PANTRY PRIDE FOOD FAIR STORES INC.

OSHRC Docket No. 7111

Occupational Safety and Health Review Commission

December 16, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Dept. of Labor

Will Levins, for the employer

OPINION:

DECISION

BY THE COMMISSION:

In this case Administrative Law Judge Joseph Chodes concluded that the standard published at 29 C.F.R. 1910.132(a) n1 does not require employees working in retail food stores to wear wire mesh gloves while using knives to trim and cut meat. He reasoned that the standard would be impermissibly vague if interpreted to impose such a requirement. Therefore he vacated Complainant's citation alleging that by failing to comply with this standard Respondent violated the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq).

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n1 29 C.F.R. 1910.132(a) provides:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. [*2]

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The judge's decision herein properly anticipated our subsequent decision in Grand Union Company, Docket Nos. 7533 and 7031 (October 28, 1975). In that case we held that the cited standard does not require retail store butchers to wear mesh gloves while trimming and boning meat. Accordingly, we affirm Judge Chodes' decision.

Commissioner Cleary would reverse and affirm the citation for the reasons given in his dissenting opinion in Grand Union. In addition, he would conclude that the judge erred because the Commission is without authority to declare a standard unenforceably vague. For his views on this issue see his opinions in U.S. Steel Corporation, BNA 2 OSHC 1343, CCH E.S.H.G. para. 19,047 (1974); Santa Fe Trail Transport Company, 5 OSAHRC 840, BNA 1 OSHC 1457, CCH E.S.H.G. para. 17,029 (1973), rev'd, 505 F.2d 869 (10th Cir. 1974); Divesco Roofing and Insulation Company, 4 OSAHRC 339, BNA 1 OSHC 1279, CCH E.S.H.G. para. 16,443 (1973).

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I concur for the reasons given in Secretary v. Grand Union Company, 20 OSAHRC (Docket [*3] No. 7553, October 28, 1975) and, in addition, for the reasons stated by Judge Chodes in his decision in this case which is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

Stephen D. Dubnoff, for the Secretary of Labor

Will Levins, for the Respondent

Joseph Chodes, Judge, OSAHRC

STATEMENT OF THE CASE

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659), in which the respondent is contesting a citation issued by the complainant under the authority vested in complainant by section 9(a) of the Act (29 U.S.C. 658(a)).

The citation alleged that following an inspection of a place of employment located at 4343 Amboy Road, Staten Island, New York, the respondent was charged with having violated section 5(a)(2) of the Act (29 U.S.C. 5(a)(2)) by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof (29 U.S.C. 655).

The citation was issued on March 6, 1974, and alleged that the violations resulted from failure to comply with three standards promulgated by the complainant and codified in 29 Code of Federal Regulations, [*4] Chapter XVII, Part 1910. The respondent did not contest the alleged violations of two of the standards, namely, the standards set forth at 29 C.F.R. 1910.22(a) and 29 C.F.R. 1910.36(b)(4) so that, insofar as said standards are concerned, under the provisions of section 10(a) of the Act (29 U.S.C. 659(a)), the citation and penalties assessed by the complainant are deemed the final order of the Commission. The respondent did contest the alleged nonserious violation of the standard set forth at 29 C.F.R. 1910 132(a) in that respondent failed to provide protective wire mesh gloves to butchers engaged in cutting and boning meat which exposed them to the hazard of injury or impairment.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. 659(a)), the respondent was notified by letter dated March 6, 1974, from Nicholas A. DiArchangel, Area Director of the New York area, Occupational Safety and Health Administration, U.S. Department of Labor, of the assessment of proposed penalty of $50.

After the respondent contested the enforcement action a complaint and an answer was filed by the parties. On September 13, 1974 depositions were taken by the [*5] respondent and filed with the Judge. The case came on for hearing at New York, New York on October 1, 1974.

STIPULATIONS

1. The depositions taken on September 13, 1974 will represent the testimony that would have been adduced at the hearing.

2. Exhibits R-1 through R-8 offered for identification by the respondent at the time the depositions were taken are admitted in evidence.

3. The name of the respondent is Food Fair Stores, Inc., doing business as Pantry Pride. The corporation receives goods which are shipped in interstate commerce, it is engaged in interstate commerce and is subject to the jurisdiction of the Occupational Safety and Health Act of 1970.

