“SECRETARY OF LABOR,Complainant,v.ST. JOE RESOURCES COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC, and its LOCAL UNION8183,Authorized EmployeeRepresentative.OSHRC DOCKET NO. 81-2267_ORDER_This case is before the Commission on remand from the United StatesCourt of Appeals for the Fifth Circuit, the second time this case hasbeen to the Court of Appeals. _United Steelworkers v. St. Joe ResourcesCo._, 916 F.2d 294 (5th Cir. 1990). The court has remanded the case forthe Commission to determine the amounts of back pay due St. JoeResources Company employees who, because they had elevated levels oflead in their blood, were transferred to other jobs with less exposureto lead, as required by the OSHA standard governing exposure to lead.The Secretary of Labor had cited St. Joe Resources Company for violatingthe occupational safety and health standard at 29 C.F.R. ?1910.1025(k)(2),[[1\/]] which requires that employees removed from theirpositions to lower-exposure jobs must maintain the earnings, rights andbenefits they received before they were transferred. In its firstopinion in this case, the Court of Appeals concluded that \”earnings\”included not only base pay but also such premium payments as paid lunchperiods, overtime pay, production bonuses, and shift differentials forscheduled night and evening work. _United Steelworkers v. SchuylkillMetals_, 828 F.2d 314, 320 (5th Cir. 1987). On remand, the two-memberReview Commission voted to vacate the order of the administrative lawjudge, but the commissioners split on the disposition of the case. Oneof the commissioners was of the opinion that the Review Commission couldorder the employer to pay back pay. The other held the opinion that,under the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678, the Review Commission had no such power.In its second decision in this case, the Court of Appeals has concludedthat the Review Commission does have the power to order back pay. Thecourt therefore remanded the case for the Commission to determine theamounts of back pay owed to the employees identified in the citationsissued to St. Joe Resources.We, in turn, remand this case for an administrative law judge to makethe necessary findings of fact and enter an order requiring payment ofback pay, as directed by the court. If it is necessary to do so, thejudge may reopen the record to take evidence on this question.Accordingly, this case is remanded to the Chief Administrative Law Judgefor assignment and for further proceedings consistent with this order.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: December 4, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.ST. JOE RESOURCES COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC, and its LOCAL UNION8183,Authorized EmployeeRepresentative.OSHRC DOCKET No. 81-2267_DECISION_Before: BUCKLEY, Chairman, and AREY, Commissioner.BY THE COMMISSION:This case involves the medical removal protection (\”MRP\”) provision ofthe OSHA standard regulating occupational exposure to lead. Thatprovision, 29 C.F.R. ? 1910.1025(k)(2),[[1\/]] requires employers to\”maintain the earnings, seniority, and other employment rights andbenefits\” of employees they remove from lead exposure because theemployees are at particular risk of suffering lead-relateddiseases.[[2\/]] The case is before the Commission for the second time.In the first decision, the commission concluded that St. Joe ResourcesCompany (\”St. Joe\”) did not violate the standard by failing to includeovertime compensation and shift differential payments in the amounts itpaid to an employee under the provision.[[3\/]] _Amax Lead Co. ofMissouri_, 12 BNA OSHC 1878, 1986-87 CCH OSHD ? 27,629 (No. 80-1793,1986). That decision was reversed by the Fifth Circuit, which said thatthe standard was \”intended to include within ‘earnings’ precisely thekind of premium payments at issue here.\” _United Steelworkers of Americav. Schuylkill Metals Corp._, 828 F.2d 314, 321 (5th Cir. 1987). Thecourt remanded \”for further proceedings attuned to this opinion\”. _Id._at 323.IOur first decision set forth the relevant facts, and we will onlybriefly summarize them here. An employee at St. Joe’s zinc smelter wasremoved from his position as \”weighman\” because of an elevated bloodlead level and was transferred to a position as laborer, a job that didnot expose him to excessive lead. During the removal period, he worked40 hours per week and was paid at the base hourly rate he would havereceived as a weighman. However, had he remained a weighman, theemployee would have worked a certain number of hours of overtime under aschedule incorporated in St. Joe’s collective bargaining agreement withthe United Steelworkers of America. The employee would also havereceived additional payments (\”shift differentials\”) for scheduledevening and night work. Also, while employed as a weighman, the employeehad been given the opportunity to work additional hours of overtimebeyond those scheduled, and during his 16 weeks in that position, he hadworked 45 hours of such voluntary overtime. Thus, the employee’s weeklypay during the removal period was less than he would have received if hehad remained a weighman.The Fifth Circuit held that the lead standard’s medical removalprotection provision requires an employer to assure that a removedemployee does not suffer economic loss. Under that interpretation, St.Joe was required to pay its employee at least the scheduled overtimecompensation and shift differential payments he would have earned if notremoved.[[4\/]] Accordingly, St. Joe failed to comply with thestandard.[[5\/]]IISt. Joe argues that the medical removal protection provision of the leadstandard was invalidly promulgated because the Secretary of Labor lackedthe authority to adopt such a requirement. The Commission members bothreject St. Joe’s argument, but for different reasons.Chairman Buckley believes that Commission consideration of the argumentis foreclosed by the Fifth Circuit’s remand order. The argument raisedby St. Joe was considered and rejected by the D.C. Circuit in apre-enforcement challenge to the standard. _United Steelworkers ofAmerica, AFL-CIO-CLC v. Marshall_, 647 F.2d 1189, 1230 (D.C. Cir. 1980),_cert_. _denied_, 453 U.S. 913 (1981). In remanding the case. to us, theFifth Circuit noted that its sister circuit had upheld the standard’svalidity and said:The lead standard has been challenged by the industry in litigation fromits inception. The courts, however, have not proved a receptive audiencefor the industry’s well-orchestrated complaints. The present movement inthis seemingly never ending symphony is but a minor variation on theprior themes. Thus, unlike a listener to Haydn, the industry shouldhardly be surprised at the outcome.This symphony of lead litigation should not remain forever unfinished.The industry’s arguments — in large measure resting on the policiesunderlying the lead standard-likely will continue to strike a discordantnote in the courts. The industry must either accept legislative andregulatory atonality, or, if too painful for the ears (and pocketbooks)attempt to return the score to the composers of the lead policy forreorchestration.828 F.2d at 315-16. In Chairman Buckley’s view, this languagedemonstrates that the Fifth Circuit considered the validity of thestandard to be an established fact, at least for purposes of this case.Chairman Buckley therefore concludes that the court’s remand orderprecludes the Commission from ruling on the validity argument raised bySt. Joe.Commissioner Arey does not believe that the Fifth Circuit’s decisionprecludes consideration of the issue. She notes that the validityargument was not raised before the court, and believes that the court’sdecision cannot be considered a definitive ruling on an issue it did notexplicitly consider. Commissioner Arey would therefore consider St.Joe’s validity argument, and would reject it on its merits.[[6\/]]St. Joe’s argument contains several prongs. The company first arguesthat the Act only authorizes the Secretary to issue standards to protectemployee safety and health, and the MRP provision does not meet thiscriterion because it \”does not prevent employee illnesses or biologicalchanges in their bodies resulting from exposure to inorganic lead.\”Instead, St. Joe contends, the MRP provision is like a workers’compensation scheme, requiring payments for biological changes toworkers’ bodies that have already occurred.It is true that the Secretary only has the authority to issue standardsthat promote workplace safety and health. _American TextileManufacturers Institute v. Donovan_, 452 U.S. 490, 540 101 S.Ct. 2478,2506 (1981). In Commissioner Arey’s view, however, it is abundantlyclear that the medical removal protection provisions of the leadstandard, including the requirement for the payment of medical removalprotection benefits, fulfill this purpose. The standard limits theamount of lead employees inhale and ingest by establishing a permissibleexposure limit for airborne lead and through other provisions thatprevent exposure to lead. However, during the rulemaking proceedings,the Secretary found that some employees would still have excessive bloodlead levels even if those limits were met. 43 Fed. Reg. 52952, 52963(Nov. 14, 1978). The Secretary was concerned that these employees, aswell as employees who had medical conditions that would be aggravated byexposure to lead, would have their health endangered if they remained injobs where they would be exposed to significant amounts of lead.Therefore, the Secretary adopted the MRP provision, requiring that suchemployees be removed from jobs involving high levels of lead exposure,as a \”fall-back mechanism to protect individual workers in circumstanceswhere other protective mechanisms were insufficient.\” 43 Fed. Reg. at 52973.In order to determine whether an employee’s health would be endangeredby continued exposure to lead, it is necessary to measure the employee’sblood lead level and to rely on the employee to disclose other medicalconditions that could lead to medical removal. However, the Secretaryfound that employees faced with the potential loss of their income ifthey cooperate with medical surveillance will often withhold suchcooperation, thereby sacrificing their health for their paycheck.[[7\/]]43 Fed. Reg. 54354, 54422 (Nov 21, 1978). The requirement for payment ofMRP benefits was therefore included in the standard to eliminate thelikelihood that employees would endanger their physical health to assuretheir economic health. _See_ _East Penn Manufacturing Co._, OSHRC DocketNo. 87-537 (Apr. 27, 1989) (Arey, concurring).Commissioner Arey believes that the Secretary’s rulemaking findings,based as they were on an extensive rulemaking record, are entitled todeference. Id. at n. 5. Moreover, she notes that those findings aresupported by common sense. The vast majority of employees, particularlythose in the types of industrial jobs that involve exposure to lead, canill afford to be removed from their jobs if this will result in theloss, or even a decrease, in their paychecks. Commissioner Areytherefore concludes that the requirement for payment of MRP benefits isdirectly related to the protection of employee health, and she rejectsSt. Joe’s contrary argument.St. Joe also contends that Congress specifically intended to withholdfrom the Secretary the authority to require employers to pay MRPbenefits. The company’s arguments in support of this claim are the samearguments that were specifically considered and rejected by the D.C.Circuit, and Commissioner Arey would reject these arguments for thereasons given by the court. _United Steelworkers of America v.Marshall_, 647 F.2d at 1232-36.IIISt. Joe also argues that the citation should be vacated because theSecretary did not show that abatement of the violation will reduce asignificant risk of harm. St. Joe points out that the purpose of themedical removal protection provision is to induce employees to cooperatewith the lead standard’s medical surveillance provisions, andparticularly to consent to blood testing.[[8\/]] St. Joe, however,_required_ its employees to undergo medical surveillance. Failure tocooperate with medical surveillance would subject an employee todiscipline, up to and including discharge. Therefore, according to thecompany, the standard’s purpose was achieved in its workplace, and therewas no significant risk that the health of its employees would beendangered by its failure to pay MRP benefits. St. Joe relies on _Pratt& Whitney Aircraft v. Secretary of Labor_, 649 F.2d 96 (2d Cir. 1981),for the proposition that the Secretary must \”demonstrate that abatementwill reduce a significant risk of harm.\”To prove that an employer violated an OSHA standard, the Secretary mustestablish (1) the applicability of the standard; (2) the employer’snoncompliance with the standard; (3) employee exposure or access to theviolative condition; and (4) that the employer knew or with reasonablediligence could have known of the violative condition. _See_ _Dun-ParEngineered Form Co._, 12 BNA OSHC 1949, 1952, 1986-87 CCH OSHD ? 27,650at p. 36,019 (No. 79-2553, 1986), _rev’d on other grounds_, 843 F.2d1135 (8th Cir. 1988). St. Joe argues that the Secretary should bear anadditional burden by being required to prove that the violation createsa significant risk of harm to employees. While that burden exists insome cases, this is not such a case.Some OSHA standards, by their terms, only require an employer to takecorrective action where a \”hazard\” or \”danger\” exists. For suchstandards, the Secretary must show that employees are subjected to asignificant risk of harm in order to prove that a hazard exists. _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). However, a standard that does not conditionthe employer’s obligation to take corrective action on the existence ofa hazard presumes that a hazard exists if the standard’s terms are notmet. The Secretary need not prove that an employer’s violation of such astandard exposes employees to a significant risk of harm. Modern DropForge Co. v. Secretary of Labor, 683 F.2d 1105, 1114-15 (7th Cir. 1982);_Bunge Corp. v. Secretary of Labor_, 638 F.2d 831, 834 (5th Cir. 1981)._Cf_. _Pratt & Whitney Aircraft v. Donovan_, 715 F.2d at 63-64(discussing distinction between standards that presume the existence ofa hazard and those that do not).The medical removal protection provision does not condition anemployer’s responsibility to pay MRP benefits on proof that employeeswill be subjected to a hazard if the payments are not made. TheSecretary therefore need not prove that the employer’s failure to makeMRP payments exposes employees to a significant risk of harm. TheSecretary met her burden of proof, and we conclude that St. Joe violatedthe standard.St. Joe also argues that its policy of requiring employees to cooperatewith medical surveillance, by eliminating the hazard against which thestandard is directed, renders the violation _de_ _minimis_. A violationis _de_ _minimis_ when there is technical noncompliance with a standard,but the departure bears such a negligible relationship to employeesafety or health as to render inappropriate the assessment of a penaltyor the entry of an abatement order. _Cleveland Consolidated, Inc._, 13BNA OSHC 1114, 1118, 1986-87 CCH OSHD ? 