THE GREAT ATLANTIC AND PACIFIC TEA CO., INC.
OSHRC Docket No. 8100
Occupational Safety and Health Review Commission
January 16, 1976
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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Albert H. Ross, Regional Solicitor, U.S. Department of Labor
Lawrence S. Greher, for the employer
OPINION:
DECISION
BY THE COMMISSION:
In this case Administrative Law Judge Abraham Gold concluded that the standard published at 29 C.F.R. § 1910.132(a) n1 does not require meatcutters in Respondent's retail food stores to wear protective wire mesh gloves while using knives to bone meat. He reasoned that the cited standard does not put Respondent on notice of such a requirement because the retail meatcutting industry does not perceive the boning of meat to be a hazard necessitating use of protective gloves. 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(2) 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 for processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
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Judge Gold's decision herein properly anticipated the Commission's subsequent divided decision in Grand Union Company, BNA 3 OSHC 1596, CCH E.S.H.G. para. 20,107 (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. In his report filed herein Judge Gold reasoned as we did. Accordingly, we affirm. So ORDERED.
CONCURBY: MORAN
CONCUR:
MORAN, Commissioner, Concurring:
I concur in the affirmance of Judge Gold's well-reasoned decision which I attach hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
This case arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c), and came on for hearing on October 22 and 31, 1974.
Respondent was cited on May 2, 1974, for 13 nonserious violations of standards promulgated pursuant to the Act. A total penalty of $70 was proposed by the Secretary of Labor. Respondent filed a notice of intent to contest only item 9, for which no penalty was proposed. All uncontested charges and relating portions of the proposed penalty notice became a final order of [*3] the Commission in accordance with 29 U.S.C. § 659(a).
29 U.S.C. § 654(a)(2) requires each employer to comply with occupational safety and health standards promulgated under the Act.
Section 666(c) provides that an employer may be assessed a penalty of up to $1,000 for each nonserious violation.
Civil penalties can be imposed under this Act only after considering the size of the business of the employer, the gravity of the violation, the good faith of the employer, and the history of previous violations. 29 U.S.C. § 666(i).
Respondent, a corporation organized and existing under the laws of the State of Maryland, with principal office at New York City, employs about 41 persons at a retail food store which respondent operates at 901 Orange Avenue, West Haven, Connecticut; this store engages in the business of selling foodstuffs and other consumer products, many of which have moved across state lines or in interstate commerce (Ans. (I). Hence, respondent engaged in a business affecting commerce, within the meaning of 29 U.S.C. § 652(5).
The above-described store was inspected by a compliance officer of the Department of Labor on April 23, 1974 (Tr. 60). It was as a result of this [*4] inspection that respondent was cited. Item 9 alleges a violation of this standard:
Subpart I -- Personal Protective Equipment
§ 1910.132 General requirements.
(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields for 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.
Specifically, the Secretary contends that this standard was violated because respondent failed to require that each of its meatcutters, while boning meat, wear a protective mesh glove n1 on the noncutting hand.
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n1 Mesh gloves are made of nickel-plated ringlets, soldered together, and are available in two-, three-, and five-finger styles. They are secured to the wrist by a strap and buckle (Tr. I-165-166).
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During his inspection, Officer Kaletsky of the Department of Labor observed that a meatcutter was not wearing a mesh glove while boning (Tr. I-61). Respondent does not claim that its meatcutters wear protective gloves; on the contrary, it admits that they are not customarily, if ever, worn in its chain of retail meat departments. n2
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n2 Respondent's brief, p. 5.
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Respondent sells a variety of meats, namely beef, pork, lamb, veal, and poultry (Tr. I-41). Boning is performed only on beef and veal (Tr. I-42). The meat arrives at the store from a packing house where the meat has been cut and partially boned, then placed in boxes in quantities varying from about 30 to 80 pounds (Tr. I-17-18, II-62-64).
Joseph Madley is employed at respondent's West Haven store as a meatcutter (Tr. I-12), an occupation he has pursued for about 13 years (Tr. I-14). He testified that he performs boning for about an hour a day (Tr. I-43). Later, he said that [*6] in a typical day he may engage in boning for about five minutes at a time, about six or seven times, spread out during the day (Tr. I-44-45). The rest of his time is spent on other work, including operating an electrical grinder or electrical saw, as well as tenderizing, slicing, or cubing meats (TR. I-45-46).
