a0 The standard also seeks to protect employees byeliminating the possibility that they will use chelating drugs to reduce their blood leadlevels and thereby expose themselves to the serious health risks such drugs can cause.A violation that could result in serious damage to the health of employees is properlyclassified as serious.\u00a0 Phelps Dodge Corp., 83 OSAHRC 29\/A2, 11 BNA OSHC 1441,1448-49, 1983 CCH OSHD ? 26,552, p. 33,925 (No. 80-3203, 1983), aff’d, 725 F.2d1237 (9th Cir. 1984).\u00a0 The MRP standard is designed to protect particularlysusceptible employees against the serious health risk presented by workplace leadexposure, as well as avoid serious health risks from the use of chelating drugs. \u00a0Since the potential for serious harm exists whenever the MRP standard is violated, weconclude that St. Joe’s violation of the standard was serious.[[11\/]]The Secretary proposed, and the judge assessed,a penalty of $60.\u00a0 Although the violation was serious, St. Joe exhibited good faithin implementing a medical surveillance program and in making those MRP benefit payments itbelieved were due under its reasonable but erroneous interpretation of the standard’srequirements.\u00a0 We conclude that a penalty of $60 is appropriate. V Normally, an order affirming a citation andestablishing a penalty assessment would be sufficient to dispose of the case.\u00a0However, there is one additional contention that we must address.\u00a0 TheSecretary and the Union argue that the Commission should issue an order requiring St. Joeto pay the removed employee the specific amounts that were due him but not paid.\u00a0 St.Joe contends that the Commission lacks the authority to issue such an order.\u00a0 St. Joealso argues that 29 U.S.C. ? 659(b) [[12\/]] tolls any requirement for abatement while acontest is pending before the Commission, and that this provision means that any duty ithas to pay overtime compensation and shift differential payments under the MRP standardcannot apply retroactively to require it to make the payments withheld in this case.The Commission members are divided on thepropriety of such an order.\u00a0 While Chairman Buckley is of the view that the employeeswho failed to receive full \”earnings\”, as that term has been interpreted by theFifth Circuit, are entitled to be paid retroactively for the period of time that theyfailed to receive full earnings, he is also of the view that the Review Commission iswithout authority to make individual compensatory awards to those employees.\u00a0 Underthe Occupational Safety and Health Act (29 U.S.C. 651 et seq.), the Secretary isauthorized to issue citations to employers alleged to have violated the Act or anystandard, rule or regulation promulgated pursuant to the Act.\u00a0 The citation isrequired to specify the violation with particularity, and to prescribe a reasonable timefor abatement.\u00a0 The Secretary must also notify the employer of any penalty proposedto be assessed.\u00a0 That Act also created the Occupational Safety and Health ReviewCommission and authorized it to hear cases brought before it involving safety and healthviolations, and to affirm, modify, or vacate the Secretary’s citation or proposed penalty,or to direct \”other appropriate relief\”.\u00a0 29 U.S.C. ? 659(c).\u00a0 Thedetermination of the amount of pay to be awarded to an employee, and an order providingfor individual compensatory relief to an employee, is clearly not the assessment of acivil penalty (which would be paid into the Treasury of the United States).\u00a0 Nor isit an \”abatement\” as used in the Act, which he would define as those actionsrequired to terminate the violative condition.\u00a0 In this case, the failure to pay full\”earnings\” would be abated by the commencement to pay them. Nor does theawarding of individual compensatory relief to individual workers retroactively forearnings which they failed to receive constitute \”other appropriaterelief\”.[[13\/]]\u00a0 The ordering of back pay is not necessary as an abatementmeasure to the termination of the violative condition.\u00a0 In Chairman Buckley’sopinion, the Commission is without authority to make individual compensatory awards unlessexpressly so authorized by Congress (as Congress has done, for example, in the case ofawards of attorney’s fees and costs under the Equal Access to Justice Act).Chairman Buckley emphasizes that theCommission’s lack of authority to issue backpay orders to compensate employees who failedto receive full earnings does not leave the employees without a remedy.\u00a0 If theemployers fail to compensate them fully and retroactively, there are forums authorized toresolve such disputes.\u00a0 Chairman Buckley’s views on the Commission’s lack ofauthority to issue awards of back pay should not be read as accepting St. Joe’s argumentthat employees are not entitled to retroactive pay, only that the Commission is not theforum to award such pay.\u00a0 He agrees with Commissioner Arey that employees removedunder the medical removal protection standard are entitled to continue to receive the fullamount of remuneration that they were receiving before removal, whether that becontractual or voluntary overtime pay, paid lunch time, or other pay differentials. Hestops short of agreeing to consider what those amounts are as to each individual employee,or whether they also are entitled to interest on the unpaid earnings.Commissioner Arey would issue an order requiringSt. Joe to pay the amounts it improperly withheld under the terms of the medical removalprotection standard.\u00a0 She believes that the Commission has the authority to issuethis type of order and that such an order is appropriate in this case to resolve thedisputed issues between the parties concerning what St. Joe must do to abate theviolation.\u00a0 St. Joe argues that it need not pay past-due amounts; the Secretary andthe Union argue otherwise.\u00a0 The parties also dispute whether St. Joe is required tomake payments for voluntary overtime, in addition to the payment for scheduled overtimeand shift differential payments.\u00a0 Commissioner Arey believes that the Commission,which sits to resolve disputes that arise under the Secretary’s standards, can and shoulddecide the issues presented by the parties.\u00a0 If those issues remain unresolved, theuncertainty over St. Joe’s abatement obligation will continue and could result in theissuance of a failure-to-abate notification if St. Joe does not pay the amounts theSecretary believes are due.\u00a0 Commissioner Arey believes it would be preferable todefine St. Joe’s obligation now and eliminate the need for a potential failure-to-abateproceeding.Commissioner Arey would reject St. Joe’sargument that 29 U.S.C. ? 659(b) relieves it of responsibility for paying past-dueamounts.\u00a0 Section 659(b) provides that the abatement period does not begin to run inthis case until the Commission enters a final order.[[14\/]]\u00a0 St. Joe contends thatthe meaning of this statutory provision is that it is only required to make MRP benefitpayments for medical removals that occur after the date of the Commission’s final order.\u00a0However, the Secretary and the Union argue that the tolling provision controls onlythe timing of abatement, not the requirement of abatement, and thatabatement of the violation requires St. Joe to pay the amounts it withheld from theemployee whose removal led to this case.Commissioner Arey believes that the Secretaryand the Union are correct.\u00a0 The specific violation alleged and proved in this casewas St. Joe’s failure to make MRP benefit payments to a single employee, Simpson Butler,during the period of his medical removal. Butler was removed from his old job as aweighman on or about July 17, 1981, and he was still in removal status when the citationwas issued on September 11, 1981.\u00a0 That citation ordered St. Joe to abate theviolation on or before September 29, 1981, that is, eighteen days after the citation’sissuance.\u00a0 In Commissioner Arey’s view, the abatement required under the citationwas, and is, payment to Butler of the benefits that were improperly withheld from him forthe work he would have performed as a weighman between July 17 and September 11, 1981, ifhe had not been medically removed from that position.\u00a0 Only by making these specificpayments can St. Joe abate the violation that has been alleged and proved in this case.\u00a0The effect of section 659(b) and St. Joe’s notice of contest has been to toll thisabatement requirement during the pendency of proceedings before the Commission and itsjudge.\u00a0 Once the Commission issues its final order, however, St. Joe’s duty to abatewill be reinstated.\u00a0 This means that St. Joe will then have the same period specifiedin the citation (eighteen days) to abate the violation by compensating Butler for the MRPbenefits it improperly withheld from him for the work he would have performed between July17 and September 11, 1981.Abatement of occupational safety and healthviolations can require the expenditure of considerable resources by employers.\u00a0 Thetolling provision in section 659(b) permits employers to obtain a Commission ruling onwhether such expenditures are in fact required by the Act before the employers must makethem.\u00a0 But section 659(b) does not mean that an employer can avoid entirely the needto make expenditures required by a standard.\u00a0 Commissioner Arey therefore concludesthat, once the Commission issues a final order, St. Joe must pay the amounts it improperlywithheld.Commissioner Arey would also hold that St. Joeis not only required to pay the removed employee for improperly withheld scheduledovertime and shift differential payments, as found by the administrative law Judge, but isalso required to compensate him for improperly withheld voluntary overtime payments.\u00a0 In her view, the standard generally requires the employer to pay a removed employeethe same total amount after removal as before or, in other words, to make the employeewhole.\u00a0 East Penn Manufacturing Co., OSHRC Docket No. 87-537 (Apr. 27, 1989)(concurring opinion).\u00a0 Although St. Joe’s employee had the right to refuse voluntaryovertime, he had a history of accepting it.\u00a0 Based on this past history and recordsof the amount of voluntary overtime that was available during the period of his medicalremoval, the Commission could make a reasonably reliable estimate of the amount ofvoluntary overtime Butler would have earned if he had not been removed.\u00a0 Accordingly,the judge erred in failing to compensate the employee for improperly withheld voluntaryovertime payments based on his conclusion that these payments were too speculative to beincluded in his backpay order.Official action can only be taken on theaffirmative vote of at least two Commission members.\u00a0 29 U.S.C. ? 661(f).\u00a0 TheCommission members both agree to affirm the serious citation and assess a penalty of $60.\u00a0 They are divided on the propriety of a \”backpay\” order, and thereforecannot issue such an order.[[15\/]]Accordingly, the citation alleging a seriousviolation of 29 C.F.R. ? 1910.1025(k)(2) is affirmed.\u00a0 A penalty of $60 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 27, 198\u00a0SECRETARY OF LABOR, Complainant, v. AMAX LEAD COMPANY OF MISSOURI, Respondent. UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 7447-J, Authorized Employee Representative.OSHRC Docket No. 80-1793SECRETARY OF LABOR, Complainant, v. SCHUYLKILL METALS CORPORATION, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 8394, Authorized Employee Representative.OSHRC Docket No. 81-0856SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent.UNITED STEELWORKERS OF AMERICA, AFL-CIO and LOCAL 8183, Authorized Employee Representative.OSHRC Docket No. 81-2267DECISIONBEFORE:\u00a0 BUCKLEY, Chairman, RADER and WALL,Commissioners.BUCKLEY, Chairman:These consolidated cases[[1]] are before the Occupational Safety and Health ReviewCommission under 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration (\”OSHA\”).\u00a0 It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).These cases involve the interpretation of themedical removal protection benefits (\”MRP benefits\”) provision of the standardat 29 C.F.R. ? 1910.1025, which regulates occupational exposure to lead.\u00a0 The leadstandard primarily seeks to protect workers from the adverse effects of lead on theirhealth by limiting the amount of lead they inhale and ingest.