UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NOS. 8220, 9562, 11242,
11620 and 11883 (Consolidated)
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY,
Respondent.
October 8, 1976
DECISION
BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners. BY THE
Commission:
A decision of Review Commission Judge Joseph Chodes, dated November 3, 1975, is
before this Commission for review pursuant to 29 U.S.C. § 661.
That decision is affirmed on the basis of the decision by a divided Commission in Secretary v.
Grand Union Company, 20 OSAHRC 663 (1975). That decision is dispositive of the instant
case.
Accordingly, the citations issued in the five consolidated cases for violation of 29 C.F.R.
§ 1910.132(a) and the penalties proposed therefor are hereby vacated.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: OCT 8, 1976
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NOS. 8220, 9562, 11242,
11620 and 11883 (Consolidated)
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY,
Respondent.
November 3, 1975
DECISION AND ORDER
Chodes, Judge:
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 citations issued by the complainant
under the authority vested in complainant by section 9(a) of the Act (29 U.S.C. § 650(a)).
The citations alleged that inspections were made of the respondent’s places of
employment at the following locations:
Docket Number Location
8220 Store No. 635, Route 59, Nyack, New York
9562 90 Delaware Avenue, Paterson, New Jersey
11242 114 North Broadway, Tarrytown, New York
11620 208 Third Street, Marietta, Ohio
11883 320 E. Gunn Hill Road, Bronx, New York
The parties have agreed that all five consolidated cases in this proceeding be decided on
the basis of the official record in the consolidated cases of Secretary of Labor v. The Great
Atlantic Tea Company, OSAHRC Docket Nos. 12444, 12552, 12636 and 12637 which were tried
by Judge Duvall in Boston, Massachusetts, on June 9, 10 and 11, 1975. At the hearing it was
agreed that the testimony relating to respondent’s supermarket at Lancaster, New Hampshire
1
would apply to all four cases (June 10, T–24).
The parties have further agreed that the only issue for decision is whether the respondent
violated the standard set forth at 29 C.F.R. § 1910.132(a). If a violation of the standard is found,
the penalties proposed are not contested.
The respondent has moved to withdraw its notice of contest to the contested items 2, 3, 4,
5 and 6 of the citation issued in Docket No. 9562 and to contested item 2 in Docket No. 11883.
Respondent represents that these items have been abated; it will pay the penalties proposed by
the complainant; a copy of the letter informing the undersigned of the withdrawal has been
mailed to the authorized employee representative; a copy of the letter will be posted at the
workplaces involved in the two citations, and the complainant does not object to the withdrawal.
A reasonable time has elapsed since the service and agreed posting was undertaken and no
objections have been received. The granting of respondent’s motion is considered to be
consistent with the provisions of the Occupational Safety and Health Act of 1970.
The standard in controversy, 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.
The description of the alleged violations vary somewhat in each of the citations. The
violation charged was failure by respondent’s meat cutters to use metal mesh gloves in three
1 Transcript references will be to the record of the hearing held before Judge Duvall in Boston,
Massachusetts, on June 9, 10 and 11, 1975 in the consolidated cases of Secretary of Labor v. The
Great Atlantic & Pacific Tea Company, Docket Nos. 12444, 12552, 12637 and 12638.
cases (Docket Nos. 8220, 9562, 11620) and failure to use metal mesh gloves and aprons in two
cases (Docket Nos. 11242 and 11883).
Summary of Evidence
The respondent operates approximately 3,500 retail supermarkets in the United States and
Canada and has annual sales in excess of two billion dollars (June 9, T–8). For the purposes of
deciding the cases involved in this proceeding, meat cutters in respondent’s meat departments
did not wear protective gloves (June 9, T–158) or aprons (June 10, T–24).
The evidence indicates that metal mesh gloves are used by meat cutters in the wholesale
aspect of the meat industry (June 10, T–102) but the opposite is true with respect to meat cutters
in retail meat departments. Complainant’s Compliance Officer visited about 20 stores and in
none of them were the meat cutters wearing protective gloves. It was his observation that the
practice of meat cutters was not to wear mesh gloves (June 10, T–3, 9, 15). Meat cutters
employed by the respondent do not wear mesh gloves (June 10, T–48). A consultant in safety
and accident prevention testified that in the course of his work he visited about 8,000
supermarkets and never observed a meat cutter using a protective glove (June 10, T–98).
Some supermarkets do buy metal mesh gloves for their meat cutters to use on their non-
cutting hand. There is evidence that the firm of Whiting and Davis, manufacturer of mesh
2
gloves, sells them to retail meat departments, among them the Stop and Shop, Star Market,
Waltham’s Supermarkets and Fernandes, all located in the Boston area (June 9, T–112).
