GREAT ATLANTIC & PACIFIC TEA COMPANY; THOROFARE MARKETS, INC.

OSHRC Docket Nos. 10667; 10668; 10669; 10670; 10671; 10672; 10673; 10674; 10675; 10676; 10678; 10679; 10680; 10681; 10945; 10946; 10947; 10948; 10949; 11100; 10661; 10662; 10663; 10664; 10665; 10666; 10808; 10809; 10810; 10826; 10950; 10951; 11098

Occupational Safety and Health Review Commission

February 18, 1976

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Marshall H. Harris, Regional Solicitor, USDOL

John C. Unkovic, for the employer

OPINION:

DECISION

BARNAKO, Chairman:

A report filed by Administrative Law Judge Henry K. Osterman, dated August 14, 1975, is before this Commission for review pursuant to 29 U.S.C. 661(i). The Judge affirmed a citation which alleged that each Respondent failed to comply with 29 C.F.R. 1910.132(a) n1 in that their retail store butchers were not protected by wire mesh gloves while trimming and boning meat, poultry, and fish.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard provides as follows:

1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In Secretary v. Grand Union Company, 20 OSAHRC    , BNA 3 OSHC 1596, CCH E.S.H.G. para. 20,107 (1975), we held that the cited standard does not require retail store butchers to wear wire mesh gloves while cutting meat. Our decision there is dispositive of these consolidated cases. n2 Nevertheless, we will comment concerning the arguments made on review.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 The citations in dockets 10680, 10810, 11098 and 11100 also alleged violations of the same standard in that retail butchers were not wearing protective aprons. These allegations were not pursued before the administrative judge and have not been pursued on review. We deem them waived.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Complainant in reliance on the record and the injuries shown thereon urges that the cited standard would put employers in respondent's position on notice that hand protection, i.e., mesh gloves, is required by the standard. Respondents point out that most of the injuries shown on the record [*3] are of the first-aid type, i.e., a type so minor that injury records need not be made and retained. See 29 C.F.R. 1904.12(c) and (e). As for the recordable injuries that are of record we note as we did in Grand Union that in this case as in that one the number of injuries considering the number of stores, employees, and years involved are so few that an employer would not be put on notice by the cited standard that protective equipment is required.

We would emphasize that our decision is based on the cited standard, and the question is whether it will support these citations. We do not make any determination on the question of whether a specific standard requiring hand protection for retail butchers is necessary. That is a decision for complainant, and in view of the large number of cases he has generated before us we would suggest that he commence rulemaking proceedings pursuant to 29 U.S.C. 655(b).

The Judge's report is reversed, and the citations for violations of 29 C.F.R. 1910.132(a) and the penalties proposed therefor are vacated.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I agree with the disposition of these cases. However, since the foregoing opinion does not fully [*4] state the matters covered by Judge Osterman's decision, the same is attached hereto as Appendix A.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

I would affirm the decision of the Administrative Law Judge. The overwhelming preponderance of the evidence establishes that the retail meat-cutters employed by the respondents were exposed to injury when cutting or boning meats and that this hazard could be lessened or eliminated by the use of wire mesh gloves by the meat-cutters, or other protective devices designed to protect the hand with which the meat is held while it is being cut with a knife. Accordingly, I would hold that the general standard published in 29 CFR 1910.132(a) has been violated.

The majority errs when it holds that Grand Union Company, BNA 3 OSHC 1596, CCH 1975-76 OSHD para. 20,107 (Nos. 7533 & 7031, October 28, 1975), disposes of these cases. These cases, involving the application of a general rather than a specific standard, must be decided on the record before us. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 See my dissenting opinion in Grand Union.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - [*5] - - - - - - - - - - - -

The majority also errs in concluding that the standard itself gives inadequate notice to an employer that the cited standard requires the use of a protective device in the cutting and boning of meat.

I.

The holding of the majority on the notice question is untenable. True, the standard is broad. But breadth is not synonymous with vagueness. In my view, the standard is as specific as it can be considering the wide spectrum of hazards and the myriad of workplaces that it governs. Section 1910.132(a) is phrased in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with. United States Civil Service Commission v. National Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-579 (1973). Moreover, as the Second Circuit has indicated, it is enough that the persons subject to a regulation actually understand its injunctions. See National Ass'n of Independent Television Producers & Distributers v. F.C.C., 516 F.2d 526, 539 (2d Cir. 1975). There can be no doubt that respondents well understood what the terms "hazards" and "processes" mean, and were sufficiently apprised that appropriate personal [*6] protective equipment means a device (e.g., wire mesh gloves) that prevent cuts from such a process. n4 The majority's strained reading of the standard to meet a frivolous constitutional objection is therefore unwarranted. n5 See Georgia-Pacific Corp., Crosset Div., 4 OSAHRC 509, BNA 1 OSHC 1282, CCH 1973-74 OSHD para. 16,458 (No. 676, August 20, 1973). In any event, it is also enough that the respondents knew that retail meat-cutters are exposed to hazards from sharp knives, and that wire mesh gloves will protect employees to an appropriate degree. n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 If the respondents nevertheless have some residual uncertainties, that may be properly taken into account in assessing the appropriateness of a penalty. See e.g., Continental Steel Corp., 19 OSAHRC 223, BNA 3 OSHC 1410, CCH 1975-76 OSHD para. 19,838 (No. 3162, July 16, 1975); Dayton Tire & Rubber Co., 15 OSAHRC 290, BNA 2 OSHC 1528, 1530, CCH 1974-75 OSHD para. 19,246 (No. 2719, January 29, 1975).

