GRISTEDE BROTHERS, INC.
OSHRC Docket Nos. 12152; 12263; 12572
Occupational Safety and Health Review Commission
April 20, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor
Joseph F. Porrino, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for dischationary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an [*2] unreviewed Judge's decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor and Stephen D. Dubnoff, For Complainant
Miles W. Hirson and Joseph F. Porrino, For Respondent
Duvall, Judge:
This is a consolidated proceeding under section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting certain alleged non-serious violations contained in three citations, and the proposed penalties pertinent thereto, issued by complainant to respondent, a retail grocery chain, under section 9(a) of the Act.
Following [*3] complainant's withdrawal of item 9 of the citation in Docket Number 12572 at the hearing in this matter, the only contested items of alleged violations relate to the personal protective equipment standard set forth at 29 CFR 1910.132(a). Specifically, in Docket Number 12152, a penalty of $35 was proposed for an alleged violation of the aforesaid standard in that "Metal mesh gloves was [sic] provided for the meat cutting employees in the meat processing room to protect their hands from possible injury" (Citation, Item 2). This citation and notification of proposed penalty, issued on January 17, 1975, was based on an OSHA inspection of respondent's Southampton, New York store on January 15, 1975. In its notice of contest dated January 28, 1975, respondent indicated that in its considered opinion the "hazards of processes are not such that protective equipment such as mesh gloves are necessary in the meat cutting operations we have in our retail stores."
Similarly, in Docket Number 12263, a penalty of $45 was proposed for an alleged violation of the same standard in that "Personal protective equipment for extremities (mesh gloves and leather aprons) not used by employees for hazard [*4] of boning operation" (Citation, Item 3). This citation and notification of proposed penalty, issued on January 20, 1975, was based on an OSHA inspection of respondent's Bronx, New York store on January 9, 1975. In its notice of contest dated January 28, 1975, respondent took the same position as stated above, suggesting that "a standard which may be advised for protection of employees in the meat packing industry is not necessarily applicable to those working in retail operations."
Finally, in Docket Number 12572, no penalty was proposed for an alleged violation of the aforesaid standard in that "Personal protective equipment, in the form of a mesh glove for the holding hand, was not available for use, nor in use, by the butcher in the Meat Dept., exposing him and the part-time butcher to the hazard of lacerations should the knife used in meat cutting operations slip and strike the meat-holding hand" (Citation, Item 5). This citation, issued on February 18, 1975, was based on an OSHA inspection of respondent's Port Jefferson, New York store on February 13, 1975. In its notice of contest dated March 7, 1975 (referring to an earlier letter of March 4, 1975), respondent took the [*5] same position as stated above.
A hearing in this consolidated matter was held at New York City on June 26-27, 1975, with both parties represented by legal counsel. At the hearing, respondent's motion to dismiss Docket Number 12152 for lack of specificity of the complaint in describing the alleged violation was denied under section 9(a) of the Act and Commission Rule 33 (Tr. 32-40). Rulings were reserved on respondent's motions to dismiss all docket numbers on the grounds (1) that the cited standard was unreasonably vague and constitutionally unenforceable; (2) that the record showed insufficient evidence to put a reasonable man on notice of hazard within the meaning of the cited standard; and (3) that the standard was applied in an arbitrary and capricious manner (Tr. 15-23, 450-457). Complainant's motion to amend the citation and complaint in Docket Number 12263, Item 3, by substituting the word "protective" for the word "leather" preceding the word "apron," was granted (Tr. 443-449).
Thus refined, the issues herein are whether respondent violated section 5(a)(2) of the Act and the cited personal protective equipment standard promulgated thereunder as alleged in the citations [*6] contested, and, if so, whether the respective penalties proposed therefor may be appropriately assessed under section 17 of the Act.
Summary of Relevant Evidence
The following stipulations by the parties were approved by the presiding Judge:
1. Respondent was and is an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Act (Tr. 29).
2. Respondent is a relatively small corporation in the retail meat and grocery industry with approximately 2,200 employees (300 in the meat departments) and an annual volume of business approximating $100 million (Tr. 42).