However, the uses to which the gloves are put or the extent of their use is not clearly established
in the record.
At the hearing, the complainant produced the director of meat operations of the Iandoli
Supermarket (a chain of 14 supermarkets) who testified that the firm, commencing in June 1973,
issued 3-finger mesh gloves and mesh aprons and made it compulsory that all meat cutters wear
them (June 9, T–28, 33, 55). However, there is testimony that a meat cutter in an Iandoli
Supermarket was observed boning meat without using a glove (June 10, T–54).
Records from Iandoli Supermarkets (Exhibits C–6, 7, 8, 9 and 10) and the testimony
relating to the accidents referred to in the exhibits, show that from January 1971 to June 19,
1973, when mesh gloves and aprons were not used, the meat departments of the 14 supermarkets
2 Mesh gloves are manufactured in three models, that is, with two fingers (thumb and index),
three fingers and five fingers for the whole hand (June 9, T–118).
had a total of 20 injuries. Four of the injuries were suffered by a meat cutter who was deaf and
was given special training because he was poor and had problems (June 11, T–83). Of the
remaining 16 injuries, 5 related to the wrist and thigh and would not have been prevented even if
gloves and aprons were utilized (June 11, T–84, 87, 88). Of the remaining 11 injuries which
conceivably could have been prevented by the use of gloves, only one resulted in lost workdays,
that of Roger J. Goyette who cut the finger on his left hand on February 22, 1971, and lost 5
days. It is noted that Mr. Goyette suffered a similar injury on February 19, 1971 with no lost
days.
After the institution of compulsory use of gloves and aprons in June 1973, there were
three reported injuries to the hands during the balance of 1973 and one in 1974 involving a day’s
lost time. This may be interpreted as some indication that the use of gloves could reduce injuries.
A meat cutter for the respondent testified that he never used gloves and (aside from an
injury about 12 years previous while tying a piece of chuck which could not have been done with
a glove on) has never suffered an injury (June 9, T–160, 169, 170).
Despite the obvious hazard involved in meat cutting with sharp knives which requires
care and skill on the part of the meat cutter in cutting, trimming and boning, meat cutters
generally are opposed to the use of gloves on the hand that is not holding the knife. When Iandoli
Supermarkets ordered its meat cutters to use gloves, the employees complained that, among
other things, the gloves were cold, very bulky and ‘gets in the way’ (June 9, T–44).
Probably the principal reason meat cutters do not want to use gloves is that the glove
prevents the meat cutter from ‘feeling’ the meat. One of the respondent’s meat cutters testified
that the ‘feel’ of the meat was particularly important when cutting veal (needs to be cut thin),
boning chicken, and when working with ‘round’ because it is necessary to find the seam which
cannot be done while wearing a glove (June 9, T–170, 183, 184). Another employee of the
respondent testified that ‘sensitivity in your fingers is just as important as the knife in your right
hand’ (June 10, T–53) because ‘you can feel how much meat is left in the bones, how much
pressure you need to pull it up, how much pressure you are to give with the knife to cut the meat
loose’ (June 10, T–79).
An additional problem with wearing gloves is that they need to be washed. The meat
cutters at Iandoli Supermarket have wash periods at noon and at closing. The gloves are washed
with a bristle brush and dipped in a sanitizing solution (June 9, T–39). Respondent’s chief
sanitarian testified that the gloves were ‘uncleanable because of bits of fat and meat particles in
the glove (June 10, T–130, 142).
There is also a question of transmission of contamination such as trichniosis and
salmonella from one type of meat, for example pork or poultry to other meats when using a glove
that is not cleaned (June 10, T–134). Exhibit R–4 is a letter from the director of the Division of
Food and Drugs of the Massachusetts Department of Public Health. Referring to the use of mesh
gloves by butchers, the director wrote the following:
They are extremely difficult to keep sanitary, and it is my considered opinion,
that when they become saturated with fat, they would provide a minimum of
traction to maintain the meat to be sliced in a stationary position. I, of course, am
addressing my remarks specifically to the retail meat department.
I not only question the problem that could be created in cross-contamination of meats and
the unsanitary condition that would develop in the use of a mesh glove, but I also question
whether or not it would provide additional safety due to the lack of traction mentioned above.
The chief inspector of the Bureau of Food Division of the city of Boston testified that he
never personally, or through reading periodicals and articles relating to food and health, became
aware of any contamination resulting from the wearing of mesh gloves, although this was
theoretically possible (June 10, T–7, 8, 12–14).