4. The respondent's premises at the location involved in this proceeding, were inspected by a compliance officer of the complainant on March 1, 1974. This inspection was a generally scheduled inspection and was not made as a result of an accident or complaint.

5. The compliance officer in making the inspection followed all required procedures, including the holding of opening and closing conferences with management representatives of the respondent and he afforded the respondent's employees and union representatives [*6] an opportunity to walk around with him during the inspection.

6. After the inspection referred to in paragraphs 4 and 5 above, the compliance officer returned to the premises and, with the permission of the store manager, spoke to two of the respondent's employees whose names are referred to in the depositions taken in this case.

7. All pestings required by Commission rules were accomplished, including the Notice of Hearing and Notice of Adjourned Hearing.

SUMMARY OF DEPOSITIONS

Lawrence A. Cimato, a compliance officer with the Occupational Safety and Health Administration, testified that on March 1, 1974 he inspected the meat department of respondent's store. He observed two employees working on a block, trimming meat and cutting off the fat. They were not wearing any kind of protective gloves and on this basis he recommended the issuance of a citation for violation of 29 C.F.R. 1910.132(a). A log maintained in the store showed that no employee time was lost due to injuries. (Mr. Climato's deposition, pp. 37-41.)

Mr. Cimato tried on three different wire mesh gloves (five fingers, three fingers and two fingers) which could be used by butchers engaged in boning and [*7] cutting meat. The five finger glove was cumbersome and not completely flexible, although he could make a fist. The three finger glove left two fingers exposed, but was more flexible than the five finger glove and less cumbersome. The two finger love which left three fingers exposed was more comfortable than the other two gloves. None of the gloves covered the wrist. Mr. Cimato testified that if the respondent's employees wee wearing two finger gloves he would not have recommended a citation as the two fingers covered by the glove, the thumb and first finger, are the vital parts which could, possibly, be cut during cutting operations. (Mr. Cimato's deposition, pp. 20-24.)

Mr. Cimato returned to the store the latter part of August, 1974, and spoke to the two employees he observed cutting meat on his initial visit. The employees were Joseph LaRosa and Raymond McCafferty. Both employees informed Mr. Cimato that in the past they had suffered cuts on several occasions while cutting and boning meat. No details concerning the time these incidents occurred or the nature of the injuries were elicited. (Mr. Climato's deposition, p. 45.)

Joseph LaRosa, testified that he has been a [*8] meat cutter for 35 years, the last 12 or 13 years in the employ of the of the respondent. During all this time he never wore a wire mesh glove nor had he ever wanted to so do. While testifying, he put on a two finger wire mesh glove which did not feel natural because the fingers on the hand with the glove couldn't move. Mr. LaRosa also put on the five finger glove which restricted the movement of the fingers a lot more than the two finger glove. Movement of the fingers is required when cutting meat to get the feel of the meat, to grasp and pick up meat for packaging and, generally, to get the job done right. Additionally, the glove would get greasy thereby hindering and slowing down the work. Wearing a glove could be dangerous because a sense of feeling is essential in meat cutting and constant use of a glove could make the hand to feel like an artificial hand. "In the meat operation, both hands have to have sort of coordination together. If you lose the coordination in your left hand, then your right hand isn't going to work right". Another reason for not wearing a glove is that meat contains fat and blood which tends to congeal and adhere to the hands. It is fairly easy [*9] to clean the hands by washing, but a glove would have to be soaked in hot water or a solution to get the grease off. Mr. LaRosa did not nick or cut himself from 1970 to the present time. In 1969 he "might have" nicked himself, but it wasn't serious and did not require suturing. Prior to 1969 he had some "little" nicks and scratches. In Mr. LaRosa's opinion not wearing a wire mesh glove does not expose him to "real or present danger" of nicks or cuts. (Mr. LaRosa's deposition, pp. 3-9, 13, 22, 31, 32.)

When cutting meat the knife usually cust away from the holding hand and comes within four to six inches of the holding hand. However, in trimming a roast the knife is used straight up and down and comes within six to eight inches of the holding hand. A steak knife (Exhibit R-7) is used to trim fat from a rib roast. The roast is laid on the block and held with the left hand and the right hand with the knife is used to do the trimming. When preparing beef for beef stew the knife comes to within three inches of the holding hand. (Mr. LaRosa's deposition, pp. 26-30.)

