GRAND UNION COMPANY

OSHRC Docket Nos. 7533; 7031 (Consolidated)

Occupational Safety and Health Review Commission

October 28, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINION:

BY THE COMMISSION: The question presented in this consolidated matter is whether 29 C.F.R. 1910.132(a) n1 requires butchers working in retail grocery stores to wear wire mesh gloves as hand protection while using knives to trim and debone meat. The administrative law judges (ALJs) determined in these cases that the standard does require retail butchers to wear these gloves. In so finding, both ALJs found not any distinction between the duties of retail butchers and their counterparts in bulk meat packing plants who are routinely provided with mesh gloves. In addition, the ALJ in Docket No. 7533, based his decision, in part, on the injury history presented on the record in that case. We do not agree with the Judge's findings that the hazards to which retail butchers are exposed are the same as those of butchers in bulk meat packing plants. Furthermore, we find on the evidence of record regarding injuries in these cases, Grand Union could not reasonably have been expected to know that the cited standard requires retail butchers to wear mesh gloves while trimming and deboning meat. Moreover, we have a large number [*2] of other cases before us wherein the same issue is presented. n2 We note that their records show few, if any, recordable injuries. See note four, infra.

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n1 29 C.F.R. 1910.132(a) provides:

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 contract.

n2 The issue presented herein is currently before us for review in a number of cases. See Great A & P Tea Company, et seq.; Thorofare Markets, Docket Nos. 10661 et seq.; Grard Union Co., Pantry Pride Food Fair Stores,

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The question of the kind of conduct prescribed by the cited standard is not novel. We have previously stated that the terms of the standard are broad. Modern Automotive Service, Inc., 6 OSAHRC 738 (1974). In order to avoid finding the standard unenforceably vague, it must be construed in light of other standards or in the light of industry customs and practices. Modern Automotive Services, Inc., supra.

A similar approach was followed by the courts in affirming the Commission's decisions in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir., 1974) and McLean Trucking Company v. OSHRC and Brennan, 503 F.2d 8 (4th Cir., 1974), two cases involving the wearing of protective foot equipment by employees working on loading docks. In both cases the courts noted that the standard was not vague if a "reasonable man" test was applied in determining if a hazard would have been apparent to the respondents. In so finding, the court in Ryder noted:

So long as the mandate affords a reasonable warning of the prescribed conduct in light of common understanding and practices, it will pass constitutional [*4] muster (emphasis added).

Thus, while an average person without any understanding of industry practice might well view the retail butcher's use of knives as a hazard, 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. n3 Cape and Vineyard Division of the New Bedford Gas and Edison Light v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975).

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n3 As the Court in Cape and Vineyard, infra, noted, the problem of fair notice doesn't exist if an employer is shown to have actual knowledge. Furthermore, as the Court pointed out, there may be instances where industry practice fails to take precautions against hazards generally known in the industry. We do not find that to be the case here.

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In the instant cases, it was established that it is industry practice to supply meat cutters working in bulk meat packing plants with steel mesh gloves in addition to other protective equipment. However, meat cutters [*5] in the meat departments of retail stores are not supplied with this equipment. Furthermore, the president of Local 568 of the Amalgamated Meat Cutters stated that the use of steel mesh gloves, in itself, creates a hazard when performing certain duties, and that the International Union was opposed to the use of the gloves.

Respondent supplies the meat cutters in its meat packing plants with mesh gloves but not the retail store meat cutters because of the difference in their duties. The employees in the meat packing plants cut up and debone carcass quarters that weigh as much as 180 pounds, and which are hanging from overhead hooks. The bulk plant meat cutters pull the meat away from the bone with a boning hook while cutting meat away from the bone with a knife held in the other hand. The necessity of following the contours of the bone often requires the meat cutters to cut in the direction of the hand holding the boning hook.

Respondent established that the retail meat cutters, on the other hand, deal primarily with "subprimal" pieces of meat which sometimes weigh as little as 15 pounds. Inasmuch as most of the meat is boned or partially boned at the plant level, the [*6] retail butchers are required to do only a limited amount of boning. Thus, a great deal of the cutting done by a retail meat cutter is toward a cutting board rather than toward the cutter's hand. Furthermore, unlike his counterpart in the packing plant, the retail meat cutter spends a great deal of his time in duties other than cutting meat, such as operating machinery, waiting on customers, and housekeeping.

The parties stipulated that in Respondent's 65th infantry store, in Rio Piedras, Puerto Rico (the store which was inspected in Docket No. 7533), only one meat department employee suffered a recordable cut n4 resulting from a knife injury during the period from 1971 n5 to July, 1974. The parties further stipulated that in all of Respondent's 17 Puerto Rican stores during the same period, there were only 18 reported instances of meat department employees suffering knife cuts, including the one already mentioned. The record in Docket No. 7031, establishes that during a 3 1/2 year period, there were not any recordable injuries that occurred while employees were cutting meat with a knife.

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n4 29 C.F.R. 1904.12(c) defines recordable injuries as follows:

(c) "Recordable occupational injuries or illnesses" are any occupational injuries or illnesses which result in:

(1) Fatalities, regardless of the time between the injury and death, or the length of the illness; or

(2) Lost workday cases, other than fatalities, that result in lost workdays; or

(3) Nonfatal cases without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday cases."

n5 The record does not specify from what month in 1971 the period began, but we assume that it was from the inception of the recordkeeping requirements under the Act.

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In view of the foregoing, we conclude that Respondent's experience establishes that the use of knives by its retail meat department employees is not a hazard of process within the meaning [*8] of 1910.132(a) such as to put Respondent on notice that these employees must be provided with steel mesh gloves. n6

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n6 It is of interest that a joint Labor management committee for the meat cutting industry met with officials of the Occupational Safety and Health Administration on September 5, 1975 to relate the results of the committee's efforts "to develop guidelines for the use of mesh gloves." 5 OSHR 433 (September 5, 1975).

