GEORGE A. HORMEL AND COMPANY

OSHRC Docket No. 1410

Occupational Safety and Health Review Commission

September 20, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission on my order and Chairman Moran's separate order directing review of a decision made by Judge Alan M. Wienman. Judge Wienman vacated Complainant's citation whereby it was alleged that Respondent (hereinafter "Hormel") was in non-serious violation of 29 U.S.C. 654(a)(2) for having failed to provide guardrails on an open side of a hog shaving platform contrary to the requirements of 29 C.F.R. 1910.23(c)(1). n1

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n1 The standard provides, in pertinent part, as follows:

Every open-sided floor or platform over four feet above the adjacent floor or ground level shall be guarded by a standard railing. . . on all open sides.

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We have reviewed the record. Based on such review we are of the opinion that the cited standard applies to Hormel, that the violation is non-serious, n2 and that no penalty should be assessed. Accordingly, for the reasons given hereinafter we reverse Judge Wienman's [*2] decision.

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n2 On review Complainant moves to withdraw the citation saying that the violation is de minimis within the meaning of 29 U.S.C. 658(a). The motion will be denied as discussed infra.

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The relevant facts are not seriously disputed. Hormel operates a pork processing plant in Mitchell, South Dakota. Following slaughter, hog carcasses of 180 to 320 pounds and of 4 to 6 feet in length are automatically de-haired. They are then pivotally suspended by their rear hooves from an overhead rail with 12 to 18 inch gaps existing between the carcasses. The carcasses are automatically conveyed past a hair shaving station where employees are engaged for the purpose of removing residual hair.

The station is made up of four levels. The uppermost level consists of a platform having dimensions of 8 feet by 36 inches. The platform is located 58 inches above a floor, and it was unguarded on all sides when Complainant made an inspection of the plant. Hormel thereafter erected a standard railing on 3 sides, [*3] but it left the carcass side open. A toeboard was located on the carcass side at the time of the inspection.

Hormel employs one worker at each level, and each employee is responsible for shaving residual hair from a portion of each carcass. The worker employed on the uppermost level is required to shave the upper third portion of the carcass. To this end he grasps and turns a carcass with one hand while he shaves it with a sharp knife held in the other hand. Frequently, it is necessary to shave downwards to a distance approximating 30 inches above the platform level. Water is automatically dripped onto the carcass during shaving, and the carcass is slippery.

It is uncontroverted that a standard railing n3 located on the carcass side of the platform would impede the performance of the hair-shaving operation, however the operation could still be performed. It is also uncontroverted that a standard railing would increase the possibility for knife injuries while decreasing the possibility of injuries incurred by way of falls. In this regard the record reflects an absence of injuries to Hormel's employees by way of falls from the hair shaving station, and that three [*4] percent of all injuries in the meat packing industry are from falls whereas 22 percent are knife injuries.

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n3 According to 29 C.F.R. 1910.23(e) a standard railing includes a top rail located 42 inches above the platform and a midrail placed intermediate the toprail and the floor of the platform.

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On these facts Complainant issued a citation alleging a non-serious violation of the guard rail standard as to the carcass side of the uppermost level of the shaving station. Hormel contested and, among other defenses, n4 requests vacation on the ground that Complainant's regulation is in direct conflict with a U.S. Department of Agriculture (USDA) regulation. n5 In this regard Hormel stated that compliance with the OSHA regulation can result in contact of hog carcasses with guardrails contrary to the USDA regulation. Alternatively, Hormel defended on the basis that the OSHA standard should not apply to it since it has no history of fall injuries from a shaving platform, and compliance with the standard can result in increased [*5] knife injuries while causing an impedance to the shaving process.

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n4 It was also said that in view of the provisions of section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "OSHA") Complainant could not enforce his regulation against Hormel because the Secretary of Agriculture has promulgated a regulation which affects employee safety in accordance with the authority granted him by the Wholesome Meat Act (21 U.S.C. 601 et seq. ). Judge Wienman rejected the defense and correctly anticipated our resolution of this issue. Fineberg Packing Company, Inc., S. & H. Guide para. 17,518 (Rev. Com'n., March 22, 1974); Sigman Meat Company, Inc., S. & H. Guide para. 17,783 (Rev. Com'n., May 6, 1974).

