Docket No. 11285

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.

OSHRC Docket No. 11285

Occupational Safety and Health Review Commission

August 31, 1976

COUNSEL:

[*1]

Norman H. Winston, Associate Regional Solicitor, U.S. Department of Labor

M. David Zurndorfer, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John S. Patton, dated September 2, 1975, which is attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision vacated a citation which alleged that respondent violated 29 U.S.C. § 654(a)(2) by failing to comply with the occupational safety standard codified at 29 C.F.R. § 1910.132(a) in that its retail butchers were not protected by wire mesh gloves and protective aprons.

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n1 Chairman Barnako does not agree to this attachment.

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A divided Commission has previously held that 29 C.F.R. § 1910.132(a) does not require retail store butchers to wear wire mesh gloves n2 or protective aprons. n3 Those decisions are dispositive of the instant case.

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n2 Secretary v. Grand Union Company, 20 OSAHRC 663 (1975).

[*2]

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Accordingly, the Judge's decision is affirmed.

APPENDIX A

DECISION

Ellis V. Cruse, for complainant

M. David Zurndorfer, for respondent

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9 of the Act.

The citation alleges that as the result of the inspection of a workplace under the ownership, operation, and control of the respondent located at Peach Orchard Plaza, Augusta, Georgia, the respondent has violated section 5(a)(2) of the Act by failing to comply with Occupational Safety and Health standard 29 CFR 1910.132(a).

A hearing was held before the undersigned Judge on April 8, 1975, at Augusta, Georgia. Complainant and respondent appeared and presented evidence and have filed briefs. There was no motion to intervene.

LAW AND ISSUES OF THE CASE

It was alleged that respondent failed to provide, enforce use of, and [*3] maintain personal protective equipment wherever it was necessary for two meatcutters, in that mesh gloves were not used and a mesh apron was not used. It was alleged that a violation of standard 29 CFR 1910.132(a) had therefore been committed.

Standard 29 CFR 1910.132(a) is as follows:

"Protective equipment, including personal 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 process 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."

At the conclusion of the testimony of the complainant, a motion to dismiss was granted as to the allegations of failure to provide aprons. The issue remains as to whether the respondent was required by the above quoted standard to supply mesh gloves to its employees in the meat department who cut meat.

EVIDENCE IN THE CASE

The respondent has two meatcutters [*4] working in the meat department in its Peach Orchard Plaza, Augusta, Georgia, store (Tr. 13). Mr. Jeffory Wayne Felder who formerly worked in the respondent's meat department stated that said employees spend about four or five hours a day cutting or boning meat (Tr. 78). He stated that on a busy day an employee can spend eight hours cutting meat, on a slow day, two or three hours (Tr. 87). The busy days he described as Thursdays, Fridays and Saturdays (Tr. 87). Testimony of other witnesses, however, indicated a smaller percentage of time in which a knife was used by those working in the meat department. Mr. William J. Shambley, Meat Superintendent for the Atlanta Division of the respondent stated that only approximately 5 percent of the meat requires boning (Tr. 30). About 50 percent of the meat does not require either cutting or boning with a knife (Tr. 130). He stated that primal cuts have been broken down from quarters. A cut could be a round, a loin, a rib or chuck. Excess waste, fat and bone is removed at the packing house or the central packing plant (Tr. 131). The beef customarily comes into the store in primal cut form (Tr. 131). There have been no sides of beef during [*5] recent months and quarters are secured only on special orders or about once a month (Tr.131-132). Mr. Felder also stated that sides of beef are almost never received by the store, sides being received only three times during the four months he was with respondent (Tr. 89). Sides are received only for special freezer orders (Tr. 89). Mr. Shambley stated that meat is cut as needed for retail cuts (Tr. 133).