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Accordingly, the citations for violations of 29 C.F.R. 1910.132(a) and the penalties assessed therefore are vacated. The remaining findings of the Judges are affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I must dissent from the decision of the majority of this Commission.

I. Facts

The facts of the alleged violation in each case are not disputed. In No. 7533 respondent employer is the second largest retail grocery store chain in Puerto Rico, employing approximately 1,000 people. On March 19, 1974, a compliance safety and health officer of the Department of Labor's Occupational [*9] Safety and Health Administration conducted an inspection of the meat department of respondent's establishment located at the 65th Infantry Commercial Center in Rio Piedras, Puerto Rico. Pursuant to that inspection, on March 27, 1974, citations and a notification of proposed penalties were issued to respondent.

Of relevance to this review was the citation that alleged respondent's non-compliance with safety standard 29 CFR 1910.132(a). This allegation was contested, and the case was heard July 29-30, 1974, in San Juan, Puerto Rico.

Three meat cutters testified at the hearing. They testified that they spend four to five hours a day cutting 600 to 700 pounds of meat with a knife. The blade of the knife was approximately eight inches long and was kept extremely sharp. In addition to their meat cutting duties, each employee worked with a meat grinder and a band saw, was required to perform cleanup operations and, on occasion, was required to take special cut requests from individual customers.

Respondent's meat cutters cut meat with a knife without any form of personal protective equipment on or for the hand not holding the knife. In addition, respondent's employees [*10] routinely made delicate cuts of meat during which time their free hand would be within 1/4 inch of the knife blade. Finally, it was stipulated that for its seventeen stores in Puerto Rico for the period 1971 to the date of the hearing, there had been 18 reported injuries, including one at the 65th Infantry store, to employees cutting meat with a knife. These injuries resulted in approximately 113 lost work days to the injured employees.

From the above facts Judge Osterman concluded that respondent failed to provide either mesh glove or some other type of protective equipment for its meat cutters. He found respondent in violation of section 5(a)(2) of the Act for non-compliance with safety and health standard 29 CFR 1910.132(a).

The facts elicited in No. 7031 before Judge Ditore are similar. On February 15, 1974, a compliance safety and health officer of the Department of Labor's Occupational Safety and Health Administration conducted an inspection of the meat department of respondent's establishment located at 415 Broadway, Newberg, New York. Pursuant to that inspection on February 28, 1974, a citation for non-serious violation containing four items and a notification of [*11] proposed penalties were issued to respondent. Respondent timcly contested citation item 2 (alleging violation of 29 CFR 1910.132(a)) and the amount of the proposed penalty for citation item 4. n7 The case was heard before Judge Ditore on September 12, 1974, in New York, New York.

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n7 The notification of proposed penalty for item 4 was subsequently amended to $50. Respondent then withdrew its contest to the penalty as amended.

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At the subsequent hearing, it was established through the compliance officcr's testimony that on the day of inspection two of respondent employees were working in its meat department cutting meat with knives, each of which had a six-inch blade. During the cutting operation both employees brought the knife to within 1/4 inch of the hand holding the meat being cut. Neither employee was wearing any type of personal protective equipment on the hand holding the meat.

Respondent's Newberg store meat manager testified that he had been involved in the butchering trade for 26 years. During [*12] this period he had never worn a mesh glove nor had he seen anyone wearing a mesh glove while preparing meat for retail sale. He did admit that injuries from the cutting and boning of meat with a knife by other butchers had taken place in his presence. It was respondent's meat manager's testimony that a butcher would not be able to do the trim work necessary on veal or round steak while wearing a mesh glove.

Respondent presented as a witness in both cases its National Meat Sales Manager, Mr. Jack Calderone. Mr. Calderone testified generally about the different types of work retail butchers are required to do and why, therefore, it is impractical for them to wear mesh gloves while boning and trimming meat with a hand held knife. He compared respondent's retail butchering operation with the sub-primal beef operations carried on by respondent. In the sub-primal plants, carcass beef is received by rail and broken into smaller cuts. The butchers in these plants do the major boning work and are protected by head gear, very heavy stainless steel and suede apron-like garments, stainless steel mesh gloves, and wrist guards for the hand not holding the knife. They also use boning hooks [*13] to further remove their hands from the proximity of actual cutting operations. The butchers at the retail level are not protected by any of these methods because of the belief that in the context of the retail operation they would be impractical and possibly dangerous.

At the retail level, butchers are required to receive products, special customer orders, do some housekeeping, price goods, and operate power equipment such as band saws and cube steak machines. All of these things are done randomly and are in addition to the butcher's meat cutting responsibility.

It was the Secretary's position, emphasized throughout both hearings, that his citations did not require abatement through the exclusive, or, indeed, the partial, use of mesh gloves. The Secretary asserted only that meat cutting in respondent's retail establishments presented an obvious hazard to respondent's butchers and that the use of mesh gloves would be a method of abatement.

II. Discussion

Properly stated, the issue before this Commission is this: Are butchers who are performing meat cutting and boning operations in respondent's retail establishments exposed to hazards of processes or environment [*14] in a manner capable of causing injury or impairment in the function of any part of the body through physical contact?

If the answer to this question is "yes," and if respondent has failed to establish by a preponderance of the record evidence an affirmative defense, then respondent should be found in violation of section 5(a)(2) of the Act for non-compliance with safety standard 29 CFR 1910.132(a).