Further, the Judge correctly ruled that the uppermost level of the hog shaving station was a "platform" within the meaning of 29 C.F.R. 1910.21(a)(4).

n5 9 C.F.R. 308.3(f) provides in pertinent part as follows:

Rails should be located. . . so that exposed product does not come in contact with posts, walls, and other fixed parts of the building. . . .

[*6]

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Judge Wienman rejected the conflict argument. He specifically noted that on the evidence of record "[n]o reason appears why a railing erected in the same vertical plane as the toeboard would be any more likely to make contact with carcasses than the present arrangement." We agree.

The Judge then found that the evidence reflected no history of falls from the shaving station, and that rails would increase the possibility of knife injuries. Contrary to the decisions of other Commission Judges n6 he interpreted the Act as authorizing the review of standards during enforcement proceedings. n7 He concluded that as to Hormel the cited standard is contrary to the intent and purposes of the Act, and he vacated.

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n6 Cf. Joseph Bucheit & Sons Co., 1 O.S.H.R.C. 609, Docket No. 295 (1972); Oberhelman-Ritter Foundry, Inc., Docket No. 1572 (1973).

n7 Because of our disposition herein we do not reach this issue, and we expressly do not decide it in this case.

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Review was directed on the issues whether the evidence establishes greater hazards, and if so, whether we should refuse to enforce it against Hormel.

As indicated, infra, Complainant now desires to withdraw his citation. Hormel opposes as does the Meat Industry Safety Committee ( amicus curiae herein). According to the motion Complainant characterizes the violation as de minimis, i.e., as being a violation that has "no direct or immediate relationship to safety or health" (29 U.S.C. 658(a)). In this regard he says "[t]he minimum distance between the passing animals, which have substantial weight and bulk, here form an effective barrier which substantially reduces the likelihood of a fall."

In a case now pending on review, Judge J. Paul Brenton concluded that beef carcasses are the equivalent of a standard railing because they are an effective barrier. Cimpl Packing Company, According to his brief therein (which brief was filed three months subsequent to the filing of the motion herein) Complainant strongly excepts to Judge Brenton's conclusion. Among other statements, he says ". . . the [*8] shape of the carcasses are tapered so that definite holes are maintained between the carcasses . . . leaving spaces for employee falls from the platform."

The evidence in this case is that 12 to 18 inch "holes are maintained" between hog carcasses. If an employee may fall in holes between beef carcasses we fail to see how hog carcasses with holes between them will prevent falls. Clearly, the violation alleged herein has a direct relationship to safety. The motion to withdraw is denied.

There remains for resolution the question whether the citation should be vacated because of greater hazards. We have said that section 5(a)(2) cannot be read so literally as to require a form of compliance which diminishes rather than enhances employee safety. Industrial Steel Erectors, Inc., 1498, CCH Employ. S. & H. Guide para. 17,136 (Rev. Com'n., January 10, 1974). We also said that the defense is available only in limited circumstances, and we indicated that it may not be available in those circumstances which appear to permit a variance under section 6(d) (1 O.S.H.C. at 1499).

This is such a case. It has been demonstrated that a [*9] standard railing will increase the hazards from knives. But it does not follow from that fact that employees must therefore suffer exposure to falling hazards. Commission Judges have affirmed citations in similar circumstances in the past. John R. Dailey, Inc., 1 O.S.H.R.C. 145, Docket No. 84 (1972); Midland Empire Packing Co., Inc., 1 O.S.H.R.C. 713, Docket No. 508 (1972). According to their decisions, which were not directed for review, alternative fall protection measures, e.g., safety harnesses, are available. And in an analogous situation involving mould preparation platforms Complainant has in fact granted a variance under section 6(d) of the OSHA. In re Application of Bethlehem Steel Corp., 38 Fed. Reg. 16,944 (June 27, 1973), BNA O.S.H.R. 35: 1257, CCH Employ. S. & H. Guide para. 8819. The Bethlehem Steel variance requires employees working at the edge of an opensided platform to wear tied off safety belts. The belts are tied off by safety lines to overhead pendants where the latter-named elements are suspended from and move freely in overhead tracks.

