THE GREAT ATLANTIC AND PACIFIC TEA CO., INC.

OSHRC Docket No. 9349

Occupational Safety and Health Review Commission

March 1, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Albert H. Ross, Regional Solicitor, U.S. Department of Labor

Howard L. Ganz, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A report of Administrative Law Judge Abraham Gold is before us on an order directing review thereof issued by Commissioner Cleary pursuant to the provisions of section 12(j) n1 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). The issue on review is whether the Judge erred in vacating Complainant's citation alleging that Respondent violated the Act by failing to comply with the standard published at 29 C.F.R. 1910.132(a). n2

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n1 29 U.S.C. 661(i).

n2 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.

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Judge Gold vacated on his conclusion that this standard 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 standard does not give adequate 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.

The Judge's report 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 for the same reason given by Judge Gold we held that the cited standard does not require retail store butchers to wear mesh gloves while trimming and boning meat. We also note that neither party filed exceptions to the Judge's report or otherwise requested review thereof. Complainant did not thereafter file a brief in response to Commissioner Cleary's sua sponte order directing review, and he has not otherwise indicated his position on review. Respondent asks that we affirm the Judge's report in all respects.

We construe [*3] Complainant's silence to mean that he has no interest in pursuing this case on review. Boring and Tunneling Company of America, BNA 3 OSHC    , CCH E.S.H.G. para. 20,253 (1975). Accordingly, and because the Judge's report accords with our subsequent divided decision, we affirm. So ORDERED.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

This decision is consistent with our earlier disposition in Secretary v. Grand Union Company, 20 OSAHRC 663 (1975). Judge Gold reached the correct result in this case and I concur in affirming his decision for the reasons given therein as well as those stated in Grand Union. Since a full understanding of Judge Gold's reasoning would be impossible without reading the full text of his decision, I attach the same hereto as Appendix A.

The implication in the lead opinion that this decision is based in part on complainant's disinterest in review by the members of this Commission of the decision below is error, and I disassociate myself therefrom. Such an inference would apply only if the Commission members were the tribunal to which parties aggrieved by a lower court decision must appeal. There is, however, no right of appeal to the members of [*4] this Commission. Review by the members is not a right of any party. It is authorized only when any member of the Commission directs review within the time permitted. 29 U.S.C. 661(i). Consequently, since a party has no right to Commission review and there is no requirement that briefs be filed on review-directed cases, no adverse inference to a party's claim may be drawn from the fact that a party has not done what it need not do.

APPENDIX A

DECISION AND ORDER

Paul Katz, for Complainant

Lawrence Greher, for Respondent

This matter was heard on January 9, 1975 at Boston, Massachusetts, pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 659(c).

Respondent was cited on July 17, 1974 for three nonserious violations for which no penalty was proposed. A notice of contest was filed only as to item 2. The uncontested charges and relating portions of the proposed penalty notice became a final order of the Commission under 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 [*5] 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).

The parties have stipulated (Exh. J-1) that Respondent, a corporation organized and existing under the laws of the State of Maryland, with its principal office at New Jersey, employs about 47 persons at a retail food store which Respondent operates at 49 Central Street, Winchendon, Massachusetts; these employees regularly receive, handle and work with goods which have moved or which are subsequently moved across state lines in interstate commerce, and therefore Respondent was and is 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 July 16, 1974 (Ans. III). It was as a result of this inspection that respondent was cited. Item 2 alleges a violation of this standard:

Subpart I -- Personal Protective Equipment

1910.132 General requirements.

(a) Application. Protective equipment, [*6] 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.

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n1 When referred to in this decision, the transcript pages of the trial of October 22, 1974 will be indicated by "I-   ", of October 31, 1974 by "II-   ", and of January 9, 1975 by "III-   ". Respondent's corrections of the transcript of January 9, 1975, as amended by the Secretary's letter of March 25, 1975, are adopted.

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The parties also stipulated (Exh. J-1) that should they have called Compliance Officer Constantino DiRoberto (who inspected Respondent's Winchendon worksite) and a meatcutter employed at Respondent's Winchendon worksite, such witnesses' testimony would have been substantially the same with regard to their observations, practices, work experiences and conclusions, as that given at the hearing in Docket No. 8100 (supra) by Compliance Officer Richard Kaletsky and witness Joseph Madley. Accordingly, the parties stipulated that the testimony of Compliance Officer Richard Kaletsky and witness Joseph Madley apply with equal force and as if given in the instant case, except that the parties do not concede the weight, if any, to be given to the conclusions, is any, of these two witnesses.

Specifically, the Secretary contends that the cited standard was violated because Respondent failed to require that each of its meatcutters, while boning meat, wear a protective mash glove n2 on the noncutting hand.

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n2 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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Respondent stipulated that its meatcutters at the Winchendon store do not wear mesh gloves during boning operations (Exh. J-1), and admits that mesh gloves are not customarily, if ever, worn in the meat departments of the A & P chain of stores. n3

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n3 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 its stores 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).

Madley is employed at a West Haven, Connecticut, store of Respondent 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 in a typical day he may engage in boning for about five minutes at a time, [*9] about six or seven times, spread out during the day (Tr. I-44-45). The rest or 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 terms, does not specifically require that a protective glove be worn by [*10] a meatcutter while boning in a retail market. Nor does any other standard promulgated by the Secretary of Labor contain 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: n4

*** 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 proscribed conduct in light of common understanding and practices, it will [*11] 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. ***

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n4 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 penalizer 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 wear a mesh glove on the noncutting hand while boning meat.