27,829, p. 36,429 (No. 84-696,1987). St. Joe argues that the step it has taken to assure employeecooperation with medical surveillance–mandating such cooperation underthreat of discipline–is as effective as the means required by thestandard: payment of MRP benefits. Therefore, according to the company,it has eliminated the hazard addressed by the standard, and its failureto pay full MRP benefits bears no relationship to employee safety or health.St. Joe’s argument must be rejected because it questions the wisdom ofthe standard. In promulgating the lead standard, the Secretary rejectedthe suggestion that the standard should require that employees cooperatewith medical surveillance. Instead, the Secretary chose to encouragesuch cooperation by providing for medical removal protection benefits.The _de_ _minimis_ classification cannot be used to override theSecretary’s rulemaking decision. _General Carbon Co. v. OSHRC_, 860 F.2d479, 487 (D.C. Cir. 1988). Therefore, even if we were persuaded that St.Joe’s substitute for MRP benefits would be equally effective inproviding a safe and healthful workplace, we would not find theviolation _de_ _minimis_.We note, however, that there is another flaw in St. Joe’s argument. St.Joe assumes that mandating employee cooperation with the standard’smedical surveillance provisions will fully accomplish the objective ofthe medical removal protection provision. However, the Secretary had anadditional concern when he adopted the MRP standard. Certain types ofdrugs, called chelating drugs, remove lead from the bloodstream but haveharmful side effects. The Secretary was concerned that mandatory bloodtests would induce employees to resort to chelating drugs to reducetheir blood lead levels if high blood lead levels could lead to loss ofincome, thereby exposing the employees to the adverse health effects thedrugs can cause.[[10\/]] The requirement that employers pay medicalremoval protection benefits was not only intended to induce employeecooperation with medical surveillance, but also to eliminate any reasonfor employees to use chelating drugs to reduce their blood lead levels.An employer policy mandating employee cooperation with medicalsurveillance might induce employees to endanger their health by usingchelating drugs and would therefore not protect employee health as wellas the payment of MRP benefits.IVThe administrative law judge found that the violation was properlyclassified as serious. We agree. The serious health hazard presented bymetallic lead is well established. The MRP benefits provision attacksthis hazard by removing barriers to complete employee cooperation withmedical surveillance. It seeks to protect the employees who face thegravest risk of serious lead-related disease: those who have high bloodlead levels and those who have other medical conditions that would placethem at particular risk should they continue to be exposed to lead inthe workplace. The standard also seeks to protect employees byeliminating the possibility that they will use chelating drugs to reducetheir blood lead levels and thereby expose themselves to the serioushealth risks such drugs can cause.A violation that could result in serious damage to the health ofemployees is properly classified as serious. _Phelps Dodge Corp._, 83OSAHRC 29\/A2, 11 BNA OSHC 1441, 1448-49, 1983 CCH OSHD ? 26,552, p.33,925 (No. 80-3203, 1983), _aff’d_, 725 F.2d 1237 (9th Cir. 1984). TheMRP standard is designed to protect particularly susceptible employeesagainst the serious health risk presented by workplace lead exposure, aswell as avoid serious health risks from the use of chelating drugs.Since the potential for serious harm exists whenever the MRP standard isviolated, we conclude that St. Joe’s violation of the standard wasserious.[[11\/]]The Secretary proposed, and the judge assessed, a penalty of $60.Although the violation was serious, St. Joe exhibited good faith inimplementing a medical surveillance program and in making those MRPbenefit payments it believed were due under its reasonable but erroneousinterpretation of the standard’s requirements. We conclude that apenalty of $60 is appropriate.VNormally, an order affirming a citation and establishing a penaltyassessment would be sufficient to dispose of the case. However, there isone additional contention that we must address. The Secretary and theUnion argue that the Commission should issue an order requiring St. Joeto pay the removed employee the specific amounts that were due him butnot paid. St. Joe contends that the Commission lacks the authority toissue such an order. St. Joe also argues that 29 U.S.C. ? 659(b) [[12\/]]tolls any requirement for abatement while a contest is pending beforethe Commission, and that this provision means that any duty it has topay overtime compensation and shift differential payments under the MRPstandard cannot apply retroactively to require it to make the paymentswithheld in this case.The Commission members are divided on the propriety of such an order.While Chairman Buckley is of the view that the employees who failed toreceive full \”earnings\”, as that term has been interpreted by the FifthCircuit, are entitled to be paid retroactively for the period of timethat they failed to receive full earnings, he is also of the view thatthe Review Commission is without authority to make individualcompensatory awards to those employees. Under the Occupational Safetyand Health Act (29 U.S.C. 651 et seq.), the Secretary is authorized toissue citations to employers alleged to have violated the Act or anystandard, rule or regulation promulgated pursuant to the Act. Thecitation is required to specify the violation with particularity, and toprescribe a reasonable time for abatement. The Secretary must alsonotify the employer of any penalty proposed to be assessed. That Actalso created the Occupational Safety and Health Review Commission andauthorized it to hear cases brought before it involving safety andhealth violations, and to affirm, modify, or vacate the Secretary’scitation or proposed penalty, or to direct \”other appropriate relief\”.29 U.S.C. ? 659(c). The determination of the amount of pay to be awardedto an employee, and an order providing for individual compensatoryrelief to an employee, is clearly not the assessment of a civil penalty(which would be paid into the Treasury of the United States) . Nor is itan \”abatement\” as used in the Act, which he would define as thoseactions required to terminate the violative condition. In this case, thefailure to pay full \”earnings\” would be abated by the commencement topay them. Nor does the awarding of individual compensatory relief toindividual workers retroactively for earnings which they failed toreceive constitute \”other appropriate relief\”.[[13\/]] The ordering ofback pay is not necessary as an abatement measure to the termination ofthe violative condition. In Chairman Buckley’s opinion, the Commissionis without authority to make individual compensatory awards unlessexpressly so authorized by Congress (as Congress has done, for example,in the case of awards of attorney’s fees and costs under the EqualAccess to Justice Act).Chairman Buckley emphasizes that the Commission’s lack of authority toissue backpay orders to compensate employees who failed to receive fullearnings does not leave the employees without a remedy. If the employersfail to compensate them fully and retroactively, there are forumsauthorized to resolve such disputes. Chairman Buckley’s views on theCommission’s lack of authority to issue awards of back pay should not beread as accepting St. Joe’s argument that employees are not entitled toretroactive pay, only that the Commission is not the forum to award suchpay. He agrees with Commissioner Arey that employees removed under themedical removal protection standard are entitled to continue to receivethe full amount of remuneration that they were receiving before removal,whether that be contractual or voluntary overtime pay, paid lunch time,or other pay differentials. He stops short of agreeing to consider whatthose amounts are as to each individual employee, or whether they alsoare entitled to interest on the unpaid earnings.Commissioner Arey would issue an order requiring St. Joe to pay theamounts it improperly withheld under the terms of the medical removalprotection standard. She believes that the Commission has the authorityto issue this type of order and that such an order is appropriate inthis case to resolve the disputed issues between the parties concerningwhat St. Joe must do to abate the violation. St. Joe argues that it neednot pay past-due amounts; the Secretary and the Union argue otherwise.The parties also dispute whether St. Joe is required to make paymentsfor voluntary overtime, in addition to the payment for scheduledovertime and shift differential payments. Commissioner Arey believesthat the Commission, which sits to resolve disputes that arise under theSecretary’s standards, can and should decide the issues presented by theparties. If those issues remain unresolved, the uncertainty 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 theamounts the Secretary believes are due. Commissioner Arey believes itwould be preferable to define St. Joe’s obligation now and eliminate theneed for a potential failure-to-abate proceeding.Commissioner Arey would reject St. Joe’s argument that 29 U.S.C. ?659(b) relieves it of responsibility for paying past-due amounts.Section 659(b) provides that the abatement period does not begin to runin this case until the Commission enters a final order.[[14\/]] St. Joecontends that the meaning of this statutory provision is that it is onlyrequired to make MRP benefit payments for medical removals that occurafter the date of the Commission’s final order. However, the Secretaryand the Union argue that the tolling provision controls only the_timing_ of abatement, not the _requirement_ of abatement, and thatabatement of the violation requires St. Joe to pay the amounts itwithheld from the employee whose removal led to this case.Commissioner Arey believes that the Secretary and the Union are correct.The specific violation alleged and proved in this case was St. Joe’sfailure to make MRP benefit payments to a single employee, SimpsonButler, during the period of his medical removal. Butler was removedfrom his old job as a weighman on or about July 17, 1981, and he wasstill in removal status when the citation was issued on September 11,1981. That citation ordered St. Joe to abate the violation on or beforeSeptember 29, 1981, that is, eighteen days after the citation’sissuance. In commissioner Arey’s view, the abatement required under thecitation was, and is, payment to Butler of the benefits that wereimproperly withheld from him for the work he would have performed as aweighman between July 17 and September 11, 1981, if he had not beenmedically removed from that position. Only by making these specificpayments can St. Joe abate the violation that has been alleged andproved in this case. The effect of section 659(b) and St. Joe’s noticeof contest has been to toll this abatement requirement during thependency of proceedings before the Commission and its judge. Once theCommission issues its final order, however, St. Joe’s duty to abate willbe reinstated. This means that St. Joe will then have the same periodspecified in the citation (eighteen days) to abate the violation bycompensating Butler for the MRP benefits it improperly withheld from himfor the work he would have performed between July 17 and September 11, 1981.Abatement of occupational safety and health violations can require theexpenditure of considerable resources by employers. The tollingprovision in section 659(b) permits employers to obtain a Commissionruling on whether such expenditures are in fact required by the Actbefore the employers must make them. But section 659(b) does not meanthat an employer can avoid entirely the need to make expendituresrequired by a standard. Commissioner Arey therefore concludes that, oncethe Commission issues a final order, St. Joe must pay the amounts itimproperly withheld.Commissioner Arey would also hold that St. Joe is not only required topay the removed employee for improperly withheld scheduled overtime andshift differential payments, as found by the administrative law Judge,but is also required to compensate him for improperly withheld voluntaryovertime payments. In her view, the standard generally requires theemployer to pay a removed employee the same total amount after removalas before or, in other words, to make the employee whole. _East PennManufacturing Co._, OSHRC Docket No. 87-537 (Apr. 27, 1989) (concurringopinion). Although St. Joe’s employee had the right to refuse voluntaryovertime, he had a history of accepting it. Based on this past historyand records of the amount of voluntary overtime that was availableduring the period of his medical removal, the Commission could make areasonably reliable estimate of the amount of voluntary overtime Butlerwould have earned if he had not been removed. Accordingly, the judgeerred in failing to compensate the employee for improperly withheldvoluntary overtime payments based on his conclusion that these paymentswere too speculative to be included in his backpay order.Official action can only be taken on the affirmative vote of at leasttwo Commission members. 