\u00a0 The MRP provision is a\”backup\” requirement that is intended to protect employees who are notadequately protected by the other provisions of the standard.\u00a0 If an employee’s bloodlead level exceeds certain limits or if the employee would otherwise experience certainrisks to his health from continued lead exposure, the standard requires the employer toremove the employee from excessive lead exposure.\u00a0 For an employee transferred underthis requirement, the MRP benefits provision requires the employer to \”maintain theearnings, seniority and other employment rights and benefits of an employee as though theemployee had not been removed . . . . \” 29 C.F.R. ? 1910.1025(k)(2)(ii).\u00a0 Inthese cases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, and St. JoeResources Company transferred certain employees who had elevated blood lead levels fromjobs with high lead exposures to positions outside high lead areas.\u00a0 The employerspaid the transferred employees their regular wage rate for the 40-hour weeks the employeesworked during the periods of transfer.\u00a0 The Secretary of Labor alleges that theemployers violated the MRP benefits provision by not paying the transferred employees forpotential overtime, production bonuses, shift differentials, and paid lunch periods thatwere incidents of the jobs they held before their transfers but not of the jobs to whichthey were transferred.\u00a0 We conclude that the employers complied with the standard bypaying the employees their regular wage rate for a 40-hour week, and we therefore vacatethe citations.IIt has long been known that lead is highly toxicto humans.\u00a0 Lead that is inhaled or ingested enters a person’s bloodstream, where itis carried to the various organs throughout the body.\u00a0 In excessive amounts, lead candamage vital organs, notably the kidneys, the reproductive system, and the central nervoussystem.Before 1975, an OSHA standard limited the amountof airborne lead to which an employee could be exposed to 200 micrograms per cubic meterof air (\”?g\/m3\”) averaged over an 8-hour day.[[2]]\u00a0 In 1975,the Secretary of Labor, believing the existing standard was not sufficiently protective,proposed a new standard that would both lower the permissible exposure limit and adopt anumber of other provisions intended to protect lead-exposed employees.\u00a0 40 Fed. Reg.45934 (Oct. 3, 1975).\u00a0 Following lengthy rulemaking proceedings, the Secretarypromulgated the standard here at issue.\u00a0 43 Fed. Reg. 52952 (Nov. 14, 1978).[[3]]Because lead reaches vital organs through thebloodstream, much of the Secretary’s rulemaking effort focused on controlling the amountof lead in workers’ blood.\u00a0 The secretary first attempted to determine the maximumconcentration of lead in the blood that would not produce material impairment of workers’health.\u00a0 He found that serious lead poisoning occurs at blood lead levels of 80micrograms per 100 grams of blood (\”?g\/100g\”), 43 Fed. Reg. at 52954, but thatother adverse health effects occur at lower blood lead levels.\u00a0 These levels werereferred to in the rulemaking proceedings as \”subclinical effects,\” and can bedefined as \”physiological changes which can be detected by sophisticated laboratorytests, but not by either ordinary clinical examination or by the patient himself, whichmay be irreversible, and which likely bear a causal relationship with overt leaddisease.\”\u00a0 United Steelworkers of America, AFL-CIO v. Marshall, 647 F.2d1189, 1249 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) (\”Steelworkers\”).\u00a0 The Secretary found that these subclinical effects become significant at blood leadlevels of 40 ?g\/100g and higher.\u00a0 43 Fed. Reg. at 52954-60.\u00a0 Finding that thepresence of subclinical effects constituted material impairment of health, the Secretaryestablished the objective of maintaining the blood lead levels of lead-exposed workers atno higher than 40 ?g\/100g.\u00a0 Id.The Secretary also found, however, that a bloodlead level at or below 40 ?g\/100g for all workers could not be feasibly achieved. Becausepeople differ in the manner in which they absorb lead, at any particular level of airbornelead a group of workers will exhibit a range of blood lead levels.\u00a0 The Secretaryfound that the lowest airborne level the major lead-based industries could feasiblyachieve was 50 ?g\/m3 and he therefore established that level as thepermissible exposure limit for airborne lead.[[4]]\u00a0 43 Fed. Reg. at 52963.\u00a0 Healso found that approximately 30% of workers would have blood lead levels over 40 ?g\/100gwhen uniform compliance with the 50 ?g\/m3 permissible exposure limit wasachieved. Id.In order to protect the health of employees whowould not be adequately protected by the permissible exposure limit, the standard requiresemployers to establish programs of medical surveillance.\u00a0 29 C.F.R. ? 1910.1025(j).\u00a0The key to medical surveillance is blood testing, which the employer must offer toall employees exposed to an \”action level\” of 30 ?g\/m3 for 30 ormore days per year.\u00a0 Subsections 1910.1025(j)(1) and (2).\u00a0 If an employee isfound to have a blood lead level exceeding a certain amount–50 ?g\/100g when the standardbecomes fully effective–the medical removal protection provisions of the standard comeinto play. Subsection 1910.1025(k).\u00a0 The employer must remove the employee fromexposure to lead above the action level until two consecutive blood tests show that theemployee’s blood lead level has returned to no more than 40 ?g\/100g.\u00a0 Subsections1910.1025(k)(1)(i) and (iii).\u00a0 An employee must also be removed from exposure to leadabove the action level without regard to his blood lead level if it is determined that\”the employee has a detected medical condition which places the employee at increasedrisk of material impairment to health from exposure to lead.\”\u00a0 Subsection1910.1025 (k)(1)(ii).\u00a0 Such an employee can be returned to his previous position ifit is found that his medical condition has changed such that exposure to lead no longerplaces him at increased risk of material health impairment.\u00a0 Subsection 1910.1025(k)(1)(iii)(A)(4).If an employee is removed from exposure toexcessive lead due to an elevated blood lead level or other medical condition, theemployer must pay the employee MRP benefits.\u00a0 Subsection 1910.1025 (k)(2)(ii)provides:For the purposes of this section, the requirement that an employer provide medicalremoval protection benefits means that the employer shall maintain the earnings, seniorityand other employment rights and benefits of an employee as though the employee had notbeen removed from normal exposure to lead or otherwise limited.The employer is required to provide MRPbenefits, i.e., \”maintain the earnings, seniority and other employment rights andbenefits of an employee,\” for up to 18 months on each occasion an employee is removedfrom excessive lead exposure.\u00a0 Subsection 1910.1925(k)(2)(i).\u00a0 The Secretaryincluded this requirement in the standard in order to induce employees to cooperate withmedical surveillance.\u00a0 He was concerned that employees, faced with the possible lossof their income if medical surveillance showed they should be removed from lead exposure,would refuse to cooperate with the standard’s medical surveillance provisions and therebyrisk endangering their health.\u00a0 Thus, \”MRP was included in the final standard asa means of maximizing meaningful participation in medical surveillance provided tolead-exposed workers.\”\u00a0 43 Fed. Reg. at 52973.II.A. Amax-Lead Company, Docket No. 80-1793Amax operated a primary lead smelter inMissouri.\u00a0 In late 1979 and early 1980, the company transferred six employees fromareas of high lead exposure to low exposure areas[[5]] due to their elevated blood leadlevels.\u00a0 After about three months, the blood lead levels of these employees returnedto acceptable levels.\u00a0 Four of the employees returned to their previous jobs whiletwo bid for and won other jobs in the facility.Before their transfers, the six employees workedin positions that had to be filled during the plant’s entire 24-hour workday.\u00a0 Forsuch jobs, the day was divided into three 8-hour shifts.\u00a0 Each employee was paid fora full 8 hours but was allowed a half-hour for lunch.\u00a0 The six employees weretransferred to the mine\/mill unit, which did not operate during the entire 24 hour day.\u00a0 Workers in this unit therefore worked 8 1\/2 hour shifts, getting paid for 8 hoursbut not for their half-hour lunch break.The transferred employees were paid for their40-hour work week at their regular base rate of pay.\u00a0 In their regular jobs, theywould also have had the opportunity to work overtime.\u00a0 The collective bargainingagreement between Amax and the United Steelworkers of America provided that overtime wouldbe distributed \”as equitably as practical\” among employees in each jobclassification. Available overtime was offered to employees in order of seniority.\u00a0They could either accept or refuse when their turn came.\u00a0 The company kept andposted records showing for each employee the hours of overtime worked, the hours refused,and the total. Employees unavailable when overtime was offered, including thosetransferred to low exposure jobs, were considered to have refused offers of overtime work.\u00a0Thus, for each of the six transferred employees, the company had records showing theamount of overtime they \”refused\” during their transfers.B. Schuylkill Metals Corporation, Docket No.81-0856Schuylkill operated a secondary lead smelter inLouisiana.\u00a0 The plant’s production department had a high airborne lead concentration,while the change house had a low lead concentration.\u00a0 Employees in the change houseperformed janitorial duties such as washing work clothes and repairing respirators.Under the normal work schedule in the productiondepartment, employees worked six 40-hour weeks and two 48-hour weeks in any 8-week period.\u00a0 They thus averaged two hours of overtime per week.\u00a0 Production departmentemployees were also eligible to receive production incentive bonuses, which were based onthe daily amount of production in excess of a certain base amount. Production incentivebonuses varied among the workers on a shift based on performance criteria unique to theindividual.\u00a0 In the change house, employees worked a 40-hour week.\u00a0 They did notwork overtime and were not eligible for production incentive bonuses.Between January 1, 1980 and December 4, 1981,Schuylkill temporarily transferred a number of employees from the production department tothe change house. [[6]]\u00a0 While in the change house the employees were paid at thehourly wage rate they had earned in the production department.\u00a0 They did not,however, receive either overtime pay or production incentive bonuses.C. St. Joe Resources Company, Docket No.81-2267St. Joe operated a zinc smelter in Pennsylvania.\u00a0 In 1981, the company transferred one employee—Simpson Butler–pursuant to the MRPprovision of the lead standard.\u00a0 Butler had been hired in 1980 as a laborer, aposition that did not involve excessive lead exposure.\u00a0 On April 2, 1981, he wasawarded the position of \”weighman\” but, on July 17, 1981, he was returned to thelaborer position due to an elevated blood lead level.The plant operated 24 hours per day, seven daysper week, and the weighman job had to be covered at all times.\u00a0 To accomplish this,the weighmen were divided into four shifts that worked 20-week rotating schedules.\u00a0Each shift included various amounts of night, weekend, and overtime work, but theactual schedule would vary during the 20-week rotation.St. Joe’s collective bargaining agreementprovided that weighmen would receive 1.5 times their base rate for scheduled Sunday andsixth day work (\”scheduled overtime\”).\u00a0 The agreement further provided forextra hourly pay (\”shift differentials\”) for scheduled evening and night work.\u00a0A weighman who worked all of his scheduled time during a 20-week rotation would thusreceive a total amount of compensation, including scheduled overtime and shiftdifferentials, that would exceed the employee’s base rate of pay multiplied by the numberof hours actually worked.\u00a0 However, each employee’s pay during any particulartwo-week pay period would depend on the hours actually worked during that period,including the scheduled overtime and shift differentials actually earned.Employees were also given the opportunity towork voluntary overtime.