PUBLIX MEAT MARKET #1034
OSHRC Docket No. 13261
Occupational Safety and Health Review Commission
January 14, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Reg. Sol., USDOL
John-Edward, for the employer
OPINION:
DECISION
This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.
In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.
The Judge's decision is accorded the significance of an unreviewed Judge's decision. Leone [*2] Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).
It is ORDERED that the decision be affirmed.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.
APPENDIX A
DECISION AND ORDER
Carl B. Carruth, Office of the Solicitor, U.S. Department of Labor, on behalf of complainant
Allen M. Blake, on behalf of respondent
STATEMENT OF CASE
Burroughs, Judge: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter "Act"). Respondent seeks review of a non-serious citation issued to it on April 17, 1975, pursuant to section 9(a) of the Act. The citation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with the standard published at 29 C.F.R. 1910.132(a). A penalty of $30 was proposed [*3] for the alleged violation.
The citation and notification of proposed penalty emanate from an inspection conducted on April 9, 1975, of respondent's market located at 2050 S. 3rd St., Jacksonville, Florida. The alleged violation of 29 C.F.R. 1910.132(a) was described in the citation as follows:
"Failed to provide personal protective equipment for extremities (hands) of butchers, while engaged in boning and other hand meat cutting operations, exposing employees to hazard of lacerations."
Respondent, by letter dated May 1, 1975, and received by complainant on May 5, 1975, timely advised complainant that it desired to contest the citation and proposed penalty.
A hearing was held in the case on August 22, 1975, in Jacksonville, Florida. No additional parties desired to intervene in the proceedings.
At the conclusion of complainant's evidence, respondent moved to dismiss the complaint and citation. Judgment was reserved on the motion (Tr. 123-126, 129).
JURISDICTION AND ISSUES
Respondent concedes that at all times material to this proceeding it was engaged in a business affecting commerce within the meaning of the Act and that the Commission has jurisdiction of the parties [*4] and of the subject matter herein (Pars. I, II, Complaint and Answer).
The following issues are pertinent to a disposition of this case:
1. Did respondent violate section 5(a)(2) of the Act by failing to comply with the standard published at 29 C.F.R. 1910.132(a).
2. If a violation occurred, what penalty, if any, should be assessed?
FINDINGS OF FACT
The evidence of record has been carefully considered and evaluated in its entirety. The facts hereinafter set forth are specifically determined in resolving the issues in this case:
1. Respondent, Publix Meat Market #1034, is located at 2050 S.3rd Street, Jacksonville, Florida, where it is engaged in the retail sale of meats, groceries, produce and other foods and beverages (Par. II, Complaint and Answer, Tr. 20). Approximately 20 persons are employed in the meat market (Tr. 26).
2. Respondent opened for business in early 1974 (Tr. 28). It is one store in a chain of 200 retail meat markets operated by Publix Supermarkets, Inc. (Tr. 119).
3. On April 9, 1975, the complainant, through a duly authorized compliance officer, conducted an inspection at respondent's store located at Jacksonville Beach, Florida (Tr. 19).
4. [*5] Respondent's meat cutters perform various duties in the preparation of meat for sale to customers. The duties include: cutting beef, pork, chicken, seafood by saw and knife; breaking down beef; wrapping meat; cubing; boning; waiting on customers and cleaning (Tr. 137, 141).
5. Approximately 98-percent of chickens, pork, veal and lamb are received by respondent in a state where it is ready to cut on a saw and involves very little trimming (Tr. 161).
6. Respondent receives its beef in quarters. At the time of inspection, respondent had approximately twenty quarters of beef hanging on hooks in its meat cooler (Tr. 21, 22).
7. Respondent's meat is all merchandised in the same manner, but its meat cutters vary as to their techniques for cutting, trimming and boning (Tr. 67).
8. Respondent's meat cutters use a boning knife, a steak knife, a hook, a saw, an electrically operated cubing machine, a power saw, a slicer, a wrapping machine and a grinding machine in performing their duties in the meat market. The boning knife is used for trimming and the steak knife for cutting (Tr. 69, 75, 141-142, 161-162).
9. Meat is cut by hand by means of a knife and saw (Tr. 22, 25, 52). [*6] The meat cutters perform all types of cutting operations with a knife. These include specific cuts of meat, boning and trimming fat (Tr. 22, 53, 55, 56, 66, 72). The quarters of beef are usually broken down into prime cuts by the use of a steak knife, hook and saw (Tr. 53, 54).
10. Meat cutters cut special orders for customers and emphasize employee service. Approximately 15 to 20-percent of their time is consumed in boning (Tr. 162).
11. Knives used by respondent's meat cutters are usually kept in sharp condition. The job is harder with a dull knife (Tr. 73, 74). The meat cutter is responsible for keeping his knives in sharp condition (Tr. 75-76).
12. The non-cutting hand of the meat cutter is sometimes within two inches of the knife when he is cutting meat (Tr. 53, 55, 56, 57, 67).
13. Respondent's meat cutters, in performing their duties, continually go from the cutting block to the saw and back to the block (Tr. 64, 133, 159, 160).
14. A meat cutter mighut spend 30-35 hours per week in actually cutting meat (Tr. 52). At times as much as four or five hours at a time could be consumed in boning operations (Tr. 73-74).
15. Respondent does not provide its meat cutters [*7] with metal mesh gloves. Its meat cutters use no type of protection for their hands while preparing meat for sale to the customer (Tr. 22-23, 24, 26, 52, 53, 117).
16. Several years ago, meat cutters employed by Publix Markets wore metal mesh gloves while cutting meat. Employees did not like working with the gloves and the practice was discontinued after a few months (Tr. 131, 132, 162, 163).