29 U.S.C. ? 661(f). The Commission members bothagree to affirm the serious citation and assess a penalty of $60. Theyare divided on the propriety of a \”backpay\” order, and therefore cannotissue such an order.[[15\/]]Accordingly, the citation alleging a serious violation of 29 C.F.R. ?1910.1025(k)(2) is affirmed. A penalty of $60 is assessed.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: April 27, 1989 SECRETARY OF LABOR,Complainant,v.AMAX LEAD COMPANY OF MISSOURI,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 7447-J,Authorized EmployeeRepresentative.OSHRC Docket No. 80-1793SECRETARY OF LABOR,Complainant,v.SCHUYLKILL METALS CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 8394,Authorized EmployeeRepresentative.OSHRC Docket No. 81-0856SECRETARY OF LABOR,Complainant,v.ST. JOE RESOURCES COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO and LOCAL 8183,Authorized EmployeeRepresentative.OSHRC Docket No. 81-2267_DECISION_BEFORE: BUCKLEY, Chairman, RADER and WALL, Commissioners.BUCKLEY, Chairman:These consolidated cases[[1]] are before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). The Commission is an adjudicatory agency, independent of theDepartment of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”). It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions. _See_ section 10(c) of the Act, 29U.S.C. ? 659(c).These cases involve the interpretation of the medical removal protectionbenefits (\”MRP benefits\”) provision of the standard at 29 C.F.R. ?1910.1025, which regulates occupational exposure to lead. The leadstandard primarily seeks to protect workers from the adverse effects oflead on their health by limiting the amount of lead they inhale andingest. The MRP provision is a \”backup\” requirement that is intended toprotect employees who are not adequately protected by the otherprovisions of the standard. If an employee’s blood lead level exceedscertain limits or if the employee would otherwise experience certainrisks to his health from continued lead exposure, the standard requiresthe employer to remove the employee from excessive lead exposure. For anemployee transferred under this requirement, the MRP benefits provisionrequires the employer to \”maintain the earnings, seniority and otheremployment rights and benefits of an employee as though the employee hadnot been removed . . . . \” 29 C.F.R. ? 1910.1025(k)(2)(ii). In thesecases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, andSt. Joe Resources Company transferred certain employees who had elevatedblood lead levels from jobs with high lead exposures to positionsoutside high lead areas. The employers paid the transferred employeestheir regular wage rate for the 40-hour weeks the employees workedduring the periods of transfer. The Secretary of Labor alleges that theemployers violated the MRP benefits provision by not paying thetransferred employees for potential overtime, production bonuses, shiftdifferentials, and paid lunch periods that were incidents of the jobsthey held before their transfers but not of the jobs to which they weretransferred. We conclude that the employers complied with the standardby paying the employees their regular wage rate for a 40-hour week, andwe therefore vacate the citations.IIt has long been known that lead is highly toxic to humans. Lead that isinhaled or ingested enters a person’s bloodstream, where it is carriedto the various organs throughout the body. In excessive amounts, leadcan damage vital organs, notably the kidneys, the reproductive system,and the central nervous system.Before 1975, an OSHA standard limited the amount of airborne lead towhich an employee could be exposed to 200 micrograms per cubic meter ofair (\”?g\/m^3 \”) averaged over an 8-hour day.[[2]] In 1975, the Secretaryof Labor, believing the existing standard was not sufficientlyprotective, proposed a new standard that would both lower thepermissible exposure limit and adopt a number of other provisionsintended to protect lead-exposed employees. 40 Fed. Reg. 45934 (Oct. 3,1975). Following lengthy rulemaking proceedings, the Secretarypromulgated the standard here at issue. 43 Fed. Reg. 52952 (Nov. 14,1978).[[3]]Because lead reaches vital organs through the bloodstream, much of theSecretary’s rulemaking effort focused on controlling the amount of leadin workers’ blood. The secretary first attempted to determine themaximum concentration of lead in the blood that would not producematerial impairment of workers’ health. He found that serious leadpoisoning occurs at blood lead levels of 80 micrograms per 100 grams ofblood (\”?g\/100g\”), 43 Fed. Reg. at 52954, but that other adverse healtheffects occur at lower blood lead levels. These levels were referred toin the rulemaking proceedings as \”subclinical effects,\” and can bedefined as \”physiological changes which can be detected by sophisticatedlaboratory tests, but not by either ordinary clinical examination or bythe patient himself, which may be irreversible, and which likely bear acausal relationship with overt lead disease.\” _United Steelworkers ofAmerica, AFL- CIO v. Marshall_, 647 F.2d 1189, 1249 (D.C. Cir. 1980),_cert_. _denied_, 453 U.S. 913 (1981) (\”_Steelworkers_\”). The Secretaryfound that these subclinical effects become significant at blood leadlevels of 40 ug\/100g and higher. 43 Fed. Reg. at 52954-60. Finding thatthe presence of subclinical effects constituted material impairment ofhealth, the Secretary established the objective of maintaining the bloodlead levels of lead-exposed workers at no higher than 40 ug\/100g. _Id_.The Secretary also found, however, that a blood lead level at or below40 ug\/100g for all workers could not be feasibly achieved. Becausepeople differ in the manner in which they absorb lead, at any particularlevel of airborne lead a group of workers will exhibit a range of bloodlead levels. The Secretary found that the lowest airborne level themajor lead-based industries could feasibly achieve was 50 ?g\/m^3 and hetherefore established that level as the permissible exposure limit forairborne lead.[[4]] 43 Fed. Reg. at 52963. He also found thatapproximately 30% of workers would have blood lead levels over 40ug\/100g when uniform compliance with the 50 ?g\/m^3 permissible exposurelimit was achieved. _Id_.In order to protect the health of employees who would not be adequatelyprotected by the permissible exposure limit, the standard requiresemployers to establish programs of medical surveillance. 29 C.F.R. ?1910.1025(j). The key to medical surveillance is blood testing, whichthe employer must offer to all employees exposed to an \”action level\” of30 ?g\/m^3 for 30 or more days per year. Subsections 1910.1025(j)(1) and(2). If an employee is found to have a blood lead level exceeding acertain amount–50 ug\/100g when the standard becomes fullyeffective–the medical removal protection provisions of the standardcome into play. Subsection 1910.1025(k). The employer must remove theemployee from exposure to lead above the action level until twoconsecutive blood tests show that the employee’s blood lead level hasreturned to no more than 40 ug\/100g. Subsections 1910.1025(k)(1)(i) and(iii). An employee must also be removed from exposure to lead above theaction level without regard to his blood lead level if it is determinedthat \”the employee has a detected medical condition which places theemployee at increased risk of material impairment to health fromexposure to lead.\” Subsection 1910.1025 (k)(1)(ii). Such an employee canbe returned to his previous position if it is found that his medicalcondition has changed such that exposure to lead no longer places him atincreased risk of material health impairment. Subsection 1910.1025(k)(1)(iii)(A)(4).If an employee is removed from exposure to excessive lead due to anelevated blood lead level or other medical condition, the employer mustpay the employee MRP benefits. Subsection 1910.1025 (k)(2)(ii) provides:For the purposes of this section, the requirement that an employerprovide medical removal protection benefits means that the employershall maintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.The employer is required to provide MRP benefits, i.e., \”maintain theearnings, seniority and other employment rights and benefits of anemployee.\” for up to 18 months on each occasion an employee is removedfrom excessive lead exposure. Subsection 1910.1925(k)(2)(i). TheSecretary included this requirement in the standard in order to induceemployees to cooperate with medical surveillance. He was concerned thatemployees, faced with the possible loss of their income if medicalsurveillance showed they should be removed from lead exposure, wouldrefuse to cooperate with the standard’s medical surveillance provisionsand thereby risk endangering their health. Thus, \”MRP was included inthe final standard as a means of maximizing meaningful participation inmedical surveillance provided to lead-exposed workers.\” 43 Fed. Reg. at52973.II.A. _Amax-Lead Company, Docket No. 80-1793_Amax operated a primary lead smelter in Missouri. In late 1979 and early1980, the company transferred six employees from areas of high leadexposure to low exposure areas[[5]] due to their elevated blood leadlevels. After about three months, the blood lead levels of theseemployees returned to acceptable levels. Four of the employees returnedto their previous jobs while two bid for and won other jobs in the facility.Before their transfers, the six employees worked in positions that hadto be filled during the plant’s entire 24-hour workday. For such jobs,the day was divided into three 8-hour shifts. Each employee was paid fora full 8 hours but was allowed a half-hour for lunch. The six employeeswere transferred to the mine\/mill unit, which did not operate during theentire 24 hour day. Workers in this unit therefore worked 8 1\/2 hourshifts, getting paid for 8 hours but not for their half-hour lunch break.The transferred employees were paid for their 40-hour work week at theirregular base rate of pay. In their regular jobs, they would also havehad the opportunity to work overtime. The collective bargainingagreement between Amax and the United Steelworkers of America providedthat overtime would be distributed \”as equitably as practical\” amongemployees in each job classification. Available overtime was offered toemployees in order of seniority. They could either accept or refuse whentheir turn came. The company kept and posted records showing for eachemployee 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 offersof overtime work. Thus, for each of the six transferred employees, thecompany had records showing the amount of overtime they \”refused\” duringtheir transfers.B. _Schuylkill Metals Corporation, Docket No. 81-0856_Schuylkill operated a secondary lead smelter in Louisiana. The plant’sproduction department had a high airborne lead concentration, while thechange house had a low lead concentration. Employees in the change houseperformed janitorial duties such as washing work clothes and repairingrespirators.Under the normal work schedule in the production department, employeesworked six 40-hour weeks and two 48-hour weeks in any 8-week period.They thus averaged two hours of overtime per week. Production departmentemployees were also eligible to receive production incentive bonuses,which were based on the daily amount of production in excess of acertain base amount. Production incentive bonuses varied among theworkers on a shift based on performance criteria unique to theindividual. In the change house, employees worked a 40-hour week. Theydid not work overtime and were not eligible for production incentivebonuses.Between January 1, 1980 and December 4, 1981, Schuylkill temporarilytransferred a number of employees from the production department to thechange house. [[6]] While in the change house the employees were paid atthe hourly wage rate they had earned in the production department. Theydid not, however, receive either overtime pay or production incentivebonuses.C. _St. Joe Resources Company, Docket No. 81-2267_St. Joe operated a zinc smelter in Pennsylvania. In 1981, the companytransferred one employee—Simpson Butler–pursuant to the MRP provisionof the lead standard. Butler had been hired in 1980 as a laborer, aposition that did not involve excessive lead exposure. On April 2, 1981,he was awarded the position of \”weighman\” but, on July 17, 1981, he wasreturned to the Iaborer position due to an elevated blood load level.The plant operated 24 hours per day, seven days per week, and theweighman job had to be covered at all times. To accomplish this, theweighmen were divided into four shifts that worked 20-week rotatingschedules. Each shift included various amounts of night, weekend, andovertime work, but the actual schedule would vary during the 20-weekrotation.St. Joe’s collective bargaining agreement provided that weighmen wouldreceive 1.5 times their base rate for scheduled Sunday and sixth daywork (\”scheduled overtime\”). The agreement further provided for extrahourly pay (\”shift differentials\”) for scheduled evening and night work.A weighman who worked all of his scheduled time during a 20-weekrotation would thus receive a total amount of compensation, includingscheduled overtime and shift differentials, that would exceed theemployee’s base rate of pay multiplied by the number of hours actuallyworked. However, each employee’s pay during any particular two-week payperiod 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 to work voluntary overtime.The amount of such overtime available varied with the needs of theplant. Employees signed up if they were interested in voluntary overtimeand would be offered such overtime as the plant’s needs and their skillsallowed. Voluntary overtime did not necessarily involve the employee’sregular duties. During his 16 weeks as a weighman, Butler worked all ofhis regular shifts and also worked 45 hours of voluntary overtime.When Butler was transferred, he was assigned duties as a laborer for an8 hour per day, 40 hour per week shift. As a laborer, Butler was paidthe base rate he received as a weighman, but he worked no scheduledovertime or night shifts and received no overtime pay or shiftdifferentials. He refused the one offer of voluntary overtime he received.IIIThe MRP benefits provision requires that employers maintain the\”earnings, seniority and other employment rights and benefits of anemployee\” who is transferred under the standard’s MRP provisions. Thequestion presented by these cases is what an employer must pay atransferred employee in order to maintain that employee’s \”earnings.