The safety and accident consultant, previously referred to, gave the following reasons
why meat cutters should not utilize protective gloves (June 10, T–99):
Principally, because we felt that some of the side effects or promoting such usage would
more than outweigh any imaginary advantages. Number one, because of the changeability of the
activities of the meat cutter, who is doing the cutting, grinding, and then going to the bandsaw, to
a call from a customer, we felt it would provide him with a false sense of security. Secondly, we
felt the potential because he might forget he was wearing a glove, and he would work the
bandsaw, might result in an accident more serious than any knife cut, and lastly, and hardly the
least, was the contamination due to a violation of all concepts of sanitation would preclude the
use of gloves under those conditions.
Insofar as the failure of some of respondent’s employees to wear protective aprons is
concerned, the evidence shows that mesh aprons are worn by meat cutters in retail meat
departments, including the meat departments of the respondent (June 9, T–158–160 and June 10,
T–48). The testimony of the compliance officer who inspected the premises at Lancaster, New
Hampshire was that the meat cutter was cutting steak at the time of inspection, and he was
wearing an apron. He was asked whether there was a hazard to the abdomen and whether the
knife could slip or slide. His answer was (June 10, T–6):
‘On the particular job that he was performing I would not say yes or no. The meat
to a certain extent is slippery and there is always that possibility that it could
slide.’
During boning operations (removing the bone and taking the meat away from the bone)
there are occasions when the knife comes toward the meat cutter and it could slip down on the
bone (June 9, T–148, 150, 151).
Discussion
The question for determination is whether respondent’s failure to require its meat cutters
to use metal mesh gloves and aprons, or other personal protective equipment, when cutting or
boning meat, is a violation of the pertinent standard. With respect to the wearing of protective
equipment for the hands, the question was answered in the negative by the undersigned in
Secretary of Labor v. Food Fair Stores, Inc., d/b/a Pantry Pride, OSAHRC Docket No. 7111,
which is currently under review by the Commission. The record in the instant case is more fully
developed than in Food Fair Stores where the decision was based on the depositions of the
Compliance Officer and two meat cutters.
Official notice may be taken that in cutting, trimming, or boning meat there is a
possibility that the meat cutter utilizing, as he does, sharp knives, will cut himself. This is true
even if a mesh glove is worn because the fourth and fifth fingers (and also the middle finger if a
two-finger glove is used) are always exposed to the knife (June 11, T–101). However, the
evidence indicates that the hazard is minimal insofar as employees engaged in this occupation in
retail supermarkets are concerned, and that in the event of an accidental cut, the injury is not of
serious proportions. Undoubtedly, this is due to the training, experience and skill acquired by
meat cutters in the performance of their tasks.
3
If the complainant, after considering all relevant factors, promulgated3 a standard which
specifically required the use of metal mesh gloves by meat cutters in retail meat departments, it
would probably pass muster as the wisdom of a standard that has a relationship to safety would
3 Pursuant to section 6(b) of the Act (29 U.S.C. § 655(b)).
most likely not be questioned by the Commission. See Secretary of Labor v. Bucheit Sons
Company, 1 OSAHRC 609. The situation in the instant cases is otherwise in that the respondent
was not put on notice that the general language of the standard in question required that meat
cutters in retail meat departments use metal mesh gloves, or any other type of personal protective
equipment to protect the non-knife-holding hand.
The many problems involved in wearing gloves while cutting, trimming or boning meat,
include difficulty in working efficiently with gloves on, glove-cleaning procedures, need to
change gloves when different types of meat are worked on, possible danger that the glove will
become enmeshed in other equipment, sanitation problems and the resistance of experienced
meat cutters to the use of gloves. While somewhat conflicting, there is evidence in support of the
respondent’s position that all things considered, it is more hazardous to wear mesh gloves than to
work without them. All of these factors undoubtedly account for the general nonuse of protective
gloves by meat cutters in retail stores. No other equipment has been suggested which could
protect the hands of meat cutters when performing their regular work. Under the circumstances,
reliance has been on the experience and expertise of the meat cutter and the paucity of injuries is
proof that this reliance was well placed. The millennium in working conditions is a goal which
cannot always be achieved. Section 2 of the Act (29 U.S.C. § 651) recognizes that the purpose of
the legislation is to assure safe working conditions only ‘as far as possible.’
Given this background, can it be said that the respondent, a nationwide organization of
retail supermarkets whose meat cutters over the years have not used mesh gloves, should be
found in violation of a safety standard which, in general language, provides that personal
protective equipment for extremities shall be used whenever it is necessary by reasons of hazards
capable of causing injury or impairment in the function of any part of the body through physical
contact?
Commissioner Van Namee, in Secretary of Labor v. Smoke-Craft, Inc., 8 OSAHRC 597,
referring to the standard involved herein, stated that [t]he existence of a hazard in itself does not
establish a violation of this standard.’ The citation in that case was vacated, the Commissioner
pointing out that there was not evidence that protective equipment was customarily provided in
the sausage manufacturing industry to employees using a cutting saw.