n5 My approach in this respect differs sharply from that of the First Circuit in Cape & Vineyard Div. of New Bedford Gas v. O.S.H.R.C., 512 F.2d 1148 (1st Cir. 1975). See my concurring opinion in Coughlan Construction Co., BNA 3 OSHC 1636, CCH 1975-76 OSHD para. 20,106 (Nos. 5303 & 5304) which expresses my view that the use of a tort-based "reasonable man" gloss is an unnecessary retreat from the remedial purpose of the Act. If the standard requires a gloss to insulate it from constitutional attack, the gloss should at least be one consistent with the remedial purposes of the Act. See e.g., Isseks Brothers, Inc., No. 6415 (January 29, 1976) (lead opinion). But to use a test dependent on the behavior or customs of the persons or industry regulated, is not only to trivialize both the Act and the Secretary's standards, but makes this Commission nothing more than the common law "specialized jury" disapproved by the Fourth Circuit in Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974).

n6 To apply the standard to retail meat-cutting is also not such a novel application as to approach that degree of surprise violative of Fifth Amendment due process. It is in no respect fundamentally unfair. See Colten v. Kentucky, 407 U.S. 104, 110 (1972).

[*7]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

II.

The evidence of a hazard of process within the meaning of the standard is not merely preponderant It is overwhelming. My colleagues' error in assessing the evidence is traceable to an error of law. At the outset, it must be noted that the Secretary has not claimed that these violations were "serious" within the meaning of section 17(k) of the Act. On the contrary, the violations were alleged to be non-serious violations, that is, violations which are not so major as to create "a substantial probability that death or serious physical harm could result . . . ." Indeed, section 1910.132(a) requires only that the process be "capable" of causing harm. That harm need not be so severe as to cause "impairment in the function of any part of the body", for the standard proscribes mere "injury" alone. Accordingly, the Second, Fifth, Eighth and Tenth Circuits have repeatedly held that the Act is intended to prevent future injuries and that "[a]voidance of minor injuries, as well as major ones, was intended to be within the purview of this liberal Act." Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, [*8] 233 (5th Cir. 1974). Accord, Brennan v. O.S.H.R.C. and Underhill Construction Corp., 513 F.2d 1032, 1039 (2d Cir. 1975); Brennan v. O.S.H.R.C. and Vy Lactos Laboratories, Inc., 494 F.2d 460, 463 (8th Cir. 1974); Arkansas-Best Freight Systems, Inc. v. O.S.H.R.C., No. 75-1249 (8th Cir., January 29, 1976) (slip op. at 6); Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975). The majority's apparent insistence that employees suffer major cuts with a regular degree of frequency before the regulation can be enforced is error.

The record discloses sufficient evidence to both establish the existence of a hazard of process, and to satisfy the majority's unwarranted insistence that the hazard be such as to put respondent's industry on notice of the existence of the hazard of knife cuts and resulting infections. One meat-cutter testified as follows:

Q. As a meat-cutter for A & P, have you ever cut or nicked your meat-holding hand with a knife?

A. Yes, I have.

Q. Does this happen frequently?

A. It happens very frequently, yes.

Q. Can you give us an idea as to how often this happens?

A. Using a knife, it would happen almost every [*9] day you would get some type of nick.

Q. The nick draws blood?

A. Yes.

Q. Have you had any serious cuts?

A. Yes, I have.

Q. Could you tell us about that, please?

A. I was boning out a round and I was boning out like the H-bone from the round, and the knife slipped and went into the left palm of my hand, which required 12 stitches.

A & P Tr. 108-109. Another meat-cutter stated:

Q. Limiting my question to knife cutting operations; do you use a wire mesh glove?

A. I always use a wire mesh glove.

Q. For what reasons?

A. Well, partially habit and for protection in not major cutting as much as the minor the ones that -- the aggravators, the ones that become infected, stuff like that. I have tried to avoid that as much as possible all those times.