\”The employers contend that they need only pay an employee who works anormal 40-hour week after being transferred his regular hourly rate ofpay for those 40 hours, while the Secretary and unions claim theprovision requires the employer to also pay additional amounts theemployee could have earned if he had not been transferred. In theirview, Amax, Schuylkill, and St. Joe violated the standard by not payingtheir transferred employees for potential overtime, shift differentials,production incentives, and paid lunch periods (collectively, \”premiumpayments\”) they would have received but for the transfers.In interpreting a standard, the Commission employs the same rules ofconstruction that are used to discern the meaning of statutes. BungeCorp., 86 OSAHRC,12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHD ? 27,565,p. 35,804 & n. 12 (No. 77-1622 et al, 1986). Ultimately, we mustdetermine the intent of the standard’s drafter, in this case theSecretary, at the time the standard was adopted. The most compellingevidence of a drafter’s intent is, of course, the plain meaning of thewords he used. _Id_. In this case, however, the meaning of the crucialword \”earnings\” is not so plain as to enable us to resolve the disputebetween the parties. \”Earnings\” is not a word of art but is a generalterm broad enough to encompass the interpretations offered by all of theparties. One dictionary defines \”earnings\” as \”money earned; wages;profits.\” _Random House Dictionary of the English Language_ 448 (1971).Another defines it as \”something (as wages or dividends) earned ascompensation for labor or the use of capital.\” _Webster’s Third NewInternational Dictionary_ 714 (1971). Because the issue cannot beresolved on the basis of the word’s plain meaning, we must look to thelegislative history of the standard to discern the Secretary’s intentwhen he promulgated the standard.The lead standard was the first, and is still the only, OSHA standardcontaining a comprehensive MRP benefits provision. However, in adoptingthe standard, the Secretary did not write on an entirely clean slate.The issue of MRP benefits had previously been addressed in severalcontexts, and these provide a background for examining the Secretary’sintent when he included the MRP benefits provision in the lead standard.The first federal law containing a MRP benefits provision was theFederal Coal Mine Health and Safety Act of 1969, 30 U.S.C. ?? 801 etseq. (\”Mine Act\”).[[7]] That statute provides that any miner showingevidence of black lung disease be given the opportunity to transfer to aposition for which the dust level is sufficiently low to prevent furtherdevelopment of disease. 30 U.S.C. ?? 843(b)(1) and (2). Any miner sotransferred must be compensated at \”not less than the regular rate ofpay received by him immediately prior to his transfer.\” 30 U.S.C. ?843(b)(3). This provision has been interpreted to mean that a miner needonly be paid at the same daily rate he was receiving just prior totransfer, not the amount he would have earned if he had not beentransferred. _Higgins v. Marshall_, 584 F.2d 1035 (D.C. Cir. 1978),_cert_. _denied_, 441 U.S. 931 (1979). When he adopted the OSHA leadstandard, the Secretary was aware of both this provision of the Mine Actand of the interpretation placed on it in _Higgins v. Marshall_, for hediscussed these matters in the preamble to the OSHA standard. 43 Fed.Reg. at 54447-49.The Secretary considered MRP benefits in rulemaking proceedings for twoother standards before the adoption of the lead standard. One of thefirst standards issued by the Secretary after notice-and-commentrulemaking regulated occupational exposure to asbestos. 29 C.F.R. ?1910.1001. That standard contains a limited MRP provision, applicableonly to employees who would be required to wear respirators but who aremedically incapable of doing so.Such employee shall be rotated to another job or given the opportunityto transfer to a different position whose duties he is able to performwith the same employer, in the same geographical area and with the sameseniority, status, and rate of pay he had just prior to such transfer,if such a different position is available.29 C.F.R. ? 1910.1001(d)(2)(iv)(c) (emphasis added). Subsequentrulemakings continued the practice of considering MRP protection asmaintenance of the employee’s \”rate of pay.\” The term \”rate retention,\”implying maintenance of an employee’s \”rate of pay,\” was often used as asynonym for medical removal protection. In promulgating a standardregulating exposure to coke oven emissions, the Secretary considered arecommendation that he adopt a MRP provision. The recommendation wasthat removal of an employee from exposure should \”not result in loss ofearnings or seniority status to the affected employee.\” (Emphasisadded.) The Secretary referred to this recommendation as a \”rateretention provision.\” 41 Fed. Reg. 46780 (Oct. 22, 1976). The Secretarydid not, however, include such a provision in the coke oven standard. 29C.F.R. ? 1910.1029.The next standard promulgation proceeding in which the Secretaryconsidered MRP protection involved the lead standard at issue here. TheSecretary first proposed a standard that did not contain a MRPprovision. 40 Fed. Reg. 45934 (Oct. 3, 1975). After receiving commentsand holding informal public hearings on the proposed standard, theSecretary announced an additional comment period for the submission ofwritten data, views, and arguments on medical removal protection. 42Fed. Reg. 46547 (Sept. 16, 1977). The announcement stated:The medical surveillance provisions of the lead standard should includea requirement for medical removal protection. This requirement wouldmaintain the _rate_ _of_ _pay_, seniority, and other rights of anemployee for the time period, or a portion thereof, that the employee istransferred or removed from his or her job as a result of an increasedhealth risk from exposure to lead. After a follow-up medical examinationand opinion, the following options would be available with no loss of_earnings_ or rights: Return to the original job, assignment to adifferent job (transfer), or continuation of the transfer or removal._Id_. at 46548 (emphasis added). Another passage in the sameannouncement stated: \”Ninety days was mentioned as one time period forearnings protection (‘rate retention’).\” _Id_. at 46549. Thus, theannouncement gave notice that the Secretary was considering thetraditional type of MRP protection in which the employee’s rate of paywould be maintained during removal. It used the words \”earnings\” and\”earnings protection\” synonymously with \”rate of pay\” and \”rate retention.\”When he issued the lead standard, the Secretary did not use the terms\”rate of pay\” or \”rate retention,\” but mandated that employers maintainthe \”earnings\” of transferred employees. The Secretary contends that hischoice of the word \”earnings\” instead of \”rate of pay\” is significant.He asserts that if he intended to limit MRP benefits to \”rate of pay,\”he would have included language such as is found in the Mine Act insteadof the language he actually chose.We cannot conclude that the Secretary deliberately used the word\”earnings\” in the final standard to indicate that he intended somethingdifferent than \”rate of pay.\” As we have noted, in the announcement inwhich MRP protection was injected into the rulemaking proceeding, theSecretary used \”earnings\” synonymously with \”rate of pay.\” Therefore,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. As St. Joepoints out, the Secretary is sophisticated in labor matters and knowsthat compensation issues often involve overtime and other premiumpayments. Thus, if the Secretary made a deliberate decision that premiumpayments were to be included in MRP benefits, it is reasonable to inferthat he would have made such an intent explicit. _See_ _United States v.American Trucking Associations_, 310 U.S. 534, 544 (1940) (\”a few wordsof general connotation appearing in the text of statues should not begiven a wide meaning, contrary to a settled policy, ‘except as adifferent purpose is plainly shown’.\”)A further indication that \”earnings\” was not meant to include premiumpayments is the absence of evidence that the subject of premium paymentsreceived any attention in the rulemaking proceedings. As noted above,the announcement that injected MRP into the rulemaking indicated that atraditional \”rate retention\” rule was being considered. The commentssubmitted in response to this announcement reflect that employees hadone overriding concern: that their cooperation with the medicalsurveillance provisions of the standard not lead to the loss of theirjobs. The Secretary cited the testimony of Anthony Mazzocchi, vicepresident of the Oil, Chemical and Atomic Workers Union, that theabsence of an MRP provision would force employees to choose betweentheir jobs and their health. 43 Fed. Reg. at 54442. In the preamble tothe lead standard the Secretary noted that the potential loss of one’sjob will create a substantial deterrent to an employee’s cooperationwith the standard’s medical surveillance provisions. However, there isnothing in the preamble to indicate that the Secretary also believedthat the potential loss of premium payments would create a comparabledeterrent. The Secretary simply did not address the subject of premiumpayments.The only indication in the standard’s legislative history that thesubject of premium payments was considered at all was a suggestion bythe United Steelworkers of America that the Secretary include adefinition of \”earnings\” in the standard. The Secretary declined thisinvitation, saying:The United Steelworkers of America urged that the standard include adetailed definition of the term \”earnings,\” listing all the possibleforms of direct and indirect compensation which an employer might havenormally given a worker in the absence of a removal. (Ex. 452, p. 44.)OSHA rejected the adoption of such a detailed definition because itwould likely be confusing to some employers in light of the manycontexts in which the standard will apply. To comply with the standard,an employer need only maintain the removed worker as though no removalhad occurred.43 Fed. Reg. at 54466. If the Secretary truly intended that \”earnings\”would include premium payments, the suggestion by the Steelworkers thathe define \”earnings\” gave him the opportunity to explicitly state thatintent. His failure to include a definition of \”earnings\” is a furtherindication he intended it to mean no more than his announcementoriginally indicated, i.e., \”rate of pay.\”[[8]]The Secretary argues that the last sentence in the above quotation and astatement 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 neithereconomic loss nor loss of employment opportunities due to removal_,\” 43Fed. Reg. at 52976 (emphasis by the Secretary) make clear his intentionthat MRP benefits include premium payments. We do not agree. In light ofthe Secretary’s failure to include a definition of \”earnings\” in eitherthe standard or the preamble, and the absence of any discussion in thepreamble of premium payments, we cannot read these general statements asexhibiting an intention on the Secretary’s part that MRP benefitsinclude premium payments.Finally, if the Secretary did intend \”earnings\” to have a broadermeaning than \”rate of pay,\” his action would be contrary to the spirit,and possibly the letter, of notice-and-comment rulemaking. In conductingsuch a rulemaking, an agency is required to give the public fair noticeof the rule it proposes to adopt, so that persons affected by the rulewill have an adequate opportunity to make their views known. _See__Chamber of Commerce of the United States v. OSHA_, 636 F.2d 464, 470-71(D.C. Cir. 1980). As discussed above, the Secretary gave the publicnotice that he was considering adopting a \”rate retention\” provision.Had the Secretary given notice that he was also considering a broaderMRP provision, one which would also require premium payments, it couldbe expected that he would have received comments addressing thenecessity and propriety of such payments. As it was, nothing in thepreamble or the standard indicates that the Secretary received anycomments addressed to premium payments, with the possible exception ofthe United Steelworkers’ general request, which the Secretary rejected,to include a definition of \”earnings\” in the standard.An agency can, of course, deviate from a proposed rule when it issues afinal rule, as long as the final rule is a \”logical outgrowth\” of therulemaking proceeding. _Steelworkers_, 647 F.2d at 1221. In order tojustify such a deviation however, there must be evidence in therulemaking record that warrants the change. _Id_. If there was evidencein the record of the lead rulemaking to justify inclusion of premiumpayments in MRP benefits, the Secretary did not mention it or rely onit. Thus, even if the Secretary did use the word \”earnings\” because hemeant MRP benefits to include premium payments, it is highly doubtfulwhether the standard, as so interpreted, would be valid in light of theabsence of his reliance on any record evidence justifying the change._See_ _United States v. Security Industrial Bank_, 459 U.S. 70, 78(1982) (interpretation of statute is favored that avoids question ofstatute’s validity).We conclude that Amax, Schuylkill, and St. Joe complied with the MRPbenefits provision by paying the employees they transferred at theirregular rate of pay for the 40 hours per week the employees workedduring the periods of transfer. Accordingly, the citations are vacated.