The evidence of record is uncontroverted in both cases that respondent's butchers are exposed to injury while working with cutting and boning knives. Respondent's seventeen (17) stores in Puerto Rico accounted for eighteen (18) reported instances of meat department employees suffering knife cuts. Moreover, these specific injuries accounted for approximately 113 lost work days to respondent's employees. In the Newberg, New York, case, there were no reported knife injuries although respondent's meat manager did testify that during his years as a butcher he witnessed other butchers cut themselves while cutting and boning meat with a knife. With respect to a lack of a specific injury rate the Fifth Circuit's decision in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, [*15] 233 (1974) is instructive:

The legislative history of the statute reveals that its declared purpose is 'to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.' 29 U.S.C. 651(b). It is noteworthy that the Act does not establish as a sine qua non any injury rate. Hence, Ryder's reliance on 'only to injuries in five years' is misplaced. Moreover, the Act specifically encompasses non-serious violations, i.e., violations which do not create a substantial probability of serious physical harm. 29 U.S.C. 666(g)(j). Avoidance of minor injuries, as well as of major ones, was intended to be within the purview of this liberal Act (emphasis added).

The Secretary, having established that respondent's butchers are exposed to the hazard of knife cuts during the process of boning and trimming meat for retail sale, has established respondent's prima facie violation of section 5(a)(2) of the Act for noncompliance with safety standard 29 CFR 1910.132(a). In the absence of an affirmative defense the citation should be affirmed.

Respondent defends against the citations by arguing that required use of mesh gloves during [*16] hand meat-cutting operations would lead to a more hazardous situation than not requiring their use n8 and that use of the mesh gloves would prevent its butchers from properly making delicate cuts of meat. It is respondent's position that because of the multiple duties required of its butchers, including working with power saws, meat cubers and grinders, all of which are performed in random order throughout the day, that sooner or later one of its employees is going to forget to remove the glove. He may then get it caught in one of the electrically powered machines and do serious injury to himself. With respect to its employees' inability to make delicate cuts of meat, the testimony of respondent's Newberg, New York, store meat manager that it would be impossible to do the trim work necessary on veal and round steak stands unrebutted. n9

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n8 Respondent's position is not analogous to the position taken by respondent in Industrial Steel Erectors, Inc., No. 703 (January 10, 1974), wherein Industrial Steel Erectors, Inc., established that its method of operation was "safer than" that proscribed by the Secretary. Here, Grand Union is merely asserting that its employees will not follow specific directions and thereby increase the probability of injury. Clearly, the failure to follow directions for one's safety may result in injury. That does not mean such directions should not be given.

n9 See note 10, infra.

[*17]

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There are two reasons why respondent has failed to rebut the Secretary's prima facie case. First, the Secretary's compliance officer testified that personal protective equipment in the form of mesh gloves should not be used around the power equipment in respondent's retail establishment and that it was respondent's obligation to establish and enforce administrative controls to see that they were not used. Such controls are feasible and they do not place upon respondent an intolerable burden. Second, it is not the position of the Secretary that mesh gloves must be used to protect respondent's employee's hands. The Secretary's position is simply that their hands must be protected by some means. Moreover, this position was made clear by the Secretary's compliance officers at both hearings. For example, in No. 7533 the following colloquy took place between respondent's counsel and compliance officer:

Q. Mr. Sanchez, [the compliance officer] what equipment could we have used in order to comply with the regulation?

A. There are several different types of gloves, especially these metal mesh gloves, [*18] there are different types of gloves in this mesh type. n10

Q. Then it was mesh gloves that you were looking for, isn't that right?

A. Not necessarily, because if they had been provided with any other protective device that was equally protective, it would have been acceptable. n11

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n10 Later, during continuing cross examination, Compliance Officer Sanchez testified that metal mesh gloves come in different sizes and weights and that some have only two or three fingers. The record is devoid of any proof by respondent that a lighter less restrictive glove would not allow making of delicate cuts of meat.

n11 Transcript of Docket No. 7533 at 67 (emphasis added).

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The majority apparently considers the delineation of the hazard in the retail meat-cutting cases to be simply a matter of mutatis mutandis. See note 2 to their opinion and also the noting of the experience of other employers. This is hardly consistent with the teaching of the First Circuit in Cape and Vineyard Div. of the New Bedford [*19] Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148, 1153 (1975), concerning the proof to be considered in the application of a general as distinguished from a specific standard or rule.

The majority opinion notes that both administrative law judges failed to distinguish between the duties of retail butchers and their counterparts in bulk meat packing plants, n12 and by noting that:

We do not agree with the Judge's reports finding that the hazards to which retail butchers are exposed are the same as those of butchers in bulk meat packing plants.

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n12 In this regard safety standard 29 CFR 1910.132(a) does not address the "quality" or severity of the hazard to which employees are exposed. It requires protection when employees are exposed to "hazards."

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Neither of the Judges' reports concludes that the hazards to which retail butchers are exposed are the same as those of butchers in bulk meat packing plants. Both decisions consider in their respective statements of the evidence that respondent established that the [*20] hazards to butchers working in bulk processing plants are well recognized and protected against by respondent. Both decisions discuss the differences between retail and bulk plant operations and thereafter conclude that respondent's retail employees, are, in any event, exposed to hazards designed to be protected against by safety standard 29 CFR 1910.132(a).

With respect to the majority's use of the record in other cases to establish that there was no violation of the standard in this case, it must be noted that section 10(c) of the Act requires this Commission to afford the opportunity of a hearing, from which an order is to be issued, based on findings of fact. These findings are to be elicited from the record including evidence adduced at the hearing. The majority, at page 2, uses the word "note" with regard to its consideration of the records of other cases presently under review. Regardless of how it is denominated, this is plainly a reliance upon facts that are not yet final findings of facts by the Commission.

Moreover, neither party in the cases presently before us sought to introduce the record of any of the cases listed in note 2, nor would it have been appropriate [*21] to do so. It would have been inappropriate because, as noted in the footnote, the Commission has called these cases for review thereby suspending any consideration that may be given these records. Their use in this case anticipates the disposition of the hazard issues therein. This prejudices the result in these consolidated cases for two reasons. First, in the absence of certain narrow exceptions not present here, it is black letter law that matters outside the record may not be considered in reaching a decision pursuant to a hearing; and second, to consider matters outside the record, as done by the majority here, is inconsistent with Cape and Vineyard, supra, on the application of a general, as opposed to a specific, standard.

