SPENCER FOODS, INC.  

OSHRC Docket No. 450

Occupational Safety and Health Review Commission

September 12, 1972

  [*1]  

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners

OPINION:

  BY THE COMMISSION: The Commission has directed review in this case for the purpose of amending the Judge's Decision and Order as follows:

Paragraph 3 of the Order is hereby amended by deleting 29 C.F.R. 1910.24(b) and inserting in place thereof 29 C.F.R. 1910.26(a).

Paragraph 5 of the Order is hereby amended by deleting 29 C.F.R. 1910.26(a) and inserting in place thereof 29 C.F.R. 1910.24(b).

There being no other error, it is ORDERED that the Judge's Decision and Order, as amended, be and the same is hereby affirmed as the Final Order of the Commission.

[The Judge's decision referred to herein follows]

DIXON, JUDGE, OSAHRC: This case is before the undersigned upon assignment by the Occupational Safety and Health Review Commission involving citations and proposed penalties heretofore issued.

Respondent was cited January 10, 1972 for a variety of non-serious violations, namely, 29 CFR 1910.22(b) cluttered aisleways, no penalty; 29 CFR 1910.23(c), open-sided runways not provided with standard railing, (5 locations), proposed adjusted penalty $60.00;   29 CFR 1910.23(b) wall opening to elevator unguarded,   [*2]   proposed adjusted penalty $30.00; 29 CFR 1910.24(b) no fixed stairs to northwest corner of circle pit, step ladder used to gain access to top of circle pit, runway or walkway above expellor, proposed adjusted penalty $30.00; 29 CFR 1910.25(d) step ladder with broken leg in manure room not tagged "Dangerous, Do Not Use", proposed adjusted penalty $30.00; 29 CFR 1910.26(a) metal ladder rungs to sticking pit not knurled, proposed adjusted penalty $30.00; 29 CFR 1910.26(c) damaged aluminum ladder not marked in salt bin area, proposed adjusted penalty $30.00; 29 CFR 1910.30(a) hand holds not provided for safe handling on dockboards, proposed adjusted penalty none; 29 CFR 1910.132(a) employees working on visory platform without mesh gloves or aprons, proposed adjusted penalty $30.00; 29 CFR 1910.157(a) stand grinder blocked fire extinguisher, proposed penalty, none; 29 CFR 1910.178(n) hyster's horn inoperative, proposed penalty, none.

CONTESTED CITATIONS

Total adjusted penalties proposed were contested in their entirety by pleadings and representations of the parties, and contest was limited to the foregoing and citation 9(4) respecting violation of 29 CFR 1910.132 (a) pertaining to individuals [*3]   working on the viscera platform without mesh gloves or aprons.

STIPULATIONS

It was stipulated that Respondent was a Delaware Corporation doing business in South Dakota and engaged in the meat processing business employing approximately   204 employees and was and is engaged in interstate commerce.

CORRECTION OF TRANSCRIPT

Face Sheet: Stephen F. Avery, Esquire, Attorney for Respondent, rather than "Manager, Employee and Community Relations, etc. . ."

Wherein the word "visory" is used the word should be read as "viscera."

Wherein the words ACIERMA CASE is used, the word should be NACIREMA CASE.

Page 62, Line 11: Where the word "Blots" is used, should be "bolts."

RULING ON COMPLAINANT'S MOTION

Complainant in closing argument, objected to the Respondent's production of evidence affecting the issue as to whether or not a ladder to the sticking pit was portable or affixed.   Complainant failed to object to the introduction of the evidence at the time and pursuant to rule 15, subparagraph (b) of the Federal Rules of Civil Procedure, it is ruled that the pleadings are amended to conform to the evidence adduced by the Respondent, and that said evidence will be considered.   [*4]  

THE EVIDENCE

Mr. Kenneth G. Hubbell, of the Occupational Safety and Health Administration, in his duties as compliance officer, made an inspection of Respondent's plant facility November 18, 1971.   Mr. Hubbell made reference to Item No. 9(4) of the Citation involving personal protective equipment for employees working on the viscera platform which, in his opinion, required the   employees to wear mesh gloves inasmuch as they used knives in their work with the probability of cutting of fingers, and that the probability of a cut was strong as very sharp knives were used in the viscera operation.   He felt that one mesh glove would be sufficient, on the non-knife hand.

Mr. Hubbell referred to a penalty assessment worksheet with respect to arriving at the proposed penalty for the alleged violation noting that the gravity of the violation was measured by system or type along with probability of injury occurring in evaluating the gravity, the severity of the likely injury, and the number of employees exposed.   He felt the gravity of the situation was in the range of "B" which would require a penalty of $100-200, proposing an unadjusted penalty of $100 for Respondent with a 20%   [*5]   reduction based upon his entry and closing conferences with the employer considering their willingness to abate the violation.   He noted that Respondent had over 200 employees and no consideration was given for size in his assessment.   Respondent had no bad history from the effective date of July 1, 1970 and there are no prior violations by Respondent.   Respondent was given full credit of 20% for good faith and willingness to abate which resulted in a final proposed penalty of $30.00 as a result of a 50% abatement credit.

Referring to other contested items as to penalty.   Mr. Hubbell referred to Item No. 2 of the Citation, "Open-sided runways without standard railings, five locations, with the danger of an employee slipping and falling into a pit and suffering injury from cattle being processed" which was rated as a "B" factor with unadjusted penalty of $200.00 in utilizing the previously described methodology, referring to Citation Item 3 Unguarded elevator to beef cooler room.

  Mr. Hubbell was cross examined with respect to an alleged violation of standard 1910.26(a) noting that the regulation dealt with portable metal ladders and was of the opinion that the ladder in   [*6]   question could have been removed in that it was his impression the ladder was hanging and not actually bolted down.   However, he did not determine if the ladder could be removed and did not check to see whether it was portable and conceded that in fact the ladder could be fixed.

Mr. Hubbell during the course of inspection found that the plant was aware of some of the regulations and was not aware of other regulations and that they had a list of items from their own safety director to be complied with.   The manager had indicated that the Respondent's safety director had made a safety walk around prior to the inspection.

Mr. Hubbell has inspected in his best estimation approximately three other meat processing plants and did not recall employees wearing mesh gloves in the viscera operation nor could he recall ever issuing a citation to any other meat packer for a gutter not using a mesh glove. Mr. Hubbell did not know whether or not government employees of the Department of Agriculture wore mesh gloves at the viscera table.

Dr. Frank Reimers, supervisor for the Department of Agriculture and Doctor of Veterinarian Medicine testified he was familiar with the Spencer Foods plant operation.   [*7]   He noted the United States Department of Agriculture had no provisions against the use of a mesh glove so long as it had a protective cover such as a water tight plastic or water tight rubber glove over the mesh glove so that it would be easy to clean.   The mesh glove in and of itself could accumulate contamination within the mesh and would have to be taken off and washed after each carcass.   He noted that the Department   partment of Agriculture inspectors do a great deal of palpating of animal organs and for that reason do not wear mesh gloves and further noted that the wearing of rubber gloves made their work twice as hard as they lose sense of feeling and much more grip.

He noted that if a gutter just used a mesh glove there would be conflict with the Department of Agriculture in that he would have to have a protective covering over the glove to make it water tight.   Further, that the Department of Agriculture inspectors use knives in examining the organs of animals and they do not wear mesh gloves. In Dr. Reimers' experience in the meat packing industry he had never observed gutters using a mesh glove. If the gutter would come into contamination without a rubber glove [*8]   over the mesh, he would have to take the mesh glove off and clean it and also wash his hands and further would be prevented from using a mesh glove without a protective covering.

Dr. Reimers recollected that he had cut himself with his own knife but not frequently, as had other inspectors.

Mr. Malcolm E. Thompson, plant manager, Spencer Foods of Sioux Falls, South Dakota testified he had been in the meat packing industry for 33 years and had been in just about every packing plant from Denver, Colorado to El Paso, Texas to Canada and had been in close to 500 or better packing plants. His past experience included working as a gutter and at the time of the inspection, Spencer Foods was processing 48 cattle an hour on a stop and go chain.   Mr. Thompson described the operations of the gutter in opening the carcass and pulling out the viscera which involved a certain amount of strain and pull, working with weights from 10 to 12 pounds up to 100 pounds.   Mr.   Thompson testified that at the time of the inspection there were two Spencer employees on either side of the viscera table, with the gutter wearing an apron as well as the other employee, who wore a mesh glove after inspection [*9]   of the product.

Mr. Thompson described that in doing gutting work it was difficult with a mesh glove covered with a rubber glove to grab and hold and that the wearing of a mesh glove caused tearing of fingernails in that the gutter primarily has to utilize only two fingers in the non-knife hand.   Also, the pulling was more difficult in that a wet rubber glove with fatty material on it becomes slippery.

Mr. Thompson made reference to the Citation involving ladders in the sticking pit as to whether they were fixed or portable and described the ladder as being a permanent ladder. Mr. Thompson described the ladder to the sticking pit as being attached on both sides by bolts into the concrete and at the bottom where it was secured into the floor.   It was a three rung ladder made out of pipe with handrails attached.

Mr. Thompson made a study of the past accidents on the viscera table going back to 1967 and noted the records demonstrated a cut on a non-knife hand, one not designated, one on a knife hand and the other on a non-knife hand.   He felt that there was more probability of cutting the knife hand in that the knife would come up against an obstruction and the hand would follow   [*10]   the blade and be cut.   He further noted that there had been one day of lost time suffered in the last five years from cuts at the viscera table and that in his contacts with some in excess of 500 packing plants he had never observed a viscerator or gutter wearing a mesh glove.

Mr. James Fredric Bryant was called by the Respondent   to testify he was the corporation production manager for Spencer Foods and had been associated with the company about 6 1/2 years and in his capacity sees all three of his company's plants at least once every two weeks and had occasion to go on to the kill floors and into the operations and in his past history in the meat industry he had examined approximately two to three dozen slaughter plants. During his observations he had never observed a gutter or viscerator using a mesh glove on his non-knife hand or on his knife hand.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

29 CFR 1910.132(a) is a general standard providing broad requirements for 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 [*11]   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 issue raised by such general standard is whether or not the subjective judgment of the compliance officer that: (1) . . . there was hazard of the processing procedure encountered by the workmen in a manner capable of causing injury or impairment by physical contact and . . . (2) the subjective judgment of the compliance officer that the wearing of a mesh glove on the non-knife hand would protect said employee from the anticipated hazard.

Title 29, Chapter 20, Occupational Safety and Health Review Commission, Part 2200, Rules of Procedure,   Subpart 2200.33 provides in pertinent part that the burden of proof shall be on the Secretary in all proceedings to sustain the assertions contained in his Citations, Notification of Proposed Penalty and Notification of a Failure to Correct a Violation.

In dealing with such a general all encompassing standard wherein subjective judgment [*12]   establishes the criterion, a rationale must be established for such judgment based upon facts which are clearly established by the evidence and the record and, or in the alternative, a judgment based upon inductive, deductive or logical reasoning which can only result in a given conclusion based upon a particular set of circumstances.

The Complainant's burden of proof rests upon the proposition that the facts alleged by the Complainant are subject to dispute.   The parties must supply the relevant factual data.   If the evidence is such that no reasonable trier of fact could fail to find a specified proposition of fact to be true, that proposition must be taken to be true and must be considered as a basis for decision of the controversy.   A determination must be made, (1) which party will fail if evidence is not introduced sufficient in quantity and quality to justify a finding of the truth of the proposition, and (2) which party will fail if at the close of the evidence it is incapable to determine whether or not a proposition is true.

The Respondent's evidence demonstrated over a five-year period some four cuts, along with one scratch of the arm, ostensibly a bone scratch, with   [*13]   the ratio of injury not clearly defined between the knife and non-knife hand and with only one day's lost time during said period of time.

The Complainant in its brief takes the position that   Respondent's figures are perhaps suspect as to the number of injuries sustained by gutters but offered no evidence in opposition thereto.   To the contrary, Mr. Hubbell in his testimony as a compliance officer noted he had inspected three other meat processing plants and did not recall any employees wearing mesh gloves in the viscera operation nor could he recall ever having issued a citation to any other meat packer for a gutter not using a mesh glove.

This line of testimony was further buttressed by that of Dr. Reimers and Mr. Thompson that they had never observed gutters using a mesh glove with a further explanation as contained in the evidence as to the awkwardness of the use of the glove and as to the requirements of a rubber covering over the mesh glove to avoid contamination. Mr. Bryant joined in the observation that he had never, during his experience, observed a gutter using a mesh glove on either hand.

Therefore, it is apparent from the total sum of the evidence, fully considered,   [*14]   that while a potential hazard exists in Respondent's operation of visceration and the use of a sharp knife in connection with said operation, it has not been clearly demonstrated by the testimony or the evidence that in Respondent's particular instance, there is other than conjecture that such a degree of hazard of causing injury or impairment of an employee's body as to justify the subjective determination that, if such hazard exists, the employee would be afforded protection in the performance of his duties by the wearing of a mesh glove, regardless of which hand is utilized, i.e., the knife hand or the non-knife hand.   To require such usage or to constitute the lack of such usage as a violation of a general standard would, of necessity, have to be based upon more probative evidence of prior occurrences of more than a trivial nature,   a showing of bodily impairment as a result of accident, a showing of a general condition in the industry of lost time accidents directly related thereto.   No such evidence was offered.

Respondent was assessed a total of $240.00 in adjusted proposed penalties for the various violations found at the time of the inspection. Complainant by its [*15]   brief agrees there is no evidence to support item 6, (portable ladder vs. fixed ladder) and that the same should be vacated.

The criterion for imposition of proposed penalty is established by section 17(j) of the Act which provides that the Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

In Secretary of Labor v. J. E. Chilton Millwork and Lumber Co., Inc.,

The Commission is of the opinion that the principal purpose of this Act is to obtain compliance with its requirements in order to insure a safe and healthful workplace.   Relatively minor monetary penalties do little to effectuate this objective.   We, therefore, will look carefully at cases involving such proposed penalties. This is a case where the proposed penalty adds nothing to the objectives of the Act.

A review of the evidence in this contest shows that Respondent during the time of the inspection was,   [*16]   while in the process of modifying its operations, attempting to come into compliance with the Act.   The Respondent employs approximately 204 employees at its plant which according to Exhibit Number "C" is   substantial in size.   In accordance with the foregoing criteria the evidence bearing upon the issue of the appropriateness of the penalty demonstrates from the evidence that few employees were affected by the alleged violations; that Respondent demonstrated a willingness to abate the alleged violations and was given full credit for abatement; Respondent was shown to have "no bad history", and the only evidence of prior violations involving injury was that submitted by the Respondent of one lost day within a period of five years in connection with its viscera operation.

In conformance with the foregoing factors, it is felt that no penalty should be assessed against Respondent.

ORDER

1.   Respondent is and at all material times was, an employer within the meaning of section 5(a) as defined in section 3(3) and 3(5) of the Act.

2.   Jurisdiction is conferred upon the Commission by section 10(c) of the Act and the Citations issued Respondent were in accordance with section   [*17]   9(a) of the Act.

3.   The Citation for alleged violation of 29 CFR 1910.24(b) and proposed adjustment penalty is hereby vacated.

4.   Citation and proposed penalty for alleged violation of 29 CFR 1910.132(a) is vacated on the basis that Complainant has failed in his burden of proof in showing as to Respondent, a hazard existed in Respondent's viscera operation and further, his burden of proof, in showing that the wearing of a metal mesh glove on the non-knife hand would eliminate such hazard, if any.

5.   Citations for alleged violation of 29 CFR 1910.22   (b); 29 CFR 1910.23(c); 29 CFR 1910.23(b); 29 CFR 1910.25(d); 29 CFR 1910.26(a); 29 CFR 1910.26(c); 29 CFR 1910.30(a); 29 CFR 1910.157(a); and 29 CFR 1910.178(n) are affirmed and the proposed penalties, are found, in light of the foregoing, to serve no useful purpose as the objectives of the Act have been achieved and they are vacated, and no penalty shall be assessed against the Respondent.