It was testified that the respondent's meatcutters in said store performed many duties that are performed by other employees in larger markets. The butcher is, as stated by Mr. Daniel Rhodes, Safety Engineer, a "jack of all trades." He waits on the customers, runs a Hobar band saw, runs a cuber, which is a machine designed to tenderize meat, runs a slicer and may run a chopper. He may go over and repair a plug in the iron that keeps wrapping material working. He works between pork, beef, chicken, and turkey (Tr. 177). Meat is held with one hand and the boning knife is used with the other (Tr. 42). Mr. Felder stated that he did not pick up a piece of meat without putting a knife in it (Tr. 78). Mr. Felder stated that while he worked with the respondent the only other employee [*6] was the market manager who also cut and boned with a knife (Tr. 87-88).

The employees each worked a 40 hour week. The store was open about 64 hours a week making 24-26 hours that a meatcutter worked by himself (Tr. 129). According to Mr. Shambley, said employees must receive, check in meat, store it, cut it, prepare it into the retail cuts, wrap it, weigh it, put it in the counter and handle frozen foods and lunch meats which must be priced, marked and put on the rack (Tr. 132-133). A market manager who is one of said employees who cuts meat also makes out meat orders and takes inventories and makes the schedules for employees (Tr. 133). In addition to working on pork, red meat, chicken, lamb, or veal as needed, an employee might work in the lunch meat section for a while and then back on the block (Tr. 133). When only one person is on the job he has to do it all, going from one job to another (Tr. 134). Mr. Shambley described the progression of work as follows: In working with a chuck which comes in a block already trimmed, but with excess waste fat on it, the cutter takes it directly to the saw. The first process is to split the chuck and roll part of it or cut it off in [*7] shoulder roasts. The shoulder roast is cut off with the saw. He then goes to the block and trims it, cracking it open and packaging it. He uses a knife for the trimming. He goes back to the shoulder and cuts the chuck roast off. When he is through with the chuck roast including trimming it, a bone on the back must be removed. For this reason he must go to the saw again, bring the meat back and trim it again and then go through the process of wrapping, pricing, and putting it on display (Tr. 134-135). He must intermittently go from the knife to the saw and back to the knife and saw again in dealing with chuck (Tr. 135-136). The saw is a power saw, usually a Hobar. It is extremely powerful and like a home cycle saw it goes around and around and has two wheels on it. The teeth are approximately one-eighth inch apart. When using the saw a meatcutter's hand gets as close as a half-inch to the cutting blade (Tr. 136). Any substance foreign to the piece of meat would cause the blade to snag. Feather bones are quite prevalent in causing it. Of course, any type of mesh material such as gloves would snag it (Tr. 136). Mr. Shambley estimated 10 of the 80 hours of the employees' [*8] would be working with a knife (Tr. 136). He stated Mr. Felder may have spent four or five hours a day cutting meat, but not with a knife (Tr. 137). He stated that a man spends 50 percent less time cutting meat with a knife than five years ago because of the way the meat comes in (Tr. 137, 138). A meat wrapper is not supposed to cut a bone with a knife (Tr. 144).

It was admitted that neither mesh gloves nor mesh aprons were used.

Mrs. Margaret M. Royal testified that she had observed meatcutters using wire mesh gloves on many occasions. Some stores such as Winn-Dixie, Colonial, Big Star and other large and some privately owned stores used mesh gloves (Tr. 15-16). She had also seen the mesh apron used (Tr. 16). According to said witness some of the Colonial Stores used them and some did not. She indicated that she had only inspected one large Colonial Store and one Big Star (Tr. 43-44). She had inspected Kroger markets but had not seen mesh gloves or aprons used there (Tr. 59).

Mr. James P. Barnes, Compliance Officer, testified that he had seen Kroger, Jitney Jungle, Winn-Dixie, Sunflower, and Food Center use gloves. These stores were in Jackson, Brookhaven, Woodville, Bay [*9] St. Louis, Vicksburg and Pearl, Mississippi (Tr. 61). He has neve seen mesh aprons in a grocery store (Tr. 73). There were no gloves worn in some of the stores he inspected.

