SECRETARY OF LABOR,
Complainant,

v.

AMAX LEAD COMPANY OF MISSOURI,
Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO and LOCAL 7447-J,

Authorized Employee
Representative.

OSHRC Docket No. 80-1793

SECRETARY OF LABOR,
Complainant,

v.

SCHUYLKILL METALS CORPORATION,
Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO and LOCAL 8394,

Authorized Employee
Representative.

OSHRC Docket No. 81-0856

SECRETARY OF LABOR,
Complainant,

v.

ST. JOE RESOURCES COMPANY,
Respondent.

UNITED STEELWORKERS OF AMERICA,
AFL-CIO and LOCAL 8183,

Authorized Employee
Representative.

OSHRC Docket No. 81-2267


DECISION

BEFORE: BUCKLEY, Chairman, RADER and WALL, Commissioners.
BUCKLEY, Chairman;

These consolidated cases[[1]] are before the Occupational Safety and Health Review Commission under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. § 659(c).

These cases involve the interpretation of the medical removal protection benefits ("MRP benefits") provision of the standard at 29 C.F.R. § 1910.1025, which regulates occupational exposure to lead. The lead standard primarily seeks to protect workers from the adverse effects of lead on their health by limiting the amount of lead they inhale and ingest. The MRP provision is a "backup" requirement that is intended to protect employees who are not adequately protected by the other provisions of the standard. If an employee's blood lead level exceeds certain limits or if the employee would otherwise experience certain risks to his health from continued lead exposure, the standard requires the employer to remove the employee from excessive lead exposure. For an employee transferred under this requirement, the MRP benefits provision requires the employer to "maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed . . . ." 29 C.F.R. § 1910.1025(k)(2)(ii). In these cases, Amax Lead Company of Missouri, Schuylkill Metals Corporation, and St. Joe Resources Company transferred certain employees who had elevated blood lead levels from jobs with high lead exposures to positions outside high lead areas. The employers paid the transferred employees their regular wage rate for the 40-hour weeks the employees worked during the periods of transfer. The Secretary of Labor alleges that the employers violated the MRP benefits provision by not paying the transferred employees for potential overtime, production bonuses, shift differentials, and paid lunch periods that were incidents of the jobs they held before their transfers but not of the jobs to which they were transferred. We conclude that the employers complied with the standard by paying the employees their regular wage rate for a 40-hour week, and we therefore vacate the citations.

I

It has long been known that lead is highly toxic to humans. Lead that is inhaled or ingested enters a person's bloodstream, where it is carried to the various organs throughout the body. In excessive amounts, lead can 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 to which an employee could be exposed to 200 micrograms per cubic meter of air ("ug/m3") averaged over an 8-hour day.[[2]] In 1975, the Secretary of Labor, believing the existing standard was not sufficiently protective, proposed a new standard that
would both lower the permissible exposure limit and adopt a number of other provisions intended to protect lead-exposed employees. 40 Fed. Reg. 45934 (Oct. 3, 1975). Following lengthy rulemaking proceedings, the Secretary promulgated the standard here at issue. 43 Fed. Reg. 52952 (Nov. 14. 1978).[[3]]

Because lead reaches vital organs through the bloodstream, much of the Secretary's rulemaking effort focused on controlling the amount of lead in workers' blood. The Secretary first attempted to determine the maximum concentration of lead in the blood that would not produce material impairment of workers' health. He found that serious lead poisoning occurs at blood lead levels of 80 micrograms per 100 grams of blood ("ug/100g"), 43 Fed. Reg. at 52954, but that other adverse health effects occur at lower blood lead levels. These levels were referred to in the rulemaking proceedings as "subclinical effects," and can be defined as "physiological changes which can be detected by sophisticated laboratory tests, but not by either ordinary clinical examination or by the patient himself, which may be irreversible, and which likely bear a causal relationship with overt lead disease." United Steelworkers of America, AFL-CIO v. Marshall, 647 F.2d 1189, 1249 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) ("Steelworkers"). The Secretary found that these subclinical effects become significant at blood lead levels of 40 ug/100 and higher. 43 Fed. Reg. at 52954-60. Finding that the presence of subclinical effects constituted material impairment of health, the Secretary established the objective of maintaining the blood lead 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 below 40 ug/100g for all workers could not be feasibly achieved. Because people differ in the manner in which they absorb lead, at any particular level of airborne lead a group of workers will exhibit a range of blood lead levels. The Secretary found that the lowest airborne level the major lead-based industries could feasibly achieve was 50 ug/m3 and he therefore established that level as the permissible exposure limit for airborne lead.[[4]] 43 Fed. Reg. at 52963. He also found that approximately 30% of workers would have blood lead levels over 40 ug/100g when uniform compliance with the 50 ug/m3 permissible exposure limit was achieved. Id.