On the facts before us and in view of the cases discussed above, it appears that Complainant would [*10] and should act favorably on a proper application for a variance. Such action would accord with the purposes of the OSHA and eliminate any possibility of conflict with the Wholesome Meat Act. On the record, however, Hormel has not filed for a variance and has not adduced evidence from which it could be concluded that an application would be inappropriate.

Rather, Hormel refrained from taking any action until it was inspected and cited. It then erected standard railings on three sides of the shaving station. As to the carcass side, it relies solely on the limited defense announced in Industrial Steel Erectors. The facts of that case indicated that a variance would not have been possible. The facts of this case are to the contrary. We would also note that an alternative fall protection means such as a safety harness should not increase the knife hazards. We conclude that the purposes of the OSHA will not be served by allowing the greater hazard defense to prevail, and we therefore affirm the citation. We do not deem a penalty appropriate in the circumstances.

Accordingly, item 2 of Complainant's citation is affirmed, no penalty is assessed, and it is so ORDERED.

CONCURBY: [*11]

CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the result reached by Commissioner Van Namee.

I do not believe that the facts of this case are sufficiently analogous to those in Industrial Steel Erectors, Inc., No. 703 (January 10, 1974) to permit the rule enunciated there to be applied here. In Industrial Steel Erectors, the Commission was faced with applying a standard to conditions where the testimony clearly showed that to require compliance would expose employees to a greater risk of the hazard the standard was designed to protect against than by not requiring compliance. There was no alternative means of protecting the employees as was present here.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Respondent is a meat processing plant subject to the Department of Agriculture regulation found at 9 C.F.R. 308.3(f) which states:

Rails should be located and passageway provided so that exposed product does not come in contact with . . . fixed parts of the building. . . .

The occupational safety standard codified at 29 C.F.R. 1910.23(c)(1) also provides for the location of railings:

Every open sided floor or platform . . . shall be guarded by [*12] a standard railing . . . on all open sides.

Respondent was cited by complainant for not complying with the latter regulation.

The uncontroverted evidence of record however indicates that these two regulations -- each implementing a different statute and each enforced by different Federal agencies -- overlap in their application to respondent.

29 U.S.C. 653(b)(1) provides:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards of regulations affecting occupational safety or health (emphasis added).

In this decision, the Commission dismisses this jurisdictional provision for the reasons set forth in Secretary v. Fineberg Packing Company, Inc., supra, and Secretary v. Sigman Meat Company, Inc., supra.

These opinions assert that the Occupational Safety and Health Act is subordinate to other Federal laws only where there is ". . . a policy or purpose to include employees in the class of persons to be protected thereunder." It is my opinion that this interpretation of 653(b)(1) circumvents and expands the jurisdictional limitation [*13] set forth therein.

If Congress intended that such overlapping Federal law or standard have a purpose of protecting employees, the wording of 653(b)(1) would no doubt have stated that the Act does not apply to "Federal agencies . . . [that] exercise statutory authority to prescribe or enforce [occupational safety or health] standards. . . ."

Congress, however, inserted the terms "occupational safety or health" after the words "standards affecting." This carefully worded phrase effectively says that the jurisdiction under this Act is preempted by any standard statutorily promulgated by a Federal agency other than the Department of Labor which affects occupational safety or health. Such standard may have a primary purpose other than employee protection and still "affect" occupational safety or health. Regulations for the safety of airline passengers and the prevention of airplane crashes, for example, also protect the employees working on such planes (the crew). Clearly, they "affect" the crew's job safety.

Pursuant to 308.3(f), insertion of rails in the same general location and area as the placement of guardrails under 1910.23(c)(1) would result in the protection [*14] of workers from falls irrespective of any other purpose to which this standard may be directed. To that extent, the Department of Agriculture's regulation is a standard "affecting" occupational safety or health.

It is my opinion, therefore, that these facts exempt this respondent from the Act's coverage. By ruling otherwise, the Commission once again asserts authority in contravention of the jurisdictional limitations set forth in 29 U.S.C. 653(b)(1).