\u00a0 The amount of such overtime available varied with the needsof the plant.\u00a0 Employees signed up if they were interested in voluntary overtime andwould be offered such overtime as the plant’s needs and their skills allowed. \u00a0Voluntary overtime did not necessarily involve the employee’s regular duties. \u00a0Duringhis 16 weeks as a weighman, Butler worked all of his regular shifts and also worked 45hours of voluntary overtime.When Butler was transferred, he was assignedduties as a laborer for an 8 hour per day, 40 hour per week shift.\u00a0 As a laborer,Butler was paid the base rate he received as a weighman, but he worked no scheduledovertime or night shifts and received no overtime pay or shift differentials.\u00a0 Herefused the one offer of voluntary overtime he received.IIIThe MRP benefits provision requires thatemployers maintain the \”earnings, seniority and other employment rights and benefitsof an employee\” who is transferred under the standard’s MRP provisions.\u00a0 Thequestion presented by these cases is what an employer must pay a transferred employee inorder to maintain that employee’s \”earnings.\”\u00a0 The employers contend thatthey need only pay an employee who works a normal 40-hour week after being transferred hisregular hourly rate of pay for those 40 hours, while the Secretary and unions claim theprovision requires the employer to also pay additional amounts the employee could haveearned if he had not been transferred.\u00a0 In their view, Amax, Schuylkill, and St. Joeviolated the standard by not paying their transferred employees for potential overtime,shift differentials, production incentives, and paid lunch periods (collectively,\”premium payments\”) they would have received but for the transfers.In interpreting a standard, the Commissionemploys the same rules of construction that are used to discern the meaning of statutes. BungeCorp., 86 OSAHRC, 12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHD ? 27,565, p.35,804 & n.12 (No. 77-1622 et al, 1986).\u00a0 Ultimately, we must determine theintent of the standard’s drafter, in this case the Secretary, at the time the standard wasadopted.\u00a0 The most compelling evidence of a drafter’s intent is, of course, the plainmeaning of the words he used.\u00a0 Id.\u00a0 In this case, however, the meaning ofthe crucial word \”earnings\” is not so plain as to enable us to resolve thedispute between the parties. \”Earnings\” is not a word of art but is a generalterm broad enough to encompass the interpretations offered by all of the parties. \u00a0One dictionary defines \”earnings\” as \”money earned; wages;profits.\”\u00a0 Random House Dictionary of the English Language 448 (1971).\u00a0 Another defines it as \”something (as wages or dividends) earned ascompensation for labor or the use of capital.\”\u00a0 Webster’s Third NewInternational Dictionary 714 (1971).\u00a0 Because the issue cannot be resolved on thebasis of the word’s plain meaning, we must look to the legislative history of the standardto discern the Secretary’s intent when he promulgated the standard.The lead standard was the first, and is stillthe only, OSHA standard containing a comprehensive MRP benefits provision.\u00a0 However,in adopting the standard, the Secretary did not write on an entirely clean slate.\u00a0The issue of MRP benefits had previously been addressed in several contexts, andthese provide a background for examining the Secretary’s intent when he included the MRPbenefits provision in the lead standard.The first federal law containing a MRP benefitsprovision was the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. ?? 801 etseq. (\”Mine Act\”).[[7]]\u00a0 That statute provides that any miner showingevidence of black lung disease be given the opportunity to transfer to a position forwhich the dust level is sufficiently low to prevent further development of disease. \u00a030 U.S.C. ?? 843(b)(1) and (2).\u00a0 Any miner so transferred must be compensated at\”not less than the regular rate of pay received by him immediately prior to histransfer.\”\u00a0 30 U.S.C. ? 843(b)(3).\u00a0 This provision has been interpreted tomean that a miner need only be paid at the same daily rate he was receiving just prior totransfer, not the amount he would have earned if he had not been transferred.\u00a0 Higginsv. Marshall, 584 F.2d 1035 (D.C. Cir. 1978), cert. denied, 441 U.S. 931(1979).\u00a0 When he adopted the OSHA lead standard, the Secretary was aware of both thisprovision of the Mine Act and of the interpretation placed on it in Higgins v. Marshall,for he discussed these matters in the preamble to the OSHA standard.\u00a0 43 Fed. Reg. at54447-49.The Secretary considered MRP benefits inrulemaking proceedings for two other standards before the adoption of the lead standard.One of the first standards issued by the Secretary after notice-and-comment rulemakingregulated occupational exposure to asbestos.\u00a0 29 C.F.R. ? 1910.1001.\u00a0 Thatstandard contains a limited MRP provision, applicable only to employees who would berequired to wear respirators but who are medically incapable of doing so.Such employee shall be rotated to another job orgiven the opportunity to transfer to a different position whose duties he is able toperform with the same employer, in the same geographical area and with the same seniority,status, and rate of pay he had just prior to such transfer, if such a different positionis available.29 C.F.R. ? 1910.1001(d)(2)(iv)(c) (emphasisadded).\u00a0 Subsequent rulemakings continued the practice of considering MRP protectionas maintenance of the employee’s \”rate of pay.\”\u00a0 The term \”rateretention,\” implying maintenance of an employee’s \”rate of pay,\” was oftenused as a synonym for medical removal protection.\u00a0 In promulgating a standardregulating exposure to coke oven emissions, the Secretary considered a recommendation thathe adopt a MRP provision.\u00a0 The recommendation was that removal of an employee fromexposure should \”not result in loss of earnings or seniority status to theaffected employee.\”\u00a0 (Emphasis added.) The Secretary referred to thisrecommendation as a \”rate retention provision.\”\u00a0 41 Fed. Reg. 46780 (Oct.22, 1976). The Secretary did not, however, include such a provision in the coke ovenstandard.\u00a0 29 C.F.R. ? 1910.1029.The next standard promulgation proceeding inwhich the Secretary considered MRP protection involved the lead standard at issue here.\u00a0 The Secretary first proposed a standard that did not contain a MRP provision.\u00a0 40 Fed. Reg. 45934 (Oct. 3, 1975).\u00a0 After receiving comments and holdinginformal public hearings on the proposed standard, the Secretary announced an additionalcomment period for the submission of written data, views, and arguments on medical removalprotection.\u00a0 42 Fed. Reg. 46547 (Sept. 16, 1977).\u00a0 The announcement stated:The medical surveillance provisions of the leadstandard should include a requirement for medical removal protection.\u00a0 Thisrequirement would maintain the rate of pay, seniority, and otherrights of an employee for the time period, or a portion thereof, that the employee istransferred or removed from his or her job as a result of an increased health risk fromexposure to lead.\u00a0 After a follow-up medical examination and opinion, the followingoptions would be available with no loss of earnings or rights:\u00a0 Return to theoriginal job, assignment to a different job (transfer), or continuation of the transfer orremoval.Id. at 46548 (emphasis added).\u00a0Another passage in the same announcement stated:\u00a0 \”Ninety days wasmentioned as one time period for earnings protection (‘rate retention’).\”\u00a0 Id.at 46549.\u00a0 Thus, the announcement gave notice that the Secretary was considering thetraditional type of MRP protection in which the employee’s rate of pay would be maintainedduring removal.\u00a0 It used the words \”earnings\” and \”earningsprotection\” synonymously with \”rate of pay\” and \”rate retention.\”When he issued the lead standard, the Secretary did not use the terms \”rate ofpay\” or \”rate retention,\” but mandated that employers maintain the\”earnings\” of transferred employees.\u00a0 The Secretary contends that hischoice of the word \”earnings\” instead of \”rate of pay\” is significant.\u00a0He asserts that if he intended to limit MRP benefits to \”rate of pay,\” hewould have included language such as is found in the Mine Act instead of the language heactually chose.We cannot conclude that the Secretarydeliberately used the word \”earnings\” in the final standard to indicate that heintended something different than \”rate of pay.\”\u00a0 As we have noted, in theannouncement in which MRP protection was injected into the rulemaking proceeding, theSecretary used \”earnings\” synonymously with \”rate of pay.\”\u00a0Therefore, when he used \”earnings\” in the final standard, the most logicalconclusion is that he was again using it as a synonym for \”rate of pay,\”particularly since he did not express any different intent.\u00a0 As St. Joe points out,the Secretary is sophisticated in labor matters and knows that compensation issues ofteninvolve overtime and other premium payments.\u00a0 Thus, if the Secretary made adeliberate decision that premium payments were to be included in MRP benefits, it isreasonable to infer that he would have made such an intent explicit.\u00a0 See UnitedStates v. American Trucking Associations, 310 U.S. 534, 544 (1940) (\”a few wordsof general connotation appearing in the text of statues should not be given a widemeaning, contrary to a settled policy, ‘except as a different purpose is plainlyshown’.\”)A further indication that \”earnings\”was not meant to include premium payments is the absence of evidence that the subject ofpremium payments received any attention in the rulemaking proceedings.\u00a0 As notedabove, the announcement that injected MRP into the rulemaking indicated that a traditional\”rate retention\” rule was being considered.\u00a0 The comments submitted inresponse to this announcement reflect that employees had one overriding concern: \u00a0that their cooperation with the medical surveillance provisions of the standard not leadto the loss of their jobs.\u00a0 The Secretary cited the testimony of Anthony Mazzocchi,vice president of the Oil, Chemical and Atomic Workers Union, that the absence of an MRPprovision would force employees to choose between their jobs and their health. \u00a043Fed. Reg. at 54442.\u00a0 In the preamble to the lead standard the Secretary noted thatthe potential loss of one’s job will create a substantial deterrent to an employee’scooperation with the standard’s medical surveillance provisions.\u00a0 However, there isnothing in the preamble to indicate that the Secretary also believed that the potentialloss of premium payments would create a comparable deterrent.\u00a0 The Secretary simplydid not address the subject of premium payments.The only indication in the standard’slegislative history that the subject of premium payments was considered at all was asuggestion by the United Steelworkers of America that the Secretary include a definitionof \”earnings\” in the standard.\u00a0 The Secretary declined this invitation,saying:The United Steelworkers of America urged thatthe standard include a detailed definition of the term \”earnings,\” listing allthe possible forms of direct and indirect compensation which an employer might havenormally given a worker in the absence of a removal.\u00a0 (Ex. 452, p. 44.)\u00a0 OSHArejected the adoption of such a detailed definition because it would likely be confusingto some employers in light of the many contexts in which the standard will apply.\u00a0 Tocomply with the standard, an employer need only maintain the removed worker as though noremoval had occurred.43 Fed. Reg. at 54466.\u00a0 If the Secretarytruly intended that \”earnings\” would include premium payments, the suggestion bythe Steelworkers that he define \”earnings\” gave him the opportunity toexplicitly state that intent.\u00a0 His failure to include a definition of\”earnings\” is a further indication he intended it to mean no more than hisannouncement originally indicated, i.e., \”rate of pay.\”[[8]]The Secretary argues that the last sentence inthe above quotation and a statement elsewhere in the preamble that the MRP provision\”uses the all-encompassing phrase ‘earnings, seniority and other employmentrights and benefits’ to assure that a removed worker suffers neither economic loss norloss of employment opportunities due to removal,\” 43 Fed. Reg. at 52976 (emphasisby the Secretary) make clear his intention that MRP benefits include premium payments.