Mr. Felder stated that the Piggly-Wiggly Store in Augusta furnished mesh gloves (Tr. 75). He worked for Bi-Lo for six months. They had mesh gloves but not aprons (Tr. 79-80). He worked for Food Fair and Pantry Pride of Augusta in Augusta. They did not have gloves nor aprons. He worked for Gibson's Discount. They had no gloves. He worked for Dog's Meat Shop and there were no gloves or aprons provided.

On the other hand, Mr. Shambley, Meat Superintendent of the Atlanta Division of respondent, testified that he is in charge of the entire operation of the meat department consisting of 95 stores in Georgia, South Carolina, Alabama and Tennessee. He has held this position for three years. He visits approximately 20 stores per week and also often visits approximately five competitor's stores a week. Seventy-five percent of the time when he is visiting competitor's stores he observes the meatcutting (Tr. 124, 125, 126). He has never seen a meat department employee wearing mesh gloves in any of these stores [*10] (Tr. 127). He stated that no employee in his own stores has ever requested one. He has visited Winn-Dixie, Colonial, Big Star, Big Apple, Kroger, White Stores and Piggly-Wiggly and has seen no gloves (Tr. 128).

Mr. Henry S. Burns, Meat Director for the Southern Region of the respondent stated that he was formerly Meat Superintendent of the Jacksonville Division having 170 stores. Every trip he made he would visit competitors. He was subsequently made General Superintendent of the Jacksonville Division in charge of the total stores and has held that position for five years. He still visits competitor's stores. In about 51 percent of the stores he visits he is able to observe what they are doing in the cutting department. He has never seen anyone wearing a mesh glove (Tr. 153, 154, 155, 156). He has visited Winn-Dixie, Pantry Pride, Food Fair, Big Star, Piggly-Wiggly and Kroger (Tr. 157). He has never seen a single mesh glove (Tr. 157).

Mr. Daniel Rhodes, Safety Engineer, stated that his field of activity is accident prevention. He acts as a consultant in New York City. His clients include the Department of Health, Education and Welfare and the Department of Labor (Tr. [*11] 163-164). He does independent consulting work for supermarket chains including First National Stores, Finareed Stores, Hills Supermarket and Pantry Pride. Respondent is not one of his clients. It is part of his responsibility to investigate meat departments at supermarkets. He could not recall a single case of a supermarket adopting mesh gloves as a remedial measure (Tr. 170). He stated he had never recommended the use of mesh gloves in a supermarket (Tr. 170). He further testified that he had never seen a mesh glove worn (Tr. 172). He has been inspecting stores since 1950.

There was considerable evidence as to the practicality or impracticality of mesh gloves. Mrs. Royal testified that many accidents have resulted in the industry from boning (Tr. 19). Pork and beef must be boned (Tr. 56). Compliance Officer Barnes testified that he boned and cut meat himself in the Marine Corps, that it did not have mesh gloves and he had suffered three injuries, having sliced his left hand which was his holding hand on the index finger and injured his thumb on the back of the hand (Tr. 62). Mr. Felder testified that he has been cut two or three times in boning meat. The knife can slip. [*12] He cut his leg twice. He needed stitches but did not get them. He took a butterfly bandage and pulled his skin back together (Tr. 76). The injury to the leg was about five years ago (Tr. 76). He has had other injuries lately having over the last twelve years cut his hand 100 to 150 times (Tr. 76).

Mr. Shambley, although stating he had considerable experience in working with a knife in the butcher department, had never cut himself with a knife while cutting or boning meat (Tr. 147). He had never seen another meatcutter, either at respondent's places of business or at a competitor's place of business, who cut himself (Tr. 147-148). Mr. Burns testified that he had nicked himself but he took care of it with a little red cross tape and he had never seen a meatcutter cut himself so as to require medical attention (Tr. 158). Mr. Rhodes stated that there are 11,000 stores over the country with which he is familiar and he investigates about 200 minor cuts a year (Tr. 169). Injuries generally result, according to Mr. Rhodes, because an employee will lay a knife on the block, cover it with an apron, and pick it up and cut himself, or cut himself as the knife is pulled off the block [*13] (Tr. 172). He stated a good meatcutter doesn't cut himself any more than a surgeon does (Tr. 172).