I think our ruling in Secretary v. Industrial Steel Erectors, Inc., supra, has also been misconstrued in this decision.

That case held that an employer is not required to comply with a standard when evidence indicates employee safety will be diminished rather than enhanced.

By inference, the concurring opinion correctly states that there is no factual difference, except for the application of a variance, between the circumstances in Industrial Steel Erectors and those here. In both cases a hazard of falling exists if non-compliance is allowed. n8

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n8 The lead opinion maintains that a violation should be found due to the exposure of falling. Irrespective of factual distinctions, all cases cited as support for this proposition are dated before our ruling in Industrial Steel Erectors, supra. Such authority is not persuasive.

[*15]

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The lead opinion, however, states that Industrial Steel Erectors held that this defense may not be available when circumstances would permit a variance. This is a gross misreading thereof.

We stated:

A variance . . . is a rule; that is, a policy having future effect, rather than 'adjudication' or disposition on matters involving past conduct that have not been the subject of a variance. When an employer does not seek a variance . . . he is . . . proceeding at his peril with respect to the outcome of any possible subsequent adjudication involving the facts involved.

No indication, express or implied, exists in this statement that the defense under the Industrial Steel Erectors rule may not be available in circumstances where a variance would be permitted. To the contrary, "proceeding at his peril" infers simply that the more cautious or conservative method for an employer to pursue is to apply for a variance rather than raise the defense in an adjudicatory hearing. One is not conditional upon the other however.

To a great extent, this ruling undermines and nullifies the correct [*16] approach to this problem taken in Industrial Steel Erectors.

I am also of the opinion that 1910.23(c)(1) was never properly promulgated as an occupational safety and health standard pursuant to 29 U.S.C. 655(a). That section limited the authority to promulgate standards thereunder to "established Federal standard[s]" or "national consensus standard[s]." n9

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n9 29 U.S.C. 651(b)(3) mandates this Commission to carry out adjudicatory functions under this Act. Included thereunder is a determination that those national consensus standards which have been promulgated as occupational safety and health standards comply with the requirements set forth in 29 U.S.C. 655(a) when enforcement thereof is being sought in cases before us. See Secretary v. Oberhelman-Ritter Foundry, supra.

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1910.23(c)(1) is derived from the American National Standards Institute (ANSI) standard A12.1-1967. Absent from the development and adoption thereof was any representation by the meat packing industry, the industry of which respondent [*17] is a part. n10 Had that industry been represented, the problems presented in this case might have been avoided by the standards writers.

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n10 American National Standards Institute, Safety Requirements for Floor and Wall Openings, Railings, and Toe Boards, A12.1-1967, p.3 (U.S. of A. Standards Institute, 1967).

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29 U.S.C. 652(9) stipulates that a national Consensus standard may become an occupational safety and health standard under this Act only if it:

. . . (1) has been adopted . . . whereby persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption. . . .

Since respondent's industry was not represented in its development, this standard could not become a "national consensus standard" as to meat packers. Consequently, no violation thereunder should be found against this respondent.

[The Judge's decision referred to herein follows]

WIENMAN, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and [*18] Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleged on the basis of an inspection of a workplace under the ownership, operation or control of the Respondent, that the Respondent violated the Act by failing to comply with certain Occupational Safety and Health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on August 14, 1972, alleged and itemized six separate non-serious violations. The Respondent elected not to contest Items 1, 3, 4, 5 and 6 of the Citation, but filed a Notice of Contest with respect to Item 2. Item 2 alleged a violation of the standard codified in 29 CFR 1910.23(c)(1). Ad described on the Citation, Item 2 charges:

Ham shaver platform over four feet above the adjacent ground level was not provided with standard railing or equivalent protection.

An abatement date of October 16, 1972, was fixed in the Citation.

The standard promulgated as 29 CFR 1910.23(c) provides:

(c) Protection of opensided floors, platforms [*19] and runways.

(1) Every opensided floor or platform over four feet above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (c)(3) of this section) on all open sides, except where there is entrance to ramp, stairway, or fixed ladder. The railings shall be provided with a toeboard wherever, beneath the open sides.