The majority by using the cases listed in note 2, may impede the ability of an appellate court to review the record of the instant cases. The majority is in effect using the record of other cases in weighing the evidence in favor of respondent's position.

. . . The exercise of this appellate jurisdiction entails the necessity of a record which, if it is to enable the court to pass intelligently upon the administrative proceedings, must [*22] contain all of the facts considered by the administrative tribunal. To meet this requirement, some sort of restriction must be placed upon the doctrine of "judicial notice" by administrative tribunals, such as incorporation by reference into the record of all facts noticed: otherwise, to the argument that the finding of the board was based on insufficient evidence it could always be answered that facts judicially noticed formed a sufficient basis for the finding (footnote reference omitted; (emphasis added) n13

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n13 Judicial Notice by Administrative Tribunals, 44 Yale L.J. 355-356 (1934).

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Finally, it is fundamental to administrative due process that an agency that seeks to resolve a case at the review level, on the basis of facts not on the record, remand to the hearing officer. The party against whom the facts are to be used must be allowed the opportunity, upon timely request, to rebut those facts as they are sought to be applied. Administrative Procedure Act, Section 7(d), 5 U.S.C. 556(e); Curtis, [*23] Inc. v. United States et al., 37 Pike and Fischer Ad. Law 2d 269, 272 (D. Colo., Oct. 24, 1974).

The majority notes that Ryder Truck Lines v. Brennan, supra, and McLean Trucking Co. v. OSHRC & Brennan, 503 F.2d 8 (4th Cir., 1974), apply a "reasonable man" test to determine if a hazard (and not a method of abatement) would have been apparent to respondent. n14

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n14 See, Coughlan Construction Company, Nos. 5303, 5304 (October 28, 1975) (Cleary, Commissioner, concurring).

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The following from the Ryder decision is thereafter quoted by the majority:

So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster (emphasis supplied in the majority opinion).

From this quoted language, through the medium of Cape and Vineyard Div. of the New Bedford Gas and Edison Light v. OSHRC., supra, the majority opinion reaches the following wholly illogical conclusion:

Thus, while an average person without [*24] any understanding of industry practice might well view the retail butcher's use of knives as a hazard, whether there is a hazard of process within the meaning of the standard cannot be determined without reference to the custom and experience of those in the industry involved.

As written, the above quoted paragraph appears to say that although a hazard of process is clear to a layman it will become less clear, and indeed disappear, in the eyes of these with specialized knowledge. Moreover, the error is compounded by note 3 of the majority opinion wherein it is noted that the Court in Cape and Vineyard, observed that there may be instances where industry practice fails to take precautions against hazards generally known in the industry. The records in both cases are replete with testimony and other evidence that indeed butchers at the retail level risk knife cuts.

[The Judge's decision referred to herein follows]

OSTERMAN, JUDGE: This is a proceeding * initiated by the Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC 659(c) (hereafter the Act) to contest a Citation and Notice of Proposed Penalty both issued to Respondent [*25] on March 27, 1974, following an inspection conducted on March 19, 1974.

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The violations alleged, the abatement dates, and the proposed penalties are as follows:

Violation

Abatement Dates

Proposed Penalty

SERIOUS

29 CFR 1910.

212(a)(3)(ii)

Immediate

$700.00

NON-SERIOUS

29 CFR 1903.

2(a)

Immediate

70.00

NON-SERIOUS

29 CFR 1910.

132(a)

15 days

60.00

On April 15, 1974, Respondent timely filed a Notice of Contest challenging each of the alleged Citations. By amendment to his Notice of Contest filed April 17, 1974, the Respondent limited his challenge to Item 2 (non-serious violation), the penalty proposed for Item 1 (non-serious violation) and the Serious violation and its proposed penalty.

At the hearing on July 29, 1974, counsel for the Secretary withdrew the serious violation charged by the Secretary [29 CFR 1910.212(a)(3)(ii)] stating for the record that the Secretary is not in a position to prove this violation. The parties also stipulated, [*26] in pertinent part; that Respondent is a corporation engaged in business affecting commerce; that Respondent is the second largest retail grocery store in Pucrto Rico employing approximately 1000 persons; that Respondent did a nationwide annual volume of business in 1973 amounting to over one billion dollars; that no employees were injured at the time and place the violations occurred; and that the store in question (65th Infantry Store) had not been inspected previously.

The issues remaining to be tried were (1) Was Respondent in violation of 29 CFR 1910.132(a) by failing to provide its butchers, who cut meat with a knife, with personal protective equipment which would protect their hands from possible injury and (2) is the penalty proposed for Respondent's failure to keep posted the OSHA poster as required by 29 CFR 1903.2(a) appropriate under the circumstances herein.

The evidence disclosed at the hearing indicates that Respondent's butchers wield a cutting knife in one hand while holding the raw meat in the other bare hand; that depending upon the thickness of the slice of meat to be cut, the blade of the knife may come to within 1/4 inch of the butcher's unprotected [*27] hand. The evidence also discloses that one method of protecting the hand which is holding the meat is the use of a steel mesh glove. It was conceded that this type of protective equipment has been known to the Respondent.

Respondent urges, however, that while the use of a mesh glove may be appropriate in a packing plant where the employee performs only one meat-cutting operation the situation is different in a retail store where the employee is called upon to alternately use power saws and grinders as well as a knife depending upon the demands of his customers. It is undisputed that the wearing of a mesh glove while operating power machinery represented a potential hazard to the operator. Basically, it was Respondent's position that it would interfere with the efficiency of the butcher in a retail butcher shop if he were required to alternately wear and remove a mesh glove during the course of his work day depending upon what he was called upon to do.