[[9]]FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: June 25, 1986 SECRETARY OF LABOR,Complainant,v.ST. JOE RESOURCES COMPANY,Respondent.OSHRC DOCKET NO. 81-2267_DECISION AND ORDER_Ditore, J._PRELIMINARY STATEMENT_As a result of an inspection of Respondent’s facility at Monaca,Pennsylvania, on August 7 and August 20, 1981, by a safety and healthofficer of the Occupational Safety and Health Administration, a citationwas issued to Respondent for a serious violation of 29 CFR ?1910.1025(k)(2)(i) with a proposed penalty of $60.00. Respondentcontested the citation and penalty.The citation alleges:\”An employee removed from exposure to lead, or otherwise limitedpursuant to this section was not provided with medical removalprotection benefits.(a) Simpson Butler was removed from his assignment as weighman andreassigned to a clean-up position it approximately $150 per monthreduction in wages.Subsection (2)(i) of Section 1910.1025(k) is entitled \”(2) _Medicalremoval protection benefits_ – (i) _Provision of medical removalprotection benefits\” and provides_:\”The employer shall provide to an employee up to eighteen (18) months ofmedical removal protection benefits on each occasion that an employee isremoved from exposure to lead or otherwise limited pursuant to thissection.\”Subsection (2)(ii) of Section 1910.1025(k) defines medical removalprotection benefits as follows:\”For the purposes of this section, the requirement that an employerprovide medical removal protection benefits means that the employershall maintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.\”In lieu of a hearing, Complainant, Respondent and the Union (UnitedSteelworkers of America), the parties to this action, have agreed tosubmit the contested issues for resolution on the basis of a JointStipulation of facts (Court Exh. A).___ISSUES_1. Whether the promulgation of Section 1910.1025(k)(2)(i) Lead Standardwas a valid exercise of the Secretary of Labor’s statutory authorityunder the Occupational Safety and Health Act of 1970.2. If it was, whether the standard conflicted with Section 4(b)(4) ofthe Act (29 U.S.C. ? 653(b)(4)3. If it did not, whether Respondent violated the standard.4. If it did, whether the violation was serious.5. If it was, whether Commission has the authority to order an abatementof the violation by means of retroactive \”back pay\”.6. Is the proposed penalty reasonable and proper._STATEMENT OF FACTS_For the purposes of convenience the Joint stipulation of the Parties isset forth verbatim.\”The parties hereto stipulate and agree that all proper, necessary andindisposable parties are parties hereto, and to the following facts, butwithout prejudice to any party contending that any such fact is irrelevant:1. Respondent is a corporation with its principal office and place ofbusiness in New York City, New York. Respondent maintains an office andplace of business at Josephtown Road, Monaca, Pennsylvania.2. An inspection of Respondent’s Monaca, Pennsylvania facility wasconducted between August 7 and August 20, 1981 by a compliance safetyand health officer from the Pittsburgh, Pennsylvania area office of theOccupational Safety and Health Administration.3.At the time of the inspection noted above, and at all times materialhereto, Respondent was engaged at its Monaca, Pennsylvania facility inthe business of zinc smelting and refining.4. Respondent employs approximately 450 employees at its Zinc smeltingand refining facility in Monaca, Pennsylvania.5. Respondent utilizes goods, equipment and materials shipped fromoutside the State of Pennsylvania and is engaged in a business affectingcommerce. Respondent is, therefore, an employer within the meaning ofthe Occupational Safety and Health Act\” (\”the Act\”).6. Following the aforesaid inspection by the Secretary’s representative,a citation was issued to Respondent. The citation alleged thatRespondent was in serious violation of the Act; a penalty of sixtydollars ($60.00) was proposed. A copy of the Citation and Notice ofProposed Penalty marked Exhibit \”A\”, is attached hereto and made a parthereof. The citation alleges a violation of paragraph (k)(2)(i) of theprovisions of 29 C.F.R. Section 1910.1025, _et_ _seq_. (\”the leadstandard\”). A copy of the lead standard and Appendices A and B thereto,marked Exhibit \”B\”, is attached hereto and made a part hereof. Alsoattached as Exhibit \”C\” are the Preambles to the lead standard publishedin the Federal Register on November 14 and November 21, 1978 and thecorrections thereto. In stipulating that the Appendices to the leadstandard and Exhibit C may be made part of the record herein, Respondentagrees that the said documents are available to the public and representstatements that the Secretary has made with respect to the leadstandard. Respondent’s agreement to this stipulation does not constituteagreement with or acquiescence [sic] in any statement of law or factmade by the Secretary or any other person in said documents.7. The serious citation and proposed assessment of penalties were timelycontested by Respondent.8. Jurisdiction of this proceeding is conferred upon the OccupationSafety and Health Review Commission Section 10 of the Act.9. Respondent’s employee, Simpson Butler, employee #1558, was hired as aLaborer at Respondent’s facility on November 17,1980. He had beenemployed in the facility prior to its shutdown in December 1979 and wasrehired when it opened again in the Fall of 1980.10. Pursuant to the provisions of the attached collective bargainingagreement between Respondent and the United Steelworkers of America(\”USW\”), Simpson Butler bid to and was awarded the position of Weighmanin the Sinter Plant at Respondent’s facility, which position he assumedon April 2, 1981. A copy of the agreement, marked\” Exhibit D\”, isattached hereto.11. On or about July 17, 1981, Respondent temporarily transferredSimpson Butler from his regular work assignment at Respondent’s Monaca,Pennsylvania facility. In voluntary compliance with the provisions of 29C.F.R. Section 1910.1025(k)(1)(i)(C), Respondent removed Butler to aposition involving low lead exposure. Respondent transferred Butler whenblood tests taken by its medical personnel indicated that his blood leadlevel had reached or exceeded 60 micrograms of lead per deciliter (dl)of whole blood. Butler’s blood lead levels between November 17, 1980 andFebruary 23, 1982 were as follows:Date \tBlood lead level in micro-grams\/dl of whole bloodNovember 17, 1980 \t34July 6, 1981 \t77July 13, 1981 \t78February 23, 1982 \t4412. Respondent has, in compliance with the requirements of 29 C.F.R.Section 1910.1025(j), conducted a biological monitoring and medicalsurveillance program at its zinc smelting and refining facility inMonaca, Pennsylvania both prior to the cessation of operations inDecember 1979 and subsequent to the recommencement of operations in theFall of 1980.13. Respondent presently takes blood lead samples from: (1) SimpsonButler on a monthly basis; (2) about twenty-two employees every twomonths: and (3) about forty-two employees every six months.14. Respondent uses the results of the blood lead samples to determine,_inter_ _alia_, whether employees need to be removed from exposure toexcessive air leads pursuant to the provisions of 29 C.F.R. Section1910.1025(k)(1)(i)(C).15. The employees are notified periodically that they have beenscheduled for biological monitoring, and they are expected to report onschedule to have their blood samples taken. The notices used for thispurpose have informed the employees that participation in the program isa requirement of the job and refusal to participate will subject them toprogressive discipline. Attached hereto as Exhibit \”E\” are copiesnotification sheets for biological monitoring that were posted in thefacility.16. Respondent will not tolerate the refusal of any employee toparticipate in its biological monitoring and surveillance program sincesuch refusal would deprive Respondent of the information it needs todetermine whether the employee is disqualified to work in atmosphereswherein air leads exceed OSHA prescribed exposure Iimits.17. Respondent would exercise its rights pursuant to Articles XIV and VIof the agreement between it and the USW (Ex. D) to impose progressivediscipline up to and including discharge on any employee who refuses toparticipate in Respondent’s biological monitoring program. Respondent’sposition is that an employee’s refusal to participate in the biologicalmonitoring program is just cause for dismissal.18. Respondent has had no need to impose discipline against any employeeat its zinc smelting and refining facility for refusal to participate inits biological monitoring program. Instead, Respondent has counseled asmall number of employees who expressed their reluctance to participate,and the counseling was sufficient to obtain their participation in theprogram.19. Respondent has, however, warned at least one employee who refused toparticipate in Respondent’s air lead monitoring program. The warning wasdocumented by way of a letter filed in the employee’s Departmentpersonnel file indicating that he would be given time off without payfor future infractions. The letter is attached as Exhibit F.20. Articles VII, VIII, IX, of the attached collective bargainingagreement (Ex.D) , as modified by local agreements (Ex. G), representthe procedures followed by Respondent, and agreed to by the USW,regarding hours of work, regularly scheduled overtime, voluntaryovertime and shift differential pay for the job position of Weighman.(a) A weighman is assigned to one of four \”shifts\” of employees. Each\”shift\” of employees is assigned a 20–week rotating schedule whichpermits Respondent’s facility to operate seven days a week with three8-hour time shifts per day (day, evening and night shifts). Exhibit Hhereto shows a typical 20-week rotating schedule for one of the fouremployee \”shifts\”. During the 20-week period, an employee assigned thisschedule, 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 15 Sundays and 5 sixthdays. An employee who works the entire 20-week schedule will work atotal of 840 actual hours.(b) The attached collective bargaining agreement (Ex. D) provides thatpremium compensation be paid at the rate of 1.5 times an employee’s baserate of pay for scheduled Sunday and sixth day work (referred to also asscheduled overtime\”). Consequently, the total of available \”compensablework hours, as distinguished from hours actually worked, during the20-week rotating schedule (Ex. H) will be 920 hours, which is computedas follows:1. Straight time:(35 days x 3 x 8 hours per day) _less_ 15 Sundays x 8 hours and 5 sixthdays x 8 hours) = 680 hours;2. Sunday premium:15 Sundays x 8 hours x 1.5 = 180 hours;3. Sixth day premium:5 sixth days x 8 hours x 1.5 = 60 hours.Thus, during a 20-week period, an employee who works all scheduledshifts 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 collective bargaining agreement providesthat shift differential premiums be paid for scheduled evening and nightwork. Thus, during the same period, if the employee works all scheduledshifts, he will receive shift differential pay as follows;35 night shifts x 8 hours per shift x $0.50 per hour = $140.0035 evening shifts x 8 hours per shift x $0.30 per hour = $84.00The maximum shift differential pay presently available during a 20-weekschedule is $224.00.(d) On the basis of the above, an employee’s wage for one week of the20-week scheduled period may be roughly approximated from the followingformula:_(employee’s base rate x 920 hours) + $224.00_This formula produces only an approximation because the employee is paidaccording to the shifts and days actually worked during a two-week payperiod. For example, if the employee worked all available time duringthe pay period composed of weeks 1 and 2 on Exhibit H, he would not bepaid for scheduled overtime because there is none, but he would be paidfor one week of night differential and one week of evening differential.In contrast, during the pay period composed of weeks 3 and 4, theemployee would receive only straight time pay for week 3, but would alsoreceive shift differential pay and premium pay for scheduled overtimefor week 4.21. When Simpson Butler assumed the duties of Weighman, he was assignedto the third \”shift\” of employees (Ex. I) who were then in week 14 ofthe rotating schedule, as shown in Exhibit H. Butler completed theremaining 6 weeks of this 20 week schedule with his group, and thencommenced a new 20 week schedule. He was removed from his job positionwhen his employee \”shift\” was in week 10 of the new schedule. Thus, heworked a total of sixteen weeks over two 20-week rotating schedules.Butler worked all scheduled shifts to which he was assigned during thesesixteen weeks, working 656 actual hours.22. Following removal as specified in paragraph 11, Butler was assignedLaborer duties at the smelter. He has been offered the opportunity towork 8-hour day light shifts, Monday through Friday, continuously sincehis removal from the position of Weighman. 800 hours of work have beenavailable every 20 weeks. Exhibit J hereto is a Letter of Intent tosupplement Article XII of the contract (Exhibit D) between Respondentand the USW.Paragraph 9 of the Letter provides that employees who are removed fromexposure to excessive levels of a toxic substance and who are assignedto other duties will have their rate protected during the reassignment.