(2) persons can pass,

(ii) there is moving machinery, or

(iii) there is equipment with which falling materials could create a hazard.

(2) Every runway shall be guarded by a standard railing (or the equivalent as spedified in paragraph (e)(3) of this section) on all open sides four feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side. Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where the operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, [*20] electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

(3) Regardless of height, opensided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard railing and toeboard.

By a letter dated August 14, 1972, Vernon A. Shrahm, Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor, indicated that he proposed to assess no penalty for the violation alleged in Item 2 of the Citation.

Nevertheless, Respondent contested the enforcement action. After a Complaint and Answer had been filed by the parties, the case came on for hearing at Sioux Falls, South Dakota, on January 14, 1973.

THE ISSUES

The primary issue is whether Respondent violated the safety standard codified as 29 CFR 1910.23(c)(1) and must correct or abate the conditions existing at its Mitchell, South Dakota, processing plant as directed by the Citation. Resolution of this issue in turn depends on the following questions:

(1) Is the Occupational Safety and Health Act inapplicable [*21] to the working conditions at Respondent's plant by virtue of the provisions of Section 4(b)(1) of the Act? This question will be answered in the affirmative if another Federal Agency -- the Department of Agriculture -- exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health under the Wholesome Meat Act.

(2) If the Occupational Safety and Health Act is applicable to the conditions at Respondent's plant, does the runway exception of 29 CFR 1910.23(c)(2) apply to excuse omission of the railing on one side of the ham shaver platform?

(3) May the Respondent raise the issue of whether 29 CFR 1910.23(c)(1) is a valid and reasonable regulation as applied to the conditions existing at the processing plant in this enforcement proceedings or is Respondent's proper remedy a petition to the Secretary of Labor under Section 6(b) or 6(d) of the Act seeking either a modification of or variance from the standard?

SUMMARY OF THE EVIDENCE

No major dispute exists as to the evidentiary facts. Respondent in its Answer admitted that it maintained a ham shaver station with a floor more than four feet above the adjacent ground [*22] level. The station is not provided with a railing on one side. Occupational Safety and Health Administration Compliance Officer Thomas Martin testified that one employee worked at the station on a steel platform 58 inches above the floor (T. 16). This employee is one of four workers who remove the remaining hair from hog carcasses after they have been scalded and run through a mechanical dehairing machine (T. 37).

The carcasses are suspended by their hind feet from a swivel hook attached to a rail which conveys them past the four hair shaving stations. The rail, according to Robert C. Gipson, manager of Respondent's Mitchell, South Dakota plant, must be 11 feet from the floor to comply with USDA regulations (T. 38). A diagram of the rail arrangement with the carcass suspended at a height of 11 feet is portrayed in Exhibit R-11. The exhibit is a photocopy of page 50 of a USDA publication entitled "U.S. Inspected Meat Packing Plants, A Guide to Construction, Equipment and Layout." USDA regulations require that Department of Agriculture approval of plans and specifications be obtained prior to construction or remodeling of meat processing plants. Very little deviation [*23] from construction guidelines is approved, according to Respondent's witnesses. The hog carcass is suspended at the 11-foot height so there will be no contaminating splash-up from the floor (T. 90). A hog carcass is "exposed product" when it reaches the shaver platform (T. 90). USDA regulations proscribe exposed product from coming into contact with posts, walls and other fixed parts of the building. 29 CFR 308.3 (exhibit R-10)

The employees on the shaving stations work as a team, using butcher knives with seven to nine-inch blades to remove the hair (T. 40). Generally, the man on the ham shaver station removes hair from the top third of the carcass. He may shave down to within 30 to 34 inches of his floor level (T. 45). He moves about on the eight foot length of his level as necessary.

Bruce Lyman, the employee's union representative, was called as a witness by Respondent and testified he had worked on the ham shaver on several occasions. He explained that the hogs are spaced approximately 12 to 18 inches apart (T. 68). Depending on conditions the shaver must sharpen his knife every three to 10 hogs. In the 14 years he had been employed at the Hormel plant Lyman knew of [*24] no worker who had ever fallen from the platform. He pointed out that the shaver is steadying himself by holding a carcass in one hand while using a knife in the other (T. 66).