Complainant subpoenaed injury records of respondent's eight stores including the Peach Orchard Plaza Store for the previous three years and four months. Said records reflected five injuries none of which resulted in a single day's work time being lost. One of the injuries was to a woman employed as a meat wrapper (Tr. 160) who was untrained and inexperienced at cutting meat. Meat wrappers were forbidden to cut meat by respondent's policy and all meatcutters were required to engage in and successfully complete a two-year apprenticeship and training program (Tr. 128, 144, 150, 160). There was also an injury to the little finger of a meatcutterhs hand. Mrs. Royal testified that a wire mesh glove covering the thumb and index finger was sufficient. This injury would not have been prevented by such a glove. There was an injury reflected on complainant's exhibit 4. In January 1972, a nineteen year-old apprentice butcher named Bennie Coleman having cut himself his first week at work. No apprentice meatcutter is now employed in the division and none are to be hired in the foreseeable [*14] future (Tr. 128).

There was a conflict of evidence as to the practicality of wiring mesh gloves. Compliance Officer Barnes stated that he has tried on wire mesh gloves and they would not interfere with work (Tr. 62-63). He stated a wire mesh glove would prevent penetration of the knife (Tr. 67). He cut meat in the Marines for 90 days and has no other training. He did not believe that wire mesh gloves would create any kind of irritation to the hand. He stated if they did there is an inner glove that could be purchased. He further stated that canvas sanitary type glove could be worn over the mesh glove to help prevent cleaning problems (Tr. 64). He stated that a glove could irritate an employee's skin depending on the susceptibility to irritation of the person's skin (Tr. 72-73). Mr. Felder stated that gloves did not substantially interfere with his performance of his work (Tr. 77-78). He stated that at Bi-Lo Stores gloves did not interfere with his work and protected him (Tr. 82, 83). He did not buy a glove himself because it costs $35. He did not request gloves from Food Fair (Tr. 83). He stated he was a good enough meatcutter that he didn't really need one (Tr. 83). [*15]

Mr. Shambley testified that a glove is bulky and unhandy and that it is impossible for an employee to get the feel of the meat wearing a glove. He stated an employee could not price mark the merchandise. He could not use the machines as it would be dangerous to do so (Tr. 134). When only one person is in the meat department, which happens a good bit of the time, he has to go from one job to another. He stated an employee could not leave the glove on and perform these tasks and that they are bulky and unhandy. It is impossible to get the feel of the meat with the glove on. You cannot weigh with it, can't wrap with it, can't price mark, can't use the machines as it would be dangerous to do so. He pointed out that insofar as working with the saw with the glove on is concerned the hand gets a half-inch from the cutting blade. He stated a foreign substance would cause the saw to snag (Tr. 136). He said that if a mesh glove was caught in a saw it would be devastating, that the saw would pull the glove into the saw and the employee could not get away from the saw (Tr. 136). The cutting hand feels out different sinews in the meat so the employee won't make bad cuts. A bad cut costs [*16] money (Tr. 139). The sensitivity of the fingers is lost with a glove (Tr. 139). The respondent requires a meatcutter preparing one commodity of meat to wash his hands between the time he cuts another type (Tr. 139). He stated that chickens can cause salmonella and other diseases. Pork can cause trichinosis. It would spread germs to go from pork to beef or pork to lunch meat without cleaning the gloves (Tr. 139, 140). The machines must be cleaned and sanitized each day. They would have to wash the gloves between each job. This is done with hot water. He doubts if hot water would remove fat and the buildup that had gotten into the gloves. The glove must be scrubbed, and put under the sink in extremely hot water. It takes two or three minutes to wash it (Tr. 140-141). The previous day he had seen a glove used ten minutes and then washed (Tr. 141). He stated it would be extremely difficult to police it and force employees to wear the glove (Tr. 144). He stated that hot water is actually not adequate to clean the glove. It would not sanitize them, as the hot water in the store is not hot enough (Tr. 147). They must clean the saw after cutting chicken and therefore generally [*17] cut the chicken the last thing in the day. A knife is easy to clean because it doesn't have openings (Tr. 149).

