PUBLIX MEAT MARKET #1096

OSHRC Docket No. 14122

Occupational Safety and Health Review Commission

January 12, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Reg. Sol., USDOL

Allen M. Blake, 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. 751 et seq., 84 Stat. 1590 (hereinafter "Act").   Respondent seeks review of item two of a non-serious citation issued to it on July 9, 1975, pursuant to section 9(a) of the Act.   Item two of 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).   No [*3]   penalty was proposed for the alleged violation.

The citation and notification of proposed penalty emanate from an inspection conducted on June 30, 1975, at respondent's market located at 525 Belcher Road, Clearwater, Florida.   The alleged violation of 29 C.F.R. 1910.132(a) was described in the citation as follows:

"Failure to provide and require the use of proper personal protective equipment, i.e., steel mesh gloves and aprons, in the meat cutting area, exposing employees to the hazards of laceration and/or stabbing during boning operations."

Respondent, by letter dated July 15, 1975, and received by complainant on July 16, 1975, timely advised complainant that it desired to contest item two of the citation.

A hearing was held in the case on October 3, 1975, in Clearwater, Florida.   No additional parties desired to intervene in the proceedings.

During the course of the hearing, some confusion arose as to the correct number for the meat market.   The caption was changed to reflect the market involved to be number 1096 in lieu of 0096 (Tr. 26, 27).

The parties agreed that the testimony of Edward H. Ruth, Personnel Director of Publix Supermarkets, Inc., in Secretary v. Publix   [*4]    Meat Market #1034,    OSAHRC    (December 8, 1975, Docket No. 13261), was to be taken as part of the record in this proceeding (Tr. 28).

At the conclusion of complainant's evidence, respondent moved to dismiss the citation.   The motion was granted (Tr. 88-90).

JURISDICTION AND ISSUES

Respondent concedes that, at all times material to this proceeding, it was engaged in a business affecting commerce within the meaing of the Act and that the Commission has jurisdiction of the parties and of the subject matter herein (Parts. 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. 1910.152(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.   Publix Super Markets, Inc. operates 200 stores in the State of Florida (Tr. 23).

2.   Meat market number 1096 is located at 525 Belcher Road, Clearwater,   [*5]   Florida (Tr. 24-26).   It employs six meat cutters (Tr. 33, 43).

3.   On June 30, 1975, complainant, through a duly authorized compliance officer, conducted an inspection of market 1096 (Tr. 56).

4.   Market 1096 receives its beef in quarters (Tr. 30, 58, 77).   The quarters are cut into smaller custs for retail sale by means of a saw and knives (Tr. 30, 31, 35, 37, 74, 76, 77, 81).

5.   A saw and a knife may be used for trimming. While trimming with a knife, the cutting edge of the knife is within an inch of the hand (Tr. 38-39, 49).

6.   Meat cutters at market 1096 perform boning operations with a six-inch boning knife (Tr. 37, 67).   The cutting edge of the knife is sometimes within an inch of the hand while boning (Tr. 40).

7.   Meat cutters at market 1096 continually work between the cutting block and the saw (Tr. 45, 79).

8.   Respondent's meat cutters do not utilize steel mesh aprons or steel mesh gloves in performing their duties (Tr. 20, 36, 59).

9.   During the past year, meat cutters at market 1096 have received two cuts which required stitches (Tr. 42-43, 71).   They also received some minor cuts or scrapes that required no stitches (Tr. 41, 42, 43, 70, 75, 82).

10.   In   [*6]   the two instances where stitches were required, the employee lost only the time it took to go to the emergency room and return to the store (Tr. 43, 71-72).

11.   Charles Rains, manager of market 1096, has received two band aid cuts in approximately fifteen years of cutting meat (Tr. 50, 51).

12.   In August, 1974, Charles A. Story, a meat cutter at market 1096, stabbed himself in the upper thigh area.   He was not wearing a steel mesh apron (Tr. 24, 67, 68).   The stab wound required three stitches. Story lost no work time since the injury occurred near closing time (Tr. 71).

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 steel mesh gloves and aprons 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."

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The Commission has concluded that the question of whether a violation of 1910.132(a) existed must be determined by ascertaining the understanding and experience of those working in the industry or by applying the so-called "reasonable man" test.   See Secretary v. Grand Union Company, 20 OSAHRC     (October 28,   75).   This position is consistent with various decisions of the circuit courts.   See 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.

There is no evidence of the understanding and experience of those working in the industry.   [*8]   There is also no evidence to establish that respondent possessed knowledge that cutting meat without wearing steel mesh gloves and aprons was hazardous. The number of injuries established in the record is insufficient to put a "reasonable man" on notice that a hazardous condition existed which necessitated the wearing of steel mesh gloves and aprons. See Secretary v. Grand Union Company, supra. The issue is decided for respondent.

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 employs meat cutters in its store located in Clearwater, Florida.

4.   The meat cutters use knives in slicing, boning and trimming the various cuts of meat. They do not wear steel mesh gloves or aprons 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,   [*9]   whether steel mesh gloves and aprons 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 Item two of the citation and notification of proposed penalty issued to respondent on July 9, 1975, are vacated.

Dated this 15th day of December, 1975.

JAMES D. BURROUGHS, Judge