“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15009 CENTRAL MEAT COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 April 18, 1977DECISIONBefore BARNAKO, Chairman; MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a suasponte order for review. The parties have filed no objections to theAdministrative Law Judge?s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly, therehas been no appeal to the Commission, and no party has otherwise expresseddissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?s decision in the absence of compelling public interest. Abbott-Sommer,Inc., 3 BNA OSHC 2032, 1976?76 CCH OSHD para. 20,428 (No. 9507, 1976); CraneCo., 4 BNA OSHC 1016, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976); Seealso Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3dCir. 1976). The order for review in this case describes no compelling publicinterest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975?76 CCH OSHD para.20,387 (No. 4090, 1976).??????????? It isORDERED that the decision be affirmed.?DATED: APR 13, 1977?FOR THE COMMISSION:?William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Concurring in Part, Dissenting inPart:??????????? Iagree with affirming the Judge?s vacation of item 4 of the citation but, forthe following reasons, would also vacate the remaining items in contest. Item 5should be vacated because the evidence fails to establish that by lockingcertain doors respondent prevented the ?free escape? from the building ascontemplated by the cited standard, 29 C.F.R. ? 1910.36(b)(4). See Secretaryv. Techno Products, Inc., OSAHRC Docket No. 3624, February 11, 1976(dissenting opinion). Item 13 should be vacated because complainant has failedto prove, as required by the cited standard, 29 C.F.R. ? 1910.212(a)(3)(ii),that there was an appropriate standard prescribing a particular guarding deviceor that one could be designed and constructed to provide respondent?s bandsaw withthe protection required by that standard. Secretary v. K & T SteelCorporation, OSAHRC Docket No. 5769, February 24, 1976 (dissentingopinion). Items 14 and 16 should be vacated because the National Electric Codeis not ?reasonably available? to respondent or others in the class of personsaffected by those regulations. To find respondent in violation of provisions ofthat code is inconsistent with the requirements of the Administrative ProcedureAct, the objectives of the Occupational Safety and Health Act, and respondent?sright to fair treatment. Secretary v. Leader Evaporator Company, Inc.,OSAHRC Docket No. 5225, June 10, 1976 (dissenting opinion).??????????? Furthermore,for the reasons expressed in my separate opinion in Secretary v. SchultzRoof Truss, Inc., OSAHRC Docket no. 14046, December 20, 1976, I disagreewith the manner in which my colleagues are disposing of this case and withtheir views regarding the significance of decisions rendered by ReviewCommission Judges. Since my colleagues do not address any of the matterscovered in Judge Patton?s decision, his decision is attached hereto as AppendixA so that the law in this case may be known.?APPENDIXA\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15009 CENTRAL MEAT COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0July 15, 1976DECISIONAND ORDERAPPEARANCESCarl B. Carruth,Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia,on behalf of complainant\u00a0Mr. Sam Deese, Vice-President, Texas Meat Packers Corp., FortLauderdale, Florida, on behalf of respondent\u00a0STATEMENTOF THE CASEPatton, Judge:??????????? This is a proceeding pursuant to section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651, et seq., 84 Stat.1590, hereinafter referred to as the Act) contesting a citation issued by thecomplainant against Central Meat Company, hereinafter referred to asrespondent, under the authority vested in complainant by section 9(a) of theAct.??????????? The citation was issued against Texas Meat PackersCorporation. The complainant has moved to amend to substitute Central MeatCompany as respondent. This motion is granted as set forth below. The citationalleges that as a result of the inspection of a workplace under the ownership,operation and control of the respondent, located at Fort Lauderdale, Florida,the respondent has violated section 5(a)(2) of the Act by failing to complywith Occupational Safety and Health Standards 29 C.F.R. 1910.22(a)(2), 29C.F.R. 1910.36(b)(4) and (8), 29 C.F.R. 1910.212(a)(3)(ii), National ElectricalCode, Article 250?45(d), as adopted by standard 29 C.F.R. 1910.309(a) andNational Electrical Code, Article 110?17, as adopted by standard 29 C.F.R.1910.309(a).??????????? Hearing was held in this case on January 7, 1976, atMiami, Florida. Complainant and respondent appeared and presented evidence. Thecomplainant has filed a written brief, but no brief was filed by therespondent. There was no motion to intervene.??????????? It was alleged that the respondent violated standard 29C.F.R. 1910.22(a)(2), in that the floor in respondent?s meatcuttingroom was not maintained in a clean and dry condition, in that pieces of meatand fat were on the floor creating a slipping hazard.??????????? It was alleged that respondent violated standard 29C.F.R. 1910.36(b)(4) and 29 C.F.R. 1910.36(b)(8), in that the three exitslocated on the west end of the building were locked, thus providing only onemeans of agrees at the east