\u00a0We do not agree.\u00a0 In light of the Secretary’s failure to include a definitionof \”earnings\” in either the standard or the preamble, and the absence of anydiscussion in the preamble of premium payments, we cannot read these general statements asexhibiting an intention on the Secretary’s part that MRP benefits include premiumpayments.Finally, if the Secretary did intend\”earnings\” to have a broader meaning than \”rate of pay,\” his actionwould be contrary to the spirit, and possibly the letter, of notice-and-commentrulemaking.\u00a0 In conducting such a rulemaking, an agency is required to give thepublic fair notice of the rule it proposes to adopt, so that persons affected by the rulewill have an adequate opportunity to make their views known.\u00a0 See Chamberof Commerce of the United States v. OSHA, 636 F.2d 464, 470-71 (D.C. Cir. 1980).\u00a0 As discussed above, the Secretary gave the public notice that he was consideringadopting a \”rate retention\” provision.\u00a0 Had the Secretary given notice thathe was also considering a broader MRP provision, one which would also require premiumpayments, it could be expected that he would have received comments addressing thenecessity and propriety of such payments.\u00a0 As it was, nothing in the preamble or thestandard indicates that the Secretary received any comments addressed to premium payments,with the possible exception of the United Steelworkers’ general request, which theSecretary rejected, to include a definition of \”earnings\” in the standard.An agency can, of course, deviate from aproposed rule when it issues a final rule, as long as the final rule is a \”logicaloutgrowth\” of the rulemaking proceeding.\u00a0 Steelworkers, 647 F.2d at 1221.\u00a0In order to justify such a deviation however, there must be evidence in therulemaking record that warrants the change.\u00a0 Id.\u00a0 If there was evidencein the record of the lead rulemaking to justify inclusion of premium payments in MRPbenefits, the Secretary did not mention it or rely on it.\u00a0 Thus, even if theSecretary did use the word \”earnings\” because he meant MRP benefits to includepremium payments, it is highly doubtful whether the standard, as so interpreted, would bevalid in light of the absence of his reliance on any record evidence justifying thechange.See United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982)(interpretation of statute is favored that avoids question of statute’s validity).We conclude that Amax, Schuylkill, and St. Joecomplied with the MRP benefits provision by paying the employees they transferred at theirregular rate of pay for the 40 hours per week the employees worked during the periods oftransfer.\u00a0 Accordingly, the citations are vacated.[[9]]FOR THE COMMISSIONRAY H. DARLING, JR. EXECUTIVE SECRETARYDATED:\u00a0 June 25, 1986\u00a0SECRETARY OF LABOR, Complainant, v. ST. JOE RESOURCES COMPANY, Respondent.OSHRC DOCKET NO. 81-2267DECISION AND ORDER Ditore, J.PRELIMINARY STATEMENTAs a result of an inspection of Respondent’sfacility at Monaca, Pennsylvania, on August 7 and August 20, 1981, by a safety and healthofficer of the Occupational Safety and Health Administration, a citation was issued toRespondent for a serious violation of 29 CFR ? 1910.1025(k)(2)(i) with a proposed penaltyof $60.00.\u00a0 Respondent contested the citation and penalty.The citation alleges:\”An employee removed from exposure to lead,or otherwise limited pursuant to this section was not provided with medical removalprotection benefits.(a) Simpson Butler was removed from hisassignment as weighman and reassigned to a clean-up position it approximately $150 permonth reduction in wages.Subsection (2)(i) of Section 1910.1025(k) isentitled \”(2) Medical removal protection benefits – (i) Provision ofmedical removal protection benefits\” and provides: \”The employer shall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removed from exposure tolead or otherwise limited pursuant to this section.\”Subsection (2)(ii) of Section 1910.1025(k)defines medical removal protection benefits as follows:\”For the purposes of this section, therequirement that an employer provide medical removal protection benefits means that theemployer shall maintain the earnings, seniority and other employment rights and benefitsof an employee as though the employee had not been removed from normal exposure to lead orotherwise limited.\”In lieu of a hearing, Complainant, Respondentand the Union (United Steelworkers of America), the parties to this action, have agreed tosubmit the contested issues for resolution on the basis of a Joint Stipulation of facts(Court Exh. A).ISSUES1.\u00a0 Whether the promulgation of Section1910.1025(k)(2)(i) Lead Standard was a valid exercise of the Secretary of Labor’sstatutory authority under the Occupational Safety and Health Act of 1970.2.\u00a0 If it was, whether the standardconflicted with Section 4(b)(4) of the Act (29 U.S.C. ? 653(b)(4)3.\u00a0 If it did not, whether Respondentviolated the standard.4.\u00a0 If it did, whether the violation wasserious.5.\u00a0 If it was, whether Commission has theauthority to order an abatement of the violation by means of retroactive \”backpay\”.6.\u00a0 Is the proposed penalty reasonable andproper.STATEMENT OF FACTSFor the purposes of convenience the JointStipulation of the Parties is set forth verbatim. \”The parties hereto stipulate and agree that all proper, necessary and indisposableparties are parties hereto, and to the following facts, but without prejudice to any partycontending that any such fact is irrelevant:1.\u00a0 Respondent is a corporation with its principal office and place of business inNew York City, New York.\u00a0 Respondent maintains an office and place of business atJosephtown Road, Monaca, Pennsylvania.2.\u00a0 An inspection of Respondent’s Monaca,Pennsylvania facility was conducted between August 7 and August 20, 1981 by a compliancesafety and health officer from the Pittsburgh, Pennsylvania area office of theOccupational Safety and Health Administration.3.\u00a0 At the time of the inspection notedabove, and at all times material hereto, Respondent was engaged at its Monaca,Pennsylvania facility in the business of zinc smelting and refining.4.\u00a0 Respondent employs approximately 450employees at its zinc smelting and refining facility in Monaca, Pennsylvania.5.\u00a0 Respondent utilizes goods, equipment and materials shipped from outside the Stateof Pennsylvania and is engaged in a business affecting commerce.\u00a0 Respondent is,therefore, an employer within the meaning of the Occupational Safety and Health Act\”(\”the Act\”).6.\u00a0 Following the aforesaid inspection bythe Secretary’s representative, a citation was issued to Respondent.\u00a0 The citationalleged that Respondent was in serious violation of the Act; a penalty of sixty dollars($60.00) was proposed.\u00a0 A copy of the Citation and Notice of Proposed Penalty markedExhibit \”A\”, is attached hereto and made a part hereof.\u00a0 The citationalleges a violation of paragraph (k)(2)(i) of the provisions of 29 C.F.R.\u00a0 Section1910.1025, et seq. (\”the lead standard\”).\u00a0 A copy of the leadstandard and Appendices A and B thereto, marked Exhibit \”B\”, is attached heretoand made a part hereof.\u00a0 Also attached as Exhibit \”C\” are the Preambles tothe lead standard published in the Federal Register on November 14 and November 21, 1978and the corrections thereto.\u00a0 In stipulating that the Appendices to the lead standardand Exhibit C may be made part of the record herein, Respondent agrees that the saiddocuments are available to the public and represent statements that the Secretary has madewith respect to the lead standard.\u00a0 Respondent’s agreement to this stipulation doesnot constitute agreement with or acquiescence [sic] in any statement of law or fact madeby the Secretary or any other person in said documents.7.\u00a0 The serious citation and proposedassessment of penalties were timely contested by Respondent.8.\u00a0 Jurisdiction of this proceeding isconferred upon the Occupational Safety and Health Review Commission Section 10 of the Act.9.\u00a0 Respondent’s employee, Simpson Butler,employee #1558, was hired as a Laborer at Respondent’s facility on November 17, 1980.\u00a0 He had been employed in the facility prior to its shutdown in December 1979 and wasrehired when it opened again in the Fall of 1980.10.\u00a0 Pursuant to the provisions of theattached collective bargaining agreement between Respondent and the United Steelworkers ofAmerica (\”USW\”), Simpson Butler bid to and was awarded the position of Weighmanin the Sinter Plant at Respondent’s facility, which position he assumed on April 2, 1981.\u00a0A copy of the agreement, marked \”Exhibit D\”, is attached hereto.11.\u00a0 On or about July 17, 1981, Respondenttemporarily transferred Simpson Butler from his regular work assignment at Respondent’sMonaca, Pennsylvania facility.\u00a0 In voluntary compliance with the provisions of 29C.F.R.\u00a0 Section 1910.1025(k)(1)(i)(C), Respondent removed Butler to a positioninvolving low lead exposure.\u00a0 Respondent transferred Butler when blood tests taken byits medical personnel indicated that his blood lead level had reached or exceeded 60micrograms of lead per deciliter (dl) of whole blood.\u00a0 Butler’s blood lead levelsbetween November 17, 1980 and February 23, 1982 were as follows: Date Blood lead level in micro-grams\/dl of whole blood November 17, 1980 34 July 6, 1981 77 July 13, 1981 78 February 23, 1982 44 12.\u00a0 Respondent has, in compliance with the requirements of 29 C.F.R. Section1910.1025(j), conducted a biological monitoring and medical surveillance program at itszinc smelting and refining facility in Monaca, Pennsylvania both prior to the cessation ofoperations in December 1979 and subsequent to the recommencement of operations in the Fallof 1980.13.\u00a0 Respondent presently takes blood leadsamples from:\u00a0 (1) Simpson Butler on a monthly basis; (2) about twenty-two employeesevery two months; and (3) about forty-two employees every six months.14.\u00a0 Respondent uses the results of theblood lead samples to determine, inter alia, whether employees need to beremoved from exposure to excessive air leads pursuant to the provisions of 29 C.F.R.\u00a0 Section 1910.1025(k)(1)(i)(C).15.\u00a0 The employees are notifiedperiodically that they have been scheduled for biological monitoring, and they areexpected to report on schedule to have their blood samples taken.\u00a0 The notices usedfor this purpose have informed the employees that participation in the program is arequirement of the job and refusal to participate will subject them to progressivediscipline. Attached hereto as Exhibit \”E\” are copies notification sheets forbiological monitoring that were posted in the facility. 16.\u00a0 Respondent will not tolerate therefusal of any employee to participate in its biological monitoring and surveillanceprogram since such refusal would deprive Respondent of the information it needs todetermine whether the employee is disqualified to work in atmospheres wherein air leadsexceed OSHA prescribed exposure limits.17.\u00a0 Respondent would exercise its rightspursuant to Articles XIV and VI of the agreement between it and the USW (Ex. D) to imposeprogressive discipline up to and including discharge on any employee who refuses toparticipate in Respondent’s biological monitoring program.\u00a0 Respondent’s position isthat an employee’s refusal to participate in the biological monitoring program is justcause for dismissal.18.\u00a0 Respondent has had no need to imposediscipline against any employee at its zinc smelting and refining facility for refusal toparticipate in its biological monitoring program.\u00a0 Instead, Respondent has counseleda small number of employees who expressed their reluctance to participate, and thecounseling was sufficient to obtain their participation in the program.19.\u00a0 Respondent has, however, warned atleast one employee who refused to participate in Respondent’s air lead monitoring program.\u00a0 The warning was documented by way of a letter filed in the employee’s Departmentpersonnel file indicating that he would be given time off without pay for futureinfractions.\u00a0 The letter is attached as Exhibit F.20.