SIGMAN MEAT COMPANY

OSHRC Docket No. 251

Occupational Safety and Health Review Commission

May 6, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On November 10, 1972, Judge Donald K. Duvall issued his decision and order in this case, affirming four of the nine alleged non-serious violations in issue, vacating the remaining five items, and assessing a total penalty of $117.

On December 7, 1972, former Commissioner Alan F. Burch directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act") in order to determine whether or not the Secretary had jurisdiction to issue citations for items 11 and 14 of the citation because of section 4(b)(1) of the Act.

We have reviewed the entire record and adopt the Judge's decision insofar as it is consistent with the following determination.

Respondent, the operator of a pork slaughterhouse, was cited for two violations of standards promulgated by the Secretary of Labor which, in this case, raise the issue of the enforcement of similar and arguably conflicting standards prescribed by the Secretary of Labor pursuant to this Act and by the Secretary [*2] of Agriculture pursuant to the Federal Meat Inspection Act as amended by the Wholesome Meat Act. n1

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n1 21 U.S.C. 601 et seq.

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Respondent was cited for failing to maintain lunchroom and toilet facilities in a clean condition (item 14), as required by 29 CFR 1910.141(a), and for failing to provide railings on both sides of stairs in the dressing floor area (item 11), as required by 29 CFR 1910.23(d).

Section 4(b)(1) of the Act removes from coverage:

[w]orking conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

On the basis of this provision, Judge Duvall vacated items 11 and 14 of the citation because he found that the Secretary of Agriculture, pursuant to the Wholesome Meat Act, has prescribed standards affecting safety or health that deal with the conditions covered by the cited standards. n2

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n2 In his brief in response to the direction for review, the Secretary states that he "respectfully withdraws item 14." This "withdrawal" motion is denied. In light of our recent decision in Fineberg Packing Co., Inc., No. 61 (March 22, 1974), which is discussed in the text, we believe that the resolution of the issue sought to be withdrawn by the Secretary is a matter of public interest which "must receive active and affirmative protection at the hands of the Commission." Scenic Hudson Preservation Conf. v. F.P.C., 354 F.2d 608, 620 (2nd Cir. 1965), cert. denied, 384 U.S. 941 (1966), as quoted in Brennan v. O.S.H.R.C. & John J. Gordon Co., No. 73-1729 (2nd Cir., February 25, 1974), slip op. at 1922.

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It is undisputed that standards concerning sanitation, including lunchrooms and toilet facilities, have been prescribed by the Secretary of Agriculture. n3 In addition, the following regulation regarding siderails has been promulgated by the Secretary of Agriculture at 9 CFR 308.3(f):

308.3 Establishments; sanitary conditions; requirements.

(f) Rails [*4] should be located and passageway space provided so that exposed product does not come in contact with posts, walls, and other fixed parts of the building, or with barrels, boxes, and other containers trafficked through holding and operating areas . . .

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n3 9 CFR 308.3(a), 308.4(a) and (b), 308.7.

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Judge Duvall determined, with respect to this employer, that section 4(b)(1) deprived the Secretary of Labor of jurisdiction over this alleged failure to comply with the cited standards.

We have decided the precise issue regarding the sanitation standard in Fineberg Packing Co., Inc., No. 61 (March 22, 1974) and, for the reasons stated therein, conclude that respondent is subject to the provisions of the Occupational Safety and Health Act of 1970 and standards promulgated thereunder relating to sanitation.

Concerning item 11, we have examined 9 CFR 308.3(f). We note that the paragraph does not actually establish a requirement for the installation of railings. Rather, the paragraph speaks in permissive [*5] terms, and provides that whatever railings exist should be located so as to avoid contact with an exposed meat product. In other words, the paragraph is not addressed to the safety of employees climbing fixed stairs going to and from their work stations. Under these circumstances, we conclude that the paragraph is not a standard or regulation affecting occupational safety or health within the meaning of section 4(b)(1) of the Act. This does not mean, however, that the application of the Occupational Safety and Health Act to the rails should not be harmonized with this rule under the Wholesome Meat Act. Cf. Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 47 (1942). However, as we suggested in Fineberg Packing Co., Inc., harmony may readily be achieved by means of appropriate variances under section 6(d) of the Occupational Safety and Health Act or even changes in the rules of general application.

We adopt the Judge's findings of fact concerning the citations in question. Concerning item 11, the Judge found that the evidence established that three of the five cited stairs or ladders in the dressing area had siderailings on both sides and that the other two stairs [*6] or ladders had siderailings on only one side. This was a credibility finding by the Judge. See page 16 of his decision.

Concerning item 14, the Judge found that there was trash and food stains on the table of the lunchroom, dirty sinks and bowls and mold in the shower of respondent's toilet area.

The record indicates no history of previous violations; respondent has an active safety program in its plants; and the gravity of the violations found in items 11 and 14 is moderate to low. Accordingly, a penalty of $25 is assessed for item 11 and $18 for item 14.

It is ORDERED that the Judge's decision is modified as follows:

(1) The complainant's citation with respect to item 11 is modified and a penalty of $25 is assessed;

(2) The complainant's citation as to item 14 is affirmed and a penalty of $18 is assessed; and

(3) The Judge's decision is affirmed in all other respects.

DISSENTBY: MORAN

DISSENT:

MORAN, CHAIRMAN, dissenting: Judge Duvall correctly decided this case and his ruling should have been sustained. Its reversal is an attempt to expand the coverage of the Occupational Safety and Health Act into areas from which Congress took care to exclude it. The result of this decision [*7] could be overlapping and conflicting government regulation of business by different agencies of the government.