Although a mesh glove, such as the one exhibited at the hearing weighs approximately 11 ounces and its use would require some adjustment on the part of the butcher, the minor inconvenience of wearing it when using a knife and removing [*28] it when using power machinery is outweighed by its effectiveness in preventing injuries. The record is clear that during the period from 1971 until the date of this hearing there were eighteen (18) reported cases of injuries suffered by meat cutters in the seventeen stores operated by Respondent in Puerto Rico. These injuries resulted in the loss of approximately 113 working days. Under the circumstances I find that Respondent's failure to provide this, or some other type of protective equipment for its meat cutters, is a violation of the regulation involved. I find also that the penalty proposed for this violation is appropriate under the circumstances and not inconsistent with the provisions of Section 17(j) of the Act.

With respect to the remaining issue; i.e., Respondent's failure to maintain an OSHA poster at its workplace, the evidence indicates that the poster had been removed prior to a remodeling of Respondent's store and that it had not been replaced at the time the Secretary's compliance officer made his inspection. The compliance officer in his testimony admitted that remodeling was in progress in the store at the time he made his visit.

FINDINGS OF FACT [*29]

1. Respondent, The Grand Union Company, is now, and was at all material times a corporation duly authorized to do business in the Commonwealth of Puerto Rico, maintaining an office and several retail grocery store establishments in various parts of Puerto Rico, one such establishment being located at the 65th Infantry Commercial Center in Rio Piedras, Puerto Rico.

2. Respondent is the second largest retail grocery store chain in Puerto Rico, employing approximately 1,000 employees.

3. Respondent, at its retail establishment located at the 65th Infantry Commercial Center, had a gross annual dollar volume of business of approximately $5,000,000.00 for the year 1973; and its gross dollar volume of business nationwide for that same year was over one billion dollars.

4. A substantial amount of the foods, dry goods, meats, vegetables and other products offered for sale by respondent, as well as equipment and supplies used by respondent in the conduct of its retail sale operations is produced and originates in places outside the Commonwealth of Puerto Rico.

5. On March 19, 1974, an inspection was conducted in the meat department at respondent's retail grocery store establishment [*30] located at the 65th Infantry Commercial Center in Rio Piedras, Puerto Rico by a Compliance Officer employed by the Secretary of Labor.

6. On March 27, 1974, citations were issued to respondent alleging violations of section 5(a)(2) of the Act, to wit:

1. a citation for a violation of 29 CFR 1903.2.

2. a citation for violation of 29 CFR 1910.132(a).

3. a citation for serious violation of 29 CFR 1910.212(a)(3)(ii).

7. A Notification of Proposed Penalty was also issued to Respondent on March 27, 1974, proposing penalties of $70.00 for Item 1; $60.00 for Item 2, and $700.00 for Item 3 described in paragraph 6 above.

8. Respondent filed a Notice of Contest within fifteen (15) working days from receipt of the Citations and Notification of Proposed Penalty.

9. Respondent's Notice of Contest challenged the penalty proposed for violation of 29 CFR 1903.2 and both the violation and the penalty proposed for the alleged violation of 29 CFR 1910.132(a) and 29 CFR 1910.212(a)(3)(ii).

10. At the hearing the alleged violation of 29 CFR 1910.212(a)(3)(ii) as well as the corresponding penalty therefor, was withdrawn by the Secretary.

11. On or about March 19, 1974, an OSHA [*31] poster was not displayed at Respondent's aforesaid establishment in violation of 29 CFR 1903.2, said poster having been removed several weeks prior thereto while the store was being remodeled. Evidence indicated that the remodeling of the Respondent's store had not been completed on the date of inspection.

12. A meat cutter working at respondent's establishment cuts meat with a knife for approximately 4 to 5 hours each day and handles approximately 600 to 700 pounds of meat every day.

13. The hand with which respondent's meat cutters hold the meat is not protected by anything from the hazard of being cut.

14. From 1971 until the date on which this hearing took place there were 18 reported injuries of Respondent's meat cutters as a result of Respondent's failure to provide these employees with protective hand equipment.

15. One method of protecting an employee's hands from being cut while cutting meat with a knife is the use of steel mesh gloves.

16. Respondent on or about March 19, 1974, did not provide its butchers with steel mesh gloves, or any other personal protective equipment designed to protect the hand holding the meat being cut with a knife.

CONCLUSIONS OF LAW [*32]

1. The Occupational Safety and Health Review Commission has jurisdiction of the parties and the subject matter of this action.

2. Respondent, at all material times, was an "employer" engaged in a business "affecting commerce" within the meaning of Section 3 of the Occupational Safety and Health Act of 1970.

3. Item 1 of Citation For Non-Serious Violation No. 1, was not contested by respondent and has become a final order of this Commission by operation of law. However, in view of the circumstances I find that the penalty proposed is not appropriate and should be vacated.

4. On March 19, 1974, Respondent was in violation of 29 CFR 1910.132(a) because of its failure to provide personal protective hand equipment for the use of its meat cutters in Respondent's store located on 65th Infantry Avenue, Rio Piedras, Puerto Rico. The penalty of $60.00 proposed by the Secretary for this violation is reasonable and appropriate and is not inconsistent with the provisions of Section 17(j) of the Act.

ORDER

Pursuant to Section 10 of the Act and Rule 66 of this Commission's Rules of Procedure it is ORDERED:

1. The Secretary's motion made at the hearing to withdraw his allegation [*33] that Respondent on March 19, 1974, was in serious violation of 29 CFR 1910.212(a)(3)(ii) is GRANTED and the proposed penalty for this alleged violation is VACATED.

2. The penalty proposed for the violation of 29 CFR 1903.2 (Item 1 of the non-serious violation) is VACATED.

3. The Citation alleging that on March 19, 1974, Respondent was in violation of 29 CFR 1910.132(a), [Item 2] and the penalty of $60.00 proposed for this violation, are both AFFIRMED.