\u00a0 Articles VII, VIII, IX, of theattached collective bargaining agreement (Ex. D), as modified by local agreements (Ex. G),represent the procedures followed by Respondent, and agreed to by the USW, regarding hoursof work, regularly scheduled overtime, voluntary overtime and shift differential pay forthe job position of Weighman.(a) A weighman is assigned to one of four\”shifts\” of employees.\u00a0 Each \”shift\” of employees is assigned a20–week rotating schedule which permits Respondent’s facility to operate seven days aweek with three 8-hour time shifts per day (day, evening and night shifts).\u00a0 ExhibitH hereto shows a typical 20-week rotating schedule for one of the four employee\”shifts\”.\u00a0 During the 20-week period, an employee assigned this schedule,and who is available to work at all times, will work:- 35 daylight shifts; – 35 evening shifts;- 35 night shifts.An employee assigned this schedule will work 15Sundays and 5 sixth days.\u00a0 An employee who works the entire 20-week schedule willwork a total of 840 actual hours.(b) The attached collective bargaining agreement(Ex. D) provides that premium compensation be paid at the rate of 1.5 times an employee’sbase rate of pay for scheduled Sunday and sixth day work (referred to also as\”scheduled overtime\”).\u00a0 Consequently, the total of available\”compensable work hours, as distinguished from hours actually worked, during the20-week rotating schedule (Ex. H) will be 920 hours, which is computed as follows:1.\u00a0 Straight time:(35 days x 3 x 8 hours per day) less 15Sundays x 8 hours and 5 sixth days x 8 hours) = 680 hours;2.\u00a0 Sunday premium:15 Sundays x 8 hours x 1.5 = 180 hours;3.\u00a0 Sixth day premium:5 sixth days x 8 hours x 1.5 = 60 hours.Thus, during a 20-week period, an employee whoworks all scheduled shifts would be compensated for straight time and scheduled over-time(Sunday and sixth day premium) in an amount equal to the following:employee’s base rate of pay x 920 hours.(c) In addition, the attached collectivebargaining agreement provides that shift differential premiums be paid for scheduledevening and night work.\u00a0 Thus, during the same period, if the employee works allscheduled shifts, he will receive shift differential pay as follows;35 night shifts x 8 hours per shift x $0.50 perhour = $140.0035 evening shifts x 8 hours per shift x $0.30per hour = $84.00The maximum shift differential pay presently available during a 20-week schedule is$224.00.(d) On the basis of the above, an employee’swage for one week of the 20-week scheduled period may be roughly approximated from thefollowing formula:(employee’s base rate x 920 hours) + $224.00This formula produces only an approximationbecause the employee is paid according to the shifts and days actually worked during atwo-week pay period.\u00a0 For example, if the employee worked all available time duringthe pay period composed of weeks 1 and 2 on Exhibit H, he would not be paid for scheduledovertime because there is none, but he would be paid for one week of night differentialand one week of evening differential.\u00a0 In contrast, during the pay period composed ofweeks 3 and 4, the employee would receive only straight time pay for week 3, but wouldalso receive shift differential pay and premium pay for scheduled overtime for week 4.21.\u00a0 When Simpson Butler assumed the dutiesof Weighman, he was assigned to the third \”shift\” of employees (Ex. I) who werethen in week 14 of the rotating schedule, as shown in Exhibit H.\u00a0 Butler completedthe remaining 6 weeks of this 20 week schedule with his group, and then commenced a new 20week schedule.\u00a0 He was removed from his job position when his employee\”shift\” was in week 10 of the new schedule.\u00a0 Thus, he worked a total ofsixteen weeks over two 20-week rotating schedules.\u00a0 Butler worked all scheduledshifts to which he was assigned during these sixteen weeks, working 656 actual hours.22.\u00a0 Following removal as specified inparagraph 11, Butler was assigned Laborer duties at the smelter.\u00a0 He has been offeredthe opportunity to work 8-hour day light shifts, Monday through Friday, continuously sincehis removal from the position of Weighman.\u00a0 800 hours of work have been availableevery 20 weeks.\u00a0 Exhibit J hereto is a Letter of Intent to supplement Article XII ofthe contract (Exhibit D) between Respondent and the USW.\u00a0 Paragraph 9 of the Letterprovides that employees who are removed from exposure to excessive levels of a toxicsubstance and who are assigned to other duties will have their rate protected during thereassignment.\u00a0 Butler’s rate as a Weighman has been protected since he was removed,i.e., he has received and continues to receive his base rate of pay as a Weighman forhours he has worked as a Laborer.\u00a0 He did not receive scheduled overtime work and hewas not paid for such work, nor did he receive shift differential pay.\u00a0 On the basisof the above, the wage for one week of a 20-week period worked by Simpson Butler as aLaborer since he was removed may be represented by the following formula:employee’s base rate x 800 hours 23.\u00a0 Voluntary overtime work, which isdistinct from \”scheduled\” overtime (Sunday and sixth day work), is madeavailable from time to time to employees who are assigned to a rotating schedule.\u00a0Employees who desire to work voluntary overtime indicate their interest by signingup for this work on sheets used for that purpose.\u00a0 However, voluntary overtime workis not available on a regular basis.\u00a0 When it does become available, moreover, itvaries in nature depending entirely on production and maintenance needs.\u00a0 The workoffered to an employee may, and often does, involve duties different from those of hisnormal job position.\u00a0 The work is offered only to persons qualified and available toperform it.\u00a0 An employee may refuse an offer of voluntary overtime.24.\u00a0 Simpson Butler worked 45 hours ofvoluntary overtime during the sixteen week period he worked as a Weighman.\u00a0 Heaccepted 16 hours of such work on two consecutive days in April, 1981, 8 hours on one dayin May, 8 hours spread over two consecutive days in, June, and 13 hours spread over twoseparate days in July, 1981.\u00a0 The total of his voluntary overtime hours represents6.86 percent of his total \”scheduled\” work time (656 hours) during this period.\u00a0Butler received premium pay for his voluntary overtime hours in accordance with theterms of the attached collective bargaining agreement and related agreements.\u00a0 (Exs.D and G).25.\u00a0 The amount of available voluntary overtime declined subsequent to SimpsonButler’s removal from his Weighman position. During the period he was a Weighman, 892.5voluntary overtime hours were worked in the Sinter Plant and 12,371 hours of scheduledtime were worked.\u00a0 Thus, the ratio of voluntary time to scheduled time was 7.21percent.\u00a0 Thereafter, during, the period beginning on July 27, 1981, and ending onApril 26, 1982, 1,292.3 voluntary overtime hours were worked in the Sinter Plant and34,222.7 scheduled hours were worked.\u00a0 Accordingly, the ratio of voluntary time toscheduled time was 3.78 percent following his removal.26.\u00a0 Simpson Butler was not routinelyoffered available non-scheduled overtime work following his removal.\u00a0 He was,however, offered one such overtime opportunity, but he declined the offer.\u00a0 Butlerhas not, therefore, received premium pay for voluntary overtime work subsequent to hisremoval.27.\u00a0 Simpson Butler took one week ofvacation from August 31 through September 4, 1981, and he did not work December 14 throughDecember 18, 1981 because of personal illness.\u00a0 For purposes of the procedures setforth herein (regarding hours of work, regularly scheduled overtime, voluntary overtimeand shift differential pay), vacation and personal illness days are noncompensable timefor all employees at Respondent’s facility.28.\u00a0 The parties stipulate and agree that Simpson Butler’s base rate of pay was $9.78per hour from the date of his removal until August 1, 1981 and has been $10.08 per hoursince that date. 29.\u00a0 The parties stipulate and agree that the $10.08 rate shall be used to calculateovertime premium pay in the event the Commission enters a final order that eitherscheduled overtime premium pay or voluntary overtime premium pay or both are requiredunder 29 C.F.R. ?1910.1025(k)(2).30.\u00a0 The scheduled average weekly overtimepremium pay, calculated by subtracting the weekly wage figure generated by the formula inparagraph 22 from the weekly wage figure generated by the formula in paragraph 20(d), is$71.68.31.\u00a0 The maximum weekly average voluntaryovertime premium pay Butler could have earned since his removal had he been offered andaccepted all such opportunities offered to him using the sinter plant average set out inthe last sentence of Paragraph 25 herein is $22.86.32.\u00a0 The parties stipulate and agree thateither or both of the weekly average premium pay figures set forth in Paragraphs 30 and 31will be used to calculate \”back pay\” if the Commission determines that back payis required in its final order in this matter.\u00a0 The term \”back pay\” as usedherein means that overtime premium pay whether scheduled, voluntary or both which theCommission might determine is required under 29 C.F.R. ?1910.1025(k)(2) and which Butlerdid not receive during the period of this contest.33.\u00a0 The parties stipulate and agree further that in the event the Commission entersa final order requiring the payment of scheduled overtime or voluntary overtime premiumpay prospectively as distinguished from retroactive or back pay, the pay figures appearingin this stipulation may be adjusted as appropriate to reflect the conditions that prevailas of such date.34.\u00a0 The parties stipulate and agreefurther that in the event the Commission enters a final order in this matter requiringRespondent to pay Butler scheduled overtime premium pay, voluntary, overtime premium pay,or both regardless whether such order requires back pay or prospective pay or both,Respondent shall not be required to compensate him for time he was not available toperform work.35.\u00a0 The parties also stipulate and agreethat nothing said herein shall be construed to preclude Respondent from seeking a stayincluding a judicial stay of any final order of the Commission that might require thepayment of overtime premium payment under 29 C.F.R. ? 1910.1025(k)(2).FACTUAL SUMMARYIn summary, on, April 2, 1981, Respondent’semployee Simpson Butler started work as a Weighman in the Sinter Plant of Respondent’sfacility (Stip. ? 10)*.\u00a0 On or about July 17, 1981, Butler was removed from, hisposition as Weighman and transferred to the low lead exposure position of laborer.\u00a0The removal and transfer were based on blood tests taken by Respondent’s medicalpersonnel, which revealed that Butler’s blood lead level had reached or exceeded 60micrograms of lead per deciliter (dl) of whole blood.\u00a0 Butler’s removal was mandatedby Section 1910.1025(k)(1)(i)(C) (Stip. ? 11).As a Weighman, Butler’s earnings consisted ofbase or straight time pay, shift differential pay, Sunday premium pay, 6th day premium pay(scheduled overtime) and voluntary overtime pay (Stip. ?’s 20, 21, 22, 23). \u00a0Respondent paid Butler the base rate of pay of a Weighman for all the hours he worked as alaborer during the removal period (Stip. ? 22).\u00a0 Respondent did not pay Butler shiftdifferential pay, scheduled overtime pay or voluntary overtime pay after his removal fromthe Weighman position (Stip. ? 22, 24, 26).\u00a0 Butler as a laborer worked 8 eighthours a day, Monday through Friday, with no shift differential or scheduled overtime pay(Stip. ? 22).The basic issue is whether Respondent violated29 C.F.R. ? 1910.1025 (k)(2)(i) by failing to pay Butler the scheduled overtime pay,shift differential pay and voluntary overtime pay he would have earned if he had not beenremoved from his position as Weighman.OPINIONThe facts are not disputed Respondent has raised several legal arguments attacking thevalidity and applicability of Section 1910.1025 (k)(2)(i)First, Respondent argues that Section 1910.1025(k)(2)(i) is invalid because the medical removal protection benefits provision (MRPB) isbeyond OSHA’s statutory authority (Respondent’s brief pp 8-19).\u00a0 Respondent’s positsits argument on the ground that the Occupational Safety and Health Act (OSH) contains noexpress grant of authority to OSHA, to require employers to maintain the earnings of aremoved employee at the pre-removal level.