Lyman believed a guardrail at the 42-inch level would handicap the worker. He frequently shaves below the 42-inch level, and the workman would have the danger of striking the railing with his knife (T. 64). Recessing the railing would be no solution, in Lyman's opinion. The shaver would have to extend his arms further, thereby creating a fatigue factor (T. 65).

John W. Trollen, safety sanitation director for Hormel Corporation, testified that he had been employed by Hormel for 31 years and had no record or recollection of any falls from the ham shaver station (T. 86). He related that approximately 22 percent of the injuries in the industry were knife injuries and that the frequency of injuries from falls was quite low, approximately 3 percent.

He stated that the main reason there were no falls from the ham shaver station was because the workman was holding onto the hog at all times. He also has an indication in the form of a toeguard to prevent slips (T. 87). He believed installation of a [*25] railing would significantly increase the probability of a knife injury. He also thought it probable that the carcass would come in contact with any railing structure, thereby violating the Wholesome Meat Act.

The testimony that there had been no known falling accidents from the ham shaver station was unrebutted. Since the inspection on August 1, 1972, Respondent has added railings to the rear and extreme end of the ham shaving level. It has not erected a railing between the area where the workman stands and the carcasses (T. 41).

DISCUSSION

Few job safety regulations have been more productive of litigation during the brief history of the Act than the standard codified as 29 CFR 1910.23(c) when applied to operations in the meatpacking industry. The regulation, a general industry standard which the Secretary of Labor promulgated for universal application to all industries which position employees on elevated opensided floors, platforms and runways, has been vigorously resisted by a number of meatpackers. The result has been a flurry of contested enforcement procedures, petitions for modifications, and requests for variances. Unfortunately, none of these actions has [*26] yet concluded with any definitive rulings to guide our consideration of the various issues in the instant case.

Illustrative of the in limbo status of the law in this area is the basic question of whether the Act even applies to Respondent's plant or whether the United States Department of Agriculture has exclusive authority to prescribe safety or health standards for meatpacking plants. The issue arises under Section 4(b)(1) of the Act which divests the Secretary of Labor of authority with respect to worksites where other Federal agencies are exercising statutory responsibilities for workers' safety and health.

Respondent cites Secretary of Labor v. Sigman Meat Company, Inc., The Sigman decision is currently under review by the full Commission, but Respondent urges that its reasoning be adopted in the instant case.

We are not persuaded that the Secretary of Agriculture's authority under the terms of the Wholesome Meat Act relates to occupational safety or health. Rather, [*27] the sole concern of the Wholesome Meat Act (21 USC 601 et seq. ) is protection of the health and welfare of consumers by "assuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled and packaged" 21 USC 602. The Sigman case will ultimately settle the question of the Secretary of Labor's authority to enforce job safety standards in meat packing plants, but pending a Commission decision to the contrary, we hold OSHA standards generally applicable to the Hormel plant and not ousted by operation of Sec. 4(b)(1) of the Act.

The Respondent also urges that 29 CFR 1910.23(c)(2) relating to "runways used exclusively for special purposes" applies to the hog shaving station. This section of the regulations sanctions omission of a railing on one side of a runway where the operating condition necessitates such omission provided the falling hazard is minimized by using a runway of not less than 18 inches.

The Secretary contends that the shaver work area is a "platform" and not a "runway" as those terms are defined in the Regulations. The definitions as used in Section 1910.23 are found in Section 1910.21. At 1910.21(a)(4) [*28] a platform is defined "as a working area for persons elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment." Section 1910.21(a)(5) defines runway as follows: "A passageway for persons elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings."

The ham shaver station fails as a "runway" because it does not function as a passageway but serves only as an elevated working space for one butcher shaving the top third of the hog. The platform leads only to the next lower shaving area (T. 18).

The evidence does not support a finding 29 CFR 1910.23(c)(2) applies to excuse erection of a failing nor does it provide clear proof that a railing at a 42-inch height would come in contact with the exposed carcasses thereby creating a conflict with USDA regulations. The overhead track appears to guide the carcasses past the platform at sufficient distance to prevent the legs from striking either platform or toeboard (Exhibits R-2, R-3, R-4). No reason appears why a railing erected in the same vertical plane as the toeboard would be any more likely to make [*29] contact with the carcasses than the present arrangement.