Mr. Burns, Meat Director for the Southern Region of respondent testified that he tried cutting with a two-fingered glove the day before the hearing. If used all day it would have gotten so heavy he would have had to take it off. It interfered with work and he couldn't get the feel of the meat. When he picked up meat to cut the waste off it, it was very awkward and cumbersome (Tr. 159). He stated he had to have help getting it on. The man that cleaned it let water run until it got extremely hot and held it there two or three minutes. He boned for ten to fifteen minutes (Tr. 159). Mr. Rhodes, Safety Engineer who acts as consultant to various companies stated that he had never recommended the use of mesh gloves (Tr. 170). He testified that he certainly would have been the first to recommend the use of gloves without any escape clause if he felt they would have waved the insurance company money (Tr. 172). He stated in his opinion that mesh gloves at the Peach Orchard Store would be a serious error. In prevention of accidents, nobody wears a glove or a necktie near [*18] a machine. The use of a mesh glove around a band saw with extruding teeth would result in the kind of serious maiming that would frighten Mr. Rhodes to even think of it (Tr. 176). He stated that gloves make an ideal incubator medium for bacteria. The heat of the body, the natural moisture from the hand, especially if there was a covering of cotton or canvas over it, would provide what is called a culture medium. You do not kill or sterilize bacteria by putting them under hot water any more than you would want a surgeon to operate by having the tools run under the sink. Mr. Rhodes testified that he has been a member for 25 years of the American Industrial Hygienists Association. He was associate director of the Research Laboratories in New York and their prime function was to analyze food for spoilage.

EVALUATION OF tHE EVIDENCE

In determining whether a violation of section 5(a)(2) of the Act has occurred, it must be noted that there is no specific requirement in the standard that mesh gloves be used. This action is brought under Standard 29 CFR 1910.132 which provides:

"Protective equipment including personal protective equipment for eyes, face, head and extremities, [*19] 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."

The United States Court of Appeals for the Fifth Circuit, Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (1974) and The United States Court of Appeals for the Fourth Circuit, McLean Trucking Company v. OSAHRC, 503 F.2d (1974) have held that said standard is not unconstitutional on its face for vagueness. The United States Court of Appeals for the Fifth Circuit stated in the case of Ryder Truck Lines, Inc. v. Brennan, supra:

"Inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of . . . injuries . . . which would warrant protective [equipment]."

In the case of Cape and Vineyard Division v. OSAHRC, F.2d , 2 OSAHRC 1628, 1631 (1st Cir. 1975), [*20] the court announced the test as:

"Whether a reasonably prudent man familiar with the circumstances of the industry would have been protected against the hazard."

The issue for decision therefore is whether a reasonably prudent man familiar with the circumstances of the industry would have protected against the hazard. In reaching a decision on this question there are two primary determinations to be made, first, whether there is a great enough likelihood of injury to necessitate the providing of protective clothing and second, whether under the circumstances the respondent should have been on notice that mesh gloves constituted the type of protective clothing that should have been supplied. In determining the second point, questions to be determined are whether the use of mesh gloves was frequent enough in the industry to place the respondent on notice that they should have been used and whether the use of mesh gloves is practical.