\u00a0 Respondent contends that Congress waswell aware of the concept of the MRPB since it had less than a year prior to the enactmentof the OSH Act, granted such authority under the Federal Mine Safety and Health Act.\u00a0Therefore, Congress did not intend to grant such authority to OSHA.Respondent to support its conclusion as toCongressional intent, utilizes the principle that \”[w]here a statute with respect toone subject contains given provisions, the omission of such a provision from a similarstatute is significant to show a different intention existed\”, citing case authorityincluding American Textile Manufacturers Institute v. Donovan* 452 U.S. 490, 101S.Ct. 2478 (1981) (Respondent’s brief p. 10).\u00a0 This issue, among others, was fullylitigated and argued before the D.C. Circuit in United Steelworkers v. Marshall647 F.2d 1189 (1980), cert. denied, 453 U.S. 913 (1981), where the validity of the leadstandard, as promulgated, was challenged.\u00a0 Respondent was a party to that action(Respondent’s brief pp 22-23).Chief Judge J. Skelly Wright writing for amajority of the Court after an exhaustive analysis of the MRPB provision concluded that[t]he substantive provisions of the lead standard, including the medical removalprotection program …. fall within the scope of OSHA’s statutory power and are reasonableexercises of that power.\u00a0 647 F.2d at pages 1223-1234, 1311.Respondent contends that the Court’s decision inUnited Steelworkers is incorrect and should not be followed.\u00a0 We do not agreewith this contention.\u00a0 We fully concur in the majority’s decision including theCourt’s analysis distinguishing the case relied on by Respondent in its brief here, WhirlpoolCorporation v. Secretary of Labor, 445 U.S. 1, 100 S. CT. 883 (1980).The Secretary of Labor in promulgating the LeadStandard has devised a comprehensive regulatory program to protect workers from thedangerous hazards of overexposure to lead.\u00a0 The program requires the removal withattendant benefits, of employees whose lead blood levels have reached and exceededpermissible limits.\u00a0 See 29 C.F.R. 1910.1025 and sections thereunder.In American Textile Manufacturers Institute Inc., v. Donovan, 452 U.S. 490,101 S.Ct. 2478 (1981), the United States Supreme Court had before it a challenge to thevalidity of the cotton dust standard promulgated by the Secretary of Labor.\u00a0 Includedwithin the challenge was one made to OSHA’s authority under that Act, to require employersto guarantee that employees suffer no loss of earnings or other employment rights orbenefits when transferred due to exposure to cotton dust above a certain level.The Court held that the Secretary of Labor inhis \”Summary and Explanation of the Standard\” never explained the wage guaranteeprovision as an approach, designed to contribute to increased health protection butexplained it as solely designed \”to minimize any adverse economic impact on anemployee.\”\u00a0 The Court concluded that since \”the Act in no way authorizedOSHA to repair general unfairness to employees that is unrelated to achievement of healthand safety goals\”, it was beyond OSHA’s statutory authority to promulgate the wageguarantee regulation.\u00a0 101 S.Ct. at 2505-2506.The Court did acknowledge that a wage guaranteeprovision if health related, may very well have merit but that the \”healthrelated\” contention must be properly articulated in the Secretary’s determination orstatement of reasons and supported by substantial evidence.\u00a0 The Secretary of Laborfailed in these latter requirements when he promulgated the cotton dust wage guaranteeprovision, 101 S.Ct. at 2505 nn. 72 & 73 and 2506 n. 74.\u00a0 It is reasonable toinfer that if the Secretary of Labor had formulated and articulated the \”healthrelated\” rationale and supported it by substantial evidence, the Court might havereached a different conclusion.It is interesting to further note that theUnited States Supreme Court rendered its decision in American Textile on June 17,1981. On June 29, 1981, twelve days later, the Court denied certiorari in the UnitedSteelworkers case.\u00a0 453 U.S. 913, 101 S.Ct. 3148. Although one may not drawsubstantive conclusions that the Court was from a denial of certiorari, one can infer thatthe Court was aware of provisions dealing with earnings protection benefits and the issuesinvolved as they relate to the Occupational Safety and Health Act.Aside from the economic impact the earningsprotection benefits provision of the Lead Standard may have on employees, it is healthrelated.\u00a0 The MRPB is designed and intended in the overall program of workerprotection, to reduce an employee’s exposure or continued exposure to lead poisoning byeliminating possible attempts by employees to defeat other provisions of the lead standardand thereby increase their exposure to lead poisoning.The promulgation of the medical removal protection benefits standard is valid and withinthe statutory authority of the Secretary of Labor.Respondent argues in Point II of its brief (pp19-24) that OSHA’s lead standards and Respondent’s compliance with these standards, otherthan the medical removal protection benefits provision, insures that the exposure of itsemployees to lead is reduced or eliminated.*\u00a0 Respondent states that all of itsemployees who are exposed to the hazards of lead must participate in Respondent’smandatory blood lead monitoring program or suffer disciplinary action.\u00a0 Therefore,Respondent reasons, the medical removal protection benefits provisions neither contributesto the reduction or elimination of the lead hazard nor reduces or eliminates an employee’srisk of exposure to lead.Respondent’s approach is somewhat simplistic andfails to consider or overlooks the underlying basis established by OSHA, as to the reasonsthe medical removal protection benefits provision is necessary to insure the efficacy ofthe other lead standards relating to medical surveillance and medical removal.\u00a0 (SeeExhs. C(i)(a), p. 52973, C(i)(b) pp 54446-54447).The Court in United Steelworkers of Americav. Marshall, 647 F. 2d 1189, 1237 (1980), clearly sets forth OSHA’s findings andbasis for the medical removal protection benefits provision.\”OSHA found, however, that unless workers were guaranteed all their wage andseniority rights upon removal, they would resist co-operating with the medicalsurveillance program that determined the need for removal, since they reasonably mightfear being fired or sent to lower-paying jobs if they revealed dangerously high blood-leadlevels.\u00a0 54442\/2-54446\/2.[[x]]\u00a0 The record showed that workers often consumedself-prescribed chelating agents, and lied to physicians about their subjective symptoms,all because they held job security more dear than their health.\u00a0 54446\/3-54447\/1(citing evidence).\u00a0 OSHA also found existing earnings protection programs in privatebargaining agreements too few and too limited.\u00a0 54444\/2.\u00a0 Moreover, exercisingits statutory authority to rely on experience gained under a congressionally-mandatedearnings protection program like the one that is part of the Federal Coal Mine Health andSafety Act, see text and notes at notes 67-68 supra, workers-perhaps because they were notguaranteed the seniority rights and pay increases of their high-exposure jobs – frequentlyrefused to co-operate in medical review. 54447\/1-54449\/1.\”It is clear from the evidence and caseauthority, that the medical removal protection benefits provision is health related and isan integral part of the Lead Standard’s objective to reduce or eliminate employee exposureto lead.In Point III A of its brief (pp 24-36),Respondent contends that Section 4(b)(4) of the Act prohibits the Commission frominterpreting the medical removal protection benefits provision to increase Respondent’sliability beyond that set by the State of Pennsylvania’s workmen’s compensation laws.Section 4(b)(4) of the Act states:\”Nothing in this Act shall be construed tosuperceded or in any manner affect any workmen’s compensation law. . . \”(29 U.S.C. ? 653(b)(4)).The court in United Steelworkers, supra,at pages 1235-36, after determining that protection benefits provision did not violateSection 4(b)(4) of the Act, stated:\”The question remains, then, what doesSection 4(b)(4) mean, if it does not mean that OSHA is barred from creatingmedical removal protection?\u00a0 We see two plausible meanings.\u00a0 First, as courtshave already held, Section 4(b)(4) bars workers from asserting a private cause of actionagainst employers under OSHA standards.\u00a0 Jeter v. St. Regis Paper Co.,507 F.2d 973 (5th Cir. 1975); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323(4th Cir. 1974).\u00a0 Second, when a worker actually asserts a claim under workmen’scompensation law or some other state law, Section 4(b)(4) intends that neither the workernor the party against whom the claim is made can assert that any OSHA regulation or theOSH Act itself preempt any element of the state law.\u00a0 For example, where OSHAprotects a worker against a form of disablement not compensable under state law, theworker cannot obtain state relief for that disablement.\u00a0 Conversely, where state lawcovers a wider range of disablements than OSHA aims to prevent, an employer cannot escapeliability under state law for a disablement not covered by OSHA.\u00a0 In short, OSHAcannot legally preempt state compensation law, even if it practicallypreempts it in some situations.We conclude that though MRP may indeed have a great practical effect on workmen’scompensation claims, it leaves the state schemes wholly intact as a legal matter,and so does not violate Section 4(b)(4).\”\u00a0 (Emphasis in original).We agree with the Court’s determination and fail to see how Section 4(b)(4) of the Act,legally affects or supercedes Pennsylvania’s workmen’s compensation laws.\u00a0 The amountof compensation that Butler or any other employee could receive under Pennsylvania’sworkmen’s compensation law, is neither increased or decreased by the amount due theemployee under the medical removal protection benefits provision.\u00a0 This provisiondoes not alter, supercede or preempt the state’s law, and imposes no burden on the stateto award more or less than its laws require.\u00a0 Nor does it increase Respondent’sliability under state law.\u00a0 The affect of the medical removal protection benefitsprovision is on the employer’s liability under the OSH Act.\u00a0 It requires the employerto make up the difference between what is granted an employee under state law and what iscalculated to be due him under federal law (see, 29 CFR ?1910.1025(k)(2)(iv)).Respondent’s liability under both laws is no indication that Pennsylvania’s workmen’scompresentation law, per se, has been altered or superceded. \u00a0Respondent mistakenly equates its dual liability under federal and state law as asupersession of the state law by OSHA’s MRPB provision.In Point III B of its brief (pp 29-33),Respondent further contends that any interpretation of the medical removal protectionbenefits standards, requiring payment of shift differential and overtime pay to a removedworker, is impermissible, discriminatory, would reward workers for hours not worked andwould encourage others to become leaded in order to receive more pay for less work. \u00a0We have held that the medical removal benefits protection benefits standard is valid andproperly within the statutory authority of the Secretary of Labor. Section 1910.1025 (k)(2)(iv) defines medicalremoval protection benefits to mean that \”the employer shall maintain the earnings, .. . of an employee as though the employee had not been removed from normal exposure tolead or otherwise.\”\u00a0 The definition is clear on its face.\u00a0 The word\”earnings\” unqualified and unlimited means all earnings.\u00a0 An employeeremoved because of lead exposure is to continue to receive all the earnings he would havereceived if he had not been removed.\u00a0 The Secretary understood this when he explainedin the Preamble to the Lead Standard, that medical removal protection benefits:\”In most cases will simply mean the rate ofpay of a worker transferred to a low-lead-exposure job.\u00a0 The standard however, usesthe all-encompassing phrase ‘earnings, seniority and other employment rights and benefits’to assure that a removed worker suffers neither economic loss nor loss of employmentopportunities due to removal.\”(Exh. C(i)(a) p. 52976, Col. 1).Applying the standard and definition to this case, it means that Butler’s earnings are tocontinue and are to be maintained as if he still was employed as a Weighman.