The USDA regulation, codified as 29 CFR 308.3(f), expressly provides that "rails should be located and passageway space provided so that exposed product does not come in contact with posts, walls and other fixed parts of the building. . ." Despite considerable testimony about this regulation and its impact on Respondent's operation, the record fails to establish that 29 CFR 1910.23(c)(1) is inapplicable due to a conflict with USDA regulations.

What is abundantly established in the record, however, is the fact that a railing would not make the ham shaver's work area one whit safer but would likely increase the incidence of knife wounds -- the chief source of injury in the meatpacking industry.

The record in its present state contains no showing that any workman has ever fallen from the platform. The Secretary acknowledges that little, if any, hazard attaches to the alleged violation by proposing no penalty but insists that the present working conditions be "abated" or "corrected" by means that would appear to increase the danger of injury to the workman. The latter fact was documented by a number of industry witnesses [*30] as well as the union representative who spoke from personal experience as a ham shaver. All testified that placing a guard or barrier at a 42-inch height would impede the workman's use of his knife. The Secretary offered no witness to rebutt or moderate this testimony, but rather sought to suggest alternative forms of batement, i.e., recessing the railing; lowering the height of the platform; or raising the floor under the moving carcasses, etc. Each suggested means of abatement would either contribute to additional working hazards or constitute a departure from present USDA construction guidelines designed to insure a sanitary product.

The conclusion is unavoidable that the purposes of the Act -- assurance of safe and healthful working conditions -- will not be furthered by application of a general industry standard to the singular working conditions shown to exist in the instant cases. Quite obviously this is a matter which should be resolved either by (1) modification of the regulation in its application to meat processing plants or (2) individual variances from the standard. Petitions seeking both forms of relief are presently pending before the Secretary of Labor (T. 4, [*31] 5). Notwithstanding, the Secretary has prosecuted this enforcement proceedings, and suggested that the Respondent is not free to attack the reasonableness or validity of the standard in this forum. The question is an important one since it deals with the fundamental rights and remedies of employers subject to the Act.

The question also is one which not yet has been decided by a full Commission decision but has been considered by individual OSAHRC judges. In McDevitt & Street Co. (Docket No. 319) Judge Patton, although not persuaded that complete compliance with a standard would have increased employee safety, nevertheless refused to hold the regulation improper on the ground that Congress had provided a method for obtaining modification of or variance from a standard. Judge Ditore took a similar view when the Respondent in Diesel Construction Co. (Docket No. 827) contended that compliance with a standard would have resulted in a new and unwarranted safety hazard. Judge Ditore suggested that a petition for a variance was Respondent's proper remedy, adding: "The Secretary, not this Court, is authorized and empowered to determine whether standards are impractical [*32] or more hazardous. . ."

An earnest examination of the legislative history of the Act inclines us to a contrary view. The statute establishes an application or petition procedure for obtaining variances from standards promulgated by the Secretary of labor in Sec. 6(d), and also provides for judicial review of standards by adversely affected persons in Sec. 6(f). Any thought that such provisions were meant to be the exclusive remedies was expressly negated in the Senate report explaining the intent of Sec. 6(f):

Judicial Review of Standards. Sec. 6(f) provides that any person who may be adversely affected by a standard may within 60 days of issuance, seek judicial review in an appropriate United States Court of Appeals. While this would be the exclusive method of obtaining preenforcement judicial review of a standard, the provision does not foreclose an employer from challenging the validity of a standard during an enforcement procedure. Senate Report 91-1282, Oct. 6, 1970

1970 U.S. Code Congressional and Administrative News 7320

The Congressional intent is eminently clear, and the result is sound. To foreclose employers from challenging the validity of standards [*33] during enforcement proceedings would place industry in the untenable position of being forced to prophesy all possible applications and constructions the Secretary of Labor might place upon the language of the multitudinous standards. Even more absurd, the Commission in a litigated enforcement proceedings might find itself ordering an employer to alter safe working conditions and expose workers to new hazards in order to satisfy the mandate of an inappropriate regulation.