The only evidence in the record of frequent injury from use of a knife while cutting and boning meat is the testimony of Mr. Felder. Mr. Felder was a meatcutter who worked for approximately four months for the respondent and had worked for other companies. [*21] Mr. Felder testified that over a period of years he had suffered between 100 and 150 cuts. It will be noted however that he testified he had not received a single cut during the four months that he was employed by the respondent, and he stated that he had not requested mesh gloves while working for another employer who did not furnish them because he felt that he was a good enough butcher that he could take care of himself and therefore in his case they were not required. This latter statement would appear to be inconsistent with his testimony that he had suffered between 100 and 150 cuts. It also appears totally inconsistent with the records of the respondent indicating between three and five very minor injuries over a period of three and one-half years in the eight Augusta, Georgia stores. It is difficult to understand how a butcher who considered himself so proficient that it was unnecessary to secure protective clothing which he felt it necessary for other persons to have to suffer between 100 and 150 cuts while all of the butchers working for the respondent in the eight stores in Augusta, Georgia, only suffered, at most, five minor cuts over a three and one-half year period [*22] of time. Mr. Felder admitted to much bittermess, stating that while he was not bitter against the respondent itself he was determined to "get even" with the person who had been his supervisor at the time he worked for the respondent. No injury reflected in the records of the respondent was serious enough to cause any time loss from work. The compliance officers of the complainant testified to having observed a few injuries from use of the knife, but there was considerable evidence by witnesses with long experience observing the cutting of meat that they had not observed any injuries. Mr. Shambley supervisied 95 of the respondent's stores being in charge of the entire operation of the meat department. He had been to numerous competitor's stores. He first began working in a meat market in 1940, becoming Meat Manager in 1947. At that time he supervised eight to ten meatcutters and cut meat himself. He was made Meat Supervisor of 22 stores in 1961. He visited approximately five competitor's stores per week. He testified he had never cut himself with a knife while cutting or boning meat and had never seen another meatcutter, either at respondent's place of business or at a competitor's, [*23] who had cut himself. Mr. Henry Burns, Meat Director for the Southern Region of respondent supervised approximately 750 stores. He worked with Meat Superintendents and Vice Presidents of each division. He started with respondent in 1932 as a meatcutter, working up through various positions such as Meat Supervisor, Meat Superintendent, and General Superintendent of the Jacksonville Division. He stated that in his position he frequently visited competitors. He had nicked himself but it was so slight that he took care of it with a little Red Cross tape. He had never seen a meatcutter cut himself severely enough to require medical attention. Mr. Rhodes stated that out of 11,000 stores he had investigated 200 minor cuts a year (Tr. 169).

In viewing the records as a whole, it appears that any cuts from use of a knife are extremely isolated and are almost always of such a minor nature that a band-aid is the only treatment required. The respondent in eight stores over three and one-half years has had five cuts with a knife, not one of which caused any loss of time from work. One of said cuts would not have been prevented by wearing gloves and one of the other cuts occurred to an [*24] apprentice who had only been working a week. Respondent's rules provided that an apprentice could not engage in cutting. Therefore there were three injuries of employees who had authority to use a knife who could have possibility been affected by wearing gloves. This averages to less than one slight cut for each two stores over a three and one-half year period of time said cuts being so minor that the application of a band-aid took care of the problem. In the opinion of this Judge the record simply does not reflect a hazard sufficiently severe to cause a reasonably prudent man to assume that corrective action is required.

This Judge at the conclusion of the complainant's proof granted a motion to dismiss the allegations with reference to the failure to provide a mesh apron. The only evidence as to injury to the part of the body that might have been affected by a mesh apron was the testimony of Mr. Felder that on a single occasion a number of years before he had suffered a cut to his thigh. The evidence is practically devoid of any proof that any companies were utilizing mesh aprons. A further review of the evidence convinces this Judge that the dismissal of the citation as [*25] to mesh aprons was correct.