In order to protect the health of employees who would not be adequately protected by the permissible exposure limit, the standard requires employers to establish programs of medical surveillance. 29 C.F.R. § 1910.1025(j). The key to medical surveillance is blood testing, which the employer must offer to all employees exposed to an "action level" of 30 ug/m3 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 a certain amount--50 ug/100g when the standard becomes fully effective--the medical removal protection provisions of the standard come into play. Subsection 1910.1025(k). The employer must remove the employee from exposure to lead above the action level until two consecutive blood tests show that the employee's blood lead level has returned 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 the action level without regard to his blood lead level if it is determined that "the employee has a detected medical condition which places the employee at increased risk of material impairment to health from exposure to lead." Subsection 1910.1025 (k)(1)(ii). Such an employee can be returned to his previous position if it is found that his medical condition has changed such that exposure to lead no longer places him at increased 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 an elevated blood lead level or other medical condition, the employer must pay the employee MRP benefits. Subsection 1910.1025(k)(2)(ii) provides:

For the purposes of this section, the requirement that an employer provide medical removal protection benefits means that the employer shall maintain the earnings, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to lead or otherwise limited.

The employer is required to provide MRP benefits, i.e., "maintain the earnings, seniority and other employment rights and benefits of an employee," for up to 18 months on each occasion an employee is removed from excessive lead exposure. Subsection 1910.1925(k)(2)(i). The Secretary included this requirement in the standard in order to induce employees to cooperate with medical surveillance. He was concerned that employees, faced with the possible loss of their income if medical surveillance showed they should be removed from lead exposure, would refuse to cooperate with the standard's medical surveillance provisions and thereby risk endangering their health. Thus, "MRP was included in the final standard as a means of maximizing meaningful participation in medical surveillance provided to lead-exposed workers." 43 Fed. Reg. at 52973.


II.

A. Amax lead Company, Docket No. 80-1793

Amax operated a primary lead smelter in Missouri. In late 1979 and early 1980, the company transferred six employees from areas of high lead exposure to low exposure areas[[5]] due to their elevated blood lead levels. After about three months, the blood lead levels of these employees returned to acceptable levels. Four of the employees returned to their previous jobs while two bid for and won other jobs in the facility.

Before their transfers, the six employees worked in positions that had to 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 for a full 8 hours but was allowed a half-hour for lunch. The six employees were transferred to the mine/mill unit, which did not operate during the entire 24 hour day. Workers in this unit therefore worked 8 1/2 hour shifts, 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 their regular base rate of pay. In their regular jobs, they would also have had the opportunity to work overtime. The collective bargaining agreement between Amax and the United Steelworkers of America provided that overtime would be distributed "as equitably as practical" among employees in each job classification. Available overtime was offered to employees in order of seniority. They could either accept or refuse when their turn came. The company kept and posted records showing for each employee the hours of overtime worked, the hours refused, and the total. Employees unavailable when overtime was offered, including those transferred to low exposure jobs, were considered to have refused offers of overtime work. Thus, for each of the six transferred employees, the company had records showing the amount of overtime they "refused" during their transfers.

B. Schuylkill Metals Corporation, Docket No. 81-856

Schuylkill operated a secondary lead smelter in Louisiana. The plant's production department had a high airborne lead concentration, while the change house had a low lead concentration. Employees in the change house performed janitorial duties such as washing work clothes and repairing respirators.

Under the normal work schedule in the production department, employees worked six 40-hour weeks and two 48-hour weeks in any 8-week period. They thus averaged two hours of overtime per week. Production department employees were also eligible to receive production incentive bonuses, which were based on the daily amount of production in excess of a certain base amount. Production incentive bonuses varied among the workers on a shift based on performance criteria unique to the individual. In the change house, employees worked a 40-hour week. They did not work overtime and were not eligible for production incentive bonuses.