One form of boning involves the removal of bone from the meat, leaving no meat on the bone (Tr. I-19-24); another form of boning is called "scooping," and this entails the removal of most, but not all, of the meat from the bone (Tr. I-19, 21).
Madley stated that he does the boning in a standing position (Tr. I-31) at a bench approximately four feet high (Tr. I-15). The surface is pressed plastic (TR I-15). He holds the knife in the right hand (Tr. I-28), the left hand holds and guides the meat (Tr. I-34); during the operation, the left hand is about two to four inches from the knife (Tr. I-28-29).
The knife blade is five to seven inches long, attached to a handle about four and a half to five inches long (Tr. II-255, 256); the knife blade tapers from one inch in width to a point (Tr. II-256), and is very sharp (Tr. II-256).
Section 1910.132(a), which consists of general [*7] terms, does not specifically require that a protective glove be worn by a meatcutter while boning in a retail market. Nor does any other standard promulgated by the Secretary of Labor contrain such specific terms.
It has been judicially determined that the language of section 1910.132(a) is not constitutionally void for vagueness. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230,233 (5 Cir. 1974); McLean Trucking Co. v. OSAHRC and Secretary of Labor, 503 F.2d 8, 10-11 (4 Cir. 1974).
Commenting on the broad language of this standard, the Court spoke thusly in Ryder at 233: n3
* * * The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. 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 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 [*8] proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 322 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. * * *
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n3 Ryder was charged with a violation of § 1910.132(a) because dock workers failed to wear protective shoes while manually handling freight consisting of a wide variety of articles and packages weighing as much as 100 pounds apiece.
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In Cape and Vineyard Division of New Bedford Gas and Edison Light Co. v. OSAHRC, 512 F. 2d 1148, 1152 (1 Cir. 1974), the Court said:
* * * A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry. * * *
It is abundantly clear from this record that meatcutters in retail markets do not customarily [*9] wear a mesh glove on the noncutting hand while boning meat.
Madley testified that he has never worn a protective glove when boning (Tr. I-34, 35, 50). He considers the glove a hazard because in his work he must move from one job to another; if he were to wear the glove while operating the electrical saw, it would be very hazardous (Tr. I-39). The Secretary's witness, Turner, employed by an insurance firm as Loss Control and Safety Manager, who in his work has evaluated grocery stores having mest departments, testified that he has very rarely seen meatcutters using protective gloves, and "if three to five percent are using them, it's high" (Tr. I-205-206).
Respondent's witness, Hooker, testified that he has been employed by A & P for 40 years, as butcher, meat manager, meat specialist, and meat superintendent, before becoming director of meat sales for the eastern region of the United States and Canada in 1971 (Tr. II-22-26); that he visits 10-15 A & P stores weekly to observe each meat department (Tr. II-26); that he also visits more stores of retail competitors than those of A & P (Tr. II-28); that he has never seen a mesh glove in use at any store of a retail competitor (Tr. [*10] II-30); that in 1951 Respondent adopted the use of mesh gloves in a couple of stores on an experimental basis (Tr. II-30), but the procedure was abandoned after a few months because the men would not wear the gloves (Tr. II-31); and that he has never seen the mesh glove in use at an A & P store since 1951 (Tr. II-29).
Edward Coppers, Respondent's National OSHA Coordinator (Tr. II-126), employed by A & P for 45 years (Tr. II-126), said that he has visited 4,000 or 5,000 A & P stores, and some others over the years, to observe meatcutters at work (Tr. II-130), and has never seen mesh gloves being used (Tr. II-131-132).
Another witness presented by Respondent was Daniel Rhodes, a self-employed safety consultant (Tr. II-174), who asserted that in his work he has observed boning in supermarkets "thousands of times" and never saw a meatcutter employing mesh gloves (Tr. II-185-186).
Undoubtedly one reason for the lack of use of the mesh glove is the negligible likelihood of injury.
Coppers declared that part of his job is to analyze accidents at the various stores; that since 1971 the West Haven store reported 16 accidents in the meat department; and that none of these reported acidents [*11] involved a meatcutter while boning (Tr. II-132-134).