This case provides an example. Department of Agriculture regulations specify sanitation requirements for employees who handle meat. Those regulations would be quite properly concerned with lavatories, toilets, and facilities for employees to wash and dry the parts of their bodies which might contact the meat products. The Department of Agriculture might well specify the number, size, shape and construction of lavatories and toilets. The Department of Labor, of course, has done so. 29 C.F.R. 1910.141. When such regulations conflict -- such as where one agency requires split toilet seats and the other requires that they be oval shaped -- the employer, under the rule of this case, must violate the law. It is impossible to abide by it.

A construction such as this is foolhardy. To suggest, as this decision does, that the employer should ask the Department of Labor to allow a variance from its regulations in order to permit it to comply with Department of Agriculture regulations is simply a judicial cop-out. There is one body of Federal law in this country [*8] and one should not be required to make application for the permission of one Federal agency in order to observe the law as enforced by a different Federal agency.

Congress recognized this potential for conflict and resolved it by a clearly-written subordination clause:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. n4

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n4 29 U.S.C. 653(b)(1)

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Obviously a Department of Agriculture regulation which requires that there be certain facilities for employees to wash their hands, is a regulation which "affects" occupational health. If it didn't, the Department of Labor would have no right to issue regulations in this field since it can only promulgate rules which "serve the objectives of this Act." n5

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n5 29 U.S.C. 655(b)(1). The objective of the Act is "safe and healthful working conditions" 29 U.S.C. 651(b).

[*9]

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This Commission decision is reached, we are told, "for the reasons stated" in Secretary v. Fineberg Packing Co., supra. That decision states that the Occupational Safety and Health Act will only be subordinate to other Federal laws where there is

. . . a policy or purpose to include employees in the class of persons to be protected thereunder.

Under this contorted reasoning, a safety regulation for airplanes which did not ennunciate as its policy or purpose the safety and health of its pilot and crew would mean that such employees would be subject to Labor Department regulations while flying a plane. The logical extension of this decision therefore is to subject the airplane's crew to totally different safety rules by a department of the government with no demonstrated capacity in airline safety.

The same holds true in this case. Meat processing is an area which has been successfully regulated by the Department of Agriculture for many years. It is humanly impossible to regulate meat wholesomeness without controlling the sanitation of the employees who handle the meat.

This decision [*10] says the Department of Agriculture must keep its hands off the employees. It can look only at the meat and the Department of Labor can look only at the employees. Another triumph for bureaucracy!

[The Judge's decision referred to herein follows]

DUVALL, JUDGE, OSAHRC: 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 issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act. The citation alleges that as the result of an inspection of a workplace under the ownership, operation or control of the Respondent, located at 800 South Railway, Brush, Colorado 80723 and described as a pork slaughterhouse -- average kill 2500 hogs per day, that Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

The citation was issued on November 9, 1971, and then, on November 12, 1971, reissued in amended form (Tr. 8-9). The citation alleges that the violations resulted [*11] from a failure to comply with the following 15 standards promulgated by the Secretary by publication in the Federal Register on May 29, 1971 (36 F.R. 10466, et seq. ) and codified in 29 CFR Part 1910: 1910.25(b) & (c), 1910.23(a) & (e), 1910.106(d)(5)(ii), 1910.134(a)(7) & (f), 1910.314(d)(2), 1910.308(j), 1910.212(a)(5), 1910.314(d)(4), 1910.314(d)(2), 1910.23(c), 1910.23(d), 1910.24(b), 1910.36(b)(2), 1910.141(a), & 1910.181(j)(2).

The hearing in this matter, was duly held at Fort Morgan, Colorado, on May 25, 1972, with both parties represented by legal counsel. For appropriate reasons not inconsistent with the purposes and provisions of the Act and more specifically set forth in the record (Tr. 11-12, 20-21, 25-26), counsel for Complainant moved at the hearing that citation Items 9, 12, and 15 be deleted from the amended citation and this motion, with out objection, was granted, thus eliminating these particular items and the corresponding proposed penalties as issues to be resolved in this matter.

By way of further stipulation the Respondent, in effect, nullified its prior notice of contest with respect to Items 2, 4, and 6, of the citation by reason of its agreement at [*12] the hearing that it was in violation of the cited occupational safety and health standards, to wit, Sections 1910.23(a) and (e), 1910.134(a)(7)(f), and 1910.308(j) (Tr. 18-19).

The cited standards remaining in issue, as promulgated by the Secretary of Labor, the description of these alleged violations, and the time for abatement of same contained in said citation and the pertinent proposed penalties contained in the notification of proposed penalty issued by Complainant on November 9, 1971, state in pertinent part as follows:

Item 1. Section 1910.25(b) and (c):

(b)(1)(i) All wood parts shall be . . . sound and free by accepted visual inspection from shake, wane, compression failures, decay, or other irregularities except as hereinafter provided . . .

(c)(3)(i)(b) Rungs shall be parallel, level, and uniformly spaced. The spacing shall be not more than 12 inches, except as hereinafter specified.

(d) Round rungs shall be of group 1 woods (See Table D-5), shall be not less than 1-1/8 inches up to thirty-six inches between side rails and 1-1/14 inches in diameter or lengths over 36 up to and including 72 inches, and shall have not less than 7/8 inch-diameter tenons, or [*13] rungs of equivalent strength and bearing shall be provided . . .

(e) Oval rungs or rungs of any other cross section may be used provided they are secured by a nail at each end or the equivalent thereof, and have at least the same strength and bearing as round rungs of the same length.

(i) Non-slip bases shall be securely bolted, riveted, or attached by equivalent construction to the side rails.

(ii)(b) The minimum dimensions of the side rails of the single ladder shall be as follows when made of group 2 or group 3 woods: Ladders up to and including 16 feet long, 1-1/8 inches thick, 2-1/2 inches deep.

(d) The width between the side rails at the base, inside to inside, shall be at least 11-1/2 inches for all ladders up to and including 10 feet . . .