Between January 1, 1980 and December 4, 1981, Schuylkill temporarily transferred a number of employees from the production department to the change house.[[6]] While in the change house the employees were paid at the hourly wage rate they had earned in the production department. They did not, however, receive either overtime pay or production incentive bonuses.

C. St. Joe Resources Company, Docket No. 81-2267

St. Joe operated a zinc smelter in Pennsylvania. In 1981, the company transferred one employee-- Simpson Butler--pursuant to the MRP provision of the lead standard. Butler had been hired in 1980 as a laborer, a position that did not involve excessive lead exposure. On April 2, 1981, he was awarded the position of "weighman" but, on July 17, 1981, he was returned to the laborer position due to an elevated blood lead level.

The plant operated 24 hours per day, seven days per week, and the weighman job had to be covered at all times. To accomplish this, the weighman were divided into four shifts that worked 20-week rotating schedules. Each shift included various amounts of night, weekend, and overtime work, but the actual schedule would vary during the 20-week rotation.

St. Joe's collective bargaining agreement provided that weighman would receive 1.5 times their base rate fur scheduled Sunday and sixth day work ("scheduled overtime"). The agreement further provided for extra hourly pay ("shift differentials") for scheduled evening and night work. A weighman who worked all of his scheduled time during a 20-week rotation would thus receive, a total amount of compensation, including scheduled overtime and shift differentials, that would exceed the employee's base rate of pay multiplied by the number of hours actually worked. However, each employee's pay during any particular two- week pay period would depend on the hours actually worked during that period, including the scheduled overtime and shift differentials actually earned.

Employees were also given the opportunity to work voluntary overtime. The amount of such overtime available varied with the needs of the plant. Employees signed up if they were interested in voluntary overtime and would be offered such overtime as the plant's needs and their skills allowed. Voluntary overtime did not necessarily involve the employee's regular duties. During his 16 weeks as a weighman, Butler worked all of his regular shifts and also worked 45 hours of voluntary overtime.

When Butler was transferred, he was assigned duties as a laborer for an 8 hour per day, 40 hour per week shift. As a laborer, Butler was paid the base rate he received as a weighman, but he worked no scheduled overtime or night shifts and received no overtime pay or shift differentials. He refused the one offer of voluntary overtime he received.

III.

The MRP benefits provision requires that employers maintain the "earnings, seniority and other employment rights and benefits of an employee" who is transferred under the standard's M.RP provisions. The question presented by these cases is what an employer must pay a transferred employee in order to maintain that employee's "earnings." The employers contend that they need only pay an employee who works a normal 40-hour week after being transferred his regular hourly rate of pay or those 40 hours, while the Secretary and unions claim the provision requires the employer to also pay additional amounts the employee could have earned if he hid not been transferred. In their view, Amax, Schuylkill, and St. Joe violated the standard by not paying their transferred employees for potential overtime, shift differentials, production incentives, and paid lunch periods (collectively, "premium payments") they would have received but for the transfers.

In interpreting a standard, the Commission employs the same rules of construction that are used to discern the meaning of statutes. Sunge Corp., 86 OSAHRC , 12 BNA OSHC 1785, 1789 & n. 12, 1986 CCH OSHC ¶ 27,565, p. 35,804 & n. 12 (No. 77-1622 et al,1986). Ultimately, we must determine the intent of the standard's drafter, in this case the Secretary, at the time the standard was adopted. The most compelling evidence of a drafter's intent. is, of course, the plain meaning of the words he used. Id. In this case, however, the meaning of the crucial word "earnings" is not so plain as to enable us to resolve the dispute between the parties. "Earnings" is not a word of art but is a general term broad enough to encompass the interpretations offered by all of the parties. 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 as compensation for labor or the use of capital." Webster's Third New International Dictionary 714 (1971). Because the issue cannot be resolved on the basis of the word's plain meaning, we must look to the legislative history of the standard to discern the Secretary's intent when he promulgated the standard.
The lead standard was the first, and is still the only, OSHA standard containing a comprehensive MRP benefits provision. However, in adopting the standard, the Secretary did not write on an entirely clean slate. The issue of MRP benefits had previously been addressed in several contexts, and these provide a background for examining the Secretary's intent when he included the MRP benefits provision in the lead standard.