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 aWeighman for hours he has worked as a Laborer. He did not receivescheduled overtime work and he was not paid for such work, nor did hereceive shift differential pay. On the basis of the above, the wage forone week of a 20-week period worked by Simpson Butler as a Laborer sincehe was removed may be represented by the following formula:_employee’s base rate x 800 hours_23. Voluntary overtime work, which is distinct from \”scheduled\” overtime(Sunday and sixth day work), is made available from time to time toemployees who are assigned to a rotating schedule. Employees who desireto work voluntary overtime indicate their interest by signing up forthis work on sheets used for that purpose. However, voluntary overtimework is not available on a regular basis. When it does become available,moreover, it varies in nature depending entirely on production andmaintenance needs. The work offered to an employee may, and often does,involve duties different from those of his normal job position. The workis offered only to persons qualified and available to perform it. Anemployee may refuse an offer of voluntary overtime.24. Simpson Butler worked 45 hours of voluntary overtime during thesixteen week period he worked as a Weighman. He accepted 16 hours ofsuch work on two consecutive days in April, 1981, 8 hours on one day inMay, 8 hours spread over two consecutive days in, June, and 13 hoursspread over two separate days in July, 1981. The total of his voluntaryovertime hours represents 6.86 percent of his total \”scheduled\” worktime (656 hours) during this period. Butler received premium pay for hisvoluntary overtime hours in accordance with the terms of the attachedcollective bargaining agreement and related agreements. (Exs. D and G).25.The amount of available voluntary overtime declined subsequent toSimpson Butler’s removal from his Weighman position. During the periodhe was a Weighman, 892.5 voluntary overtime hours were worked in theSinter Plant and 12,371 hours of scheduled time were worked. Thus, theratio of voluntary time to scheduled time was 7.21 percent. Thereafter,during, the period beginning on July 27, 1981, and ending on April 26,1982, 1,292.3 voluntary overtime hours were worked in the Sinter Plantand 34,222.7 scheduled hours were worked. Accordingly, the ratio ofvoluntary time to scheduled time was 3.78 Percent following his removal.26. Simpson Butler was not routinely offered available non-scheduledovertime work following his removal. He was, however, offered one suchovertime opportunity, but he declined the offer. Butler has not,therefore, received premium pay for voluntary overtime work subsequentto his removal.27. Simpson Butler took one week of vacation from August 31 throughSeptember 4, 1981, and he did not work December 14 through December 18,1981 because of personal illness. For purposes of the procedures setforth herein (regarding hours of work, regularly scheduled overtime,voluntary overtime and shift differential pay), vacation and personalillness days are noncompensable time for all employees at Respondent’sfacility.28. The parties stipulate and agree that Simpson Butler’s base rate ofpay was $9.78 per hour from the date of his removal until August 1, 1981and has been $10.08 per hour since that date.29. The parties stipulate and agree that the $10.08 rate shall be usedto calculate overtime premium pay in the event the Commission enters afinal order that either scheduled overtime premium pay or voluntaryovertime premium pay or both are required under 29 C.F.R. ?1910.1025(k)(2).30. The scheduled average weekly overtime premium pay, calculated bysubtracting the weekly wage figure generated by the formula in paragraph22 from the weekly wage figure generated by the formula in paragraph20(d), is $71.68.31. The maximum weekly average voluntary overtime premium pay Butlercould have earned since his removal had he been offered and accepted allsuch opportunities offered to him using the sinter plant average set outin the last sentence of Paragraph 25 herein is $22.86.32. The parties stipulate and agree that either or both of the weeklyaverage premium pay figures set forth in Paragraphs 30 and 31 will beused to calculate \”back pay\” if the Commission determines that back payis required in its final order in this matter. The term \”back pay\” asused herein means that overtime premium pay whether scheduled, voluntaryor both which the Commission might determine is required under 29 C.F.R.?1910.1025(k)(2) and which Butler did not receive during the period ofthis contest.33. The parties stipulate and agree further that in the event thecommission enters a final order requiring the payment of scheduledovertime or voluntary overtime premium pay prospectively asdistinguished from retroactive or back pay, the pay figures appearing inthis stipulation may be adjusted as appropriate to reflect theconditions that prevail as of such date.34. The parties stipulate and agree further that in the event theCommission enters a final order in this matter requiring Respondent topay Butler scheduled overtime premium pay, voluntary, overtime premiumpay, or both regardless whether such order requires back pay orprospective pay or both, Respondent shall not be required to compensatehim for time he was not available to perform work.35. The parties also stipulate and agree that nothing said herein shallbe construed to preclude Respondent from seeking a stay including ajudicial stay of any final order of the Commission that might requirethe payment of overtime premium payment under 29 C.F.R. ? 1910.1025(k)(2)._FACTUAL SUMMARY_In summary, on, April 2, 1981, Respondent’s employee Simpson Butlerstarted work as a Weighman in the Sinter Plant of Respondent’s facility(Stip. ? 10)*. On or about July 17, 1981, Butler was removed from, hisposition as Weighman and transferred to the low lead exposure positionof laborer. The removal and transfer were based on blood tests taken byRespondent’s medical personnel, which revealed that Butler’s blood leadlevel had reached or exceeded 60 micrograms of lead per deciliter (dl)of whole blood. Butler’s removal was mandated by Section1910.1025(k)(1)(i)(C) (Stip. ? 11).As a Weighman,Butler’s earnings consisted of base 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). Respondent paid Butler the base rate of pay of a Weighman for allthe hours he worked as a laborer during the removal period (Stip. ? 22).Respondent did not pay Butler shift differential pay, scheduled overtimepay or voluntary overtime pay after his removal from the Weighmanposition (Stip. (P0 22, 24, 26). Butler as a laborer worked 8 eighthours a day, Monday through Friday, with no shift differential orscheduled overtime pay (Stip. ? 22).The basic issue is whether Respondent violated 29 C.F.R. 1910.1025(k)(2)(i) by failing to pay Butler the scheduled overtime pay, shiftdifferential pay and voluntary overtime pay he would have earned if hehad not been removed from his position as Weighman.The facts are not disputed Respondent has raised several legal argumentsattacking the validity and applicability of Section 1910.1025 (k)(2)(i)First, Respondent argues that Section 1910.1025 (k)(2)(i) is invalidbecause the medical removal protection benefits provision (MRPB) isbeyond OSHA’s statutory authority (Respondent’s brief pp 8-19)Respondent’s posits its argument on the ground that the OccupationalSafety and Health Act (OSH) contains no express grant of authority toOSHA, to require employers to maintain the earnings of a removedemployee at the pre-removal level. Respondent contends that Congress waswell aware of the concept of the MRPB since it had less than a yearprior to the enactment of the OSH Act, granted such authority under theFederal Mine Safety and Health Act. Therefore, Congress did not intendto grant such authority to OSHA.Respondent to support its conclusion as to Congressional intent,utilizes the principle that \”[w]here a statute with respect to onesubject contains given provisions, the omission of such a provision froma similar statute is significant to show a different intention existed\”,citing case authority including _American Textile ManufacturersInstitute v. Donovan_* 452 U.S. 490, 101 S.Ct. 2478 (1981) (Respondent’sbrief p. 10). This issue, among others, was fully litigated and arguedbefore the D.C. Circuit in _United Steelworkers_ v. _Marshall_ 647 F.2d1189 (1980), cert. denied, 453 U.S. 913 (1981), where the validity ofthe lead standard, as promulgated, was challenged. Respondent was aparty to that action (Respondent’s brief pp 22-23).Chief Judge J. Skelly Wright writing for a majority of the Court afteran exhaustive analysis of the MRPB provision concluded that [t]hesubstantive provisions of the lead standard, including the medicalremoval protection program …. fall within the scope of OSHA’sstatutory power and are reasonable exercises of that power. 647 F.2d atpages 1223-1234, 1311.Respondent contends that the Court’s decision in _United Steelworkers_is incorrect and should not be followed. We do not agree with thiscontention. We fully concur in the majority’s decision including theCourt’s analysis distinguishing the case relied on by Respondent in itsbrief here, _Whirlpool Corporation_ v. _Secretary of Labor_, 445 U.S. 1,100 S. CT. 883 (1980).The Secretary of Labor in promulgating the Lead Standard has devised acomprehensive regulatory program to protect workers from the dangeroushazards of overexposure to lead. The program requires the removal withattendant benefits, of employees whose lead blood levels have reachedand exceeded permissible limits. See 29 C.F.R. 1910.1025 and sectionsthereunder.In _American Textile Manufacturers Institute Inc._, v. _Donovan_, 452U.S. 490, 101 S.Ct. 2478 (1981), the United States Supreme Court hadbefore it a challenge to the validity of the cotton dust standardpromulgated by the Secretary of Labor. Included within the challenge wasone made to OSHA’s authority under that Act, to require employers toguarantee that employees suffer no loss of earnings or other employmentrights or benefits when transferred due to exposure to cotton dust abovea certain level.The Court held that the Secretary of Labor in his \”Summary andExplanation of the Standard\” never explained the wage guaranteeprovision as an approach, designed to contribute to increased healthprotection but explained it as solely designed \”to minimize any adverseeconomic impact on an employee. The Court concluded that since \”the Actin no way authorized OSHA to repair general unfairness to employees thatis unrelated to achievement of health and safety goals\”, it was beyondOSHA’s statutory authority to promulgate the wage guarantee regulation.101 S.Ct. at 2505-2506.The Court did acknowledge that a wage guarantee provision if healthrelated, may very well have merit but that the \”health related\”contention must be properly articulated in the Secretary’s determinationor statement of reasons and supported by substantial evidence. TheSecretary of Labor failed in these latter requirements when hepromulgated the cotton dust wage guarantee provision, 101 S.Ct. at 2505nn. 72 & 73 and 2506 n. 74. It is reasonable to infer that if theSecretary of Labor had formulated and articulated the health related\”rationale and supported it by substantial evidence, the Court might havereached a different conclusion.It is interesting to further note that the United States Supreme Courtrendered its decision in _American Textile_ on June 17, 1981. On June29, 1981, twelve days later, the Court denied certiorari in the _UnitedSteelworkers_ case. 453 U.S. 9131, 101 S.Ct. 3148. Although one may notdraw substantive conclusions that the Court was from a denial ofcertiorari, one can infer that the Court was aware of provisions dealingwith earnings protection benefits and the issues involved as they relateto the Occupational Safety and Health Act.Aside from the economic impact the earnings protection benefitsprovision of the Lead Standard may have on employees, it is healthrelated. The MRPB is designed and intended in the overall program ofworker protection, to reduce an employee’s exposure or continuedexposure to lead poisoning by eliminating possible attempts by employeesto defeat other provisions of the lead standard and thereby increasetheir exposure to lead poisoning.The promulgation of the medical removal protection benefits standard isvalid and within the statutory authority of the Secretary of Labor.Respondent argues in Point II of its brief (pp 19-24) that OSHA’s leadstandards and Respondent’s compliance with these standards, other thanthe medical removal protection benefits provision, insures that theexposure of its employees to lead is reduced or eliminated.* Respondentstates that all of its employees who are exposed to the hazards of leadmust participate in Respondent’s mandatory blood lead monitoring programor suffer disciplinary action. Therefore, Respondent reasons, themedical removal protection benefits provisions neither contributes tothe reduction or elimination of the lead hazard nor reduces oreliminates an employee’s risk of exposure to lead.Respondent’s approach is somewhat simplistic and fails to consider oroverlooks the underlying basis established by OSHA, as to the reasonsthe medical removal protection benefits provision is necessary to insurethe efficacy of the other lead standards relating to medicalsurveillance and medical removal. (See Exhs. C(i)(a), p. 52973, C(i)(b)pp 54446-54447).The Court in _United Steelworkers of America_ v. _Marshall_, 647 F. 2d1189, 1237 (1980), clearly sets forth OSHA’s findings and basis for themedical removal protection benefits provision.\”OSHA found, however, that unless workers were guaranteed all their wageand seniority rights upon removal, they would resist co-operating withthe medical surveillance program that determined the need for removal,since they reasonably might fear being fired or sent to lower-payingjobs if they revealed dangerously high blood-lead levels.54442\/2-54446\/2.[[x]] The record showed that workers often consumedself-prescribed chelating agents, and lied to physicians about theirsubjective symptoms, all because they held job security more dear thantheir health. 54446\/3-54447\/1 (citing evidence). OSHA also foundexisting earnings protection programs in private bargaining agreementstoo few and too limited. 54444\/2. Moreover, exercising its statutoryauthority to rely on experience gained under a congressionally-mandatedearnings protection program like the one that is part of the FederalCoal Mine Health and Safety Act, see text and notes at notes 67-68supra, workers-perhaps because they were not guaranteed the seniorityrights 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 case authority, that the medicalremoval protection benefits provision is health related and is anintegral part of the Lead Standard’s objective to reduce or eliminateemployee exposure to lead.In Point III A of its brief (pp 24-36), Respondent contends that Section4(b)(4) of the Act prohibits the Commission from interpreting themedical removal protection benefits provision to increase Respondent’sliability beyond that set by the State of Pennsylvania’s workmen’scompensation laws.Section 4(b)(4) of the Act states:\”Nothing in this Act shall be construed to superceded or in any manneraffect any workmen’s compensation law. . . \”(29 U.S.C. ? 