A & P Tr. 66. Several meat-cutters stated that the sharp knives "almost make contact" with the hand holding the meat. See e.g., A & P Tr. 91-92, 119, 126, 134. They spoke of the frequency of unreported cuts, which occur at least monthly and often daily. Sometimes they even cut towards their hands (A & P Tr. 92). Because their knives become wet and greasy from water, grease and blood, they "will slip on you." [*10] There was testimony that major cuts had occurred, requiring stitches (see A & P Tr. 109). Indeed there was testimony that even major non-lost-time cuts went unreported:

Q. By "small cuts," what do you mean?

A. The cuts that a meat-cutter gets and they end up bandaging them or putting a bandage on themselves that they don't go to a doctor.

Some of these should be attended to by a doctor, but they are not, because they don't want to take the time, the few minutes time it would take to get a stitch or two in there. And sometimes they doctor it themselves.

A & P Tr. 104. One worker stated that "I have cut myself with the knife and did need stitches, but I never lost time because of it." A & P Tr. 127. On cross-examination, another meat-cutter testified as follows:

Q. -- how many major cuts have you received in 25 years?

A. I would have to guess.

Q. Guess?

A. More than a dozen.

Q. Were these reported to the company?

A. Only if they required my going to the hospital and get them sutured.

Q. How many of those required such treatment?

A. I would say a half a dozen.

Q. In 25 years you received six major cuts?

A. I am only guessing.

THE COURT: Six that required [*11] you to to the hospital?

THE WITNESS: Right.

THE COURT: What about the other six?

THE WITNESS: Well, lots of them I just took care of myself.

BY MR. MARTHA:

Q. Similar to a cut that you would receive at home, cutting turkey or steak?

A. Could.

Q. These other cuts that you received, with the exception of the six cuts that you went to the hospital for, are they of the nature that one would receive when shaving with a straight razor?

A. No, I would say most of them were more damaging. They usually draw blood good.

Q. These six cuts, why do you think you got the six cuts? Do you have an explanation for it?

A. No, except for carelessness sometimes, haste, knife slipping, that's all.

A & P Tr. 135-36.

Respondent's injury records, though not necessary to support a finding of a hazard, merely buttress the rather obvious conclusion that cutting meat with sharpened knives is a hazard: n7

G.H.

Verona

8/17/74

Left hand

below thumb,

boning rib,

knife slipped,

cut hand below

thumb.

E.E.S.

Altoona

Injured left

thumb while

cutting chicken;

no lost time

incurred.

Jack S.

Coraopolis

7/30/74

Left little

finger, trimming

meat, knife

slipped, cut

finger.

J.T.

Coraopolis

7/20/74

Right ring

finger, cutting

pork, cut finger,

became infected.

1973

C.B.

Greensburg

7/30/73

Cutting chickens

upper part of knife

caught finger, cut

finger at base.

W.S.

Etna

7/6/73

Left thumb. Trimming

out beef rib, knife

slipped.

J.E.S.

Altoona

Lost 19 workdays

from an injury

to the left

index finger

received while

boning a chuck.

John S.

Greensburg

10/18/73

Infected right

ring finger.

Cutting chicken,

knife slipped.

1972

J.K.

Bridgeville

12/20/72

Right thumb.

Cutting rib of

pork, knife

slipped.

O.M.

North

Versailles

4/25/72

Left index finger.

Cutting veal, knife

slipped.

M.N.

Greensburg

7/5/72

Left thumb. Cutting

veal, knife slipped.

M.N.

Greensburg

7/3/72

Left index finger.

Trimming beef,

knife caught on

bone.

R.S.

Coraopolis

3/1/72

Left thumb. Boning

chuck, knife slipped.

D.V.

North

Versailles

3/10/72

Left thumb, boning

chuck, knife slipped.

1971

C.B.

Greensburg

10/13/71

Avulsion, laceration

lateral surface left

index finger. Cutting

up chickens, knife

slipped.

C.B. [3d cut]

Greensburg

4/13/71

Laceration left

index finger.

Cutting up chicken,

knife slipped.

L.H.

Coraopolis

2/19/71

Lacerated left index

finger. Trimming

sirloin steak,

knife slipped.

E.H.

Pleasant

Hills

5/14/71

Laceration left

hand. Boning out

veal rump, knife

slipped.

M.N. [3d cut]

Greensburg

6/30/71

Laceration tendon

[of] left thumb.

Cutting chickens,

knife glanced off

bone.

H.S.

8/14/73

Time lost - 56 hours.

Boning a roast

lacerated a left

index finger.

J.J.

8/18/72

Time lost - 124

hours. Cutting

beef roast, knife

slipped, lacerated

left hand index

finger.

[*12]

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 Only initials of injured workmen are given.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent's Answer to Complainant's Interogatory No. 3.

In the face of this evidence, there can be no doubt that there is a hazard of process.