The first federal law containing a MRP benefits provision was the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801 et seq. ("Nine Act").[[7]] That statute provides that any miner showing evidence of black lung disease be given the opportunity to transfer to a position for which the dust level is sufficiently low to prevent further development of disease. 30 U.S.C. 5§ 843(b)(1) and (2). Any miner so transferred must be compensated at "not less than the regular rate of pay 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 need only be paid at the same daily rate he was receiving just prior to transfer, not the amount he would have, earned if he had not been transferred. Higgins v. Marshall, 584 F.2d 1035 (D.C. Cir. 1978), cert. denied, 441 U.S. 931 (1979). When he adopted the OSHA lead standard, the Secretary was aware of both this provision of the Mine Act and of the interpretation placed on it in Higgins v. Marshall, for he discussed these matters in the preamble to the OSHA standard. 43 Fed. Reg. at 54447-49.

The Secretary considered MRP benefits in rulemaking proceedings for two other standards before the adoption of the lead standard. One of the first standards issued by the Secretary after notice-and-comment rulemaking regulated occupational exposure to asbestos. 29 C.F.R. § 1910.1001. That standard contains a limited MRP provision, applicable only to employees who would be required to wear respirators but who are medically incapable of doing so.

Such employee shall be rotated to another job or given the opportunity to transfer to a different position whose duties he is able to perform with the same employer, in the same geographical area and with the same seniority, status, and rate of pay he had just prior to such transfer, if such a different position is available.

29 C.F.R. § 1910.1001(d)(2)(iv)(c) (emphasis added). Subsequent rulemakings continued the practice of considering MRP protection as maintenance of the employee's "rate of pay." The term "rate retention," implying maintenance of an employee's "rate of pay," was often used as a synonym for medical removal protection. In promulgating a standard regulating exposure to coke oven emissions, the Secretary considered a recommendation that he adopt a MRP provision. The recommendation was that removal of an employee from exposure should "not result in loss of earnings or seniority status to the affected employee." (Emphasis added.) The Secretary referred to this recommendation as a "rate retention provision." 41 Fed. Reg. 46780 (Oct. 22, 1976). The Secretary did not, however, include such a provision in the coke oven standard. 29 C.F.R.§ 1910.1029.

The next standard promulgation proceeding in which the Secretary considered MRP protection involved the lead standard at issue here. The Secretary first proposed a standard that did not contain a MRP provision. 40 Fed. Reg. 45934 (Oct. 3, 1975). After receiving comments and holding informal public hearings on the proposed standard, the Secretary announced an additional comment period for the submission of written data, views, and arguments on medical removal protection. 42 Fed. Reg. 46547 (Sept. 16, 1977). The announcement stated:

The medical surveillance provisions of the lead standard should include a requirement for medical removal protection. This requirement would maintain the rate of pay, seniority, and other rights of an employee for the time period, or a portion thereof, that the employee is transferred or removed from his or her job as a result of an increased health risk from exposure to lead. After a follow-up medical examination and opinion, the following options would be available with no loss of earnings or rights: Return to the original job, assignment to a different job (transfer), or continuation of the transfer or removal.

Id. at 46548 (emphasis added). Another passage in the same announcement stated: "Ninety days was mentioned as one time period for earnings protection ('rate retention')." Id. at 46549. Thus, the announcement gave notice that the Secretary was considering the traditional type of MRP protection in which the employee's rate of pay would 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 maintain the "earnings" of transferred employees. The Secretary contends that his choice 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 instead of 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 something different than "rate of pay." As we have noted, in the announcement in which MRP protection was injected into the rulemaking proceeding, the Secretary used "earnings" synonymously with "rate of pay." Therefore, when he used "earnings" in the final standard, the most logical conclusion 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. Joe points out, the Secretary is sophisticated in labor matters and knows that compensation issues often involve overtime and other premium payments. Thus, if the Secretary made a deliberate decision that premium payments were to be included in MRP benefits, it is reasonable to infer that he would have made such an intent explicit. See United States v. American Trucking Associations, 310 U.S. 534, 544 (1940) (I'd few words of general connotation appearing in the text of statues should not be given a wide meaning, contrary to a settled policy, 'except as a different purpose is plainly shown'.")