653(b)(4)).The court in _United Steelworkers_, _supra_, at pages 1235-36, afterdetermining that protection benefits provision did not violate Section4(b)(4) of the Act, stated:\”The question remains, then, what _does_ Section 4(b)(4) mean, if it_does_ _not_ mean that OSHA is barred from creating medical removalprotection? We see two plausible meanings. First, as courts have alreadyheld, Section 4(b)(4) bars workers from asserting a private cause ofaction against employers under OSHA standards. _Jeter_ v. _St. RegisPaper Co._, 507 F.2d 973 (5th Cir. 1975); _Byrd_ v. _Fieldcrest Mills,Inc._, 496 F.2d 1323 (4th Cir. 1974). Second, when a worker actuallyasserts a claim under workmen’s compensation law or some other statelaw, Section 4(b)(4) intends that neither the worker nor the partyagainst whom the claim is made can assert that any OSHA regulation orthe OSH Act _itself preempt_ any element of the state law. For example,where OSHA protects a worker against a form of disablement notcompensable under state law, the worker cannot obtain state relief forthat disablement. Conversely, where state law covers a wider range ofdisablements than OSHA aims to prevent, an employer cannot escapeliability under state law for a disablement not covered by OSHA. Inshort, OSHA cannot _legally_ preempt state compensation law, even if it_practically_ preempts it in some situations.We conclude that though MRP may indeed have a great practical effect onworkmen’s compensation claims, it leaves the state schemes wholly intactas a _legal_ matter, and so does not violate Section 4(b)(4).\” (Emphasisin original).We agree with the Court’s determination and fail to see how Section4(b)(4) of the Act, legally affects or supercedes Pennsylvania’sworkmen’s compensation laws. The amount of compensation that Butler orany other employee could receive under Pennsylvania’s workmen’scompensation law, is neither increased or decreased by the amount duethe employee under the medical removal protection benefits provision.This provision does not alter, supercede or preempt the state’s law, andimposes no burden on the state to award more or less than its lawsrequire. Nor does it increase Respondent’s liability under state law.The affect of the medical removal protection benefits provision is onthe employer’s liability under the OSH Act. It requires the employer tomake up the difference between what is granted an employee under statelaw and what is calculated to be due him under federal law (see, 29 CFR?1910.1025(k)(2)(iv)).Respondent’s liability under both laws is no indication thatPennsylvania’s workmen’s compresentation law, _per_ _se_, has beenaltered or superceded. Respondent mistakenly equates its dual liabilityunder federal and state law as a supersession of the state law by OSHA’sMRPB provision.In Point III B of its brief (pp 29-33), Respondent further contends thatany interpretation of the medical removal protection benefits standards,requiring payment of shift differential and overtime pay to a removedworker, is impermissible, discriminatory, would reward workers for hoursnot worked and would encourage others to become leaded in order toreceive more pay for less work. We have held that the medical removalbenefits protection benefits standard is valid and properly within thestatutory authority of the Secretary of Labor.Section 1910.10(?) (k)(2)(iv) defines medical removal protectionbenefits to mean that \”the employer shall maintain the earnings, . . .of an employee as though the employee had not been removed from normalexposure to lead or otherwise.\” The definition is clear on its face. Theword \”earnings\” unqualified and unlimited means all earnings. Anemployee removed because of lead exposure is to continue to receive allthe earnings he would have received if he had not been removed. TheSecretary understood this when he explained in the Preamble to the LeadStandard, that medical removal protection benefits:\”In most cases will simply mean the rate of pay of a worker transferredto a low-lead-exposure job. The standard however, uses theall-encompassing phrase ‘earnings, seniority and other employment rightsand benefits’ to assure that a removed worker suffers neither economicloss nor loss of employment opportunities due to removal.\”(Exh. C(i)(a) p. 52976, Col. 1).Applying the standard and definition to this case, it means thatButler’s earnings are to continue and are to be maintained as if hestill was employed as a Weighman. It does not mean that Butler is toreceive more than he would have received if he was not removed. Butleris entitled only to the amount he would have earned if he continuedworking as a Weighman. This in turn must be tempered by reason and beachievable by means other than speculation.Respondent is mistaken in believing that earnings mean only the worker’spre-removal base rate of pay. \”Earnings\” is a broad concept and includesnot only the base rate of pay but all other ascertainable earnings thatcould have been earned by a worker prior to his removal.The question here is not what \”earnings\” mean but how are they to becalculated so that Butler does not receive more than he would havereceived if not removed.Butler could have been, carried on the company records as a Weighman forearnings purposes. His shift differential and scheduled overtime pay,could have been calculated during the removal period, based on the four’shifts’, 20 weeks rotating schedule. (Stip. ? 20). Deductions duringthat time could have been made against the earnings amount foruncompensable time. (Stip. ? 27).Respondent states without further support (brief pp 34-35) that \”itwould be extremely difficult to calculate the overtime opportunitiesSimpson Butler would have. Therefore, the parties agreed to anartificial formula to calculate shift differential and scheduledovertime due Butler after he was removed. (Stip. ?’s 20(d), 30).Whatever method is used, Butler is entitled to the shift differentialand scheduled overtime earnings that would have accrued to him if he hadnot been removed.Voluntary overtime present a different and more difficult problem.Voluntary work is not available on a regular basis, may differ from thenormal job duties of an employee, is offered only to qualified personsavailable to perform it and depends on the subjective determination ofthe employee to accept it. The amount of available overtime declinedsubsequent to Butler’s removal and he was not routinely offered suchwork. The one offer made to him he declined to accept. During hissixteen 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 what voluntary work would havebeen available, offered to and accepted by Butler if he had not beenremoved. Butler is not entitled to voluntary overtime pay during hisremoval period on any set formula. He is entitled only to voluntaryovertime that was available, offered to him and accepted by him duringthe removal period.In part C of Point III of the brief (pp 33-36, Respondent argues that ithad no notice that \”earnings\” in Section 1910.1025 (k)(2)(i) meantanything other than the base rate of pay since it does not mentionovertime or shift differential pay. The standard does not referspecifically to overtime or shift differential pay nor does it referspecifically to base rate of payment. It speaks of \”earnings\” which isan all-inclusive term and as indicated previously, means allascertainable earnings that a worker would have received if he continuedto perform the same work that he performed before his removal. InButler’s case, this meant his base rate of pay, shift differential andscheduled overtime pay but not voluntary overtime.Voluntary overtime pay was excluded from earnings because of itsspeculative character and because it depended upon the worker’ssubjective option to accept or decline it. Nonetheless, the standard,and its definition gave ample notice to Respondent that it meant notonly the base rate of pay but all other ascertainable earnings.Respondent also contends (brief pp 36-37), assuming the validity andapplicability of the standard, that a violation of the standard is _de__minimus_ because the failure to pay shift differential and overtime payhas no direct or immediate relationship to occupational safety andhealth. This argument has facial appeal because Butler was removed fromexposure to lead pursuant to other lead standards prior to the violationof standard herein. Therefore, reasons Respondent, any violation of the\”earnings\” benefit standard could not expose Butler to lead hazards andhad no direct or immediate relationship to his health.Respondent misconstrues the purpose of the standard and reads it inisolation. The Lead Standard consists of a comprehensive set ofregulations promulgated to protect and prevent employees in the leadindustry from being overexposed to the hazards of lead. The sections ofthe Lead Standard interrelate to carry out the purpose and intent of theStandard.The Lead Standard is only as strong as its component parts. Ifcompliance with, and enforcement of any section is weakened, theStandard as a whole loses its optimum effect. It has been established,_supra_, (p. 23), that worker participation in the regulatory scheme isessential to its operation. To insure this participation, economicconsiderations which could cause an employee to thwart the objectives ofthe Standard were eliminated.No one can seriously question that the exposure of an employee to thehazards of lead could cause serious physical harm or death to theemployee. Any violation of any part of the Lead Standard which reducesor could possibly reduce the health protection intended by the LeadStandard, is serious because it could increase the risk of overexposureto lead.Finally, Respondent argues (brief pp 37-44), that the Commission has noauthority to order a \”back pay award\” because it is not authorized to doso under the civil penalty sections of the Act (29 U.S.C. ? 666).Further, the Commission has no authority to order retroactive abatement.Respondent is correct in stating that the Commission is only authorizedto assess civil penalties as prescribed in Section 17 of the Act (29U.S.C. ? 666). Civil penalties are imposed upon an employer forviolating an occupational safety and health standard. Abatement is themeans or methods an employer must employ to correct a violation of astandard.Abatement and civil penalty are not synonymous. They are entirelyseparate excepts under the Act. The issue in this case is not one for\”back pay\”, _per_ _se_, but whether Respondent violated the Act and ifit did what abatement is necessary to correct the violation.Generally, abatement methods or means in occupational safety and healthcases involve the production, utilization or installation,prospectively, of protective devices, engineering controls, etc. Theyall involve the expenditure of money by an employer to achieve the endresult. The very nature of this type of abatement does not permitretroactive application. An employer, for example, cannot install orutilize engineering controls retroactively to the date the violationoccurred, even if the evidence established that the violation was acontinuing one.Shift differential and scheduled overtime payments although different innature from the usual forms of abatement, are nevertheless a method ofabatement. This type of abatement lends itself to retroactiveapplication because of its nature (money payment) and because here theevidence established that the violation was a continuing one. Theviolation occurred when Butler’s first weeks earnings were due after,his removal which was on or about July 17, 1981. The citation wasissued, approximately a month and a half later on September 11, 1981,well within the limitation clause of the Act (Section 9(c), 29 U.S.C. ?658(c)). Although the type of abatement here is novel, it is well withinthe statutory authority of the Commission.Based on the record and a consideration of the factors set forth inSection 17(j) of the Act, the penalty of $60.00 proposed by theSecretary of Labor is reasonable and proper._FINDINGS OF FACT_The relevant and material facts have been stipulated by the parties intheir Joint Stipulation (Court Exh. A, _supra_, pp 4-16)._CONCLUSIONS OF LAW_1. Section 1910.1025(k)(2)(i) of the Lead Standard is valid and withinthe statutory authority of the Secretary of Labor.2. Section 1910.1025(k)(2)(i) of the Lead Standard does not conflictwith Section 4(b)(4) of the Act.3. From September 11, 1981, and for approximately a month and a halfprior thereto, Respondent was in violation of Section 5(a)(2) of the Act(29 U.S.C. ? 654(a)(2) for failing to comply with 29 CFR ?1910.1025(k)(2)(i).4. A \”back pay\” retroactive money payment is the proper method ofabatement to correct the violation herein.5. The violation of the standard by Respondent is serious.6. A penalty of $60.00 is assessed for the violation._ORDER_Due deliberation having been had on the whole record, it is herebyORDERED that the citation for a violation of 29 CFR ? 1910.1025(k)(2)(i)is affirmed, it is furtherORDERED that abatement of the violation is to be made consistent withthe Decision herein, it is furtherORDERED that the proposed penalty of $60.00, is affirmed.JEROME C. DITOREJUDGE, OSHRCDated: February 14, 1983New 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_. The employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[1\/]] ? 1910.1025 _Lead_(k) _Medical Removal Protection_(2) _Medical removal protection benefits_ –(i) _Provision of medical removal protection benefits_. The employershall provide to an employee up to eighteen (18) months of medicalremoval protection benefits on each occasion that an employee is removedfrom exposure to lead or otherwise limited pursuant to this section.(ii) _Definition of medical removal protection benefits_. For thepurposes of this section, the requirement that an employer providemedical removal protection benefits means that the employer shallmaintain the earnings, seniority and other employment rights andbenefits of an employee as though the employee had not been removed fromnormal exposure to lead or otherwise limited.