3. If it is determined that respondent violated the cited standard as alleged, then the penalties proposed therefor are deemed by the parties to be appropriate (Tr. 311).
4. The testimony of Mr. James Ryan in Docket Number 12572 respecting the operations performed by him and the manner in which performed is representative of the testimony other meatcutters called as witnesses by complainant and other meatcutter employees of respondent called as witnesses by respondent would have given (Tr. 230).
5. The testimony of Mr. Anthony Perri in Docket Number 12152 and the demonstrations [*7] pertinent thereto represents the testimony of Mr. Henry Hamburg and Mr. James Stokos in Docket Number 12263; complainant's redirect examination of Mr. Perri applies as though same testimony given in Docket Number 12572; complainant's redirect examination of Mr. Perri and pertinent demonstration (e.g., reaching across with right hand) is applicable in all three docket numbers (Tr. 343).
In support of complainant's case, Mr. Jeff C. Spahn, OSHA Assistant Area Director at Wichita, Kansas, a former official and safety committee chairman of the Amalgamated Meat Packers Union with 12 years' experience (1957-69) as a packing house butcher, testified that cutting, boning and trimming meat with a knife is hazardous per se by reason of the possibility or probability of knife cuts to the holding hand and abdomen (Tr. 58-61, 86-91, 95-96, 104, 107, 122-124, 134). In Mr. Spahn's opinion, on the question of exposure to hazard there is no distinction between meat cutting with a knife at the retail (local store) level and the wholesale (meat packing plant or slaughterhouse) level, notwithstanding the technological change in processing meat from carcass on rail to boxed meat at the retail [*8] level (Tr. 64, 67, 71-72, 87, 91, 110). As a butcher in a packing house, Mr. Spahn wore a mesh glove and a protective apron and only suffered a knife cut when he was cutting or boning meat without wearing a mesh glove (Tr. 57-62, 68). In Mr. Spahn's view, the hazard of a knife cut to the holding hand and abdomen is due to the sharpness of the knife and the slippery nature of the meat, especially when the knife is brought toward the body or slips off the bone of the meat, as may occur in boning round (Tr. 86-91, 109); there is an additional hazard of secondary infection from minor knife cuts and nicks (Tr. 70-71).
As an OSHA official and based on his experience in the Mid-West (to wit, Kansas, Nebraska and Iowa), Mr. Spahn states that in this area mesh gloves and protective aprons are generally worn by meatcutters in both packing houses and retail stores (Tr. 84, 92, 101-107, 140-141).
Respecting the practicability of the retail meatcutter wearing the mesh glove on the holding hand, Mr. Spahn testified that the five-finger mesh glove weighed 11 ounces, that the glove could be put on or off in 1-10 seconds and that the glove proved no problems in grasping, and no sanitary problems [*9] if it was sterilized once a day and washed off or dipped in disinfectant as many times as necessary during the day (Tr. 70, 78-80, 93, 117, 138). Mr. Spahn further testified that while mesh gloves with three, four or five fingers were available, the lesser-fingered gloves might not meet the cited standard, depending on the placement of the holding hand and the meatcutter's experience in making various cuts of meat; that the mesh glove might affect the dexterity of the cutting hand; and that wearing the mesh glove was not recommended when operating the frequently used bandsaw (Tr. 101-102, 105-106, 111).
Respecting the Port Jefferson store (Docket Number 12572), OSHA compliance officer James F. Cahill testified that on the basis of his inspection of that store's meat department, including conversation with meatcutter James Ryan, mesh gloves were not worn or made available on the job (Tr. 147-148). Mr. Cahill further stated that the cited standard required protective equipment here because of the hazard of knife cuts, lacerations or stabbing to the meatcutter's holding hand or stomach area while cutting meat with a knife (Tr. 164-165); that the store's accident reports showed [*10] that on May 9, 1974, a meatcutter suffered an injury to his left index finger when a knife slipped which required hospital attention, but no lost time (Tr. 149-450, Exhibit R-8C); and that of approximately 12 supermarket meat departments he has inspected, mesh gloves and protective aprons were available and apparently used in one (Tr. 162-163, 167).