A further indication that "earnings" was not meant to include premium payments is the absence of evidence that the subject of premium payments received any attention in the rulemaking proceedings. As noted above, the announcement that injected MRP into the rulemaking indicated that a traditional "rate retention" rule was being considered. The comments submitted in response to this announcement reflect that employees had one overriding concern: that their cooperation with the medical surveillance provisions of the standard not lead to the loss of their jobs. The Secretary cited the testimony of Anthony Mazzocchi, vice president of the Oil, Chemical and Atomic Workers Union, that the absence of an MRP provision would force employees to choose between their jobs and their health. 43 Fed. Reg. at 54442. In the preamble to the lead standard the Secretary noted that the potential loss of one's job will create a substantial deterrent to an employee's cooperation with the standard's medical surveillance provisions. However, there is nothing in the preamble to indicate that the Secretary also believed that the potential loss of premium payments would create a comparable deterrent. The Secretary simply did not address the subject of premium payments.

The only indication in the standard's legislative history that the subject of premium payments was considered at all was a suggestion by the United Steelworkers of America that the Secretary include a definition of "earnings" in the standard. The Secretary declined this invitation, saying:

The United Steelworkers of America urged that the standard include a detailed definition of the term "earnings," listing all the possible forms of direct and indirect compensation which an employer might have normally given a worker in the absence of a removal. (Ex. 452, p. 44.) OSHA ..rejected the adoption of such a detailed definition because it would likely be confusing to some employers in light of the many contexts in which the standard will apply. To comply with the standard, an employer need only maintain the removed worker as though no removal had occurred.

43 Fed. Reg. at 54466. If the Secretary truly intended that "earnings" would include premium payments, the suggestion by the Steelworkers that he define "earnings" gave him the opportunity to explicitly state that intent. His failure to include a definition of "earnings" is a further indication he intended it to mean no more than his announcement originally indicated. i.e., "rate of pay."[[8]]

The Secretary argues that the last sentence in the above quotation and a statement elsewhere in the preamble that the MRP provision "uses the all-encom-passing phrase 'earnings, seniority and other employment rights and benefits' to assure that a removed worker suffers neither economic loss nor loss of employment opportunities due to removal," 43 Fed. Reg. at 52976 (emphasis by the Secretary) make clear his intention that MRP benefits include premium payments. We do not agree. In light of the Secretary's failure to include a definition of "earnings" in either the standard or the preamble, and the absence of any discussion in the preamble of premium payments, we cannot read these general statements as exhibiting an intention on the Secretary's part that MRP benefits include premium payments.

Finally, if the Secretary did intend "earnings" to have a broader meaning than "rate of pay," his action would be contrary to the spirit, and possibly the letter, of notice-and-comment rulemaking. In conducting such a rulemaking, an agency is required to give the public fair notice of the rule it proposes to adopt. so that persons affected by the rule will 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. i98O). As discussed above, the Secretary gave the public notice that he was considering adopting a "rate retention" provision. Had the Secretary given notice that he was also considering a broader MRP provision, one which would also require premium payments, it could be expected that he would have received comments addressing the necessity and propriety of such payments. As it was, nothing in the preamble or the standard indicates that the Secretary received any comments addressed to premium payments, with the possible exception of the 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 a final rule, as long as the final rule is a "logical outgrowth" of the rulemaking proceeding. Steelworkers, 647 F.2d at 1221. In order to justify such a deviation, however, there must be evidence in the rulemaking record that warrants the change. Id. If there was evidence in the record of the lead rulemaking to justify inclusion of premium payments in MRP benefits, the Secretary did not mention it or rely on it. Thus, even if the Secretary did use the word '"earnings" because he meant MRP benefits to include premium payments, it is highly doubtful whether the standard, as so interpreted, would be valid in light of the absence 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 of statute's validity).

We conclude that Amax, Schuylkill, and St. Joe complied with the MRP benefits provision by paying the employees they transferred at their regular rate of pay for the 40 hours per week the employees worked during the periods of transfer. Accordingly, the citations are vacated.[[9]]

FOR THE COMMISSION

RAY. H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JUN 25 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Docket Nos. 80-1793 and 81-2267 have previously been consolidated by order of the Commission. Because Docket No. 81-856 involves questions of law and fact similar to those in the other two cases, we consolidate all three cases for decisional purposes. Commission Rule of Procedure 9, 29 C.F.R. § 2200.9.