end for all employees in cooler, staging, cuttingand dressing room areas.??????????? It was alleged that respondent violated standard 29C.F.R. 1910.212(a)(3)(ii), in that the blades of the two bandsaws in thecutting room were inadequately guarded, in that guide guards could not belowered enough to protect the unused portions of the blades between the tablesand the guides.??????????? It was alleged that respondent violated the NationalElectrical Code, Article 250?45(d), as adopted by standard 29 C.F.R.1910.309(a), in that ungrounded cords and plugs connected the following items:(1) tying machine in staging area, (2) two superwrappermachines at wrapping station and (3) Hollymaticportioning machine in the meatcutting room, which hadexposed noncurrent-carrying metal parts where the working surface was wet.??????????? It was alleged that respondent violated the NationalElectrical Code, Article 110?17, as adopted by standard 29 C.F.R. 1910.309(a),in that five panel boxes in the compressor area and three in the storage roomwere not covered, exposing live parts to accidental contact.ISSUESIN THE CASE??????????? At the beginning of the hearing, the respondent made amotion to dismiss the case on the ground that the action had been broughtagainst Texas Meat Packers Corporation, whereas the proper respondent wasCentral Meat Company. This motion was taken under advisement. Subsequent to thehearing, the complainant filed a motion to amend so as to reflect therespondent as Central Meat Company, rather than Texas Meat Packers Corporation.??????????? Mr. Samuel H. Deese,Vice-president and one of the principal stockholders in Texas Meat PackersCorporation and a partner in Central Meat Company, testified that Central MeatCompany is a partnership, and that he is a partner (Tr. 5). Central MeatCompany is a wholesale company which processes meat at its meat plant. It hasthree or four stockholders. Mr. Jerry Anden is apartner in Central Meat Company, and all three partners in Central Meat Companyown stock in Texas Meat Packers Corporation. The office for both companies islocated at the same place.??????????? Central Meat Company has been in business since 1927. Itwas determined that owners wished to have a retail outlet and, therefore, TexasMeat Packers Corporation was established in June or July of 1975. Central MeatCompany is engaged in processing and cutting meats. It does not slaughter anymeat (Tr. 15). The two companies have the same owners and the same principalplace of business (Tr. 6). Central Meat Company had three meatcuttersat the time of inspection (Tr. 19). They have four or five meatcuttersnow (Tr. 19). There are two cleanup men (Tr. 20). They secure outside personnelto unload their trucks, paying so much a pound (Tr. 20). They employ meatwrappers. Their two truck drivers load the meat on the trucks (Tr. 21).??????????? Central Meat Company is engaged in the sale of processedmeat to retail stores, including Texas Meat Packers Corporation (Tr. 22). Allmeat supplies of Texas Meat Packers Corporation are purchased through CentralMeat Company but not all are purchased from Central Meat Company (Tr. 28, 29).All processed meat is delivered through Central Meat Company; but any meat notcut are processed, such as packaged meat as well as eggs, goes directly to thestores which are owned by Texas Meat Packers Corporation, rather than throughTexas Meat Company (Tr. 30). Texas Meat Packers Corporation does not itself doany processing (Tr. 30). Texas Meat Packers Corporation acquires some meat fromsources other than Central Meat Company (Tr. 30). Products that go directly toTexas Meat Packers Corporation are billed to Texas Meat Packers Corporation(Tr. 30). Probably 50 percent or less will be billed directly to the storesowned by Texas Meat Packers Corporation (Tr. 30). At the present time, allbillings go through Central Meat Company?s office (Tr. 31). At the time of theinspection perhaps less than 50 percent of Central?s products went to TexasMeat but now more than 50 percent goes to Texas Meat (Tr. 32). Texas Meat hasthree retail stores now; the first one was acquired in June or July. At thetime of inspection, as best Mr. Deese recalls, therewas only one store (Tr. 32, 33). There might have been as much as 30 percent ofthe Central supplies going to Texas Meat at the time of the inspection (Tr.33).??????????? Mr. Jerry Anden is president ofTexas Meat, and Mr. Deese is vice president (Tr. 24).Texas Meat was formed so that Central Meat Company could go into the retailmeat business (Tr. 25). All credit references are through Central Meat Company(Tr. 28). All equipment for both companies is purchased by Central Meat (Tr.28, 29). There is one secretary working in the office, and she does the workfor both companies (Tr. 11, 12). The secretary is now probably paid by TexasMeat, but Mr. Deese did not recall whose payroll shewas on at the time of inspection (Tr. 12). It was stated that she is probablypaid by one of the companies for work done for both companies (Tr. 13). Theowners of Central Meat have no supervisory titles (Tr. 24). The Notice ofContest of Penalty has printed on its letterhead ?Central Meat Co., WholesaleFabricating and Portioning,? and under it there had been typed ?Texas MeatPackers Corporation.???????????? The citation and complaint relate to the part of thebusiness that is performed by Central Meat Company. Mr. Deesestated