The standard, insofar as it applies to the instant cases, does not, in the language of the
court in Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), afford the respondent
‘a reasonable warning of the proscribed conduct in light of common understanding and
practices.’ Injuries resulting from meat cutting and boning are infrequent and are not of serious
proportions. Common understanding and practice in the retail meat industry did not require meat
cutters to use metal mesh gloves or other protection for the hands at the times when the citations
involved herein were issued.
There remains the issue of whether a meat cutter in a retail meat department is required
by the standard to wear a protective apron. While a potential injury to the hand is ever present
when cutting or boning meat, the evidence does not establish that the same is true with respect to
the abdominal area. Conceivably, many meat-cutting operations, such as trimming and slicing
meat, would not present a hazard which could be avoided by wearing an apron.
The evidence is equivocal with respect to whether the meat cutter in the Lancaster, New
Hampshire store was exposed to the hazard of abdominal injury if he were not wearing a mesh
apron. The testimony of the compliance officer was that he could not say ‘yes or no.’ This is not
a sufficient basis for a finding that a hazard existed. The situation could be different with respect
to the need for aprons when boning is being done, as this is an operation which involves freer use
of the knife. Testimony in the record shows that on occasion the knife comes toward the body so
that it would be prudent to wear a protective apron.
The respondent was aware of the hazard to the abdominal area and of the practice of its
employees to wear protective aprons. It is considered that failure to wear the protective
equipment while engaged in operations which expose meat cutters to the hazard of abdominal
injuries would be a violation of the pertinent standard. Protective aprons offer protection without
any of the disadvantages attendant upon the utilization of mesh gloves. However, as pointed out
above, the evidence in the record does not establish exposure by respondent’s employees to any
hazard which could be prevented by protective aprons.
Findings of Fact
On the basis of the citations, notices of proposed penalties, notices of contest, pleadings,
stipulations, the testimony and exhibits adduced at the hearing held in the consolidated cases of
Secretary of Labor v. The Great Atlantic and Pacific Tea Company, Docket Nos. 12444, 12552,
12636 and 12637, 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. The respondent operates approximately 3,500 retail supermarkets throughout the
United States and Canada with annual sales in excess of two billion dollars (T–8).
2. In each of the consolidated cases an employee of the respondent cut meat without
using a metal mesh glove or any other personal protective equipment to protect the hands and
fingers.
3. The use of a protective glove while meat is being cut or boned would be awkward,
interfere with the free movement of the fingers, and prevent the meat cutter from getting a ‘feel’
of the meat being cut or boned.
4. A protective glove used when cutting or boning meat requires cleaning when blood
and fat have accumulated and whenever a different kind of meat is to be worked on, as for
example, a change from pork or poultry to beef.
5. The hazard of injury while cutting and boning meat without a protective glove on the
hand holding the meat is minimal and any injury which might occur would not be expected to be
of serious proportions.
6. In the operation of meat departments of retail supermarkets protective equipment such
as metal mesh gloves is not customarily used to protect the hands of meat cutters.
7. In Dockets 11242 and 11883 employees of the respondent cut meat without using a
protective apron or other personal protective device to protect the abdominal area.
8. In the operation of meat departments of retail supermarkets protective equipment such
as aprons is customarily used in the industry to protect the abdominal areas.
9. The evidence does not establish that the employees of the respondent who were not
wearing protective aprons were engaged in operations which exposed to injury any part of the
body which would be protected if a protective apron were worn.
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.
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 that protective personal equipment was required to protect the hands of meat
cutters in its retail supermarkets in light of common understanding and practices and the standard
is therefore impermissibly vague.
4. The standard at 29 C.F.R. § 1910.132(a) did afford the respondent reasonable warning
that protective, personal equipment was needed to protect the abdominal area of meat cutters in
its retail meat departments from injury in light of common understanding and practices, but the
evidence failed to establish that respondent’s employees who were not wearing protective
equipment were exposed to the hazard of injury to the abdominal area.
5. The respondent did not violate 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 citations issued in the five consolidated cases for violation of 29
C.F.R. § 1910.132(a) and the proposed penalties are hereby vacated; and it is further
ORDERED that the respondent’s motion to withdraw its notice of contest to items 2, 3, 4,
5 and 6 of the citation issued in Docket No. 9562 and to item 2 of the citation in Docket No.
11883 is hereby granted and the citations and proposed penalties are affirmed.
JOSEPH, CHODES
Judge, OSAHRC
Dated: NOV 3, 1975
Hyattsville, Maryland