Alleged violation:

Broken unsafe wooden ladder in use in sewage plant area. -- November 23, 1971 -- $15.00.

Item 3. Section 1910.106(d)(5)(ii):

The storage of flammable or combustible liquids in containers or portable tanks shall comply with subdivisions (iii) through (v) of this paragraph.

(iii) Office Occupancies. Storage shall be prohibited except that which is required for maintenance and operation of building and [*14] operation of equipment. Such storage shall be kept in closed metal containers stored in a storage cabinet or in safety cans or in an inside storage room not having a door that opens into that portion of the building used by the public.

(iv) Mercantile Occupancies and other Retail Stores. (a) In rooms or areas accessible to the public, storage shall be limited to quantities needed for display and normal merchandising purposes but shall not exceed 2 gallons per square foot of gross floor area. The gross floor area used for computing the maximum quantity permitted shall be considered as that portion of the storage area actually being used for merchandising flammable and combustible liquids.

(c) Containers in a display area shall not be stacked more than 3 feet or two containers high, whichever is the greater, unless the stacking is done on the fixed shelving or is otherwise satisfactorily secured.

(d) Shelving shall be of stable construction, of sufficient depth and arrangement such that containers displayed thereon shall not be easily displaced.

(v) General Purpose Public Warehouses. Storage shall be in accordance with Table H-14 or H-15 and in buildings or in portions of such [*15] buildings cut off by standard fire walls . . .

Alleged violation:

Gallon cans of paint were stored in hazardous locations -- compressor room area. -- November 26, 1971 -- $8.00.

Item 5. Section 1910.314(d)(2):

(2) Fixed equipment -- Specific. Exposed noncurrent -- carrying metal parts of the kinds of equipment provided in this sub-paragraph regardless of voltage shall be grounded:

(i) The frames of stationary motors shall be grounded where any of the conditions of this subdivision (i) exist:

(a) Supplied by means of metal, enclosed wiring.

(b) Located in a wet place and not isolated or guarded.

(c) In a hazardous location.

(d) The motor operates with any terminal at more than 150 volts to the ground.

Grounding of the motor frame is preferable, but where the frame of the motor is not grounded, it shall be permanently and effectively insulated from the ground.

(iv) Electric equipment in garages . . .

Alleged violation:

Electric battery charger, used in boiler room, was not grounded -- November 23, 1971 -- $12.00.

Item 7. Section 1910.212(a)(5):

When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades [*16] shall be guarded. The guard shall have openings no larger than one-half (1/2) inch.

Alleged violation:

Electric fan located in maintenance shop was not provided with adequate blade guard. -- December 1, 1971 -- $15.00.

Item 8. Section 1910.314(d)(4):

Equipment connected by cord and plug. Under any of the conditions of this subparagraph, exposed noncurrent-carrying metal parts of cord and plug connected equipment, which are liable to become energized, shall be grounded:

(i) In hazardous locations;

(ii) When operated at more than 150 volts to ground except:

(a) Motors, where guarded;

(b) Metal frames of electrically heated appliances exempted by subparagraph (5) of this paragraph.

(iii) In other than residential occupancies,

(a) Refrigerators, freezers, air conditioners, and

(b) Clothes washing, clothes drying, and dishwashing machines, sump pumps and

(c) Portable, hand held, motor operated tools, and appliances of the following type; drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws and

(d) Cord and plug connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal [*17] tanks, or

(e) Portable tools which are likely to be used in wet and conductive locations, except:

(1) Portable tools which are likely to be used in wet and conductive locations need not be grounded where supplied through an insulating transformer with ungrounded secondary of not over 50 volts.

(2) Portable tools covered by subdivisions (c), (d), and (e), of this subdivision and appliances covered by subdivision (c) of this subdivision protected by an approval system of double insulation, or its equivalent, need not be grounded. Where such an improved system is employed the presumption shall be distinctively marked.

Alleged violation:

Electrical dropcord was found in maintenance shop without ground connection. -- November 23, 1971 -- $12.00.

Item 10. Section 1910.23(c):

Protection of opensided floors, platforms, and runways. (1) Every opensided floor or platform four feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath [*18] the open sides,

(i) Persons can pass,

(ii) There is moving machinery, or

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

(2) Every runway shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides four feet or more above floor or ground level. Wherever tools, machine parts, or materials are likely to be used on the runway a toeboard shall also be provided on each exposed side.

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified may be essential for protection.

(3) Regardless of height, open-sided floors, walkways, platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and similar hazards shall be guarded with a standard [*19] railing and toeboard.

Alleged violation:

Open-sided floors, platforms and runways require standard railings, midrails and toeboards at the following locations: hog kill area, toenail area, singe area, and lard rendering area. -- December 15, 1971 -- $75.00.

Item 11. Section 1910.23(d):

Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard hand rails as specified in subdivisions (i) through (p) of this subparagraph, the width of the stair to be measured clear of all obstructions except handrails:

(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending.

(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on each side.

(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side.

Alleged violation:

Dressing floor area: Several flights of stairs with four rises were not equipped with standard stair rails. -- December 15, 1971 -- $30.00.

Item 13. Section 1910.36(b)(2):

Every building or structure shall be so constructed, arranged, equipped, [*20] maintained, and operated as to avoid undue danger to the lives and safety of its occupants from fire, smoke, fumes or resulting panic during the period of time reasonably necessary for escape from the building or structure in case of fire or other emergency.

Alleged violation:

Shipping area: The path to exit was blocked as well as access to switchbox. -- November 23, 1971 -- $15.00.

Item 14. Section 1910.14(a):

(1) Housekeeping. (i) All places of employment, passageways, storerooms, and servicerooms, shall be kept clean and orderly and in a sanitary condition.