Madley testified that he has cut his left hand while boning (Tr. I-48, 58). n4 Asked about the frequency of such cuts, he replied, "Could be once a week, could be once every three months" (Tr. I-48). He said that 95 percent of his cuts healed without any medical attention (Tr. I-49-50).
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n4 Officer Kaletsky claimed that during his inspection, he saw a meatcutter performing boning for a matter of minutes, and observed that the knife was used in a cutting motion across the operator's body toward the noncutting hand (Tr. I-64). Madley claimed that he cuts with a motion to the side, away from the body (Tr. I-32). Hooker asserted that if a meatcutter is boning properly, he should not be cutting toward the noncutting hand (Tr. II-46). I am unwilling to rely on Kaletsky's memory on this point, particularly since he could not even recall whether the meatcutter was right-handed or left-handed (Tr. I-62), and one point he was uncertain as to whether the direction of the knife was toward the armpit (Tr. I-63).
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The Secretary argues that a cut on the noncutting hand can be caused by the knife slipping off the bone, or by the meatcutter's mind not being on what he is doing. n5 The accident reports do not reflect any substantial likelihood of such injuries. I do not accept the Secretary's implication that meatcutters as a class can be expected to be inattentive while boning with a sharp knife.
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n5 Secretary's brief, p. 6
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Respondent contends that mesh gloves are unsafe and unsanitary. n6 Hooker testified that during the experimental use of the mesh glove in 1951, the men found the glove to be cumbersome (Tr. II-53); and that when fat from the meat got on the glove, the glove slipped and the meatcutter was unable to get a good grip on the meat, which the noncutting hand must hold and guide (Tr. II-53-54). He also stated that it is hazardous to use the glove while operating a band saw because the strap can get caught in the saw (Tr. II-92). Rhodes felt that a meatcutter might forget to remove [*13] the glove after boning and before shifting to the operation of the band saw (Tr. II-203-204); also, that when a piece of safety equipment such as a mesh glove is used sporadically or intermittently, the user may develop a false sense of security and might injure himself while boning if he forgot that he had removed it. (Tr. II-198)
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n6 Respondent's brief, p. 10
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Hooker added that the glove presented a health problem, in that the employee handles various types of meat, as well as fish, and that the glove may transmit bacteria from one product to the other. (Tr. II-56).
I see no merit in the claim that the glove will necessarily transmit bacteria. The glove can be cieaned and, in any event, would be worn only while boning beef and veal. I regard as meritless the assumption that meatcutters will develop a false sense of security which will increase the chance of injury.
While Respondent did not demonstrate that the gloves would be unsafe or unsanitary, the Secretary still bears the responsibility of proving that [*14] there exists at Respondent's workplace a hazard which necessitates the wearing of mesh gloves while boning, and that a reasonable man in Respondent's industry would understand that the cited standard requires that they be worn at Respondent's establishment. The Secretary has not succeeded.
The record shows, and it is found, that protective mesh gloves are not customarily worn by meatcutters in retail meat markets or departments; and that mesh gloves are not shown to be a necessary protective measure, the likelihood of injury being negligible. The evidence as a whole, in my view, does not establish that a reasonable man in Respondent's industry, in the light of common understanding and practices, would recognize a hazard of injury to the noncutting hand in the performance of boning of meat for retail sale, so as to warrant the wearing of a protective glove.
The Secretary has failed to show that 29 C.F.R. § 1910.132(a) gave Respondent adequate warning that mesh gloves were required to be worn by meatcutters while boning in retail markets. Since the Secretary failed to carry his burden of proving a violation of the cited standard, item 9 of the citation will be ordered vacated. [*15]
Conclusions of Law
1. Respondent is and at all times pertinent herein was engaged in a business affecting commerce, and the Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter within the contemplation of 29 U.S.C. § § 652 and 653(a).
2. On April 23, 1974, respondent was not in violation of 29 U.S.C. § 654(a)(2) for noncompliance with 29 C.F.R. § 1910.132(a).
It is ORDERED that item 9 of the citation and the relating portion of the proposed penalty notice be and the same are hereby vacated.
ABRAHAM GOLD, Judge, OSAHRC
August 5, 1975
Boston, Massachusetts