Madley testified [*12] 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 meat 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. II-30); that in 1951 Respondent adopted the use of mesh gloves in a couple of [*13] stores on an experimental basis (Tr. II-30), but the procedure was abandoned after a few months because the men would not wear the glovet (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).

Chester Babula, employed as a meatcutter at a Holyoke, Massachusetts, supermarket of the Food Mart chain (Tr. III-17-18), testified that he spends from 10 to 15 hours a week, on an intermittent basis, boning meat at a bench (Tr. III-19-20, 41); that for 10 years he has always worn a mesh glove on his noncutting hand (Tr. III-24); that he started out by wearing a three-finger glove, [*14] but now wears a five-finger model (Tr. III-24-25); that there are two meatcutters in his store (Tr. III-42), and the other meatcutter also wears a glove (Tr. III-51). He added that he has observed others using the glove (Tr. III-52), but he did not say how many. The weight of the evidence of record shows that mesh gloves are not customarily worn by meatcutters while boning meat for retail sale.

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 accidents involved a meatcutter while boning (Tr. II-132-134).

Madley testified that he has cut his left hand while boning (Tr. I-48, 58). 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).

According to Babula, when he is boning he holds the knife with a clenched fist, and uses a cutting motion going away from the body (Tr. III-21-22), [*15] but when he first inserts the knife into the meat, he makes the cut by drawing the knife toward himself (Tr. III-23).

Officer Kaletsky claimed that during his inspection of the West Haven store of A & P 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 meat-cutter 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).

Witness Babula testified as to the cuts he suffered while boning meat. He kept changing his statements, and I cannot venture to rely on any of his stories. Initially, he said that he had received "very, very slight" cuts while boning except for two occasions when he had cuts requiring stitches (Tr. III-26-27). He referred [*16] to an occasion about seven years earlier, noting that he was wearing a three-finger mesh glove at the time, but explained that the cut was right at the index finger, which was not covered by the glove (Tr. III-26). He then told of the other occasion, relating that about three, four or five years ago, while boning at a table, rushing to get a special order ready, he stuck himself when the knife slipped, cutting his knuckle, and requiring about five or six stitches (Tr. III26-27).

On cross-examination, Babula changed the location of the cut of about seven years ago, saying that he cut the finger on which he wears his wedding band, and the three-finger glove actually covered the thumb, index finger, and second finger (Tr. III-31, 32).

As to the other cut requiring stitches, Babula later admitted that he was not boning when he sustained this cut (Tr. III-30-31) although he had previously twice asserted that he was boning (Tr. III-27, 29). His later testimony was to the effect that he was going for a break, or going out for something, so he laid down the knife and took his mesh glove off, and the knife sliced his knuckle when he turned around (Tr. III-29-30). At one point he said, [*17] "It was really my fault" (Tr. III-29).

Another change in Babula's testimony occurred when he declared that he sustained three cuts in 10 years (Tr. III-42), then claimed that he had three serious cuts requiring stitches plus numerous minor cuts (Tr. III-53).

Respondent presented Andrew Pace, whose testimony on cuts was also less than forthright. He is a meatcutter at an Orange, Connecticut store of A & P. Pace said that he used the glove while working for A & P beginning 1970, but stopped using it in 1971 (Tr. III-73), when the meat began to arrive at the store in boxes and was "all broken down" (Tr. III-75). He bones for less than five minutes at a time, for no more than half an hour a day (Tr. III-79). After first claiming that he has not cut himself since he stopped using the mesh glove (Tr. III-78), he admitted on cross-examination that he did receive small cuts from the knife while boning (Tr. III-85), adding that some required iodine or a bandaid (Tr. III-90, 94-95).

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 and other evidence [*18] of record do not reflect any substantial likelihood of such injuries. I do not accept the Secretary's implication that meat-cutters 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 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 [*19] 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. 11.

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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 cleaned 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. Respondent has not presented convincing evidence that the mesh glove would be unsafe or unsanitary.

In order to sustain the charge in item 2, the Secretary must establish by a preponderance of the evidence that there exists at Respondent's workplace a hazard which necessitates the wearing of a mesh glove while boning, and that a reasonable man in Respondent's [*20] industry would understand that the cited standard requires that they be worn at Respondent's establishment. The Secretary has not succeeded.

It is found that this record does not show that mesh gloves are customarily worn in retail meat markets or departments. It is further found that mesh gloves have not been shown by this record to be a necessary protective measure, the likelihood of injury being so remote as to be negligible.

The evidence as a whole, in my view, does not establish that a reasonable man in Respondent's industry, in 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 failed to prove 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, and failed to carry his burden of establishing a violation of the cited standard. Item 2 of the citation will be ordered vacated.

Conclusions of Law

1. Respondent is and at all times pertinent herein was engaged in a business affecting commerce, and the Occupational [*21] 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 July 16, 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 2 of the citation and the relating portion of the proposed penalty notice be and the same are hereby vacated.

ABRAHAM GOLD, Judge, OSAHRC

Dated: August 11, 1975

Boston, Massachusetts