MEILMAN FOOD INDUSTRIES

OSHRC Docket No. 14617

Occupational Safety and Health Review Commission

October 26, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Henry Mahlman, Regional Solicitor, U.S. Department of Labor

Lawrence L. Piersol, forthe employer

James H. Peters, Treas, & Legal Counsel, Meilman Food Industries, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John J. Morris, dated June 24, 1976, is before this Commission for review under 29 U.S.C. 661(i). Judge Morris found the respondent, a food processor, in violation of 29 C.F.R. 1910.23(c)(1) n1 for failure to provide adequate railings on three platforms in the trim department of the respondent's meat processing plant, but he assessed no penalty.

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n1 Section 1910.23(c)(1) provides as follows:

Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

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

[*2]

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The platforms, described by the citation as a pregutter platform, a bung gutter platform, and a high trim platform, were used as work platforms by the respondent's employees who cleaned and trimmed cattle carcasses as the carcasses passed by on an overhead conveyor system. Railings were installed on the back sides of the platforms, but the sides facing the carcasses were equipped only with toeboards.

The Judge found that 29 C.F.R. 1910.23(c)(1) requires the respondent to install standard railings on the side of each of the platforms facing the carcasses. For reasons that follow, that decision is affirmed.

The respondent raises several issues that pertain to the reasonableness and applicability of 29 C.F.R. 1910.23(c)(1). The record reveals, however, that these issues are not novel and have been settled contrary to the respondent's contentions. George A. Hormel & Co., 74 OSAHRC 67/A2, 2 BNA OSHC 1190, 1974-75 CCH OSHD para. 18,685 (No. 1410, 1974), petition for reconsideration denied, 74 OSAHRC 77/F5, 2 BNA OSHC 1282, 1974-75 CCH OSHD para. 18,881 (No. 1410, 1974). The Commission finds [*3] that the Judge's findings on these issues are consistent with Hormel and affirms them on that basis. n2

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n2 As this respondent also does, the respondent in Hormel contended that 29 C.F.R. 1910.23(c) is inconsistent with the Department of Agriculture's regulation published at 9 C.F.R. 308.3(f) which provides that:

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

In Hormel, the Commission agreed with the Judge's finding that the record failed to establish that a rail erected in the same horizontal plane as the toeboard would cause any more contact with the meat than the toeboard would. The evidence is to the contrary in the instant case. The respondent's foreman testified that a carcass was more likely to bump the guardrail than the toeboard "because the carcass sticks out further at the top part than it does toward the bottom." However, the danger of contact could have been avoided by seeking a variance to use alternative fall protection measures as suggested in Hormel.

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The respondent also raises the following additional issues:

(1) That compliance with 29 C.F.R. 1910.23(c)(1) would diminish, rather than enhance, employee safety.

(2) That compliance with 29 C.F.R. 1910.23(c)(1) would increase cutting hazards and cause the respondent to violate 29 U.S.C. 654(a)(1), the so-called general duty clause, because its workplace would not be free of a recognized hazard, as required by 29 U.S.C. 654(a)(1).

(3) That, contrary to the decision of the Judge, the runway exception in 29 C.F.R. 1910.23(c)(2) applies in this case.

(4) That the Judge's decision does not contain findings of fact and conclusions of law as are required by 29 C.F.R. 2200.90(a). n3

(5) That the delegation of authority to the Secretary to promulgate standards is unlawful. n4

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n3 Commission Rule 90(a), 29 C.F.R. 2200.90(a), provides, "The decision of the Judge shall include findings of fact, conclusions of law, and an order."

n4 This contention cannot be considered by the Commission since it involves an attack on the constitutionality of 29 U.S.C. 655. The Review Commission has no authority to pass on the constitutionality of any portion of its enabling legislation. Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), appeal docketed, No. 76-1467, 5th Cir., February 19, 1976.

[*5]

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The respondent's contention that compliance would result in more cutting injuries and would therefore diminish, rather than enhance, employee safety, is also controlled by our decision in Hormel. Since the respondent did not prove that alternative means of protection, such as safety harnesses, n5 were unavailable, and because it had not applied for a variance, the Judge properly rejected the respondent's "greater hazard" defense. n6 The Commission also finds that a violation of 29 U.S.C. 654(a)(1) could be avoided by the use of alternative fall protection equipment.

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n5 Such harnesses will alleviate both the cutting and falling hazards.

n6 Also see Russ Kaller, Inc., 76 OSAHRC 130/F10, A BNA OSHC 1758, 1976-77 CCH OSHD para. 21,152 (No. 11171, 1976).

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The respondent's contention regarding the runway exception in 29 C.F.R. 1910.23(c)(2) is rejected. Section 1910.23(c)(2) requires that runways "be guarded by a standard railing [*6] (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides 4 feet or more above floor or ground level." The second paragraph of the section contains the following exception:

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. n7

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n7 The width of all three of the respondent's platforms exceeded 18 inches.

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The Judge properly found the respondent in violation of the platform guarding standard, 29 C.F.R. 1910.23(c)(1), as cited. The respondent was not cited for a failure to guard a runway, a violation of 29 C.F.R. 1910.23(c)(2). The exception contained in section 1910.23(c)(2) applies only to runways, not to platforms. A "runway" is a "passageway for persons, elevated above the surrounding floor or ground level." 29 C.F.R. 1910.21(a)(5). A "platform" is a [*7] "working space for persons, elevated above surrounding floor or ground." 29 C.F.R. 1910.21(a)(4). The structures at issue in this case were "working space[s]" as they were used for the cleaning and trimming of carcasses. They were therefore "platforms," and the exception in section 1910.23(c)(2) does not apply.

Finally, the Commission finds no merit in the respondent's contention that the Judge failed to adhere to the requirements of Rule 90(a) of the Commission Rules of Procedure. The Judge's decision does contain findings of fact and conclusions of law, although they are in narrative form.

Accordingly, the Judge's decision is affirmed.