[[2\/]] The lead standard requires that an employee whose blood leadlevel exceeds a specified concentration be removed from a work areawhere the airborne lead concentration is more than a certain amount.Since the expiration of the initial phase-in period during which higherconcentrations were permitted, the standard has required that anemployee with a blood lead level at or above 50 ug\/100g of whole bloodbe removed from work having a daily eight hour time-weighted-averageexposure to airborne lead at or above 30 ug\/m3. 29 C.F.R. ?1910.1025(k)(1)(i). [This case, however, arose during the phase-inperiod.] The standard also requires removal if a \”final medicaldetermination\” establishes that an employee has a \”detected medicalcondition which places the employee at increased risk of materialimpairment to health from exposure to lead.\” 29 C.F.R. ?1910.1025(k)(1)(ii)(A).[[3\/]] For that decision, this case was consolidated with _Amax Lead Co.of Missouri_, OSHRC Docket No. 80-1793, and _Schuylkill Metals Corp._,OSHRC Docket No. 81-856. Because the cases no longer involve a singlecommon legal question, we hereby sever them pursuant to Commission Rule10, 29 C.F.R. ? 2200.10.[[4\/]] The administrative law judge who first heard the case held thatSt. Joe was required to pay the employee for scheduled overtime, but notfor voluntary overtime because the amount of voluntary overtime was toospeculative to calculate. The Fifth Circuit’s decision holds that thestandard requires payments for \”over-time,\” but the court did notexpressly address the distinction between scheduled and voluntaryovertime. We interpret the court’s decision as holding that the standardrequires payments in this case for the scheduled overtime and shiftdifferentials. We read the Fifth Circuit’s decision as leaving open thevoluntary overtime issue and we will discuss that issue later in thisdecision.[[5\/]] We must apply the Fifth Circuit’s interpretation as the \”law ofthe case.\” _See_ _In re Progressive Farmers Ass’n_, 829 F.2d 651, 655(8th Cir. 1987), _cert. denied_ _sub nom_. _South Central Enterprise v.Farrington_, 108 S.Ct. 1574 (1988). In another decision issued today,_East Penn Manufacturing Co._, OSHRC Docket No.87-537 (Apr. 27, 1989),we have overruled the Commission’s decision in Amax and aligned theCommission’s interpretation of the medical removal provision with thatof the Fifth Circuit in _United Steelworkers of America v. SchuylkillMetals Corp_.[[6\/]] Because she rejects the argument on its merits, Commissioner Areyfinds it unnecessary to consider the arguments of the parties directedto the Commission’s authority to rule on validity challenges, theargument that St. Joe’s challenge is barred by collateral estoppel, andSt. Joe’s contention that the Secretary untimely raised collateralestoppel issue.[[7\/]] As will be discussed later in this opinion, the Secretary wasalso concerned that, if excessively high blood lead levels could lead toloss of income, employees would resort to chelating drugs, which removelead from the blood but have dangerous side effects.[[8\/]] \”_United Steelworkers.of America v. Schuylkill Metals Corp._, 828F.2d at 320.[[9\/]] This _Pratt & Whitney_ case is a later decision in the same_Pratt & Whitney_ case on which St. Joe relies. The second _Pratt &Whitney_ decision was issued after St. Joe filed its review brief.[[10\/]] _United Steelworkers of America, AFL-CIO-CLC v. Marshall_, 647F.2d at 1237 & n.73.[[11\/]] Although we conclude that violations of the lead standard’s MRPprovisions are serious, we do not agree with the judge’s broad statementthat \”[a]ny violation of any part of the Lead Standard which reduces orcould possibly reduce the health protection intended by the LeadStandard, is serious because it could increase the risk of overexposureto lead.\” Presumably, all provisions of the lead standard are intendedto reduce the risk of lead exposure to some extent. However, for someprovisions, the reduction in risk to employees may be so limited that aserious classification would not be justified. For example, 29 C.F.R. ?1910.1025(n) contains detailed recordkeeping requirements. Technicalviolations of those requirements would not be serious violations. _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 section1910.1025(n)(4)(ii) affirmed as other than serious).[[12]] 29 U.S.C. ? 659(b) provides that the abatement period for aviolation \”shall not begin to run until the entry of a final order bythe Commission in the case of any review proceedings under this sectioninitiated by the employer in good faith and not solely for delay oravoidance of penalties.\”[[13\/]] In _RSR Corp. v. Donovan_, 733 F 2d 1142 (5th Cir. 1984), thecourt adverted to, but did not discuss or define, \”other appropriaterelief\” in the one instance in which the Commission has issued whatamounted to a retroactive pay order: the Commission ordered a remand ofcertain cases for a determination of the amount of medical removalprotection benefits due the employees. However, the Commission had notsaid that it was ordering \”other appropriate relief;\” in fact, theCommission did not give any attention to what authority it had to issuesuch an order. _RSR Corp._, 83 OSAHRC 6\/A2, 11 BNA OSHC 1163, 1983-84CCH OSHD ? 26,429 (No. 79-3813, 1983). The court’s reference to thatterm has little application here since the court was addressing onlywhether the Commission’s decision was a final order from which theemployer could appeal. Despite the remand for determination of benefitsdue, the employer wanted court review of the foundational portions ofthe Commission decision — the Commission’s affirmance of the underlyingcitations and penalties. The Secretary moved to dismiss the appeal onthe ground that the Commission’s decision was not final. On this thecourt replied, \”Only a crabbed reading of section 10(c) [29 U.S.C. ? 659(c)] would forbid review of an order that affirmed in part and modifiedin part both citations and penalties simply because the issue of whatother (and additional) relief is appropriate has been remanded fordetermination.\” 733 F.2d at 1144. The court denied the Secretary’sMotion to Dismiss. Whether the Commission had authority to orderretroactive pay was not before the court, and the court gave thequestion no attention. Accordingly, Chairman Buckley declines to assignto the court’s decision authority for the Commission to make individualcompensatory awards.[[14\/]] There is no question that St. Joe contested the citation in goodfaith, and thus satisfied the condition established in section 659(b)for tolling the abatement date.[[15\/]] When the Commission is divided on an issue resolved by theadministrative law judge, they will normally agree to affirm the judge’saction and accord it the precedential value of an unreviewed judge’sdecision. _St. Regis Paper Co._, 84 OSAHRC 40\/D3, 11 BNA OSHC 2208,2210-11, 1984-85 CCH OSHD ? 27,032, p. 34,805 (No. 77-1385, 1984). Inthis case, the judge concluded that \”[a] ‘back pay’ retroactive moneypayment is the proper method of abatement to correct the violationherein,\” and he ordered that the violation be abated consistent with hisdecision. For the reasons stated in the text, Chairman Buckley would notenter such an order. Commissioner Arey also would not uphold the judge’sorder because the order does not compensate the removed employee forvoluntary overtime. Therefore, neither member would adopt the thebackpay order issued by the judge.[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidatedby order of the Commission. Because Docket No. 81-0856 involvesquestions of law and fact similar to those in the other two cases, weconsolidate all three cases for decisional purposes. Commission Rule ofProcedure 9, 29 C.F.R. ? 2200.9.[[2]] The pre-1975 standard was derived from a standard issued by theAmerican National Standards Institute. The Secretary promulgated itunder section 6(a) of the Act, 29 U.S.C. ? 655(a), which authorized theSecretary to adopt national consensus standards as OSHA standardswithout notice-and-comment rulemaking proceedings within two years ofthe Act’s effective date.[[3]] In promulgating the new standard, the Secretary acted undersection 6(b) of the Act, 29 U.S.C. ?655(b), which authorizes theSecretary to promulgate occupational safety and health standardsfollowing notice-and-comment rulemaking proceedings.[[4]] Due to feasibility constraints, certain of the standard’sprovisions, including the permissible exposure limit, are phased in overa period of time. In our description of the provisions of the standard,we have for the sake of clarity used those numerical values that are ineffect after the standard is fully phased in. Certain of the valuesgiven were not in effect at the time the alleged violations in thesecases occurred, but this is not significant for purposes of this decision.[[5]] The words \”high\” and \”low\” are, of course, relative. For purposesof this decision, we use them to distinguish between airborne leadconcentrations from which employees with elevated blood lead levels mustbe removed, and concentrations to which such employees may permissiblybe exposed.[[6]] The employees Schuylkill transferred did not have blood leadlevels sufficiently high to require their removal under the standard.They did, however, have blood lead levels higher than the plantwideaverage. According to Schuylkill, the company measured the blood leadlevel of employees and, when a particular employee was found to have alevel above average, the employee was observed closely to determine thecause of the increase. If it was found that the increase was due to poorhygiene habits or failure to wear a respirator properly, the employeewas transferred from the production area to the change house forpurposes of discipline and retraining.The Secretary contends that Schuylkill was required to pay MRP benefitseven though the transferred employees did not have blood lead levelshigh enough to require their removal. The Secretary points to subsection1910.1025(k)(2)(vii), which provides:Where an employer, although not required by this section to do so,removes an employee from exposure to lead or otherwise placeslimitations on an employee due to the effects of lead exposure on theemployee’s medical condition, the employer shall provide medical removalprotection benefits to the employee equal to that required by paragraph(k)(2)(i) of this section.The Secretary argues that the employees Schuylkill transferred weretransferred because they had rising blood lead levels, that thetransfers were therefore a result of the effects of lead exposure on theemployees’ medical condition, and that this section therefore requiresSchuylkill to pay MRP benefits to the employees. Schuylkill argues thatthe transfers were for the purpose of discipline and retraining, and nota result of the effects of lead exposure on the employees’ medicalcondition. Schuylkill points to the testimony of its plant physicianthat none of the employees had primary conditions associated withoccupational lead exposure and none were at an increased risk to theirhealth if they had continued in their jobs.We find it unnecessary to resolve this dispute. Under our interpretationof the standard, even assuming Schuylkill was required to pay MRPbenefits, the payments it made to the transferred employees wereadequate to discharge that obligation.[[7]] The Mine Act was subsequently amended and redesignated the FederalMine Safety and Health Act of 1977. Pub.L. 95-164, 91 Stat. 1290 (Nov.9, 1977). The amendments did not affect the Act’s MRP provision.[[8]] We also note that, if the Secretary intended \”earnings\” to includepremium payments, his statement that he did not include such adefinition because it would be likely to confuse some employers isdifficult to credit. About a year after he adopted the lead standard,the Secretary published appendices that were intended to summarize keyprovisions of the standard for employees. 44 Fed. Reg. 60980 (Oct. 23,1979). Section IX of Appendix B discusses medical removal protection andstates: \”Earnings includes more than just your base wage; it includesovertime, shift differentials, incentives, and other compensation youwould have earned if you had not been removed.\” _Id_. at 60987. TheSecretary’s ability to draft such a clear and concise definition for theinformation of employees suggests he could have also drafted adefinition that would not have confused employers if he indeed intendedto include premium payments in \”earnings\” when he adopted the standard.Thus we conclude, from the fact that he did not do so when adopting thestandard, that he did not intend \”‘earnings\” to include the premiumpayments to which he later referred in this summarization for employees.We do not accord dispositive weight to this summarization because it wasnot composed when the standard was promulgated and thus is not acontemporaneous explanation and interpretation. _L.E. Myers Co._, 86OSAHRC__ 12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ? 27,476, p. 35,604n.9 (No. 82-1137, 1986). Moreover, it is inconsistent with the historyof the standard we have cited.[[9]] Amax and St. Joe argue that the lead standard is invalid and thatpromulgation of the MRP provision exceeds the Secretary’s authority. TheSecretary counters that the principle of collateral estoppel precludesthe employers from challenging the standard’s validity in thisproceeding, 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 _Steelworkers_ or were in privity withparties to that case. Because of our disposition, we need not reacheither the validity arguments raised by the employers or the collateralestoppel argument made by the Secretary.[[*]] Reference key: Stip. – refers to Joint Stipulation of the Parties.? – refers to paragraph of the Joint Stipulation.Exh. – refers to accompanying the Joint Stipulation.[[*]] It is interesting to note that the U.S. Supreme Court may haveadhered to this principle in striking down the cost benefit analysisprovision of the Cotton Dust Standard but did not in its considerationof a similar MRPB provision in that standard. 101 S.Ct. at 2491-2492 and2504-2506.[[*]] Respondent also argues that the medical removal protectionbenefits provision does not encourage the implementation of engineeringcontrols (brief pp 22-24). We do not reach this argument since theprovision is found to be health related on other grounds.[[x]] These numerical citations reflect page numbers of the \”Attachmentsto the Preamble to the Final [lead] Standard\” which is Exhibit C(i)(b)herein.”