Alleged violation:

Lunch room and toilet facilities were not maintained in a clean condition as required. -- November 23, 1971 -- $18.00.

The main issues to be resolved herein are: (1) whether the Respondent violated the occupational safety and health standards as alleged in Items 1, 3, 5, 7, 8, 10, 11, 13 and 14 of the citation issued on November 12, 1971, and (2) whether the penalties proposed for said alleged violations are reasonable and appropriate under Section 17 of the Act.

DISCUSSION

Item 1 of the citation alleged that the occupational safety and health standard codified at 29 CFR 1910.25 (b) & [*21] (c) was violated by Respondent on October 20, 1971, in that a broken unsafe wooden ladder was in use in the sewerage plant area. In support of this allegation Mr. Robert J. Betz, Complainant's compliance officer who conducted the official inspection of Respondent's workplace on October 20, 1971, and a certified safety professional with previous experience in the meat slaughtering and processing industry, (Tr. 17, 29-30), testified that the cited ladder was 4 1/2 -- 5 feet long (estimated), with 1 X 3 rungs and 2 X 4 side rails, resting in a 6 X 6 concrete valve-control area at a pitch of 50-60 degrees, its base about 40 inches from the concrete wall against which its top rested 12-18 inches below the legs of the wall or tank, with the bottom rung of the ladder cracked or chipped (Tr. 31-34).

Mr. Jim Tavenner, Respondent's plant engineer who accompanied Mr. Betz on most of this inspection on October 20, 1971, and who has worked in supervisory capacity with Respondent for about 8 years, testified that the cited ladder was 10 feet 4 inches long (Tr. 94), with 1 X 4 rungs or cleats, 2 X 4 side rails, rubber boots and setting at a pitch of about 60 degrees, its top even with [*22] the top of the pit which was about 8 feet deep and 8 feet wide, that it was a sound ladder with no defective bottom rung or cleat (Tr. 71-73, 94, 115-116). It was also stated that the cited ladder was replaced with a fixed metal ladder at a cost of $66.41 (Tr. 90).

The cited standards relate to the materials and construction requirements of portable wood ladders, in this case a single ladder without a reference to the pitch or care and use of such ladders (this is covered in 29 CFR 1910.25(d)). Respecting the soundness of the materials and construction of the ladder, including the cleats and side rails, I am inclined to attribute more weight to the testimony of Mr. Tavenner, based on his clearer recollection and closer involvement in maintenance of that ladder. The fact that he nevertheless had the cited ladder replaced was reasonably explained in terms of Respondent's desire to avoid further trouble or any more expenses rather than any admission of liability or wrong-doing (Tr. 90, 122). In any event, Complainant has not shown by substantial evidence of record any violation of the standard cited in Item 1.

Respecting citation Item 3, there was conflicting testimony as to whether [*23] the cited covered paint cans were stacked on the floor of the compressor room as stated by Mr. Betz (Tr. 35-37) or on open wooden shelves as stated by Mr. Tavenner (Tr. 74-75, 98), based on his observations of the room the day before and the day after the inspection (Tr. 35-36). Also, being principally concerned with the relatively higher temperature in the compressor room (actually an eight by eight foot room housing a water pressure pump with an enclosed 30 H.P. electric motor), Mr. Betz mistakenly asserted that a heating unit of some sort was in the same room (Tr. 34-35, 76-77). This room is separate from Respondent's main plant and adjacent to another room housing air compressors (Tr. 75, 123). The paint was stored in this room, with at least one window open at all times, in order to avoid the danger of storage in the main plant where the temperature averaged 90-100 degrees near the boilers, whereas temperatures in the cited room remain about 60 degrees during winter and 10 degrees warmer than outside temperatures during summer (Tr. 76). The walls of the cited room were of masonry cinder block construction (Tr. 74), and a daily check is made of the water pressure [*24] pump and storage tank (the front portion of which is exposed) in the room (Tr. 96-98).

Complainant suggests that (iii) (Office occupancies) of (iv) (Mercantile occupancies and other retail stores) are the most analogous subheadings of the cited standards applicable to Respondent's paint storage situation (Tr. 131). Subheading (iii) would be met if the paint were "in closed metal containers stored in a storage cabinet or in safety cans or in an inside storage room not having a door that opens into that portion of the building used by the public." The evidence establishes that the paint was in covered metal cans (not safety cans) on the floor or on open wood shelves (not a cabinet). While the evidence of record is not explicit, the paint was apparently stored in a room inside an annex to the main plant which did not have a door opening into the portion of the building used by the public, but such room was primarily the water pressure room and not a storage room (Tr. 64). Technically, therefore, Respondent did not fully meet the requirements of subheading (iii).

However, the title of the subheadings suggest that they are alternative rather than cumulative requirements, [*25] depending on the nature of the premises (office or mercantile here). On this basis, Complainant must show that Respondent failed to meet the requirements of both of the pertinent subheadings in order to prove violation of 29 CFR 1910.106(d)(5)(ii). On the contrary a fair reading of subheading (iv) (Mercantile occupancies) fails to describe any requirement that Respondent's storing of 7 gallons of paint in the 8 foot by 8 foot water pressure room allegedly violated. Accordingly, I am constrained to conclude that Complainant has not sustained its burden of proof respecting citation item 3.

Respecting citation item 5 (electric battery charges not grounded), there appears to be considerable disparity between the requirements of the cited standard (29 CFR 1910.314(d)(2)) and the alleged violation. For example, the cited equipment was portable, whereas the cited standard relates to fixed equipment (Section 1910.314(d)(4) relates to equipment connected by cord and plug, including portable equipment). Putting this discrepancy aside as non-prejudicial in that Respondent raised no such objection and was essentially on notice that the alleged violation related to the proper grounding of [*26] this particular battery charger, the testimony of Mr. Betz (Tr. 38-39) and Mr. Tavenner (Tr. 91) provide substantial evidence that, contrary to the cited standard, the non-current carrying metal parts of this battery charger (motor), being supplied by metal-enclosed wiring, was not grounded. There is also uncontroverted substantial evidence that the battery charger was in use (Tr. 38, 77, 132-134).

Respecting citation item 7 (electric fan guard), the evidence shows that the cited fan (table model with 18 inch blade) was in Respondent's maintenance shop on October 20, 1971 for conversion of its plug from two to three prongs for adequate grounding (Tr. 78). While these circumstances would normally remove the equipment from use, Mr. Betz testified that the fan was in use in the maintenance shop at the time (Tr. 39-40) an assertion not rebutted by Mr. Tavenner's testimony or otherwise of record. It was clearly established that the fan guard had an opening larger than one-half inch (Tr. 39, 78).

While the evidence of record respecting citation item 8 (electric drop cord without ground connection) shows that the cited two-prong drop cord was hanging on the wall in the maintenance [*27] shop, apparently commingled without identification from several other three-prong drop cords available for use (Tr. 78-79, 110-111), Respondent's customary procedure required any equipment in the maintenance shop to be issued out by a mechanic (Tr. 110). Respondent suggests that the mechanic would not release for use a drop cord lacking a ground attachment, but Mr. Tavenner's testimony was not entirely convincing on that point (Tr. 110-111).

But other evidentiary factors weaken Complainant's case. In the first place, the standard alleged to have been violated here (29 CFR 1910.314(d)(4)) relates to equipment connected by cord and plug and not to a cord and plug standing alone. Absent any objection by Respondent based on this apparent procedural discrepancy, and noting the evidence of record that the cited drop cord was used to operate electric drills and sanders (Tr. 40), I am inclined to weigh this factor appropriately rather than consider it absolutely dispositive of Complainant's allegation. However, there is also evidence of record, unrebutted by Complainant, that if the cited three wire cord were put in use it could be grounded at that time (presumably by some attachment [*28] or adjustment) (Tr. 79), although other testimony appears to discount this possibility (Tr. 64-65) and subsequently it was converted to a three-prong plug (Tr. 92). On balance, I do not believe Complainant has sustained its burden of proof respecting this item.

Citation item 10 alleges violation of 29 CFR 1910.23(c) in that open-sided floors, platforms and runways in four areas (hog kill, toenail, singe and rendering) lacked standard railings and toeboards. Mr. Betz testified that a network of walkways and stairs from the second floor level to the first floor level, which passed through the hog kill, singe and toenail areas, had a top-rail but no midrail or toeboard on October 20, 1971, and that this constituted a slipping hazard due to the presence of water, grease and blood in these areas (Tr. 42-44). Absent any contrary testimony by Mr. Tavenner as to these areas, and considering the testimony that there was no midrail (Tr. 81) and no toeboard (Tr. 45) on the 5 to 7 1/2 foot high catwalk from the grease tank to the lung chute in the rendering area, there is substantial evidence of record supporting this citation item.

Respecting citation item 11 (stairs without adequate [*29] siderails), the evidence establishes that three of the five cited stairs or ladders in the dressing area, all 3 to 6 feet high with 4 or more risers and apparently less than 44 inches wide, had siderails on both sides and that the other two stairs or ladders had siderails on one side only (Tr. 102), although Mr. Betz's less credible testimony was that he observed no rails on any of these stairs (Tr. 46).

Since the applicable standard (29 CFR 1910.23(d)(1) (iii)) requires one stair railing on each side, the issue is whether the two stairs with railing on only one side, are in violation of the cited standard. Respondent argues the negative on the ground that credible testimony of record establishes that a second rail on these stairs, apparently because of their particular location in relation to Respondent's meat processing system, would result in the pork touching, and thus possibly being contaminated by, the rail contrary to enforced regulations of the U.S. Department of Agriculture under the Wholesome Meat Act (Tr. 82, 127).

Under the provisions of Sections 8 and 21 of the Federal Meat Inspection Act (34 Stat. 1260 (1907), as amended by the Wholesome Meat Act, 81 Stat. [*30] 584 (1967); 21 U.S.C. Supp., Sec. 601 et seq. ), the Secretary of Agriculture may prescribe rules and regulations concerning the sanitary conditions of all establishments in which cattle and other equines are slaughtered and the meat and meat food products thereof are prepared for commerce. Pursuant to this authority the Secretary of Agriculture promulgated the following regulation (35 F.R. 15561-15562), codified at 9 CFR Sec. 308.3, which became effective December 1, 1970:

(f) Rails should be located and passageway space provided so that exposed product does not come in contact with posts, walls, and other fixed parts of the building, or with barrels, boxes, and other containers trafficked through holding and operating areas . . .

Under the Occupational Safety and Health Act (Section 4(b)(1), 29 CFR 1910.5(b)), nothing in the Act shall apply to working conditions of employees with respect to which other Federal agencies (including the U.S. Department of Agriculture), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health. Relying on the credible and uncontroverted testimony of Respondent's plant engineer, Mr. Tavenner, [*31] it appears that on the pertinent date the Department of Agriculture did in fact exercise statutory authority to prescribe and enforce the aforestated regulation affecting occupational safety and health in that said regulation prescribed the location of rails within slaughtering establishments such as Respondent's, which rails are also prescribed under the occupational safety and health standards (29 CFR Section 1910.23(d)) promulgated by the Secretary of Labor and cited against this Respondent. Based on the apparent legislative intent reflected in and the reasonable inference to be drawn from Section 4(b)(1) of the Act, read in conjunction with Section 4(b)(3) of the Act (requiring the Secretary of Labor, within three years after the effective date of the Act, to report to the Congress his recommendations for legislation to avoid unnecessary duplication and to achieve coordination between the Act and other Federal laws), I conclude that the Secretary's authority under the cited occupational safety and health standard promulgated under the Act, may not legally be asserted against this Respondent insofar as said standard may require a rail on each side of the two flights [*32] of stairs cited herein. See Legore Quarries Division -- Phoenix, Inc., Fineberg Packing Company, Inc.,

Citation item 13 alleges blockage of access to an exit and switch box in the shipping area in violation of 29 CFR 1910.36(b)(2) which requires construction, arrangement, maintenance and operation of buildings so as to avoid undue danger to the lives and safety of its occupants from fire or other emergency during the period of time reasonably necessary for escape from the building. There is uncontroverted testimony that loaded pallets blocked ready access to the only marked exit in the shipping area and to the electrical switch box which controlled electricity to the adjacent office and part of the dressing floor area about 20 feet away (Tr. 47-48, 105-106).

Respecting the blocked exit, there is credible evidence that five alternative escape routes to exits were available, including (1) through the adjacent office to a door opening to the out-of-doors, a distance of about 22 feet; (2) through the nearby offal cooler room to a door opening to the out-of-doors, [*33] an unspecified distance; and (3) through the dressing floor area to a door opening to the out-of-doors, a distance of about 20 feet (Tr. 83, 103-104). In addition, there were two double truck loading dock doors (not marked as exits) in the shipping area which apparently did not lead directly to the out-of-doors (Tr. 112). In Mr. Tavenner's opinion, these other exits were as accessible from the shipping area as the exit blocked (Tr. 84) and the blockage was unavoidable since there was no other room available for shipping (Tr. 113).

Notwithstanding the proximity of the alternate exit routes, Respondent's workplace was constructed and is maintained in accordance with integrated plans and specifications which have designated the personnel door in the shipping area as the exit from that immediate area in case of fire or other emergency. Absent evidence of any signs posted in this area to indicate the location of alternate exits, Respondent's employees are entitled to rely on the designated exit which, in this case, was blocked for more than a temporary period of time (Tr. 92-93). I cannot conclude as a matter of law, that blockage of this particular exit does not constitute an "undue [*34] danger," considering all relevant factors, including the fact that Respondent employed 116 employees at this establishment (Complaint, p. 2; Answer, p. 1). While there may be a practical necessity for some areas of blockage in this plant, as suggested by Respondent (Tr. 128), I agree with Complainant's suggestion that an orderly method of storage in Respondent's shipping area should be possible to avoid the cited blockage (Tr. 137-138). If not, then Respondent may wish to consider appropriate changes in the location and marking of its designated fire exits or apply for such other appropriate relief as may be warranted under the Act.

Similarly, blockage of the electric switch box in the shipping area, even through the main electrical control panel was located in the engine room, some 80-90 feet away (Tr. 106), added substantially to the above discussed undue danger in that, for instance, it might unduly increase the time required to cut off electricity in the office area adjacent to the shipping area should a fire or other emergency develop there.

Respecting citation item 14, Mr. Betz's testimony as to the unclean and unsanitary conditions in Respondent's lunchroom, toilet [*35] and shower facilities stand unrebutted of record (Tr. 49-50). Respondent simply argues that it should not be held to a standard of care beyond once a day (in the evening) cleaning, plus immediate special cleaning measures when cited by a U.S. Department of Agriculture inspector (Tr. 85-87, 128-129). While reasonable men, including inspectors, may differ as to what constitutes a clean and sanitary condition under the cited standard, a rule of reason should in fairness be employed in applying the standard. While the degree of uncleanliness of the lunchroom at 10:30 a.m. on October 20, 1971, reported by Mr. Betz, may not in itself constitute a clear violation of the cited standard, his further unrebutted testimony regarding dirty sinks and stool area and mold in the shower area constitutes substantial evidence of such violation warranting an appropriate penalty.

However, as discussed above with respect to item 11, the Act, or any standards duly promulgated thereunder, is not applicable to working conditions of employees with respect to which other Federal agencies, such as the U.S. Department of Agriculture, exercise statutory authority to prescribe or enforce standards [*36] or regulations affecting occupational safety or health (Section 4(b)(1)). Credible and uncontroverted testimony of Respondent's plant engineer, Mr. Tavenner, establishes that inspectors of the U.S. Department of Agriculture inspect Respondent's lunchroom and toilet facilities on a daily basis (Tr. 86, 108, 128) and I infer that such inspections are conducted pursuant to statutory authority vested in the Secretary of Agriculture under the Federal Meat Inspection Act (34 Stat. 1260(1907), as amended by the Wholesome Meat Act, 81 Stat. 584 (1967)), specifically Sections 8(21 U.S.C. 608) and 21 (21 U.S.C. 621), and regulations duly promulgated thereunder, specifically, 9 CFR Sections 308.3, 308.4 and 308.7, which provide in pertinent part as follows:

Section 308.3 Establishments; sanitary condition; requirements.

(a) Official establishments (any slaughtering, rendering or similar establishment at which inspection is maintained under the regulations in this subchapter . . .) shall be maintained in sanitary condition . . .

Section 308.4 Sanitary facilities and accommodations; specific requirements.

Adequate sanitary facilities and accommodations shall be furnished by every official [*37] establishment. Of these, the following are specifically required:

(a) Dressing rooms, toilet rooms, and urinals shall be sufficient in number, ample in size, and conveniently located. The rooms shall be provided with facilities to provide abundant light of good quality and well distributed. They shall be properly ventilated, and meet all requirements of the regulations in this part as to sanitary construction and equipment. They shall be separate from the rooms and compartments in which products are prepared, stored, or handled. Where both sexes are employed, separate facilities shall be provided.

(b) Acceptable lavatories, including running hot and cold water, soap, and towels, shall be placed in or near toilet and urinal rooms and also at such other places in the establishment as may be essential to assure cleanliness of all persons handling any product.

Section 308.7 Rooms, compartments, etc., to be clean and sanitary.

Rooms, compartments, places, equipment, and utensils used for preparing, storing, or otherwise handling any product, and all other parts of the establishment, shall be kept clean and in sanitary condition . . .

In view of the foregoing statutory [*38] authority exercised by the Secretary of Agriculture with respect to the working conditions (lunchroom and toilet facilities at the workplace establishment), I am constrained to conclude that, pursuant to Section 4(b) of the Act, the occupational safety and health standard cited herein under citation item number 14 (29 CFR Section 1910.141(a)) is not applicable to Respondent insofar as Respondent is an official establishment within the meaning of the Federal Meat Inspection Act.

FINDINGS OF FACT

The record herein as a whole contains reliable, probative and substantial evidence to support the following findings of fact:

1. Respondent is a Colorado corporation with a place of business located at Brush, Colorado (Tr. 26; Answer, page 1).

2. Respondent has approximately 116 employees at its workplace at Brush, Colorado, and regularly receives in commerce goods, materials and supplies which have originated outside the State of Colorado which it processes and ships in commerce (Complaint, page 2; Answer page 1).

3. On October 20, 1971, Mr. Robert J. Betz, a Compliance Officer with the United States Department of Labor, Occupational Safety and Health Administration, conducted an official [*39] inspection of Respondent's workplace located at Brush, Colorado (Tr. 17, 61). Based in part on Mr. Betz's report of inspection, on November 12, 1971, Complainant issued an amended Citation for, and on November 9, 1971 a Notification of Proposed Penalty charging Respondent with violation of 15 specific occupational safety and health standards under Section 5(a)(2) of the Occupational Safety and Health Act of 1970 at its Brush, Colorado workplace (Citation, Notification of Proposed Penalty).

4. Respondent contested all items of the Citation issued on November 9, subsequently amended and issued on November 12, 1971 (Notice of Contest dated November 23, 1971), and in the case was duly filed with the Commission on December 3, 1971 (Notice of Case Receipt dated December 3, 1971).

5. Complainant filed its complaint with the Commission on December 18, 1971, and Respondent filed its answer on December 27, 1971. Respondent's affected employees are represented by Local Union #641, Butchers -- North American Amalgamated Meat Cutters and Butcher Workers of North America, Route #1, Fort Morgan, Colorado, and the Secretary-Treasurer of that local union, Mr. William M. Simington, [*40] appeared at the hearing held in this matter on May 25, 1972, at Fort Morgan, Colorado, as an observer and witness (Tr. 3-4).

6. The Citation, Notification of Proposed Penalty, Notice of Contest, Notice of Hearing and all other pleadings in this matter have been posted at the plant premises (Tr. 4, 28).

7. Complainant's motion to delete items 9, 12, and 15 from the amended citation together with the relevant paragraphs of the complaint and of the Notification of Proposed Penalty were granted at the hearing (Tr. 11, 20-26). By stipulation of the parties at the hearing, items number 2, 4, and 6 of the amended citation were eliminated as issues by reason of Respondent's admission of violation of these cited occupational safety and health standards (Tr. 18-19).

8. The wooden single ladder observed by Inspector Betz in the sewerage plant area of Respondent's workplace on October 20, 1971, was 10 feet, four inches long, had cleats one by four feet and side rails two by four feet, was in reasonably sound physical condition, and was sitting at a pitch of about 60 degrees in a concrete pit about 8 feet deep and 8 feet wide with its top even with the top of the pit (Tr. 71-73, [*41] 94, 115-116).

9. On October 20, 1971, 7 gallon covered cans of paint were stacked on wooded shelves in Respondent's water pressure room which room was approximately 8 feet by 8 feet in dimensions, contained a 30 horsepower enclosed electric motor which operated a water pressure pump with dimensions of 18 inches wide and 30 inches long; the room having window ventilation and maintaining relatively constant temperatures of 60 degrees during the winter and 10 degrees warmer than outside temperatures during the summer, the walls of the room being of masonry cinder block construction, located in an annex to Respondent's main plant, which room did not have a door opening into the portion of the building used by the public (Tr. 74-77, 95-98, 64, 123).

10. The non-current carrying metal parts of the battery charger located in Respondent's boiler room area on October 20, 1971, were not grounded, although the battery charger was plugged in for use (Tr. 38-39, 77, 91, 132-134).

11. On October 20, 1971, a table model electric fan with an 18 inch blade having a guard with an opening larger than 1/2" was in use in Respondent's maintenance shop (Tr. 39, 78).

12. On October 20, [*42] 1971, an electric drop cord lacking a ground attachment (3rd prong in the plug), which was in Respondent's maintenance shop for conversion to a 3 prong plug, was hanging in said shop with other electric drop cords available for use when issued by Respondent's mechanic (Tr. 78-79, 110-111, 64-65, 92).

13. On October 20, 1971, a network of walkways and stairs between the second floor and the first floor in the hog kill, singe, and toenail areas of Respondent's workplace did not have mid rails or toe boards and a walkway five-seven and a half feet high in Respondent's rendering area lacked mid rail and toe board (Tr. 42-44, 45, 81).

14. On October 20, 1971, two stairs (ladders) in Respondent's dressing area had side rails on one side only (Tr. 102). Regulations promulgated by the Secretary of Labor (9 CFR Section 308.3(f) prohibited second rails on those two stairs because of possible contact with and contamination of Respondent's exposed meat products (Tr. 82, 127).