that when he received the citation, he understood what the citation wasabout (Tr. 11). In answer to a question as to whether there was ever any doubtin his mind as to whether the inspection was of Texas Meat Packers or CentralMeat, Mr. Deese stated that he had never given it anythought until the date of hearing (Tr. 13).??????????? Mr. Darrell Young accompanied the compliance officer onthe first part of the inspection, and Mr. Deese, aswell as Mr. Young, accompanied him on the later part of the inspection. Mr.Young is in charge of the processing area of Central Meat, which is the cuttingarea (Tr. 7, 8). He sees that processing is done and supervises quality control(Tr. 8, 9).??????????? Mr. Francis L. Silverberg, the compliance officer,testified that he contacted Mr. Young first and that Mr. Young told him that hewas the production manager. Mr. Silverberg noticed the name Central Meat on thefront of the building and inquired of Mr. Young concerning the matter. Mr.Young said that the name of the company was Texas Meat Packers (Tr. 35, 36). Heindicated they had not had a chance to change all of the signs (Tr. 36). Mr. Deese arrived before they got out of the processing area(Tr. 36). He stated that they gave him the mailing address to which thecitation should be sent (Tr. 37).??????????? An important issue for determination is whether the caseshould be dismissed because of the failure of the citation to name the properparty. It is uncontested that the partnership operating under the name ofCentral Meat Company was the company which was performing the work referred toin the complaint and was the proper party to have been named. It is alsoundisputed that Texas Meat Packers Corporation is a corporation which is aretail outlet and does not process meat, nor perform any of the work referredto in the complaint. Unless the corporate veil may be penetrated, the motion todismiss must be granted. It is therefore necessary to determine whether the interlockingownership, direction and control of both companies is such as to make onecompany be, in effect, treated as the alter ege ofthe other company for the purposes of this action and whether an amendmentcorrecting the party might therefore lie.??????????? The complainant has not cited, nor has this Judge found aprecedent of the Occupational Safety and Health Review Commission which wouldconstitute, a binding precedent on this issue.??????????? In the case of Searetaryv. West Way Motor Freight Inc., Et al., 3 OSAHRC 46, 71 (1973), JudgeCarlson held:Respondents inthis case have forcefully contended that because of the common ownership of thethree operating companies, their utilization of a common freight terminal andoffices and other factors bearing on the intercorporate relationship theyshould?perhaps along with the parent company be treated as a single employerfor purposes of the Act and that, consequently The separate charging of thethree for the selfsame allegedly violative incidents and separate charging of penaltiesamounted to an unauthorized and unfair attempt to pyramid both violations andmonetary sanctions.?This judge isconvinced that the Secretary proceeded within the scope of his authority underthe act in treating each of the Respondents as separate employers for purposesof citation. It is elemental that subsidiary corporations retain their separateidentities for all purposes in the absence of a showing that theparent?subsidiary relationship is being utilized to justify or conceal awrongful or unjust act or purpose or to thwart some recognized and superveningpublic policy. There is no evidence in the present record that the relatedcorporations were created or presently exist for other than legitimatepurposes. . . .???????????? It will be noted that in the above case the respondentafter creating separate corporations was attempting to ignore the separatecorporate structures and take advantage of the benefits of separateincorporation on one hand and at the same time retain advantages as though itwas a separate entity. This case is somewhat distinguishable from the case atbar, in that in the case at bar it is not the respondent which has created theseparate entities which are seeking to have them declared a single entity, butit is the complainant which is seeking to have them treated as though they werea single entity.??????????? In the case of Secretary v. Bob McCaslin SteelErection Company, 18 OSAHRC 826 (1975), Judge Risteauheld where companies are jointly owned, public policy requires that employeesof one corporation be treated as employees of the other. This case was reviewedby the Review Commission at a time when there were only two Commissioners onthe Commission, there being a vacancy as to the third Commissioner. Thedecision was affirmed by a one-to-one vote of the Commissioners. Since therewas no majority, the affirmation does not constitute a precedent of the ReviewCommission.??????????? In the case of Secretary v. AlpreyElectric Company & Craft Construction Company, 11 OSAHRC 227, 232,233?234 (1974), appeal docketed, No. 74?2181, 4th Cir., October 29, 1974, JudgeDuvall held:?Specifically,Urban argues that complainant did not issue the three citations ?to theemployer? since Urban Developers, Inc., to whom the citations were issued, it aseparate legal entity unconnected with the respondent, Urban Builders, Inc. . ..??In reviewing theadequacy of the original