Raymond McCafferty testified that he had been a meat cutter for two years for the respondent at the jobsite involved [*10] in the instant case. He was present during the taking of Mr. LaRosa's deposition and heard all of the questions and answers. In reply to a question from respondent's counsel Mr. McCafferty testified that if he were asked the same questions his answers would be substantially the same as the answers given by Mr. LaRosa. During the two years he worked as a meat cutter he nicked himself two or three times while trimming meat (he did not remember what kind) with a steak knife (Exhibit C-7) because he was careless. He required only a band aid. (Mr. McCafferty's deposition, pp. 3-6.)

DISCUSSION

The standard under consideration is set forth at 29 C.F.R. 1910.132(a) and provides:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and liable 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 [*11] absorption, inhalation or physical contact.

There is no question but that the respondent did not provide protective equipment for the hands of its employees engaged in meat cutting operations in the meat department of the retail store which is the place of employment involved herein. Nevertheless, in the opinion of this Judge, the citation cannot be sustained on the evidence of record.

In Ryder Truck Lines, Inc., v. Brennan,    F.2d    (5th Cir. 1974), the standard in question herein was attacked by the employer as void for vagueness because it set up no ascertainable standard of conduct consonant with due process of law. The case involved a failure to supply employees engaged in handling freight of various sizes and weights with protective shoes to prevent foot and toe injuries. The employer's injury log showed that there had been ten injuries over the past five years. Judge Kraft, while holding that under the particular facts of that case the standard was enforceable, stated:

Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat [*12] confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the prescribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). In addition, the Commission when considering the case did apply the "reasonable man" test. Although that standard is oine of the most nebulously defined concepts in the law, it has been, and in all probability will remain, one of the rudimentary precepts of our law. We find unconvincing Ryder's argument that it did not and could not know what was required by the Act, in light of the history of foot and toe injuries compiled in its logs and the safety shoe program it had initiated sua sponte. That was precisely the remedial action ordered by the Commission.

Applying the "reasonable man" test to the facts in the instant case, the conclusion is inescapable that the respondent did not receive a reasonable warning of the proscribed conduct, namely, that meat cutters be permitted to cut and trim [*13] meat in a retail establishment, without protective gloves. There is no evidence that protective gloves are customarily used in retail meat stores nor is there any evidence that failure to use protective gloves has caused any significant injuries to meat cutters. One of the respondent's employees has not had an injury since 1969 and the other employee has had only a few nicks in two years. None of the injuries are shown to have required medical attention other than band aids. Under these circumstances the respondent should not be held subject to a citation for failure to provide and utilize protective gloves on the basis of a general standard requiring the use of "protective equipment" without specifying with some particularity the equipment required and under what circumstances the equipment was to be used. If the complainant had promulgated a specific standard covering the use of protective gloves by meat cutters in retail establishments, the employer would then become aware of what is required of him and he could comply or seek a variance. In the instant case, the employer could not reasonably have been aware that meat cutters in retail stores are required to wear protective [*14] gloves and he should not have to answer such a charge before being given actual or constructive notice of what is required.

The subject standard was held unenforceable in Secretary v. Smoke-Craft, Inc., No. 995 (May 20, 1974). In that case the operation in question required the cutting of sausages into small pieces. The sausages were placed in a miter box which had a series of grooves spaced at intervals corresponding to the lengths into which each sausage was cut, approximately seven inches. The grooves were used to guide the cutting saw which was electrically powered, portable and hand held, with a reciprocal blade. The saw was operated by one employee while another inserted his hands into the box and held the sausage to be cut. Before slicing the sausage with the blade in the grooves of the miter box, the operator had to first cut off the end of the sausage by guiding the saw blade along the outside edge of the box while an employee held the sausage in his hand not more than one and a half inches from the blade of the saw. No protective equipment was used. The Judge initially found that the operation of the saw during the end cut pressented a hazard of injury [*15] by cutting to the employee holding the end of the sausage even though over a period of ten years no employee had been cut or injured by the blade. However, the decision was reversed by the Commission. The following is quoted from Commissioner Van Namee's lead opinion vacating thr citation:

The existence of a hazard in itself does not establish a violation of this standard. The standard requires the use of personal protective equipment 'wherever it is necessary by reason of hazards of processes or environment. . . .' In this case complainant has not proven that the hazard existing in respondent's operation is a hazard which necessitates the use of protective equipment.