DITORE, JUDGE: This is a proceeding * pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter called the Act), contesting a citation for a nonserious violation of an occupational safety and health standard, issued by the complainant against the respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

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The citation alleged n1 that as a result of an inspection on February 15, 1974, of a workplace, located at 415 Broadway, [*34] Newburgh, New York, and described as "Retail Food Store," the respondent violated section 5(a)(2) of the Act (29 U.S.C. 654(a)(2)) by failing to comply with an occupational safety and health standard promulgated by publication in the Federal Register on October 18, 1972 (37 F.R. 22231) and codified in 29 C.F.R. 1910.132(a).

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n1 The citation alleged three other violations which were not contested by respondent (item 3 of file)

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The description of the violation and the standard as promulgated by the Secretary are as follows:

Item 2 of citation -- description -- 29 C.F.R. 1910.132(a)

Butchers working in meat cutting room were not provided with head protection. Two employees (Butchers) were exposed to the pertential [sic] hazard of falling meat and pointed meat hooks. n2

Butchers working in butcher shop were not provided with protective equipment for hands and fingers (wire mesh gloves). Two employees were exposed to cutting accidents when cutting and boning meats.

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n2 Respondent at the hearing, withdrew its contest to the head protection portion of the violation and it is not here at issue.

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Standard as promulgated

Subpart 1 -- Personal Protective Equipment

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.

Pursuant to the enforcement procedure set forth in section 10(a) (29 U.S.C. 659(a)) of the Act, the respondent was notified by letter dated February 28, 1974, from the office of the area director of the New York Area, that the Occupational Safety and Health [*36] Administration proposed to assess a penalty n3 of $55.00 for the violation of 29 C.F.R. 1910.132(a) (item 2 of citation).

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n3 Respondent also had in its notice of contest, contested the proposed penalty of $100.00 for the violation set forth in item 4 of the citation (item 3 of file). At the hearing complainant amended this proposed penalty with respondent's consent, to $50.00. Respondent then withdrew its contest to this penalty as amended.

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The case was heard at New York, New York on September 12, 1974.

ISSUES

1. Whether the hand cutting and boning of meat without protective hand equipment by respondent's butchers at respondent's Newburgh, New York, store presents an occupational hazard and a violation of 29 CFR 1910.132(a).

2. If a hazard exists and respondent was responsible, whether the penalty proposed for the violation was proper.

STATEMENT OF THE EVIDENCE

Respondent, The Grand Union Company, a New Jersey corporation, is in the retail food business and operates a chain of supermarkets. [*37] On February 15, 1974 respondent operated a retail food store at Newburgh, New York, where it employed four employees in the meat department of the store. Respondent admits it is in a business affecting commerce.

On February 15, 1974, the meat department of respondent's Newburgh store was inspected by C. David Scott, a compliance officer for the Occupational Safety and Health Administration. During his inspection, officer Scott observed two butcher-employees cutting and boning meat. Each of the two employees held a knife in one hand while the other hand held meat on a cutting block which was being cut and boned. The cutting knife was sharp. It was six inches long and three quarters of an inch wide. During the meat cutting process, the hand cutting knives came within a quarter of an inch of the fingers of the employees' meat holding hands. The fingers and hands of the employees holding the meat were unprotected from the hazards of knife cuts.

Officer Scott admitted that in his inspection of three other retail meat stores, he never observed butchers wearing protective steel mesh gloves when cutting or boning meat. He did observe the use of protective gloves by workers in a [*38] poultry plant, cutting open and stripping chickens on an assembly line basis.

In his discussions with butchers concerning the use of protective gloves when hand cutting meats, officer Scott was told that butchers do not like to use mesh gloves because the gloves were heavy and cold, and were dangerous if worn when using powered saws or meat grinders as there was a possibility that the mesh gloves would be caught by the moving parts of these machines with resultant serious injury to hands and arms. Officer Scott conceded that a hazard existed if steel mesh gloves were worn by a butcher when operating mechanical equipment.

Respondent's accident reports for its Newburgh Store for the three and a half year period prior to the inspection indicated that a butcher-employee named Schaffer suffered three cut finger injuries. Officer Scott did not know how the three injuries occurred (Exh. C-1).

Ralph Schaffer, complainant's witness and meat manager of respondent's Newburgh store, stated that he supervised the cutting and boning of meat at the store; and that officer Scott's observation of meat cutting and boning at the store were accurate.

During his four years as meat manager, [*39] neither Schaffer nor any other butcher-employee sustained any finger or hand injuries when hand cutting or hand boning meat. In his twenty six years of experience as a butcher, Schaffer never wore a protective glove when cutting meat, and he never observed any other butcher wearing a protective glove. He did during this period of time observe, on a few occasions, other butchers cut themselves with hand knives while cutting meat. The injuries he observed were not serious in that there were no losses of fingers. Mr. Schaffer identified himself as the "Schaffer" listed in the accident report (Exh. C-1) but claimed the finger cut injuries were due to other causes than cutting meat with a hand knife.

Mr. Schaffer was of the opinion that the use of steel mesh gloves would be hazardous if the glove was worn while operating a mechanical or powered saw to cut meat. The danger was the possibility that the mesh of the glove could be caught in the powered saw which would pull the hand or arm of the wearer into contact with the saw. Further Mr. Schaffer stated that veal or round steak could not be trimmed if a mesh glove was worn; and that if he was required to wear a protective glove he [*40] would leave the butcher trade.

Jack Calderone, respondent's witness and national sales meat manager, stated he was in the retail meat business for thirty five years.

Mr. Calderone explained the difference between the work of meat cutters at respondent's three meat plant operations where carcasses of meat are cut and delivered to the retail stores, and the meat cutters in respondent's retail stores.