notice, the fairness of the while procedure is theprincipal consideration. See Davis, Administrative Law Treatise, sec. 8.04, p.523, 525. Here the record shows that Urban?s President, Mr. Hoffman, personallyand through his superintendent, Mr. Gester, was awareof the inspection (Tr. 35?36). Subsequent to issuance of the citation butbefore Urban contested, Mr. Hoffman attended an informal conference withcomplainant?s representatives to discuss the alleged violations (Stipulationparagraph 2, Tr. 13?14). Following the opportunity to review the citation withthe OSHA Area Director, Mr. Hoffman signed the notice of contest letter datedSeptember 12, 1973, as President, Urban Builders, Inc. In these circumstances,where there is no substantial evidence that the misdirected citation prejudicedthe respondent (Urban Buildings, Inc.), I would deem said citation to have beenconstructively amended by the subsequent complaint which was properly directedto respondent Urban. See Commission Rules of Procedure, Rule 33(a)(3).\u00a0Such amendmentwould conform to the evidence and subserve thepresentation of the merits of the action without prejudicing respondent Urban?sdefense on the merits. Federal Rules of Civil Procedure, Rule 15. Indeed, anamendment changing the party against whom a claim is asserted relates back ifthe defense asserted arose out of conduct set forth in the original pleadingand within the period provided by law for commencing the action againstrespondent, the party to be brought in by amendment (1) has received suchnotice of the institution of the action that he will not be prejudiced inmaintaining his defense on the merits, and (2) knew or should have known that,but for a mistake concerning the identity of the proper party, the action wouldhave been brought against him. Federal Rules of Civil Procedure, Rule 15(c).?\\???????????? In the case of Secretary v. Home Supply Company, Et al.,7 OSAHRC 527, the parties stipulated at the commencement of the trial that thecitations and notification of proposed penalties be amended by adding Al J.Schneider Company, Inc. and Al J. Schneider and Associates, Inc. as namedemployer respondents. The stipulation was made subject to respondent?sretention of the right to move to strike upon conclusion of the trial.Respondent did move for dismissal of the citations on the ground that evidenceof the record did not establish them as employers of any employee affected bythe alleged violations.??????????? The Review Commission stated (7 OSAHRC at 529):. . . Employeeswere switched as needed between all three corporations and the buildingprojects. There was one superintendent for both projects, and he did not knowwhich corporation employed him. There was one engineer for both projects, andhe was employed by Schneider and Associates. The Judge?s findings are fullysupported by the record. Accordingly, his conclusion that the three namedcompanies operated as a joint enterprise in constructing the Louisville TrustBuilding was correct, and it was therefore proper for all three to be named inthe citations and notification of proposed penalties.\u00a0??????????? In the case of Marino v. Gotham Chalkboard Mfg. Corp.,259 F. Supp. 953 (S.D. N.Y. 1966), the court held that in an action where theplaintiff moved to amend by substituting a second corporation for the firstcorporation as the party sought to be joined, the motion should have beengranted in view of the fact that the companies had identical organizers,officers, directors and offices; and there was no question that the defendantknew or should have known of the mistake from the beginning; and, but for amistake concerning the identity of the proper party, the action would have beenbrought against it. It was stated that it was obvious to the party to be joinedthat plaintiff had made a mistake concerning the identity of the proper party,and that the action was intended to be brought against said party. It wastherefore held that plaintiff had satisfied the requirements of Rule 15(c). Insaid case the statute of limitations had run and the court held that the motionto amend would relate back to the date of the filing of the original complaint.??????????? In light of the above decisions, it would appear that themotion to amend should be granted, and the motion to dismiss the case should bedenied.??????????? All of the stock in the corporation was owned by the samepersons who were partners in the partnership. Offices were in the same place.Business was conducted out of the same place for both entities. The samesecretary performed secretarial duties for both companies. One company,according to Mr. Deese, probably paid the secretaryfor services rendered both companies. Texas Meat Packers Corporation wascreated so as to give a retail outlet for the partnership. All creditreferences for both companies are handled through the partnership. Allequipment is purchased by the partnership. It would appear from the above factsthat the companies are completely interrelated. It will further be noted thatthe compliance officer testified that Mr. Young, an executive of Central MeatCompany who accompanied him at the beginning of the inspection, told him inanswer to an inquiry that the proper name was Texas Meat Packers Corporation.This may have been an unintentional mistake, but it would appear that the complianant was misled by the statement made by therespondent?s executive. