FINEBERG PACKING COMPANY, INC.  

OSHRC Docket No. 61

Occupational Safety and Health Review Commission

March 22, 1974

  [*1]  

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On August 11, 1972, Judge David H. Harris issued his decision and order in this case, modifying the Secretary's citation for nine other than serious violations and notification of proposed penalth of $333 by vacating certain alleged violations and assessing a total penalty of $75.

On August 18, 1972, former Commissioner Alan F. Burch directed that the Judge's decision 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 in the circumstances of this case section 4(b)(1) of the Act deprives the Secretary of jurisdiction over the alleged failure to comply with 29 CFR 1910.141(a).

The Commission has reviewed the Judge's rulings and has considered the entire record.   We adopt the Judge's decision and order insofar as it is consistent with the following.

Respondent, a food processor, is subject to the provisions of the Federal Meat Inspection Act as amended by the Wholesome Meat Act of 1967, n1 pursuant to which the Secretary of Agriculture [*2]   promulgates regulations designed to protect the consumer of meats from adulterated or unwholesome products.   To accomplish   this purpose, regulations controlling plant sanitation have been adopted.   These plant sanitation regulations, in addition to protecting consumers, incidentally affect the safety and health of respondent's employees.

Judge Harris concluded that the express purposes of the Wholesome Meat Act are "primarily the protection of the consumer by assuring that meat products are clean, wholesome and unadulterated," but that the sanitary conditions of the employer's establishment, including the conditions of the change rooms, toilets, and waste room facilities provided for his employees, as well as their physical health, are a proper subject for regulation by the Secretary of Agriculture in carrying out the terms of the Wholesome Meat Act. Since the Secretary of Agriculture had used this authority to adopt rules, the Judge concluded that section 4(b)(1) of the Act n2 deprived the Secretary of Labor of jurisdiction over the subject matter encompassed by 29 CFR 1910.141(a).   Accordingly, item no. 6 of the citation was vacated.

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n2 That section exempts from coverage of the Act ". . . 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."

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The policy or purpose of the Wholesome Meat Act is "above all" to protect the health and welfare of consumers. G.A. Portello & Co. v. Butz, 345 F. Supp. 1204 (D.D.C. 1972). Accordingly, any protection of the health of employees in the workplace, as distinguished from consumers, is incidental.   The Congressional findings contained in the Wholesome Meat Act show an exclusive concern for the protection of the health and welfare of consumers. 21 U.S.C. 602. There is no indication that employees in the workplace are within the class which Congress sought to protect under the statute.

  Under these circumstances it appears that the Judge's conclusion is grounded upon an excessively literal reading of section 4(b)(1) of the Occupational Safety and Health Act. His reading would [*4]   appear to exclude from the Act's jurisdiction working conditions subject to a rule of anoter agency affecting job safety or health when the effect is benign, even though the effect is incidental.   This appears to fall short of an execution of the purpose of the Occupational Safety and Health Act, which is to "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions."

To be cognizable under section 4(b)(1), we conclude that a different statutory scheme and rules thereunder must have a policy or purpose that it consonant with that of the Occupational Safety and Health Act. That is, there must be a policy or purpose to include employees in the class of persons to be protected thereunder.   This interpretation of section 4(b)(1) appears more reasonable than the rather literal interpretation of the section applied by the Judge that would recognize any and all rules of other agencies having a benign but fortuitous effect on job safety or health, and therefore to be the more likely choice of the Congress.   Cf.   Burnett v. Guggenheim, 288 U.S. 280 (1933).

Judge Harris' reliance upon Phoenix, Inc.-Legore Quarries Division, No.   [*5]   58 (June 14, 1972) is misplaced.   There, the Commission held that it had no jurisdiction over working conditions subject to the Metal and Nonmetallic Mine Safety Act.   This is because the class of persons sought to be protected by that Act consists of employees.   The protection to employees is not incidental.

Our recent decision in Mushroom Transportation Company, Inc., No. 1588 (November 7, 1973) is also distinguishable.   There, the class of persons sought to   be protected by the Department of Transportation's rule requiring that unattended vehicles be securely braked and that other reasonable precautions be taken included those who, because of working conditions, might suffer injury from the movement of a motor vehicle left unattended.

Our interpretation of section 4(b)(1) may well mean that there will be some duplication in activity between the Secretary of Labor under the Occupational Safety and Health Act and the Secretary of Agriculture under the Wholesome Meat Act. But this is the sort of thing that would be a proper subject matter for consideration under section 4(b)(3) of the Act requiring that the Secretary of Labor submit a report to the Congress recommending [*6]   legislation to avoid unnecessary duplication and to achieve coordination between the Act and other federal laws.   The report is to be submitted within three years after the effective date of the Act.   We note, however, that regulation of an industry or employer by more than one agency is not uncommon.   Cr.   Swift & Co. v. United States, 316 U.S. 216, 232 (1942).

In the record before us, we are unaware of conflicting statutory or regulatory requirements that an employer must comply with.   In the event any conflicts were to arise there is a vehicle for their resolution and for accommodation for the separate statutory schemes under section 6(d) of the Act.   That provision permits an employer to obtain variance from any standard of the Secretary of Labor when the employer provides equivalent protection to his employees.

Accordingly, it is ORDERED that item no. 6 and its proposed penalty be reinstated and that the Judge's decision be modified in accordance with this decision.  

DISSENTBY: MORAN

DISSENT:

  MORAN, CHAIRMAN, dissenting: Judge Harris correctly decided this case and his ruling should have been sustained.   Its reversal is an attempt to expand the coverage of the Occupational [*7]   Safety and Health Act into areas from which Congress took care to exclude it.   The result of this decision 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 is simply a judicial cop-out.

Congress recognized the potential [*8]   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. n3

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n3 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." n4

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n4 29 U.S.C. §   655(b)(1).   The objective of the Act is "safe and healthful working conditions" 29 U.S.C. §   651(b).

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The statute does not require, as this [*9]   decision states, that the Act will only be subordinate to 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 regulated by the provisions of the Occupational Safety and Health Act of 1970 while flying a plane.

It may be "incidental" (a word used repeatedly in this decision) that a law or regulation designed for the safety of airline passengers also protects the plane's crew, so this decision would subject the 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 says the Department of Agriculture must keep its hands off the employees.   It can look only [*10]   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]

  HARRIS, JUDGE, OSAHRC: This is an action under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq. (hereinafter the Act), to review a citation issued by the Secretary of Labor (hereinafter Secretary) pursuant to Section 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant to Section 10(a) of the Act.

The citation (P-1), issued on September 22, 1971, alleges that Fineberg Packing Company, Incorporated, the employer, (hereinafter Respondent), in a workplace under its ownership, operation of control, located at 2875 Starling Place, Memphis, Tennessee, violated specified standards promulgated under the Act as follows:

(1) 1910.314(d)(4)(iii)(d), ungrounded portable hand drill and metal cutter in use at entrance to shop and compressor room," required to be corrected on October 7, 1971;

(2) 1910.36(b)(4) and 1910.36(b)(5), "Means of egress not clearly marked in main plant, such as in boning room.   Exit door locked in formula room.   Emergency light inoperative [*11]   in boning room," required to be corrected on October 7, 1971;

(3) 1910.157(a)(3), 1910.157(a)(6), 1910.157(b)(2), "Fire extinguishers mounted improperly, obscured, only for Class A hazards in shop and compressor room," required to be corrected on October 7, 1971;

(4) 1910.310(j)(1), "Exposed electrical terminals for control box in shop. Wet floor area around box," required to be corrected on October 7, 1971;

(5) 1910.176(b) and 1910.22(a)(1), "Materials (motors, iron bars, boards) stored improperly in ware house and shop. Housekeeping poor in same areas," required to be corrected on October 7, 1971;

(6) 1910.141(a), "Change house service rooms were in unsanitary condition," required to be corrected on October 7, 1971;

  (7) 1910.25(d)(1)(i), 1910.25(d)(1)(iv), 1910.25(d)(1)(v), "Wooden ladders in bad state of repair located in and around shop and compressor rooms" required to be corrected on October 7, 1971;

(8) 1910.23(c)(2), "Walkway (leading from fixed ladder atop inedible tank not guarded by standard railing or toe board" required to be corrected on October 7, 1971; and

(9) 1910.27(d)(4), 1910.27(e)(1), 1910.27(f), "Fixed metal ladders for ammonia condenser tanks [*12]   not equipped with grab bars.   One was pitched at wrong angle in same location.   Fixed ladder at vertical inedible tank near rail guard not secured to same," required to be corrected on October 7, 1971.

A "Notification of Proposed Penalty" (P-2), issued on the same date, September 22, 1971, proposed assessment of penalties in the aggregate sum of $333.00 against the Respondent.

Respondent filed a Notice of Contest dated September 28, 1971 (R-1) by which it contested both the citation and the proposed penalties.

All of the violations alleged in the said citation are categorized as "not serious violations within the meaning of the Act but which have a direct or immediate relationship to occupational safety and health."

The within matter was referred to the Occupational Safety and Health Review Commission for hearing pursuant to Section 10(c) of the Act on September 30, 1971, and on October 21, 1971, the undersigned was appointed and the within matter assigned to him for hearing pursuant to Section 12(e) of the Act.

Pursuant to notice and by agreement of the parties, a prehearing conference and the hearing were held on December 29, 1971, in Memphis, Tennessee.

Respondent acknowledged [*13]   that it received the Citation (P-1) and Notification of Proposed Penalty (P-2)   on September 23, 1971, (Tr. 208) and that the Citation was posted on the premises three hours after the receipt thereof (Tr. 183).

The recognized bargaining agent of Respondent's employees, the Amalgamated Meat Cutters and Butcher Workers of America, did not appear nor did any other affected employee indicate a desire to participate in these proceedings (Tr. 223).

It was stipulated by the parties that: the correct name of the Respondent is Fineberg Packing Company, Incorporated and that it is a corporation organized under the laws of the State of Tennessee with its principal place of business located at 2875 Starling Place, Memphis, Tennessee (Tr. 5-6); Respondent is engaged in the business of producing and packing meat products, employs approximately 83 persons and regularly ships substantial quantities of such meat products in commerce to points outside the State of Tennessee (Tr. 6); all of the machinery and equipment referred to herein is the property of the Respondent (Tr. 7); an inspection of Respondent's premises was conducted on September 2, 1971 and that no reinspection took place (Tr.   [*14]   9); the Respondent timely filed its Notice of Contest on September 29, 1971 (Tr. 10) and that Respondent has no history of prior violations (Tr. 8).

Respondent interposed by way of a plea in bar that by the terms of Section 9(c) of the Act the Secretary may not issue a citation "after the expiration of six months following the occurrence of any violation" and that any of the violations alleged herein which have existed for more than six months are not actionable (Tr. 10-11; 236-238).

After hearing the testimony of the witnesses and having considered the same together with the exhibits and the stipulations, representations and admissions of the   parties, it is concluded that the substantial evidence, on the record considered as a whole, supports the following findings of fact.

FINDINGS OF FACT

1.   Fineberg Packing Company, Incorporated, the Respondent, is a corporation organized under the laws of the State of Tennessee, with its principal office and place of business in premises located at 2875 Starling Place, Memphis, Tennessee (Tr. 6).

2.   Respondent has been engaged in the business of slaughtering live-stock and in manufacturing and packing meat products at the aforesaid [*15]   location since 1938 (Tr. 5-6; 25; 211; 212), substantial quantities of which are regularly sold and shipped in interstate commerce to points outside the State of Tennessee (Tr. 6).

3.   Respondent regularly employs, at the site aforesaid, approximately 83 employees (Tr. 6) and owned and controlled all machinery, tools, equipment, materials, fixtures and buildings referred to herein at all of the times hereinafter mentioned (Tr. 7).

4.   Respondent's premises, equipment, fixtures, raw materials and finished products are regularly and continually inspected by inspectors inthe employ of the United States Department of Agriculture (Tr. 177-178).

5.   Respondent's place of employment was inspected by Compliance officers in the employ of the Occupational Safety and Health Administration, United States Department of Labor, on September 2, 1971 (Tr. 13-14; 111-112).

6.   The Compliance Officers were accompanied on their inspection by Respondent's plant engineer (Tr. 34-35; 106) who was also present at a closing conference participated in by said Compliance Officers and Respondent's president (Tr. 106).

  7.   An improperly grounded portable drill and an improperly grounded metal cutter,   [*16]   both powered by electricity were in use by employees of Respondent (Tr. 59; 113-114; R: F. of F. 1).   The lack of grounding of the tools has been corrected (Tr. 167-169).

8.   No exit signs or arrows showing means of egress were provided in the rooms in Respondent's main plant (Tr. 17; 21; 105; 198; R: F. of F.2).   Signs showing means of egress have since been installed (Tr. 169; 197).

9.   An emergency light, which is battery operated, is located over the door of the boning room (Tr. 136).   The boning room is 40 feet by 80 feet in size and the ceiling is twenty-two feet high (Tr. 172-173).   Neither Compliance Officer examined the light with the aid of a ladder, but an effort was made by the industrial engineer to activate the light by depressing a button thereon by means of a pole (Tr. 137-138).   This effort did not activate the emergency light (Tr. 155-157).   Later the same day the light was activated using a ladder to reach the same (Tr. 173).

10.   Respondent's workplace consists of a one story building containing approximately 20,000 square feet (Tr. 22).   The structure is 90% brick, concrete block and steel with about 10% offrame construction (Tr. 166).   It is built in a circle [*17]   (Tr. 166) and the interior is partitioned into a cold room approximately 40 feet by 20 feet, a formulation room approximately 50 X 60 feet, a slaughtering room about 50 X 60 feet and a boning room about 40 X 80 feet (Tr. 22; 24; 25; 166-167; 172).   All of these rooms are connected by double door openings and there are two exits to the outside (Tr. 26-27).

11.   At the time of the inspection herein extensive construction work was in progress and trenches had been dug outside the exit door in the formulating room   which was locked and blocked with a piece of machinery (Tr. 60-61); 198).   The door was locked and blocked off to keep construction workers out of the plant (Tr. 62) and to keep plant employees from falling into the open ditch outside the exit door (Tr. 104-105; 170-171).   Easy access existed from the formulating room to rooms leading to the outer exit (Tr. 62-63).   Hazard by reason of fire was "extremely low" (Tr. 64).

12.   One fire extinguisher was obscured by some 30 to 40 feet of hose coiled upin it (Tr. 29) however it was painted red (Tr. 140; 174) and could be seem under the hose (Tr. 67).

13.   Neither Compliance Officer actually tested any extinguisher to [*18]   ascertain the nature of its contends (Tr. 67-68; 140).

14.   Several fire extinguishers were hung so that the tops thereof were more than 5 feet above the floor (Tr. 28; 65; 174), however according to one of the Compliance Officers, this was not "that great an issue" (Tr. 66).

15.   An electrical terminal box, carrying in excess of 50 volts, in the maintenance shop, 3 feet above the floor, had no lid, (Tr. 33; 141; 160; 176-177).   The box was located in an out-of-the-way place and few employees were exposed to it (Tr. 161).   The condition described has bee corrected (Tr. 176-177).

16.   Respondent's warehouse, a separate wooden building, was in poor housekeeping condition with various types of materials, motors, and unwanted items on shelves and on the floor (Tr. 33-34).   This building is scheduled to be demolished and replaced by a new structure (Tr. 34).   The boiler room was being used for storage and sheets of metal were lying so that their edges projected into a walk-way (Tr. 35-36).   Construction work was in progress in the immediate vicinity (Tr. 72).

  17.   Respondent's change room service area was partially littered with clothing, socks and loose toilet paper and   [*19]   was malodorous (Tr. 36-37).   Two of the toilet areas were clean but two were "extremely bad" (Tr. 37).   Neither Compliance Officer checked to ascertain whether the toilet bowls were flushing and did not actually enter the area (Tr. 37-38).

18.   An employee of Respondent was engaged in cleaning the area at the time of the inspection (Tr. 73; 76).   It is this employee's duty to clean after the "killers" who do the slaughtering, clean up and change clothing (Tr. 179-180).   This process takes place twice or more each day (Tr. 181).

19.   Three wooden ladders, leaning against an outside wall of the main building, displayed split side rails and broken rung supports (Tr. 38).   The Compliance Officers were advised that these ladders were not used and were out of service (Tr. 39; 87).   No tags indicating that the ladders were out of service were attached (Tr. 39).   None of these ladders had safety feet (Tr. 39).   One of the ladders in question was stored in a place requiring one to crawl over pipes to get to the ladder (Tr. 40).

20.   Neither Compliance Officer ascended to the walkway atop an inedible tank, which is thirty-five feet above ground level, and their recollection that said walkway [*20]   had neither railings nor toe-board is based on their observation from a point on the ground alongside said tank (Tr. 88-90; 154).

21.   Respondent's smaller inedible tank, located near the large ammonia tank, stands vertically and is about 10 to 12 feet in height (Tr. 48) and has a capacity of about 125 gallons (Tr. 196).   A metal ladder used to provide access to the top of this tank was fastened by electrical wire (Tr. 48; 49; 50; 54; 57-58).   This ladder was now been welded to the tank in two places (Tr. 194).

  22.   Respondent's ammonia condenser tank is located on the roof of the compressor building (Tr. 50).   Two iron ladders, on opposite sides of this tank were used to climb to the top thereof (Tr. 55; 56).   Each ladder is approximately 15 feet long and extends above the top of the tank which is approximately 6 feet above the roof of the building (Tr. 57).

23.   Neither Compliance Officer ascended to the roof of the compressor building to examine the ladders placed on opposite sides of the ammonia condenser tanks (Tr. 91) but made their observations from the ground at a point about 15 feet from wall of the building and about 30 feet below the top of the tank on the   [*21]   roof (Tr. 92-93; 99; 141).

24.   The iron ladder which was fastened to the upright inedible tank by electrical wiring had been maintained in this condition for approximately five years (Tr. 200).

25.   The Secretary elected not to seek an adjudication that the Respondent had violated 29 C.F.R. 1910.   25(d)(1)(x) by failing to tag ladders as being "out of service" (Tr. 45).

CONCLUSIONS OF LAW

1.   At all times mentioned herein Respondent was and is an employer engaged in a business affecting commerce within the meaning of Section 3 of the Act and the Occupational Safety and Health Review Commission has jurisdiction of the parties and of the subject matter herein pursuant to Section 10(c) of the Act.

2.   Pursuant to section 6(a) of the Act, the Secretary, on April 27, 1971, adopted 29 CFR Part 1910.   The standards alleged to have been violated in the Secretary's citation (P-1) became effective on August 27, 1971 and were in full force and effect at all times herein   mentioned and Respondent at all times mentioned herein, was an employer subject to the occupational and health regulations promulgated as 29 CFR Part 1910 by the Secretary, as aforesaid.

3.   Respondent, in violation [*22]   of Section 5(a)(2) of the Act:

a.   failed to comply with the standard at 29 C.F.R. 1910.314(d)(4)(iii)(d) in that it permitted its employees to operate an improperly grounded electrically powered hand drill and metal cutter;

b.   failed to comply with the standard at 29 C.F.R. 1910.36(b)(5) in that it failed to clearly mark exit routes in its main workplace;

c.   failed to comply with the standard at 29 C.F.R. 1910.157(a)(3) in that it permitted a fire extinguisher, upon its premises aforesaid, to be obstructed or obscured from view;

d.   failed to comply withthe standard at 29 C.F.R. 1910.157(a)(6) in that it caused or permitted fire extinguishers in its workplace to be hung so that the tops thereof were more than five feet above the floor;

e.   failed to comply with the standard at 29 C.F.R. 190.310(j)(1) in that it failed to guard against accidental contact with live parts of electrical equipment, operating at more than 50 volts, by an approved cabinet or enclosure or by any method listed in 29 C.F.R. 1910.310(j)(1)(i) through (v);

f.   failed to comply with the standard at 29 C.F.R. 1910.22(a)(1) in that it failed to keep its storeroom clean and orderly;

g.   failed to comply [*23]   with the standard at 29 C.F.R. 1910.27(f) in that it failed to maintain a fixed ladder, attached to a 12 foot high vertical inedible tank, in a safe condition;

4.   The Secretary of Agriculture has authority to promulgate safety and health standards applicable to the working conditions cited in 29 C.F.R. 1910.141(a) by virtue of the provisions of the Wholesome Meat Act, 21 U.S.C. 601 et seq. 81 Stat. 584.   Under the provisions of Sections 8 and 21 of the Wholesome Meat Act (21 U.S.C. 608; 621), the Secretary of Agriculture may prescribe rules and regulations of sanitation for all establishments   in which cattle are slaughtered and the meat and food products thereof prepared for commerce.

5.   Pursuant to the said Wholesome Meat Act, the Secretary of Agriculture promulgated regulations, effective on December 1, 1970, which affect working conditions alleged in the citation herein (P-1) as Item number 6, 1910.141(a), "change house service rooms were in unsanitary condition," to wit:

9 C.F.R. Part 301 - Definitions

Section 301.2 Definitions

(i) Official Establishment. Any slaughtering, cutting, boning -- packing, rendering or similar establishment at which inspection [*24]   is maintained under the regulations in this subchapter --.

Part 308 -- Sanitation

Section 308.3 Establishments; sanitary conditions; requirements.

(a) Official establishments shall be maintained in sanitary condition, and to this end the requirements of this section shall be complied with.

Section 308.4 Sanitary facilities and accommodations; specific requirements.

(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. -- 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 -- 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 -- and all other parts of the establishment, shall [*25]   be kept clean and in sanitary condition. --

  Section 308.8.   Operations, procedures, rooms, clothing, utensils, etc., to be clean and sanitary.

(d) Aprons, frocks, and other outer clothing worn by persons who handle any product shall be of material that is readily cleansed.   Clean garments shall be worn at the start of each working day and the garments shall be changed during the day when required by the officer in charge.

6.   Change rooms, lavatories, toilet rooms and wash rooms wherein employees may change their garments, wash and attend to their bodily functions, are working conditions and their existence, facilities and condition of cleanliness affect the health and the safety of such employees.

7.   Albeit the expressed purposes of the Wholesome Meat Act are primarily the protection of the consumer by assuring that the meat products he purchases are clean, wholesome and unadulterated, the sanitary condition of the employer's establishment, including the condition of the change rooms, toilet and washroom facilities provided for his employees as well as their physical health is a proper subject for regulation by the Secretary of Agriculture in fulfilling his duty to [*26]   implement the terms of and carry out the purposes of the Wholesome Meat Act.

8.   The Act does not authorize the Secretary to assert authority over particular working conditions regarding which another federal agency exercise statutory authority to prescribe or enforce standards affecting occupational safety and health (Section 4(b)(1); LH 162; 864; 1204). n1

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n1 Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, P.L. 91-596), prepared by the Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, June, 1971.

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9.   In those instances where another agency is actually exercising its authority the Congress intended that   the Secretary not assert his statutory authority under the Act but to report such instances of duplication to the Congress within three years after the effective date of the Act for remedial legislation (Section 4(b)(3); LH 864).

10.   The Department of Agriculture, another Federal agency, has exercised its statutory authority to prescribe standards [*27]   affecting the safety and health aspects of specified working conditions of employees and has promulgated standards which affect working conditions which are the subject of the within citation.   It was the intention of the Congress to cover all working conditions of employees insofar as possible, however, it was not its intention to subject an employer to dual or divided governmental authority and control of such employee working conditions and under the provisions of Section 4(b)(1) of the Act nothing in the said Act can be applied to the working conditions herein with respect to which the Secretary of Agriculture has exercised his authority.   See, Legore Quarries Division -- Phoenix, Inc.,

11.   Respondent's operations, with reference to health and sanitary requirements as they affect its products, are regularly inspected by agents of the Department of Agriculture and nothing in the record herein indicates a failure to meet such requirements.   Several of the areas of Respondent's plant in which violations of the Secretary's standards were found to exist were under reconstruction and repair and all violations were promptly corrected. Respondent [*28]   demonstrated its good faith by promptly abating the violations for which it was cited, and all of which were classified by the Secretary as non-serious and have a low level of gravity.

12.   The Commission's language in General Meat Company, Inc.,

  . . . the assessment of small monetary penalties does little to effectuate the principle purposes of the Act in obtaining compliance in order to insure safe and healthful workplaces. -- We are equally well aware that there are many instances where the violation of the Act or its standards is not de minimis, but because of other factors, the violation warrants a small penalty or no penalty.

. . . the purposes and policies of the Act are better served by the encouragement of immediate abatement through other means than the proposal of small monetary penalties which to little to achieve voluntary compliance on the part of others . . . .   It has been the Commission's experience that the proposal of small penalties in these circumstances is often interpreted by employers as harassment.

13.   The standard at 29 C.F.R. 1910.36(b)(4), in pertinent part provides:

(4) In every building or [*29]   structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied.   No lock or fastening to prevent escape from the inside of any building shall be installed except in mental, penal or corrective institutions . . . .

The locking and barricading of the outside exit door in the formulating room to protect employees from injury by falling into existing ditches necessary in the construction work then in progress, did not, under the circumstances of this case prevent free escape from the inside of the building since the circular construction thereof and the wide access doors from all rooms permitted unobstructed egrees from all parts of the building to an outside exit door. The allegation in the citation herein that Respondent violated this standard is not sustained.

14.   The citation (P-1) does not contain the numerical location of the standard which is relevant to the allegation "Emergency light inoperative in boning room." However, the Secretary's formulation of the issues (paragraph 2) contains the location number and   Respondent's formulation of issues accepts the   [*30]   formulation as to this issue as stated by the Secretary (paragraph 2, letter dated December 2, 1971).   Respondent was aware that the standard involved was the standard at 29 C.F.R. 1910.36(b)(6) and suffered no prejudice or inconvenience by reason of the omission of the locator number from the said citation and sought no relief thereon.   However, the evidence that the emergency light in the boning room was inoperative at the time of the inspection is not persuasive and the allegation of violation of the said standard is not sustained.

15.   The citation alleges in Item 3(P-1) that "Fire Extinguishers (were) obscured . . ." The standard, located at 29 C.F.R. 157(a)(3) provides:

(3) Marking of location.   Extinguishers shall not be obstructed or obscured from view. . . .

The reference is clearly to visual obstruction or being obscured from view.   The words obstructed or obscured when applied to the field of vision are not synonymous.   Webster's New World Dictionary, 2d College Edition, 1972 p. 982, 983 gives the meaning of "obscure" as "not easily perceived" and that of "obstruct" as "block the view." Black's Law Dictionary, Revised Fourth Edition, 1968, p. 1228 gives the meaning [*31]   of "obstruct" as "To be or come in the way of or to cut off the sight of an object." Plainly, the standard prohibits either interfering with the view of or cutting off the view of a fire extinguisher and the view of the fire extinguisher in the instant case was obstructed in that the hose hanging thereon came in the way of the sight of the extinguisher. See, California Stevedoring Co.,

16.   The evidence that the Respondent's premises required the use of fire extinguishing equipment for Class C fires as defined in 29 C.F.R. 910.156(c) and that the fire extinguishers on the premises were in fact   water type fire extinguishers in violation of the standard at 29 C.F.R. 1910.157(b)(2) is not persuasive.

17.   In view of the finding hereinabove, in connection with the charged violation of the standard at 29 C.F.R. 1910.22(a)(1), the allegation of violation of the standard at 29 C.F.R. 1910.176(b) appears redundant, furthermore the latter appears to be directed at the stacking of bags, containers and bundles which are stored in tiers.

18.   The wooden ladders which are involved in the charge of violation of the standard at 29 C.F.R. 1910.25(d)(1)(i) were [*32]   no longer in service; none were shown to have been equipped with safety feet (29 C.F.R. 1910.25(d)(1)(iv)); and none were shown to be in use requiring storage as in 29 C.F.R. 1910.25 (d)(1)(v).

19.   The evidence that Respondent was in violation of the standards at 29 C.F.R. 1910.23(c)(2); 1910.27(d)(4) and 1910.27(e)(1) is not persuasive.

20.   Respondent's contention that Section 9(c) of the Act bars the issuance of a citation after six months after the commencement of a violation is specious.   The word "occurrence" as used in the section is clearly intended to mean the act of violation.   The act of violation necessarily continues so long as the violation remains unabated.

21.   Under the circumstances of this case it is not reasonable to fail to consider Respondent's good faith and the fact that its plant was undergoing extensive construction and alteration in determining a just and reasonable civil penalty.

ORDER

In view of the foregoing and having duly considered the gravity of the violation, the good faith of Respondent,   its size, and its history of previous violations and good cause therefore appearing, it is

ORDERED that:

1.   Respondent's motion to dismiss the [*33]   citation herein be and the same is hereby denied.

2.   The allegations in the citation herein that Respondent violated the standards at 29 C.F.R. Part 1910.314(d)(4)(iii); 1910.36(b)(5); 1910.157(a)(3); 1910.157(a)(6); 1910.310(j)(1); 1910.22(a)(1) and 1910.27(f) be and they are hereby confirmed.

3.   The allegations in the citation herein that Respondent violated the standards at 29 C.F.R. Part 1910.36(b)(4) and (6); 1910.157(b)(2); 1910.176(b); 1910.25(d)(1)(i), (1)(iv) and (1)(v); 1910.23(c)(2); and 1910.27(d)(4) and (e)(1) be and they are hereby dismissed.

4.   The allegation in the citation herein that Respondent violated 29 C.F.R. 1910.141(a) be and the same is hereby vacated.

5.   Respondent be and it is hereby assessed and required to pay a civil penalty of $50.00 for its violation of the standard at 29 C.F.R. 1910.314(d)(4)(iii) and of $25.00 for its violation of 29 C.F.R. 1910.310(j)(1).

6.   The civil penalties proposed by the Secretary in the Notice of Proposed Penalty (P-2) be and they are hereby vacated.