Yet the majority does not feel that this is enough. It would require proof that respondent's industry had notice of the hazard. While I do not agree that a failure of proof of industry notice should be dispositive, I would also point out that the evidence here clearly preponderates in favor of finding notice. We must first deal with the stark fact that the hazard is obvious. As one meat-cutter plainly stated: "The hazard is cutting yourself." A & P Tr. 92. Not only did the United States Army and respondents' competitors acknowledge the existence of a hazard by providing against it, n8 but a school which teaches retail meat-cutting taught its students to wear wire mesh gloves. Indeed, respondent should have received notice by merely examining its own injury records, or questioning its employees.

- - - - - - - - - - [*13] - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 This evidence is admissible to prove the existence of a hazard under Fed. R. Evid. 407. First, the existence of a hazard is a question distinct from culpability and negligence, concepts which are in any event not relevant under this Act. Cf. REA Express, Inc. v. Brennan, 495 F.2d 822, 825-826 (2d Cir. 1974). Second, the case therefore falls within the "other purpose" exclusion of the Rule.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The majority's position is therefore nothing less than this: that respondent's industry, which provides its employees with sharp knives, which records their numerous resulting injuries, major and minor, could not have been put on notice that its employees are exposed to a hazard of process. I disagree.

III.

Although I need go no further than register my disagreement with the majority's approach to the question of whether a hazard contemplated by section 1910.132(a) exists, I wish to comment briefly upon the points urged in respondents' combined brief. First, section 1910.132(a) is not void for vagueness on the ground that it does not [*14] specify how compliance must be achieved. See e.g., Diebold, Inc., Nos. 6767, 7721 & 9496 (January 22, 1976) (discussing performance standards). In any event, it does require the use of appropriate personal protective equipment and is as specific as it can be made under the circumstances. For this reason, it also fits the definition in section 3(8) of the Act. In any event such an attack goes to the wisdom of the standard and cannot be entertained. General Electric Company, 17 OSAHRC 49, 62-63, BNA 3 OSHC 1031, 1040-1041, CCH 1974-75 OSHD para. 19,567 at 23,366 (No. 2739, April 21, 1975); Cornish Dress Manufacturing Company, BNA 3 OSHC 1850, CCH 1975-76 OSHD para. 20,246 (No. 6765, December 23, 1975). Respondents also improperly rely on the portion of section 1910.132(a) which provides that equipment be maintained "in a sanitary and reliable condition" and on section 1910.132(c) which provides that "[a]ll personal protective equipment shall be of a safe design and construction for the work to be performed." These provisions impose affirmative duties on the respondents, and cannot form the nucleus for a defense to avoid compliance. See generally, [*15] Buckeye Industries, Inc., BNA 3 OSHC 1837, CCH 1975-76 OSHD para. 20,239 (No. 8454, December 22, 1975); House Wood Products Company, No. 11167 (February 3, 1976). This conclusion is a mere corollary of the principle that an occupational safety and health standard, by its very nature, requires employers to adopt safety and health practices. Noblecraft Industries, Inc., BNA 3 OSHC 1727, 1732, CCH 1975-76 OSHD para. 20,168 at 24,002 (No. 3367, November 21, 1975). Reliance on the narrow holding of Industrial Steel Erectors, Inc., 6 OSAHRC 154, BNA 1 OSHC 1497, CCH 1973-74 OSHD para. 17,136 (No. 703, January 10, 1974) is equally misplaced. See generally, Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, CCH 1975-76 OSHD para. 20,250 (No. 7674, December 22, 1975), and cases cited therein. Indeed, if any defense may be open to respondent it may be the affirmative defense of impossibility. But this record does not support such a defense. See Diebold, Inc., supra. There is also no evidence that respondent has applied for a variance. Id. at n.15. We are also not authorized to refuse to enforce a valid standard on the ground that a more specific [*16] one may be drafted. Finally, the fact that injuries may occur through the carelessness, negligence, or inadvertence of the workmen themselves is not relevant under the Act. See REA Express, Inc. v. Brennan, 495 F.2d 822, 825-826 (2d Cir. 1974). As Administrative Law Judge Stuller cogently observed in Chappell Manufacturing Company, 1 OSAHRC 908, 913, BNA 1 OSHC 3192, CCH 1971-73 OSHD para. 16,535 (No. 1900, September 27, 1973):

This defense is utterly bankrupt. There is no reason for exposing even the most experienced and careful employees to the danger of losing one or move fingers as a result of an inadvertent move when a simple guarding device in compliance with the law will remove these dangers.

The record here demonstrates that wire mesh gloves will prevent injuries to the hands of meat-cutters and they are accordingly "protective" within the meaning of the standard. Inasmuch as respondent does not require their use, or the use of equivalent protective devices, an abatement order should issue. I need not now inquire into the appropriateness of a civil penalty, if any. On the merits of the citation, I would adopt the Judge's findings of fact and conclusions [*17] of law. I accordingly dissent.