\u00a0 It doesnot mean that Butler is to receive more than he would have received if he was not removed.Butler is entitled only to the amount he would have earned if he continued working as aWeighman.\u00a0 This in turn must be tempered by reason and be achievable by means otherthan speculation. Respondent is mistaken in believing thatearnings mean only the worker’s pre-removal base rate of pay.\u00a0 \”Earnings\”is a broad concept and includes not only the base rate of pay but all other ascertainableearnings that could have been earned by a worker prior to his removal.The question here is not what\”earnings\” mean but how are they to be calculated so that Butler does notreceive more than he would have received if not removed.Butler could have been, carried on the company records as a Weighman for earningspurposes.\u00a0 His shift differential and scheduled overtime pay, could have beencalculated during the removal period, based on the four ‘shifts’, 20 weeks rotatingschedule.\u00a0 (Stip. ? 20).\u00a0 Deductions during that time could have been madeagainst the earnings amount for uncompensable time.\u00a0 (Stip. ? 27).Respondent states without further support (briefpp 34-35) that \”it would be extremely difficult to calculate the overtimeopportunities Simpson Butler would have.\”\u00a0 Therefore, the parties agreed to anartificial formula to calculate shift differential and scheduled overtime due Butler afterhe was removed.\u00a0 (Stip. ?’s 20(d), 30).Whatever method is used, Butler is entitled tothe shift differential and scheduled overtime earnings that would have accrued to him ifhe had not been removed.Voluntary overtime present a different and moredifficult problem.\u00a0 Voluntary work is not available on a regular basis, may differfrom the normal job duties of an employee, is offered only to qualified persons availableto perform it and depends on the subjective determination of the employee to accept it.\u00a0 The amount of available overtime declined subsequent to Butler’s removal and he wasnot routinely offered such work.\u00a0 The one offer made to him he declined to accept.\u00a0 During his sixteen weeks of work as a Weighman, Butler accepted 45 hours ofvoluntary overtime work (Stip. ?’s 23, 24, 25, 26).No set formula can properly determine whatvoluntary work would have been available, offered to and accepted by Butler if he had notbeen removed.\u00a0 Butler is not entitled to voluntary overtime pay during his removalperiod on any set formula.\u00a0 He is entitled only to voluntary overtime that wasavailable, offered to him and accepted by him during the removal period.In part C of Point III of the brief (pp 33-36,Respondent argues that it had no notice that \”earnings\” in Section 1910.1025(k)(2)(i) meant anything other than the base rate of pay since it does not mentionovertime or shift differential pay.\u00a0 The standard does not refer specifically toovertime or shift differential pay nor does it refer specifically to base rate of payment.\u00a0 It speaks of \”earnings\” which is an all-inclusive term and as indicatedpreviously, means all ascertainable earnings that a worker would have received if hecontinued to perform the same work that he performed before his removal.\u00a0 In Butler’scase, this meant his base rate of pay, shift differential and scheduled overtime pay butnot voluntary overtime.Voluntary overtime pay was excluded from earnings because of its speculative character andbecause it depended upon the worker’s subjective option to accept or decline it.\u00a0Nonetheless, the standard, and its definition gave ample notice to Respondent thatit meant not only the base rate of pay but all other ascertainable earnings.Respondent also contends (brief pp 36-37),assuming the validity and applicability of the standard, that a violation of the standardis de minimis because the failure to pay shift differential and overtime payhas no direct or immediate relationship to occupational safety and health.\u00a0 Thisargument has facial appeal because Butler was removed from exposure to lead pursuant toother lead standards prior to the violation of standard herein.\u00a0 Therefore, reasonsRespondent, any violation of the \”earnings\” benefit standard could not exposeButler to lead hazards and had no direct or immediate relationship to his health.Respondent misconstrues the purpose of thestandard and reads it in isolation.\u00a0 The Lead Standard consists of a comprehensiveset of regulations promulgated to protect and prevent employees in the lead industry frombeing overexposed to the hazards of lead. The sections of the Lead Standard interrelate tocarry out the purpose and intent of the Standard.The Lead Standard is only as strong as its component parts.\u00a0 If compliance with, andenforcement of any section is weakened, the Standard as a whole loses its optimum effect.\u00a0 It has been established, supra, (p. 23), that worker participation in theregulatory scheme is essential to its operation.\u00a0 To insure this participation,economic considerations which could cause an employee to thwart the objectives of theStandard were eliminated.No one can seriously question that the exposureof an employee to the hazards of lead could cause serious physical harm or death to theemployee.\u00a0 Any violation of any part of the Lead Standard which reduces or couldpossibly reduce the health protection intended by the Lead Standard, is serious because itcould increase the risk of overexposure to lead.Finally, Respondent argues (brief pp 37-44),that the Commission has no authority to order a \”back pay award\” because it isnot authorized to do so under the civil penalty sections of the Act (29 U.S.C. ? 666).\u00a0 Further, the Commission has no authority to order retroactive abatement.Respondent is correct in stating that theCommission is only authorized to assess civil penalties as prescribed in Section 17 of theAct (29 U.S.C. ? 666).\u00a0 Civil penalties are imposed upon an employer for violatingan occupational safety and health standard. Abatement is the means or methods an employermust employ to correct a violation of a standard.Abatement and civil penalty are not synonymous.\u00a0 They are entirely separate conceptsunder the Act.\u00a0 The issue in this case is not one for \”back pay\”, perse, but whether Respondent violated the Act and if it did what abatement isnecessary to correct the violation.Generally, abatement methods or means inoccupational safety and health cases involve the production, utilization or installation,prospectively, of protective devices, engineering controls, etc.\u00a0 They all involvethe expenditure of money by an employer to achieve the end result.\u00a0 The very natureof this type of abatement does not permit retroactive application.\u00a0 An employer, forexample, cannot install or utilize engineering controls retroactively to the date theviolation occurred, even if the evidence established that the violation was a continuingone.Shift differential and scheduled overtimepayments although different in nature from the usual forms of abatement, are neverthelessa method of abatement.\u00a0 This type of abatement lends itself to retroactiveapplication because of its nature (money payment) and because here the evidenceestablished that the violation was a continuing one.\u00a0 The violation occurred whenButler’s first weeks earnings were due after, his removal which was on or about July 17,1981.\u00a0 The citation was issued, approximately a month and a half later on September11, 1981, well within the limitation clause of the Act (Section 9(c), 29 U.S.C. ?658(c)).\u00a0 Although the type of abatement here is novel, it is well within thestatutory authority of the Commission.Based on the record and a consideration of thefactors set forth in Section 17(j) of the Act, the penalty of $60.00 proposed by theSecretary of Labor is reasonable and proper. FINDINGS OF FACTThe relevant and material facts have beenstipulated by the parties in their Joint Stipulation (Court Exh. A, supra, pp4-16).CONCLUSIONS OF LAW1.\u00a0 Section 1910.1025(k)(2)(i) of the Lead Standard is valid and within the statutoryauthority of the Secretary of Labor.2.\u00a0 Section 1910.1025(k)(2)(i) of the Lead Standard does not conflict with Section4(b)(4) of the Act.3.\u00a0 From September 11, 1981, and for approximately a month and a half prior thereto,Respondent was in violation of Section 5(a)(2) of the Act (29 U.S.C. ? 654(a)(2) forfailing to comply with 29 CFR ? 1910.1025(k)(2)(i).4.\u00a0 A \”back pay\” retroactive money payment is the proper method ofabatement to correct the violation herein.5.\u00a0 The violation of the standard byRespondent is serious. 6.\u00a0 A penalty of $60.00 is assessed for theviolation.ORDERDue deliberation having been had on the wholerecord, it is herebyORDERED that the citation for a violation of 29CFR ? 1910.1025(k)(2)(i) is affirmed, it is furtherORDERED that abatement of the violation is to bemade consistent with the Decision herein, it is furtherORDERED that the proposed penalty of $60.00, isaffirmed.JEROME C. DITORE JUDGE, OSHRCDated: February 14, 1983 New York, New YorkFOOTNOTES: [[1\/]] That standard provides:? 1910.1025 Lead* * *(k) Medical Removal Protection* * *(2) Medical removal protection benefits –(i) Provision of medical removal protection benefits.\u00a0 The employer shallprovide to an employee up to eighteen (18) months of medical removal protection benefitson each occasion that an employee is removed from exposure to lead or otherwise limitedpursuant to this section.(ii) Definition of medical removal protection benefits.\u00a0 For the purposes ofthis section, the requirement that an employer provide medical removal protection benefitsmeans that the employer shall maintain the earnings, seniority and other employment rightsand benefits of an employee as though the employee had not been removed from normalexposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employee whose blood lead level exceeds aspecified concentration be removed from a work area where the airborne lead concentrationis more than a certain amount.\u00a0 Since the expiration of the initial phase-in periodduring which higher concentrations were permitted, the standard has required that anemployee with a blood lead level at or above 50 ?g\/100g of whole blood be removed fromwork having a daily eight hour time-weighted-average exposure to airborne lead at or above30 ?g\/m3.\u00a0 29 C.F.R. ? 1910.1025(k)(1)(i).\u00a0 [This case, however, arose duringthe phase-in period.]\u00a0 The standard also requires removal if a \”final medicaldetermination\” establishes that an employee has a \”detected medical conditionwhich places the employee at increased risk of material impairment to health from exposureto lead.\”\u00a0 29 C.F.R. ? 1910.1025(k)(1)(ii)(A).[[3\/]] For that decision, this case wasconsolidated with Amax Lead Co. of Missouri, OSHRC Docket No. 80-1793, and SchuylkillMetals Corp., OSHRC Docket No. 81-0856.\u00a0 Because the cases no longer involve asingle common legal question, we hereby sever them pursuant to Commission Rule 10, 29C.F.R. ? 2200.10.[[4\/]] The administrative law judge who firstheard the case held that St. Joe was required to pay the employee for scheduled overtime,but not for voluntary overtime because the amount of voluntary overtime was toospeculative to calculate.\u00a0 The Fifth Circuit’s decision holds that the standardrequires payments for \”over-time,\” but the court did not expressly address thedistinction between scheduled and voluntary overtime.\u00a0 We interpret the court’sdecision as holding that the standard requires payments in this case for the scheduledovertime and shift differentials.\u00a0 We read the Fifth Circuit’s decision as leavingopen the voluntary overtime issue and we will discuss that issue later in this decision.[[5\/]] We must apply the Fifth Circuit’sinterpretation as the \”law of the case.\”\u00a0 See In re ProgressiveFarmers Ass’n, 829 F.2d 651, 655 (8th Cir. 1987), cert. denied sub nom. SouthCentral Enterprise v. Farrington, 108 S.Ct. 1574 (1988).\u00a0 In another decisionissued today, East Penn Manufacturing Co., OSHRC Docket No. 87-0537 (Apr. 27,1989), we have overruled the Commission’s decision in Amax and aligned the Commission’sinterpretation of the medical removal provision with that of the Fifth Circuit in UnitedSteelworkers of America v. Schuylkill Metals Corp.