Complainant adduced no evidence that protective equipment is customarily used in respondent's industry. On the contrary, the evidence of record is that such equipment is not used by sausage manufacturers. There is no other standard relating to personal equipment to protect against the hazard of being cut by a saw. The hazard therefore is not known in respondent's industry as a hazard requiring personal protective measures.

The Smoke-Craft case is analogous to the instant case, except that in Smoke-Craft there [*16] was no evidence that any injuries resulted from the questioned operation, whereas, in the instant case, there is evidence of some injuries. However, it is not considered that the precedent value of Smoke-Craft is affected because the injuries shown to have occurred during meat cutting operations were so infrequent and of such a minor nature.

A further factor for consideration on the question of whether to require respondent's employees to wear protective gloves is their cumbersomeness in the handling of meat due to restriction in finger movement. Additionally, a protective glove would prevent the butcher from getting the "feel" of the meat being cut of trimmed to properly perform his task. Also, protective gloves become soiled with blood and fat requiring frequent changes and cleaning.

While, perhaps, it is not established that use of protective gloves would be "impractical" so as to bring this case within the "impossibility of compliance" doctrine expressed in such cases as Secretary v. W.C. Sivers Company, No. 239, (May 14, 1974) and Secretary v. Brown and Kerr, Inc., No. 3055 (October 25, 1973), the case does present the question of enforcing a standard when [*17] compliance substantially complicates the performance of work in order to obviate a hazard which rarely results in an injury and then only of a minor nature. Is a "trade off" of loss of skill, efficiency and time in meat cutting for the possible protection that gloves would provide against the rare and minor injury consonant with the purposes of the Occupational Safety and Health Act?

FINDINGS OF FACT

On the basis of the citations, notification of proposed penalty, notice of contest, pleadings, depositions and stipulations, and the representations of the parties, it is concluded that on the basis of the record as a whole,a preponderance of the evidence supports the following findings of fact:

1. Paragraph 1 through 7 of the stipulations are incorporated herein as findings of fact.

2. On March 1, 1974, two of the respondent's employees were employed by the respondent in the meat department of its retail store at the location referred to under the heading "Statement of Case".

3. The employees were engaged in cutting and trimming meat and they were not wearing protective gloves of any kind.

4. The employees, one of whom had been a meat cutter for 35 years and the other [*18] for two years had never worn protective gloves while cutting or trimming meat.

5. The use of a protective glove on the hand holding meat while it is being cut or trimmed would be awkward, interfere with the free movement of the fingers, prevent the meat cutter from getting a "feel" of the meat being cut or trimmed and interfere with the satisfactory performance of his task.

6. A protective glove used in cutting or trimming meat would accumulate blood and fat from the meat and require cleaning by soaking in hot water or a solution.

7. The hazard of injury while cutting and trimming meat without a protective glove on the hand holding the meat is minimal and any injury which might occur could be expected to be a nick or scratch that did not require medical attention other than a band aid.

8. There is no evidence of record showing that in the operation of meat departments of retail stores protective equipment is customarily used in that industry to protect the hands of meat cutters.

CONCLUSIONS OF LAW

1. The respondent at all times material hereto was engaged in business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970. [*19]

2. The respondent at all times material hereto was subject to the requirements of the Occupational Safety and Health Act and the standards promulgated thereunder, and the Commission has jurisdiction of the parties and of the subject matter herein.

3. The standard set forth at 29 C.F.R. 1910.132(a) did not afford the respondent a reasonable warning of the proscribed conduct in light of common understanding and practices and is therefore impermissibly vague insofar as the standard purports to require the respondent to provide and require use of protective gloves by meat cutters in the meat departments of its retail stores.

4. The respondent did not violate the standard set forth at 29 C.F.R. 1910.132(a).

ORDER

Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is

ORDERED that the citation issued on March 6, 1974 for violation of 29 C.F.R. 1910.132(a) and the proposed penalty of $50.00 are hereby vacated.

JOSEPH CHODES, JUDGE, OSAHRC

Dated: 21 NOV. 1974, New York, New York