Mr. James Ryan, a meatcutter with 9 years' experience at the Port Jefferson store, stated that he wore no personal protective equipment other than a cloth smock and apron; that over a 2-3 year period he had a couple of nicks (principally from cleaning the bandsaw blade) requiring only Band-Aid treatment; that most of the meat was broken down and boxed and 95 percent boned when received; that he spent about one hour out of 40 hours per week boning meat, about one and one-half hours per day cleaning equipment and workplace, and about one-half to three-quarters of his work time cutting meat; that in boning and cutting meat the four-inch blade of the boning knife or the 12-inch blade of the steak knife would come within 1/4 to 4 inches from his holding hand, depending on the type of meat and cut, such as veal scallopini, top chuck and round [*11] beef, and leg of lamb, and sometimes in boning the knife would be drawn towards the meatcutter (Tr. 175-176, 179-200, 205-206, 223).
In Mr. Ryan's opinion, the mesh glove is not needed by meatcutters for protection and would make his job more difficult to the extent it would curtail his sense of feel with the holding hand, which he needs for holding, debagging, and seaming meat (Tr. 206-207, 219-222). Mr. Ryan further testified that hazardousness in meat cutting all depends on the work pace, which generally is not hectic in his store; that he had two years of training before he became a journeyman meatcutter; and that his non-meating duties include taking phone orders, ordering meat, waiting on customers, boating, wrapping, scaling and unloading meat, cleaning equipment and cutting blocks with anti-bacteria germicide, and washing his hands with surgical soap several times a day, especially after working on pork and lamb (Tr. 190, 199, 209-213, 218).
Mr. Joseph Ornellas, the OSHA compliance officer who inspected the Southampton store (Docket Number 12152), testified that on the basis of his inspection, including conversation with meatcutter Anthony Perri, no hand protection was [*12] used by or provided to meatcutters at this store; that there was one injury at this store in 1974 attributable to cutting meat with a knife, which he considered a hazard within the meaning of the cited standard (Tr. 274-277). Of eight meat markets inspected, Mr. Ornellas indicated that six of them have made mesh gloves available to their meatcutters following the inspection (Tr. 284-287). A summary of injury statistics for 10 stores of different employers, including respondent, in the Long Island, New York area, over a 2-3 year period, indicated that five of the stores had a total of 11 injuries to meatcutters while cutting meat, without showing the severity of the injury, the amount of lost time, if any, and whether the meat being processed was boxed or in carcass form (Tr. 312-317, 321, 335; Exhibit R-12). Some mesh gloves observed in other stores were encrusted with fat which Mr. Ornellas did not deem unsanitary, although in these instances he observed no facilities for cleaning the gloves (Tr. 331-333).
Respondent's meat manager and meatcutter at the Southampton store, Mr. Anthony Perri, testified that in his 11 1/2 years as a meatcutter he had two knife cuts, only one of which [*13] required hospital treatment (2 stitches in left thumb) and one and one-half hours lost time (Tr. 233-237). Mr. Perri stated that other than once in Army cook school he has not been issued or used a mesh glove and, in his opinion, a meatcutter does not need the mesh glove for protection (Tr. 245-248, 258-261; Exhibits R-9 and 10). Mr. Perri further stated and demonstrated that the mesh glove would make it more difficult to grasp the plastic trays normally used to boat meat (other hand could be used more awkwardly) and would restrict manipulation of the holding hand, necessary in boning and cutting meat (Tr. 250-257, 259-261, 262, Exhibit R-11). Mr. Perri also testified that wearing a mesh glove when cutting meat on a bandsaw would create the hazard of catching the gloved hand in the power saw (Tr. 257).