17. The director of personal for Publix Supermarkets, Inc., who handles compliance with the OSHA standards, has never been advised by any manager or employees that mesh gloves were needed (Tr. 119, 120).
18. Johnson Polson, a meat cutter for respondent, received a small cut in connection with his duties as a meat cutter about four months ago. He missed no work because of the cut, but an infection occurred from the cut which resulted in five days' lost time (Tr. 28, 142, 152). During his eleven years as a meat cutter, Polson has received only band-aid-type cuts (Tr. 154).
19. James D. Harden, a meat cutter for respondent, has in the past suffered two band-aid cuts and some nicks in performing his duties as a meat cutter. The cuts did not require any stitches (Tr. 60, 61, 67-68). One [*8] of the cuts did not result from his using a knife to cut meat (Tr. 68).
20. Lance Gibson, a meat cutter for four and a half years with respondent, has received no type of cuts which required medical attention (Tr. 157).
LAW AND OPINION
This case involves an alleged violation of section 5(a)(2) of the Act for failure of respondent to comply with the standard published at 29 C.F.R. 1910.132(a). n1 Complainant contends that 1910.132(a) required respondent's meat cutters to wear metal mesh gloves while cutting meat for retail sale.
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n1 29 C.F.R. 1910.132(a) provides:
"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."
[*9]
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The Commission and various circuit courts have concluded that the question of whether a violation of 1910.132(a) existed must be determined by applying the so-called "reasonable man" test. See Secretary v. Grand Union Company, 20 OSAHRC (October 28, 1975), Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974); McLean Trucking Co. v. OSAHRC and Secretary of Labor, 503 F.2d 8 (4th Cir. 1974); Cape & Vineyard Div. v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975).
Following the rationale of Grand Union Company, supra, and Cape & Vineyard Div., supra, one must ascertain (1) the understanding and experience of those working in the industry, (2) the knowledge, if any, that the employer possesses that a work practice is hazardous, and (3) in the absence of actual knowledge of a hazard, the employer must be judged by the "reasonable man" test.
The first determination must be made as to the understanding and experience of those working in the industry. "The term 'industry' must be construed on a nation-wide geographical basis rather than on a local or regional basis." [*10] See Secretary v. The Great Atlantic & Pacific Tea Company, Inc., OSAHRC (Docket No. 12377, October 8, 1975).
Complainant sought to establish the custom of retail meat markets in the United States through the testimony of compliance officer Spahn. Spahn conceded his inspection knowledge was limited to Ohio, Nebraska, Kansas and Missouri (Tr. 82). He further admitted that he had only personally inspected approximately five retail markets (Tr. 85, 100-101, 104). As senior compliance officer in the Wichita, Kansas OSHA office, he has also reviewed approximately 30 reports of inspections conducted at retail meat markets by other compliance officers. No citations were issued in any of the inspections made by the other compliance officers and Spahn assumed that mesh gloves were being worn (Tr. 87-88). In actuality, he admitted that if gloves were available a citation was not issued since it was assumed they would be worn (Tr. 88). The meat cutters in most instances were not observed cutting meat when the inspections were made (Tr. 88, 106).
Spahn later conceded that his "visual observation has been somewhat limited" (Tr. 104). He testified that he had no knowledge [*11] of the custom of the industry in the southeast (Tr. 100, 108).
Spahn also served at one time as safety and health coordinator for the district council of the Amalgamated Meat Cutters for the States of South Dakota, Nebraska and Iowa (Tr. 89, 95, 96). While serving in that position, he testified that it was the policy of the union that retail meat cutters should wear personal protective equipment while using a knife (Tr. 97-98). n2
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n2 It is noted that Spahn's statement is contrary to the testimony of the president of Local 568 of the Amalogamated Meat Cutters in Secretary v. Grand Union Company, 20 OSAHRC (October 28, 1975), wherein it is stated that the International Union was opposed to the use of the gloves.
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Thomas Williams, who has been cutting meat or in positions associated with meat markets for approximately 40 years, testified that there was no custom in the retail meat markets of wearing mesh gloves while preparing meat for sale to the customer (Tr. 136). The compliance officer testified that he [*12] was unaware of any other retail stores where mesh gloves were worn (Tr. 32).
When the word "industry" is viewed from a national scope, it is clear that complainant has failed to establish that the custom or practice of the industry is to require meat cutters to wear mesh gloves in performing their duties in retail meat markets.
The evidence is also insufficient to establish that the employer had actual knowledge that meat cutting, as performed in its store, was hazardous. There was only one injury recorded. That injury resulted in five days' lost time. The cut itself required no stitches. An infection occurred which resulted in the lost time. This is insufficient to establish a violation of 1910.132(a). See Secretary v. Grand Union Company, supra. Respondent's motion to dismiss is granted.
CONCLUSIONS OF LAW
1. Respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section 3(5) of the Act.
2. Respondent was at all times material hereto subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter herein.
3. Respondent [*13] employs meat cutters in its store located at Jacksonville, Florida.
4. The meat cutters use knives in slicing, boning and trimming the various cuts of meat. They do not wear mesh gloves while performing this work.
5. The standard published at 29 C.F.R. 1910.132(a) affords little concrete guidance. Due to the nebulous nature of the standard, whether mesh gloves are required must be determined through the custom of the industry or the application of the "reasonable man" test.
6. The evidence fails to show the custom in the industry or that the likelihood of injury is such as to necessitate protective equipment. Complainant has failed to sustain his burden of proof.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
ORDERED: That the citation and notification of proposed penalty issued to respondent on April 17, 1975, are vacated.
Dated this 8th day of December, 1975.
JAMES D. BURROUGHS, Judge