Carcasses of meat received at a meat plant are cut into smaller pieces by saws. The smaller pieces move along an assembly line where the meat cutters or boners perform specific boning functions, i.e., removing the femur bone from a round, etc. It is a high speed mass production process. Each boner-employee remains at one station on the assembly line, and wears protective head gear, heavy aprons made of stainless steel and suede, and mesh gloves and wrist guards on the hand and wrist not holding the boning knife. The boner is also provided with a bone hook, similar to but smaller than a longshoreman's cargo hook. The output of respondent's three meat plants averages out to about 565 pounds of cut meat per man hour which is ten times greater than the output of a retail store [*41] butcher.

A retail store butcher performs various tasks other than meat cutting during the course of any one work day. He cuts meat for store packaging and for special customer order; he receives shipment of meats; he moves products from one area to another; he cleans and sanitizes the meat area including equipment; he packs cold cuts and branded products; he operates power equipment such as meat grinders, hand saws and cube steak machines. There is no set times when these various functions are performed during the course of a work day.

During his thirty five years of experience as a butcher, Mr. Calderone has cut himself when hand cutting meat, and he has observed others cut themselves. He believes however, that protective gloves would create hazards if retail store butchers were required to wear them (See Exh. R-1).

At the close of complainant's case and at the close of the entire case, and in its brief, respondent moved to dismiss item 2 of the citation on the ground that the record was devoid of any evidence of injuries to butchers at the Newburgh store from hand cutting meats without wearing protective gloves; that if such gloves were worn, hazards would be created [*42] if butchers failed to remove the gloves when operating power machinery; and that there was no industry custom or practice requiring the use of metal mesh protective gloves (brief).

Decision on the motion was reserved.

OPINION

The only issue presented herein is whether respondent's butcher-employees at its Newburgh retail store, are exposed to a occupational hazard when hand cutting or boning meats without the use of hand protective equipment. Respondent does not contest but admits its retail butchers do not wear protective hand equipment when hand cutting or boning meat.

Standard 29 CFR 1910.132(a) states that the requirement for personal protective equipment must apply "whenever it is necessary by reasons of hazards of process 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 standard is neither vague nor unenforceable. Ryder Truck Lines, Inc., v. Brennan, 497 F.2d 230,233 (5th Cir., 1974); McLean Trucking Company v. OSAHRC, 503 F.2d 8, 10 (4th Cir., 1974).

In Ryder, supra, at page 233 the Court stated that the standard implements remedial [*43] civil legislation and must be considered "'not only in terms of the statute on its face but also in light of the conduct to which it is applied', United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S. Ct. 594, 600, 9 L.Ed.2d 561 (1963)", and that

[t]he regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury.

Both courts of appeal held that in applying the standard to any given situation, the test of the reasonable man is determinative of whether a hazard exists which requires the use of personal protective equipment. Ryder, supra, page 233; McLean, supra, page 11.

Respondent admits that each of its two butchers were hand cutting and boning meat with a sharp knife that came within a quarter of an inch of the fingers of the hands which held the meat on the cutting block. Respondent further acknowledges that meat cutters at its meat plants who hand cut and hand bone meat on an assembly line basis are exposed to knife injury hazards. These workers are protected from exposure to such hazards by personal protective equipment [*44] i.e., steel aprons, head gear, metal mesh gloves and wrist guards. Respondent recognizes the hazard at its meat plants because its cutters cut and bone 565 pounds of meat per man hour, an amount ten times greater than a retail butcher cuts and bones per man hour. In respondent's opinion the amount of meat cut per man hour is one of the determining factors of whether a hand knife cutting hazard exists. The existence of a hazard from which employees must be protected does not depend on the amount of time an employee is exposed to the hazard. Exposure time is relevant to the gravity of the hazard or violation but not to the existence of the hazard.

This Judge finds that a reasonable man knowing the intent and purposes of the Act and of the standard, possessed with the common knowledge of the dangers inherent in the use of sharp knives, possessed with the specific knowledge of the hand meat cutting tasks of retail butchers, and possessed with respondent's specialized knowledge in the whole field of meat cutting including the recognition of hand cutting meat hazards at its meat plants, would conclude that retail store butchers are exposed to hand and finger injury hazards when hand [*45] cutting and boning meats; and that retail butcher-employees require the protection mandated by the standard from the hazards.

Respondent, relying heavily on Commissioner Van Namee's lead opinion in Secretary v. Smoke-Craft, Inc., 8 OSAHRC 597 (1974), urges that complainant failed to carry his burden of proof and failed to establish that respondent was in violation of 29 CFR 1910.132(a).

Respondent's grounds for its assertions are that complainant failed to establish any history of hand knife cutting injuries suffered by its butchers when cutting meat at its Newburgh retail store; and that complainant failed to establish that the use of protective hand equipment by retail butchers was an established industry practice (Brief pp. 2-3).

Respondent's reliance on the lead opinion in Smoke-Craft supra, is misplaced. The reasons given by Commissioner Van Namee in his decision to vacate the violation of 29 CFR 1910.132(a) was not the decision of a majority of the Commission. Commissioner Moran concurred in the result reached but for different reasons. He specifically disassociated himself from Commissioner Van Namee's reasons. Commissioner Cleary dissented. [*46]

To this Judge lack of any injury record for a three and a half year period at one retail store prior to the inspection, is immaterial to the question of whether a hazard exists. Such evidence is substantially material to the question of the severity of a violation where a hazard exists.

The Court in Ryder, supra, page 233, aptly stated that [t]he legislative history of the statute reveals that its declared purpose is 'to assure as far as possible every working man and woman in the Nation safe and healthful working conditions'. 29 U.S.C. 651(b). It is noteworthy that the Act does not establish as a sine qua non any specific number of accidents or any injury rate. Hence, Ryder's reliance on 'only 10 injuries in five years' is misplaced. Moreover, the Act specifically encompasses non-serious violations, i.e., violations which do not create a substantial probability of serious physical harm, 29 U.S.C. 666(g)(j) [sec]. Avoidance of minor injuries, as well as of major ones, was intended to be within the purview of this liberal Act.