Respecting the Bronx store (Docket Number 12263), OSHA compliance officer Everett Hall testified that his inspection of that store, including conversation with meatcutters Henry Hamburg and James Stokos, indicated that the meatcutters here did not wear mesh gloves to protect their holding hands against knife cuts while cutting or boning meat, and that the cloth apron they wore could [*14] not protect them against the hazard of knife cuts to the stomach area, particularly when boning meat (Tr. 400-404, 417, 434-436, 442). Mr. Hall also testified that, while no accident reports were available for this store, he had seen mesh gloves and protective aprons available or in use on first inspection of 5 or 6 of the 50 retail meat markets he had inspected (Tr. 404-405, 420-421, 438); that it was hazardous to wear a mesh glove while operating a bandsaw; and that to avoid possible health hazards mesh gloves should be cleaned with very hot water every time the meatcutter handles a different type of meat (Tr. 424-428).
Respondent's meat manager and meatcutter at the Bronx store, Mr. Henry Hamburg, testified that he never wore a mesh glove; that while he had a serious cut on his left forearm just above the wrist about five years ago (10 days lost time) and more recent occassional nicks, the mesh glove would not have prevented the cut and the nicks were minor, requiring only a Band-Aid (Tr. 348-358, 372). In Mr. Hamburg's opinion a meatcutter does not need a mesh glove for protection of the holding hand; there is very little boning required and the glove would interfere with the [*15] meat cutting operation in that much of the meat cutting is done on the bandsaw which is hazardous to operate with a mesh glove on (holding hand within one inch of saw blade) and the glove is cumbersome, bulky, cold and uncomfortable and makes grasping peach paper (normally used to separate meat cuts) more difficult (Tr. 360-369).
Respondent's meatcutter at the Bronx store, Mr. James Stokos, testified that he has never worn a mesh glove or protective apron; that he does wear a wool-lined vest for warmth, a linen smock, and a neck-to-knees plastic apron (also worn by Mr. Hamburg); that as an apprentice meatcutter some years ago he cut his knife holding hand while cutting chuck, which required hospital treatment, and a year ago cut his holding hand while cutting calves liver, which required hospital treatment without any lost time (Tr. 377-380; 384-391; Exhibit R-6C). Mr. Stokos also stated that when he had worn a shorter smock as an apprentice, he had suffered a skin graze to the groin area by a knife he was using to cut chuck; and that he seldom does any boning now (Tr. 377, 381-389).
In support of its case, respondent called its president, Mr. Otto Haass, whose 36 years in the [*16] retail meat industry includes considerable meat cutting experience (Tr. 462-475). In Mr. Haass' opinion, mesh gloves and protective aprons are unnecessary for meatcutters in respondent's retail meat operations because meat cutting with a knife in that operation does not constitute a hazard within the meaning of the cited standard: For the past six years it has been a 100 percent boxed beef operation utilizing the Iowa Beef Processors Cattle-Pak which has reduced the time spent in boning at the retail level to 3 percent; current retail meat industry statistics and projections indicate that the percentage of boneless beef will rise from the present 68.1 percent to 78.8 percent by 1980 (Tr. 485-504; Exhibits R-1, 2, 3 and 4).
Mr. Haass further testified that over a three-year period the three cited stores employed 34 meatcutters who suffered three recordable cutting injuries entailing no lost time out of a total of 38,465 hours worked (Tr. 511-514); that in 13 years as an active meatcutter he had never had a knife cut requiring medical attention, only nicks treated with a Band-Aid (Tr. 516); that neither he nor any meatcutters supervised by him had ever used a mesh glove (Tr. 522), [*17] and that the general practice in the Long Island area is for retail meatcutters not to wear mesh gloves or protective aprons (Tr. 515). Mr. Haass also stated that the Mid-West meat operation described by Mr. Spahn was based on the latter's predominant experience in wholesale (packing house) meat operations characterized by repetitious, specialized boning and cutting on a volume, assembly line basis (20 percent more boning than with Cattle-Pak operation), and even at the retail level was distinguishable from respondent's meat operation, e.g., the boxed beef received by respondent includes different primal and subprimal cuts, such as Eastern round steak which is boneless and plate of beef which requires no boning at the retail level (Tr. 476-504).