[[6\/]] Because she rejects the argument on itsmerits, Commissioner Arey finds it unnecessary to consider the arguments of the partiesdirected to the Commission’s authority to rule on validity challenges, the argument thatSt. Joe’s challenge is barred by collateral estoppel, and St. Joe’s contention that theSecretary untimely raised collateral estoppel issue.[[7\/]] As will be discussed later in thisopinion, the Secretary was also concerned that, if excessively high blood lead levelscould lead to loss of income, employees would resort to chelating drugs, which remove leadfrom the blood but have dangerous side effects.[[8\/]] \”United Steelworkers of Americav. Schuylkill Metals Corp., 828 F.2d at 320.[[9\/]] This Pratt & Whitney case is alater decision in the same Pratt & Whitney case on which St. Joe relies. \u00a0The second Pratt & Whitney decision was issued after St. Joe filed its reviewbrief.[[10\/]] United Steelworkers of America,AFL-CIO-CLC v. Marshall, 647 F.2d at 1237 & n.73.[[11\/]] Although we conclude that violations ofthe lead standard’s MRP provisions are serious, we do not agree with the judge’s broadstatement that \”[a]ny violation of any part of the Lead Standard which reduces orcould possibly reduce the health protection intended by the Lead Standard, is seriousbecause it could increase the risk of overexposure to lead.\”\u00a0 Presumably, allprovisions of the lead standard are intended to reduce the risk of lead exposure to someextent.\u00a0 However, for some provisions, the reduction in risk to employees may be solimited that a serious classification would not be justified.\u00a0 For example, 29 C.F.R.? 1910.1025(n) contains detailed recordkeeping requirements.\u00a0 Technical violationsof those requirements would not be serious violations.\u00a0 See RSR Corp.,83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1180, 1983-84 CCH OSHD ? 26,429, p. 33,558 (No.79-3813, 1983) (violation of section 1910.1025(n)(4)(ii) affirmed as other than serious).[[12]] 29 U.S.C. ? 659(b) provides that theabatement period for a violation \”shall not begin to run until the entry of a finalorder by the Commission in the case of any review proceedings under this section initiatedby the employer in good faith and not solely for delay or avoidance of penalties.\”[[13\/]] In RSR Corp. v. Donovan, 733 F 2d1142 (5th Cir. 1984), the court adverted to, but did not discuss or define, \”otherappropriate relief\” in the one instance in which the Commission has issued whatamounted to a retroactive pay order:\u00a0 the Commission ordered a remand of certaincases for a determination of the amount of medical removal protection benefits due theemployees.\u00a0 However, the Commission had not said that it was ordering \”otherappropriate relief;\” in fact, the Commission did not give any attention to whatauthority it had to issue such an order.\u00a0 RSR Corp., 83 OSAHRC 6\/A2, 11 BNAOSHC 1163, 1983-84 CCH OSHD ? 26,429 (No. 79-3813, 1983).\u00a0 The court’s reference tothat term has little application here since the court was addressing only whether theCommission’s decision was a final order from which the employer could appeal. \u00a0Despite the remand for determination of benefits due, the employer wanted court review ofthe foundational portions of the Commission decision — the Commission’s affirmance of theunderlying citations and penalties.\u00a0 The Secretary moved to dismiss the appeal on theground that the Commission’s decision was not final.\u00a0 On this the court replied,\”Only a crabbed reading of section 10(c) [29 U.S.C. ? 659 (c)] would forbid reviewof an order that affirmed in part and modified in part both citations and penalties simplybecause the issue of what other (and additional) relief is appropriate has been remandedfor determination.\”\u00a0 733 F.2d at 1144.\u00a0 The court denied the Secretary’sMotion to Dismiss.\u00a0 Whether the Commission had authority to order retroactive pay wasnot before the court, and the court gave the question no attention. \u00a0Accordingly,Chairman Buckley declines to assign to the court’s decision authority for the Commissionto make individual compensatory awards.[[14\/]] There is no question that St. Joecontested the citation in good faith, and thus satisfied the condition established insection 659(b) for tolling the abatement date.[[15\/]] When the Commission is divided on anissue resolved by the administrative law judge, they will normally agree to affirm thejudge’s action and accord it the precedential value of an unreviewed judge’s decision.\u00a0 St. Regis Paper Co., 84 OSAHRC 40\/D3, 11 BNA OSHC 2208, 2210-11, 1984-85 CCHOSHD ? 27,032, p. 34,805 (No. 77-1385, 1984).\u00a0 In this case, the judge concludedthat \”[a] ‘back pay’ retroactive money payment is the proper method of abatement tocorrect the violation herein,\” and he ordered that the violation be abated consistentwith his decision.\u00a0 For the reasons stated in the text, Chairman Buckley would notenter such an order.\u00a0 Commissioner Arey also would not uphold the judge’s orderbecause the order does not compensate the removed employee for voluntary overtime. \u00a0Therefore, neither member would adopt the backpay order issued by the judge.[[1]] Docket Nos. 80-1793 and 81-2267 havepreviously been consolidated by order of the Commission.\u00a0 Because Docket No. 81-0856involves questions of law and fact similar to those in the other two cases, we consolidateall three cases for decisional purposes.\u00a0 Commission Rule of Procedure 9, 29 C.F.R.? 2200.9.[[2]] The pre-1975 standard was derived from astandard issued by the American National Standards Institute.\u00a0 The Secretarypromulgated it under section 6(a) of the Act, 29 U.S.C. ? 655(a), which authorized theSecretary to adopt national consensus standards as OSHA standards withoutnotice-and-comment rulemaking proceedings within two years of the Act’s effective date.[[3]] In promulgating the new standard, theSecretary acted under section 6(b) of the Act, 29 U.S.C. ?655(b), which authorizes theSecretary to promulgate occupational safety and health standards followingnotice-and-comment rulemaking proceedings.[[4]] Due to feasibility constraints, certain ofthe standard’s provisions, including the permissible exposure limit, are phased in over aperiod of time.\u00a0 In our description of the provisions of the standard, we have forthe sake of clarity used those numerical values that are in effect after the standard isfully phased in.\u00a0 Certain of the values given were not in effect at the time thealleged violations in these cases occurred, but this is not significant for purposes ofthis decision.[[5]] The words \”high\” and\”low\” are, of course, relative.\u00a0 For purposes of this decision, we use themto distinguish between airborne lead concentrations from which employees with elevatedblood lead levels must be removed, and concentrations to which such employees maypermissibly be exposed.[[6]] The employees Schuylkill transferred didnot have blood lead levels sufficiently high to require their removal under the standard.\u00a0 They did, however, have blood lead levels higher than the plantwide average.\u00a0According to Schuylkill, the company measured the blood lead level of employees and,when a particular employee was found to have a level above average, the employee wasobserved closely to determine the cause of the increase.\u00a0 If it was found that theincrease was due to poor hygiene habits or failure to wear a respirator properly, theemployee was transferred from the production area to the change house for purposes ofdiscipline and retraining.The Secretary contends that Schuylkill wasrequired to pay MRP benefits even though the transferred employees did not have blood leadlevels high enough to require their removal.\u00a0 The Secretary points to subsection1910.1025(k)(2)(vii), which provides:Where an employer, although not required by this section to do so, removes an employeefrom exposure to lead or otherwise places limitations on an employee due to the effects oflead exposure on the employee’s medical condition, the employer shall provide medicalremoval protection benefits to the employee equal to that required by paragraph (k)(2)(i)of this section.The Secretary argues that the employeesSchuylkill transferred were transferred because they had rising blood lead levels, thatthe transfers were therefore a result of the effects of lead exposure on the employees’medical condition, and that this section therefore requires Schuylkill to pay MRP benefitsto the employees.\u00a0 Schuylkill argues that the transfers were for the purpose ofdiscipline and retraining, and not a result of the effects of lead exposure on theemployees’ medical condition.\u00a0 Schuylkill points to the testimony of its plantphysician that none of the employees had primary conditions associated with occupationallead exposure and none were at an increased risk to their health if they had continued intheir jobs.We find it unnecessary to resolve this dispute.\u00a0 Under our interpretation of thestandard, even assuming Schuylkill was required to pay MRP benefits, the payments it madeto the transferred employees were adequate to discharge that obligation.[[7]] The Mine Act was subsequently amended andredesignated the Federal Mine Safety and Health Act of 1977.\u00a0 Pub.L. 95-164, 91 Stat.1290 (Nov. 9, 1977).\u00a0 The amendments did not affect the Act’s MRP provision.[[8]] We also note that, if the Secretaryintended \”earnings\” to include premium payments, his statement that he did notinclude such a definition because it would be likely to confuse some employers isdifficult to credit.\u00a0 About a year after he adopted the lead standard, the Secretarypublished appendices that were intended to summarize key provisions of the standard foremployees.\u00a0 44 Fed. Reg. 60980 (Oct. 23, 1979).\u00a0 Section IX of Appendix Bdiscusses medical removal protection and states:\u00a0 \”Earnings includes more thanjust your base wage; it includes overtime, shift differentials, incentives, and othercompensation you would have earned if you had not been removed.\”\u00a0 Id. at60987.\u00a0 The Secretary’s ability to draft such a clear and concise definition for theinformation of employees suggests he could have also drafted a definition that would nothave confused employers if he indeed intended to include premium payments in\”earnings\” when he adopted the standard.\u00a0 Thus we conclude, from the factthat he did not do so when adopting the standard, that he did not intend\”earnings\” to include the premium payments to which he later referred in thissummarization for employees.\u00a0 We do not accord dispositive weight to thissummarization because it was not composed when the standard was promulgated and thus isnot a contemporaneous explanation and interpretation.\u00a0 L.E. Myers Co., 86OSAHRC__ 12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ? 27,476, p. 35,604 n.9 (No. 82-1137,1986).\u00a0 Moreover, it is inconsistent with the history of the standard we have cited.[[9]] Amax and St. Joe argue that the leadstandard is invalid and that promulgation of the MRP provision exceeds the Secretary’sauthority.\u00a0 The Secretary counters that the principle of collateral estoppelprecludes the employers from challenging the standard’s validity in this proceeding,pointing out that the D. C. Circuit in Steelworkers rejected the employers’validity arguments and arguing that Amax and St. Joe were either parties to Steelworkersor were in privity with parties to that case.\u00a0 Because of our disposition, we neednot reach either the validity arguments raised by the employers or the collateral estoppelargument made by the Secretary.[[*]] Reference key:\u00a0 Stip. – refers to Joint Stipulation of the Parties. ?\u00a0\u00a0\u00a0\u00a0\u00a0 – refers to paragraph of the Joint Stipulation.Exh. – refers to exhibits accompanying the Joint Stipulation.[[*]] It is interesting to note that the U.S. Supreme Court may have adhered to thisprinciple in striking down the cost benefit analysis provision of the Cotton Dust Standardbut did not in its consideration of a similar MRPB provision in that standard.\u00a0 101S.Ct. at 2491-2492 and 2504-2506.[[*]] Respondent also argues that the medicalremoval protection benefits provision does not encourage the implementation of engineeringcontrols (brief pp 22-24).\u00a0 We do not reach this argument since the provision isfound to be health related on other grounds.[[x]] These numerical citations reflect pagenumbers of the \”Attachments to the Preamble to the Final [lead] Standard\” whichis Exhibit C(i)(b) herein.”