15. On October 20, 1971, loaded pallets blocked access to the personnel door marked exit and to an electrical switch box in Respondent's shipping area, although at least three alternative exits were available by passing [*43] through other rooms for distances of approximately 20-22 feet and a main electrical control panel was located in the engine room, some 80-90 feet from the shipping area (Tr. 83-84, 92-93, 103-104, 112-113).

16. At approximately 10:30 a.m., on October 20, 1971, there was trash and food stains on the tables of Respondent's lunchroom, dirty sinks and bowls and mold in the shower of Respondent's toilet area (Tr. 49-50). Respondent's lunchroom had on previous occasions been cited by inspectors of the U.S. Department of Agriculture for unsanitary conditions in the afternoon following lunch (Tr. 128-129) and Respondent's lunchroom and toilet facilities are inspected by U.S. Department of Agriculture inspectors on a daily basis (Tr. 86, 108, 128).

17. In computing the proposed penalties totaling $299.00 for the various alleged violations with which Respondent was cited, Complainant awarded Respondent a 20% credit or discount for good faith (safety program), 20% credit for no history of prior violations under the Act, and 10% credit for the size of Respondent's business (over 100 employees), all credits being against a basic unadjusted civil penalty based on the gravity of each [*44] alleged violation (Tr. 50-55).

CONCLUSIONS OF LAW

1. Respondent is and, at all times material hereto, was an employer within the meaning of Section 3(5) of the Act, being engaged in a business affecting commerce who has employees.

2. Respondent is and, at all times material hereto, was subject to the requirements of the Act, including Section 5(a)(2), and the occupational safety and health standards duly promulgated thereunder, except as hereinafter concluded.

3. Pursuant to Section 6 of the Act, by publication in the Federal Register of May 29, 1971 (36 F.R. 10466, et seq. ), the Complainant duly promulgated the following occupational safety and health standards, set forth in the Code of Federal Regulations, Title 29, which became effective on August 29, 1971: Sections 1910.25(b) & (c); 1910.106(d)(5)(ii); 1910.314(d)(2) & (4); 1910.212(a)(5); 1910.23(c) & (d); 1910.36(b)(2); 1910.14(a).

4. The Commission has jurisdiction of the parties and the subject matter herein under the provisions of Section 10(c) of the Act.

5. The citation for non-serious violation, notification of proposed penalty, notice of contest, and all pleadings in this matter were properly [*45] served or posted in accordance with the notice and service requirements of the Act, including Section 9, and the pertinent regulations duly promulgated thereunder, including Section 2200.7 of the Commission's Rules of Procedure (29 CFR Part 2200; 36 F.R. 17409, 17410 (August 31, 1971)).

6. Complainant has established by substantial evidence of record that on October 20, 1971, Respondent violated the occupational safety and health standards set forth at 29 CFR Sections 1910.314(d)(2); 1910.212(a)(5); 1910.23(c); and 1910.36(b)(2). Accordingly, items 5, 7, 10 and 13 of the citation should be affirmed.

7. Complainant has not established by substantial evidence of record that on October 20, 1971, Respondent violated the occupational safety and health standards set forth at 29 CFR Sections 1910.25(b) & (c); 1910.106(d)(5)(ii); and 1910.314(d)(4). Accordingly, items 1, 3 and 8 of the citation, and the corresponding proposed penalties of $15.00, $8.00, and $12.00, respectively, should be vacated.

8. On October 20, 1971, pursuant to Sections 8 and 21 of the Federal Meat Inspection Act (34 Stat. 1260(1907), as amended by the Wholesome Meat Act; 81 Stat. 584 (1967); 21 U.S.C. 608, 621), [*46] the Secretary of the U.S. Department of Agriculture, a Federal agency, exercised statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health, specifically, 9 CFR Sections 308.3, 308.4 and 308.7, which was duly promulgated (35 F.R. 15561-15562), became effective on December 1, 1970, and applied to working conditions of Respondent's employees, including specifically rails on two stairs or ladders in Respondent's dressing area and lunchroom and toilet facilities in Respondent's workplace, said working conditions being also the subject of Complainant's occupational safety and health standards, specifically 29 CFR Sections 1910.23(d) and 1910.14(a), respectively. Consequently, in accordance with Section 4(b)(1) of the Occupational Safety and Health Act, the aforespecified occupational safety and health standards, duly promulgated pursuant to Sections 5(a)(2) and 6 of the Act are not applicable to the cited working conditions of Respondent's employees and items 11 and 14 of Respondent's citation, and the corresponding proposed penalties of $30.00 and $18.00, respectively, should be vacated.

9. In accordance with section 17(c) [*47] and (j) of the Act, the penalties proposed by Complainant for violations alleged in connection with citation items 5, 7, 10 and 13 are appropriate, giving due consideration to the size of Respondent's business, the gravity of the violation, Respondent's good faith and history of previous violations. Accordingly, Complainant's notification of proposed penalties with respect to citation items 5, 7, 10, and 13, totaling $117.00, should be affirmed.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law and the record as a whole, good cause appearing, it is hereby ORDERED, that:

1. Complainant's amended citation for non-serious violation issued on November 12, 1971, be and hereby is affirmed with respect to citation items 5, 7, 10 and 13.

2. Complainant's notification of proposed penalty issued on November 9, 1971, be and hereby is affirmed with respect to citation items 5, 7, 10 and 13 in the amounts of $12.00, $15.00. $75.00, and $15.00, respectively, for a total assessment of civil penalties against Respondent in the amount of $117.00.

3. Complainant's amended citation issued on November 12, 1971, with respect to citation items 1, 3, 8, 11, and 14, [*48] and the corresponding proposed penalties of $15.00, $8.00, $12.00, $30.00, and $18.00, respectively, contained in the notification of proposed penalty issued on November 9, 1971, be and hereby are vacated.