In Mr. Haass' opinion, wearing mesh gloves would impose on meatcutters a hazard greater than possible knife nicks in that the linkage construction of the mesh glove, absent adequate cleaning and sterilization, substantially increases the meat cross-contamination problem and the variety and intermittence of other functions performed by meatcutters, especially meat cutting on power saws, would increase the risk of injury to the holding hand [*18] if the glove were not removed (Tr. 507, 517-518, 524).
Findings of Fact
Based on all the evidence of record, the following facts are found:
1. At all times material herein, respondent was a New York corporation engaged in the operation of retail supermarkets, with employees, using materials and supplies manufactured outside the State of New York (Complaint, II & III; Answer, 1; Tr. 29).
2. In Docket No. 12152, complainant issued to respondent a citation dated January 17, 1975, based on an official inspection on January 15, 1975, of respondent's retail food supermarket located at 82 Hugent Street, Southampton, New York, with a proposed penalty of $35. Item number of said citation and proposed penalty was contested by respondent by letter dated January 28, 1975 (Citation, Notification of Proposed Penalty, Notice of Contest, Case File items 1, 2 and 3).
3. In Docket No. 12263, complainant issued to respondent a citation dated January 20, 1975, based on an official inspection on January 9, 1975, of respondent's retail supermarket located at 1515 Unionport Road, Bronx, New York, with a proposed penalty of $45. Item number 3 of said citation and proposed penalty was contested [*19] by respondent by letter dated January 28, 1975 (Citation, Notification of Proposed Penalty, Notice of Contest, Case File items 1, 2 and 3).
4. In Docket No. 12572, complainant issued to respondent a citation dated February 18, 1975, based on an official inspection on February 13, 1975, of respondent's retail food supermarket located at 100 Arden Place, Port Jefferson, New York. Item number 5 of said citation was contested by respondent by letter dated March 7, 1975 (Citation, Notice of Contest, Case File items 1 and 3).
5. Respondent's meat operation in the three cited stores consists in receiving and preparing for retail sale various types of meat, including beef (47 percent), poultry (35 percent), lamb (10 percent), pork (5 percent), veal (2 percent), and offal (1 percent). Most of the meat received by respondent, including all of the beef, is boxed with most of the bones already removed. Boning meat occupies about 3 percent of each meatcutter's workweek (one hour out of 40 hours approximately) and primarily involves legs and ribs of lamb, and, in beef, neck bones, top chuck and ribs. Industry-wide, 68.1 percent of the beef handled by retail stores of the large chain supermarkets [*20] is boxed meat (95 percent boneless) with 78.8 percent projected for 1980; the same figures for independent chains (like respondent) are 75.2 percent and 81.3 percent in 1980 (Tr. 214-217, 488-504; Exhibits R-1, 2, 3).
6. Respondent's meatcutters spend one-half to three-quarters of their work time cutting meat, much of it on power saws. Besides boning and cutting meat, the meatcutters intermittently perform other duties, including cleaning equipment and cutting blocks (one and one-half hours per day), unloading, scaling, boating and wrapping meat, taking customer orders by phone, waiting on customers, ordering meat, and maintaining personal cleanliness, e.g., washing hands (Tr. 209-213).
7. In cutting and boning meat on cutting blocks respondent's meatcutters use sharp boning (4-inch blade) and steak (12-inch blade) knives which are usually moved in directions down and away from the body, although in boning this is not always possible. Since the process of cutting and boning usually requires the meatcutter to hold the meat during the process, the knife usually passes within one-quarter to four inches from the holding hand, depending on the type of meat and cut being made. In [*21] cutting or boning meat with a knife, there is at least a possibility that the meatcutter will cut or nick his holding hand or the groin area of his body if not protected. The frequency and severity of such cuts or nicks may depend on the training (two years apprenticeship here) and experience (5-13 years here) of the meatcutter, the work pace, and accidents, such as knife slipping on the meat bone (Tr. 86-87, 185-199, 218).
8. Among the 34 meatcutters in the three cited stores over a three-year period, there have been 3 recordable knife cuts and a substantial number of minor knife nicks while cutting meat which entailed no lost time out of a total of approximately 38,465 hours worked. The recordable cuts required hospital treatment and the minor nicks required only self-applied Band-Aids (Tr. 176, 223, 233-240, 377-383, 511-512; Exhibits R-6A, B, C; R-7A, B, C, R-12).