We do not hold the Commission so powerless that it must act contrary to the spirit and intent of the Act. Any other view would be contrary to the principles enunciated by the Supreme Court:

A regulation which . . . operates to create a rule out of harmony with the statute is a mere nullity. Lynch v. Tilden Oroduce Co. US 315, 320-322; Miller v. United States, 294 US435, 439-440; and cases cited. And not only must a regulation, in order to be valid, be consistent with the statute, but it must be reasonable. International Ry Co. v. Davidson, 257 US506,514. The original regulation as applied to a situation like that under review is both inconsistent with the statute and unreasonable.

Manhattan [*34] Co. v. Commissioner, 297 US 129,134-135.

We do not intend by this Decision to foreclose the Secretary from application of 29 CFR 1910.23(c) in any work environment where enforcement of that standard will contribute to occupational safety. We do find, however, that application of the standard is unreasonable and invalid under the factual circumstances in the instant case and therefore cannot affirm Item 2 of the Citation issued to Respondent on August 14, 1972.

FINDINGS OF FACT

1. Respondent George A. Hormel & Company, a corporation with a meatpacking plant located at Mitchell, South Dakota, is engaged in a business affecting commerce.

2. On August 1, 1972, an authorized representative of the Secretary of Labor inspected Respondent's Mitchell, South Dakota, plant and as a result the Secretary issued to Respondent a Citation alleging six other than serious violations pursuant to Section 9(a) of the Act.

3. On September 1, 1972, Respondent filed a notice to contest Item 2 of the aforesaid Citation pursuant to Section 10(c) of the Act. Items 1, 3, 4, 5 and 6 of the Citation and the corresponding penalties proposed therefore were not contested by Respondent.

4. [*35] On August 1, 1972, a workman employed by Respondent was engaged in shaving hair from hog carcasses with a butcher knife while standing on a steel platform 58 inches above the adjacent floor level. Said workman generally shaved the top third of each hog and in his normal operation shaved as low as the height of 30 to 34 inches above the level of the platform floor.

5. Erection of a 42-inch standard railing, or equivalent, on the front edge of the aforesaid platform would substantially interfere with the affected employee's normal shaving operation and substantially increase the hazard of knife injury to the affected employee.

6. There is no record of any injury due to fall from the aforesiad platform station in Respondent's plant, and the hazard of injury by fall from said platform is substantially less than would be the hazard of knife cuts if a 42-inch railing, or equivalent, were installed thereon.

7. The affected employee on the aforesaid platform is not exposed to any machinery or moving parts or objects below upon which he could fall; nor is the level adjacent to any dangerous equipment, pickling, galvanizing or de-greasing units.

8. The aforesaid platform cannot [*36] practically be lowered due to the nature of the work required and United States Department of Agriculture specifications requiring the rail upon which hog carcasses are suspended and conveyed to be 11 feet above floor level.

CONCLUSIONS OF LAW

1. The Occupational Safety and Health Review Commission has jurisdiction of the parties and subject matter herein pursuant to Section 10(c) of the Act.

2. By virtue of Respondent's failure to contest Items 1, 3, 4, 5 and 6 of the Citation issued August 14, 1972, within 15 days as provided in Section 10(a) of the Act, the said Citation items and penalties proposed thereon are deemed to be final orders of the Commission.

3. The Occupational Safety and Health regulation codified as 29 CFR 1910.23(c)(1) as applied to the instant facts would not result in improved safety or health for affected employees of the Respondent but would increase hazards likely to cause serious physical harm contrary to the intent and purpose of the Act.

4. At all times pertinent hereto Respondent was not in violation of Section 5(a)(2) of the Act because of non-compliance with the safety regulation codified as 29 CFR 1910.23(c)(1) as alleged in Item [*37] 2 of the Citation issued to Respondent August 14, 1972.

ORDER

1. Items 1, 3, 4, 5 and 6 of the Citation issued Respondent on August 14, 1972, and the penalties proposed thereon are hereby affirmed.

2. Item 2 of the Citation issued Respondent on August 14, 1972, is hereby vacated.