[[2]] The pre-1975 standard was derived from a standard issued by the American National Standards Institute. The Secretary promulgated it under section 6(a) of the Act, 29 U.S.C. § 655(a), which authorized the Secretary to adopt national consensus standards as OSHA standards without notice- and-comment rulemaking proceedings within two years of the Act's effective date.

[[3]] In promulgating the new standard, the Secretary acted under section 6(b) of the Act, 29 U.S.C. § 655(b), which authorizes the Secretary to promulgate occupational safety and health standards following notice-and-comment rulemaking proceedings.

[[4]] Due to feasibility constraints, certain of the standard's provisions, including the permissible exposure limit, are phased in over a 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 in effect after the standard is fully phased in. Certain of the values given were not in effect at the time the alleged violations in these cases occurred, but this is not significant for purposes or this decision.

[[5]] The words "high" and low" are, of course, relative. For purposes of this decision, we use them to distinguish between airborne lead concentrations from which employees with elevated blood lead levels must be removed, and concentrations to which such employees may permissibly be exposed.

[[6]] The employees Schuylkill transferred did not have blood lead levels sufficiently high to require their removal under the standard. They did, however, have blood lead levels higher than the plantwide average. According to Schuylkill, the company measured the blood lead level of employees and, when a particular employee was found to have a level above average, the employee was observed closely to determine the cause of the increase. If it was found that the increase was due to poor hygiene habits or failure to wear a respirator properly, the employee was transferred from the production area to the change house for purposes of discipline and retraining.

The Secretary contends that Schuylkill was required to pay MRP benefits even though the transferred employees did not have blood lead levels high enough to require their removal. The Secretary points to subsection 1910.1025(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 places limitations on an employee due to the effects of lead exposure on the employee's medical condition, the employer shall provide medical removal protection benefits to the employee equal to that required by paragraph (k)(2)(i) of this section.

The Secretary argues that the employees Schuylkill transferred were transferred because they had rising blood lead levels, that the transfers were therefore a result of the effects of lead exposure on the employees' medical condition, and that this section therefore requires Schuylkill to pay MRP benefits to the employees. Schuylkill argues that the transfers were for the purpose of discipline and retraining, and not a result of the effects of lead exposure on the employees' medical condition. Schuylkill points to the testimony of its plant physician that none of the employees had primary conditions associated with occupational lead exposure and none were at an increased risk to their health if they had continued in their jobs.
We find it unnecessary to resolve this dispute. Under our interpretation of the standard, even assuming Schuylkill was required to pay MRP benefits, the payments it made to the transferred employees were adequate to discharge that obligation.

[[7]] The Mine Act was subsequently amended and redesignated the Federal Mine- 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 include premium payments, his statement that he did not include such a definition because it would be likely to confuse some employers is difficult to credit. About a year after he adopted the lead standard, the Secretary published appendices that were intended to summarize key provisions of the standard for employees. 44 Fed. Reg. 60980 (Oct. 23, 1979). Section IX of Appendix B discusses medical removal protection and states: "Earnings includes more than just your base wage; it includes overtime, shift differentials, incentives, and other compensation you would have earned if you had not been removed." Id. at 60987. The Secretary's ability to draft such a clear and concise definition for the information of employees suggests he could have also drafted a definition that would not have confused employers if he indeed intended to include premium payments in "earnings" when he adopted the standard. Thus we conclude, from the fact that he did not do so when adopting the standard, that he did not intend "earnings" to include the premium payments to which he later referred in this summarization for employees. We do not accord dispositive weight to this summarization because it was not composed when the standard was promulgated and thus is not a contemporaneous explanation and interpretation. L.E. Myers Co., 86 OSAHRC ____, 12 BNA OSHC 1609, 1614 n.9, 1986 CCH OSHD ¶ 27,476, p. 35,604 n.9 (No. 82-113T. 1986). Moreover, it is inconsistent with the history of the standard we have cited.

[[9]] Amax and St. Joe argue that the lead standard is invalid and that pramuation of the MP provision exceeds the Secretary's authority. The Secretary counters that the principle of collateral estoppel precludes the employers from challenging the standard's validity in this proceeding, pointing out that the D.C. Circuit in Steelworkers rejected the employers' validity arguments and arguing that Amax and St. Joe were either parties to Steelw3rkers or were in privity with parties to that case. Because of our disposition, we need not reach either the validity arguments raised by the employers or the collateral estoppel argument made by the Secretary.