9. Respondent's meatcutters at the cited stores wear no personal protective equipment, such as mesh glove on the holding hand or protective apron, other than a plastic apron over a cloth smock, and no such protective equipment was or is furnished by respondent (Tr. 147-148, 175, 244, 274-275, 380, 400, 522).
In [*22] the opinion of respondent's president (13 years' experience as active meatcutter, 36 years in retail meat industry), and meatcutters Ryan, Perri and Hamburg (9-15 years' experience as meatcutters), a mesh glove is not necessary to protect the holding hand of a meatcutter and Mr. Haass expressed the same opinion respecting a protective apron (Tr. 206, 258-259, 361, 504).
10. The general practice in the retail meat industry in the Long Island area of New York State is for meatcutters not to wear mesh gloves or protective aprons. The general practice in the retail meat industry in the Kansas, Iowa, Nebraska and South Dakota area of the Mid-West is for meatcutters to wear mesh gloves on their holding hands and protective aprons (Tr. 84, 92, 101-107, 140-141, 162-163, 167, 245-248, 348-358, 515, 522). A few stores of at least two small supermarket chains in the metropolitan New York City area have begun to furnish mesh gloves to their meatcutters following OSHA inspections (Tr. 277-278).
11. Wearing mesh gloves while cutting meat may pose a greater hazard or potential hazard to retail meatcutters than cutting or boning meat without wearing mesh gloves in that (1) it tends to reduce [*23] the flexibility, sensitivity and traction of the holding hand thus making meat cutting and boning more difficult; (2) most of the varied and interchanging duties performed on a daily basis do not require holding hand protection and in some, such as using the power saw to cut meat, wearing a mesh glove (consciously or carelessly) would substantially increase the hazard of cutting injury to the holding hand; and (3) it promotes or facilitates cross-contamination of meat if the mesh glove is not maintained in a sanitary condition by thorough washing periodically and between cuts of different types of meat and sterilization at least daily (Tr. 110, 132, 207, 219-222, 362-365, 507-510, 517-524).
Wearing a mesh glove on the holding hand is generally uncomfortable and impractical for the meatcutter due to the weight and cumbersomeness of the glove, its colder temperature on the skin, and its restrictiveness of manual dexterity, which makes grasping plastic trays and peach paper in normal ways more difficult (Tr. 250-259; 267; Exhibits R-9, 10, 11).
Opinion
The occupational safety and health standard allegedly violated herein, 29 CFR 1910.132(a), provides in pertinent part as follows: [*24]
"Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing . . . 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 . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through . . . physical contact."
The evidence of record clearly shows that respondent did not furnish its meatcutters in the cited retail stores with mesh gloves or protective aprons and that such personal protective equipment was not used by these meatcutters (Finding of Fact 9, supra). At the same time, I find no preponderance of evidence of record to support complainant's contention that respondent's meatcutters were exposed to or encountered such hazards of processes in a manner capable of causing injury as to require retail meatcutters to wear mesh gloves on their holding hands and protective aprons while cutting meat with a knife.
Principally through the testimony of Mr. Spahn, as OSHA official who, while experienced as a butcher in wholesale meat-packing [*25] plants in the Mid-West, was admittedly unfamiliar with respondent's retail meat operations (Tr. 51-73, 101), complainant would have us make no distinction between wholesale and retail meat operations in applying the cited standard. Respondent argues, in effect, that cutting meat with a knife is hazardous per se and within the purview of the cited standard, thus requiring the provision and wearing of personal protective equipment, such as that specified in the citations here. For respondent, a showing of industry practice on the number and severity of knife cut injuries to meatcutters over specific periods of time is mainly relevant only in determining the amount of penalty and not the violation in cases arising under the cited standard.