The fact that no hand knife injury has occurred within a three and a half year period at respondent's Newburgh store does not without more, [*47] establish the absence of a hazard. Further there is no evidence in this record as to the injury record of butchers in respondent's other retail stores throughout this Country. It is conceivable if a store injury record is used as a guage to measure whether a hand knife hazard exists, that butchers in some of respondent's stores would be required to wear a hand protective device while respondent's butchers in other stores would not be required to do so. The Act does not intend or propose a piece-meal application of its standards ( See Secretary v. Grand Union Co.,

Respondent, relying on the lead opinion in Smoke-Craft, supra, further argues that it is not a custom in the retail meat industry for butchers to wear protective hand equipment, i.e., metal mesh gloves. Industry customs or the lack of them must give way to Federal Law where hazards exist. To hold otherwise would not only defeat the purposes of the Act but would make the applicability of any standard or regulation contingent on industry customs. It is not the Act that must give way but customs or practices inconsistent [*48] with the purposes of the Act and its regulations.

Industry customs or practices may be material to, and bear upon, respondent's knowledge where serious or general duty violations are at issue but are immaterial to whether or not an occupational hazard exists.

Respondent also argues that the use of metal mesh gloves by its retail butcher-employees would expose them to greater occupational hazards when they operate powered equipment (Brief p. 3).

The short answer to this contention is that protective metal mesh gloves are required only in the process of hand cutting meat by a retail butcher. There is no requirement that retail butchers wear mesh gloves when cutting or otherwise processing meat by powered saws, meat grinders or other machines. Therefore, no hazard is created since no mesh glove is to be worn when operating a powered machine.

What respondent is actually arguing is that butchers may forget to take the mesh gloves off when operating powered machines; and that old work habits die hard. Respondent's argument is directed to inconvenience rather than to the creation of greater hazards. It is more convenient not to upset the present work habits and conditions of its [*49] retail butchers than to provide protection against hand and finger hazards. This argument is rejected.

Complainant has carried its burden and has established by a preponderance of the evidence that respondent violated 29 CFR 1910.132(a). Accordingly, respondent's motion to dismiss is denied.

PENALTY

The gravity of the violation was low. Only two butcher-employees were involved and the evidence indicates that hand cutting meat was not the sole duty they performed during any one workday. Further, the lack of any injuries during a three and a half year period arising from the violation adds further weight to the low gravity. Considering the gravity, respondent's size, and lack of prior history no penalty will be assessed for the hand protection violation. The penalty of $55.00 proposed for the violation of 29 CFR 1910.132(a) covered both hand protection and head protection violations of the standard. The proposed penalty of $55.00 will be reduced to $25.00 to reflect a penalty only for the head protection violation. In arriving at the $25.00 penalty, consideration was given to the statutory factors of section 17(j) of the Act.

FINDINGS OF FACT

The credible evidence [*50] and the record as a whole establishes preponderant proof of the following specific findings of fact:

1. Respondent, The Grand Union Company, a New Jersey corporation, is in the retail food business and operates a chain of supermarkets.

2. Respondent admits it is an employee within the meaning of the Act.

3. On February 15, 1974, respondent employed four butchers in its retail food store at Newburgh, New York.

4. On February 15, 1974, compliance officer C. David Scott, inspected the meat department of respondent's Newburgh store.

29 CFR 1910.132(a) -- Hand Protection

5. On February 15, 1974, two butchers in respondent's Newburgh store hand cut and hand boned meat with sharp six inch knives. Each butcher held the meat by hand on a cutting block while the other hand cut or boned the meat. The knife blade during the cutting process, came within a quarter of an inch of the meat holding hand which was unprotected by any hand protective equipment.

6. Each of the two butchers during the hand meat cutting process was exposed to the hazard of knife injuries to the unprotected hand.

7. Respondent recognizes and requires the use of personal protective equipment [*51] for its cutter or butcher employees at its meat plants where carcasses of meats are hand boned on a high speed assembly line basis and delivered to its retail stores.

8. Meat cutters at respondent's meat plants cut or bone 565 pounds of meat per man hour which is nine to ten times greater than the amount of meat cut by a retail store butcher for the same period of time.

9. There is no evidence of any industry wide custom requiring the use of protective hand equipment by retail store butchers.

10. There is no evidence of any hand knife injuries due to the hand cutting or boning of meat at respondent's Newburgh store for the three and a half year period prior to the inspection.

11. Respondent's retail store butchers perform other tasks besides hand cutting or boning of meat during any one work day.

12. The use of hand protective equipment is required only when meat is hand cut, and is not required when meat is cut or processed by powered equipment.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3(5) of the Act (29 U.S.C. 652(5)).

2. The Occupational Safety and Health Review [*52] Commission has jurisdiction over the subject matter and parties to this action.

3. On February 15, 1974, respondent was in nonserious violation of 29 CFR 1910.121(a) (item 2 of citation).

4. Under the circumstances of this case with due consideration to the statutory factors of section 17(j) of the Act, the proposed penalty of $55.00 is reduced to $25.00 to reflect no penalty for the hand protection portion of the violation, and to reflect a $25.00 penalty for the uncontested head protection portion of the violation.

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the citation (item 2) for a nonserious violation of 29 CFR 1910.132(a), is affirmed, it is further

ORDERED that the proposed penalty of $55.00 for the violation of 29 CFR 1910.132(a) is reduced to $25.00 to reflect a penalty only for the head protective portion of the violation. No penalty is assessed for the hand protection portion of the violation, it is further

ORDERED that the notification of proposed penalty is amended on consent of the parties, to reflect a reduction in the penalty proposed for item 4 of the citation to $50.00, and as amended, is affirmed.