In the case of Secretary v. Smoke-Craft, Inc., 8 OSAHRC 596 (May 20, 1974), the respondent was alleged to have failed to wear mesh gloves while cutting sausage approximately 48-inches long into smaller pieces. Commissioner Van Names stated:

"Over the period of 10 years during which respondent had been cutting sausage in a miter box none of its employees have been cut or otherwise injured by a saw blade. . . .

"The existence of a hazard in itself does not establish a violation of this standard. The standard requires the use of personal protective equipment 'wherever it is necessary by reason of hazards of processes or environment.' In this case complainant has not proven that the hazard existing in respondent's operation is a hazard which necessitates the use of protective equipment.

"The facts adduced by complainant establish that an injury is possible. However, this evidence is countered by respondent's 10-year history of no injuries. It is clear on the record that an injury, while possible, is extremely unlikely. Furthermore, complainant adduced no evidence that protective equipment is customarily used in respondent's industry. On the [*26] contrary, the evidence of record is that such equipment is not used by sausage manufacturers. There is no other standard relating to personal equipment to protect against the hazard of being cut by a saw. The hazard therefore is not known in respondent's industry as a hazard requiring personal protective measures.

"Accordingly the preponderance of the evidence does not establish that protective equipment is necessitated either by the likelihood of injury or by custom in respondent's industry."

Several cases of Administrative Law Judges are cited by the respondent in his brief dealing with the question of mesh gloves in a meat shop but these cases have been ordered reviewed by the Review Commission and therefore cannot be considered as precedent.

The United States Court of Appeals for the First Circuit in the case of Cape and Vineyard Division v. OSAHRC, F.2d , 2 OSHRC 1628 (1975), stated with reference to Standard 29 CFR 1910.132(a):

"We agree with the dissenting Commissioner that the language of the standard alleged to be [*27] violated affords little if any concrete guidance: protective equipment is to be required 'wherever it is necessary by reason of hazard . . . encountered in a manner capable of causing injury . . . through physical contact.' A regulation without ascertainable standards, like this one does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry."

The evidence establishes that some grocery stores do use mesh gloves in their meat department. Mrs. Royal, Mr. Barnes and Mr. Felder all testified to some use of mesh gloves. The evidence establishes however that the use of mesh gloves is very much the exception rather than the rule. Mr. Shambley stated that he has not seen a meat department employee wearing a mesh glove in any of his own or competitor's stores. Mr. Burns also testified that he had never seen a mesh glove used, notwithstanding the vast number of stores in which he has seen the meat operation. Mr. Rhodes stated that he could not recall a single case of a supermarket adopting mesh gloves as a remedial measure. The vast majority of [*28] the industry therefore does not use this type of protective clothing.

This Judge is further of the opinion the evidence raises very serious doubts as to the practicability of the use of a mesh glove. In the store involved in the case at bar only two employees worked in the meat department and there were 16 to 20 hours that each employee worked alone each week. This employee therefore had to perform all duties such as marking the merchandise, using the power saw, waiting on the customers, cleaning the equipment, cutting and boning the meat and so forth. The evidence establishes that it would have been very dangerous to have had a mesh glove on while working around the power saw as the glove could have become entwined in the blade of the saw pulling the hand of the employee into the saw and making it impossible for him to jerk the hand away. The glove would have to be removed before the placing of price tags on the merchandise could be done or before wrapping could be done and would generally have to be removed in waiting on customers. It is very important that all equipment be constantly cleaned. The testimony was to the effect that there are particular diseases which can arise [*29] from pork or beef or chicken and that it is a real health hazard to use the same equipment in going from one type of meat to another without a complete cleaning of the equipment prior to making the change. Constant putting on of the glove and taking off of the glove the constant cleaning of the glove and the fact that it is almost impossible to completely clean the glove raise serious doubts as to the practicability of wearing the glove. It is not impossible to wear the glove as evidenced by the fact that it is used in some meat markets. If the Secretary had specifically required the wearing of mesh gloves this Judge is of the opinion that such requirement would be enforceable because while it may be impractical to wear the gloves it is not impossible to perform the work while doing so. Under such circumstances to hold that the standard should not be enforced because of difficulty of performance would be to "second guess" the Secretary which is not a judicial function. The issue in this case however is whether under the circumstances the respondent was placed on notice by the broad provision of the standard that mesh gloves should be used. If the evidence established a substantial [*30] hazard the difficulty and inconvenience of using gloves might simply be the price that had to be paid for employee safety. The lack of practicability of the gloves however is a factor to be considered when the only hazard shown is isolated instances of injury of such minor nature that a small band-aid took care of the problem. As stated in the case of Cape and Vineyard Division v. OSAHRC, supra:

"A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry."

This case is therefore distinguishable from the cases of McLean Trucking Company, supra, and Ryder Truck Line, supra, and to hold the respondent in violation of law when there was nothing to adequately advise the respondent that mesh gloves were required would be a denial of due process of law and therefore an unconstitutional enforcement of the standard. The citation and complaint must therefore be dismissed.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and doing business among [*31] other places at Peach Orchard Plaza, Augusta, Georgia, where it has been and is engaged in the operation of the retail grocery business.

2. Respondent regularly receives and handles meats, vegetables and other foodstuffs and goods from outside the State of Georgia, and respondent regularly sales, ships and transports some of said foodstuffs and goods to points outside the State of Georgia.

3. Respondent has a meat department in which at all times pertinent to this proceeding two meatcutters worked. Each of said meatcutters worked 16 to 20 hours a week alone.

4. Said meatcutters spend approximately five hours per week each using a knife in cutting and boning of meat.

5. In the three and one-half years preceeding the trial of this case, the respondent's employees in its eight Augusta, Georgia stores only suffered five instances of an employee being cut by a knife while cutting or boning meat. One of said employees was an appentice who was cutting meat contrary to the instructions of its employer. All of said injuries were of an extremely minor nature and were taken care of by using a band-aid, no medical attention being required and no loss of time from work resulted.

6. [*32] The number of instances of injury to employees from being cut with a knife while cutting and boning meat has been extremely isolated and the injuries have been extremely minor throughout the grocery industry.

7. Although some grocery stores do use mesh gloves in the cutting and boning of meat, said stores are very much in the minority.

8. The duties of employees of the respondent at its Peach Orchard Plaza, Augusta, Georgia, store performed in the meat department include waiting on customers, wrapping, using a power saw and marking the price of merchandise on packages.

9. It would be necessary to remove the mesh glove frequently while performing duties other than boning and cutting of meat.

10. It would not be possible to get the "feel" of the meat with a mesh glove on the nand.

11. It would be necessary to constantly clean the mesh gloves including cleaning of the gloves upon transferring cutting from pork to beef or beef to pork or either of said meat to chicken which occurs frequently.

12. There would be danger of a health hazard from the use of said gloves.

13. The use of mesh gloves would create problems of safety and efficiency of performance.

14. Only one specific [*33] instance is cited in the evidence of an employee being cut in an area in which a mesh apron might have prevented the injury and the evidence does not establish that in that instance an apron would have prevented the injury. The evidence establishes that almost no stores in the industry use mesh aprons.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. Standard 29 CFR 1910.132(a) is not under the facts of this case sufficiently definite to advise the respondent that mesh gloves should be worn.

3. It would be a denial of due process of law and unconstitutional to find under the facts of this case that the respondent is in violation of said standard.

4. The dismissal of the citation at the conclusion of the complainant's proof as to the allegations relating to mesh aprons should be affirmed.

5. The respondent has not violated section 5(a)(2) of the Act or Standard 29 CFR 1910.132(a).

ORDER

It is therefore ORDERED that:

The citation and complaint alleging violation of section 5(a)(2) of the Act and Standard 29 CFR 1910.132(a) be and the same hereby [*34] are dismissed.

Dated this 2nd day of September 1975.

JOHN S. PATTON, Judge, OSAHRC