Recent precedential decisions of the Commission preclude me from following complainant's approach in resolving these cases. In Grand Union Company, OSAHRC Docket Nos. 7533 and 7031, 20 OSAHRC (1975), the Commission found that the hazards to which retail butchers are exposed are not the same as those of butchers in bulk meat-packing plants and held that the cited standard does not require retail store butchers to wear mesh gloves [*26] while cutting and boning meat. Pantry Pride Food Fair Stores, Inc., OSAHRC Docket No. 7111, 20 OSAHRC (1975). In affirming the Judge's decision in Pantry Pride, the Commission reiterated his reasoning that the cited standard would be impermissibly vague if interpreted to impose such a requirement.
Citing the Court's decision in Cape and Vineyard Division, New Bedford Gas and Edison Light Company, 512 F.2d 1148 (1st Cir. 1975), the Commission in the Grand Union case further held that, absent actual knowledge of hazard by the employer, whether there is a hazard of process within the meaning of the standard cannot be determined without reference to the customs and experience of those in the industry involved. This led the Commission into consideration of the nature of the duties of the retail butcher as distinguished from the wholesale butcher, the number of recordable injuries attributable to retail meat cutting with a knife, and the practice of the meat industry with respect to retail meatcutters using or being supplied with personal protective equipment in the form of mesh gloves.
Applying the criteria of the aforecited cases to the instant case, I find [*27] no substantial or distinguishable factual differences on which to base any ultimate findings or conclusions which could lead to any result different from the cases cited. As in Grand Union and Pantry Pride, the meatcutters in the stores cited here worked primarily with subprimal pieces of boxes meat which involved a very limited amount of boning (Finding of Fact 5, supra), and performed many other duties not involving cutting meat with a knife (Finding of Fact 6, supra). Similarly, the number of recordable knife cuts to both the holding hand and to the groin or abdomen area of respondent's meatcutters in the cited stores was either non-existent or minimal and infrequent, and involved no lost work time (Finding of Fact 8, supra).
Respecting industry practice, the record evidence clearly shows that the practice in the Long Island area of New York State, where the cited stores were located, was for retail meatcutters not to wear mesh gloves or protective aprons (Finding of Fact 10, supra). A substantial showing of a contrary practice in the Kansas, Iowa, Nebraska and South Dakota area of the Mid-West based on the sole testimony of Mr. Spahn, plus isolated, [*28] post-inspection instances of changed practice in the metropolitan New York City area, does not, in itself, constitute a sufficient showing of national industry practice to be conclusive. See The Great Atlantic and Pacific Tea Company, OSAHRC Docket Nos. 12377 and 12693 (Judge Burroughs, 1975).
Furthermore, as Judge Chodes noted in Pantry Pride, there is considerable evidence of record here indicating that requiring respondent's meatcutters to wear mesh gloves might entail practical difficulties and even greater hazards than those alleged by complainant herein (Finding of Fact 11, supra).
Conclusions of Law
1. At all times material herein respondent was an employer with employees engaged in a business affecting commerce within the meaning of sections 3(5) and 5(a) of the Act, and the Commission has jurisdiction of the parties and the subject matter herein under section 10 of the Act.
2. At all times material herein respondent was subject to the requirements of the Act and the occupational safety and health standards promulgated thereunder pursuant to section 6 of the Act, including the standard cited herein.
3. On the material dates, respondent was not [*29] in violation of the occupational safety and health standard set forth at 29 CFR 1910.132(a) under sections 5(a)(2) and 6 of the Act. Accordingly, respondent's pending motion to dismiss should, in effect and for the reasons discussed hereinabove, be granted and the citations and proposed penalties herein be vacated.
ORDER
Based on the foregoing findings of fact, summary of evidence, opinion, and conclusions of law and the record herein as a whole, it is hereby ORDERED, That respondent's motion to dismiss or vacate is granted and that item 2 of the citation issued on January 17, 1975, Docket Number 12152, item 3 of the citation issued on January 20, 1975, is Docket Number 12263, and item 5 of the citation issued on February 18, 1975, in Docket Number 12572, and the respective proposed penalties in the notification of proposed penalty pertinent thereto, be and hereby are vacated.
Dated: February 17, 1976
Hyattsville, Maryland
DONALD K. DUVALL, Judge, OSAHRC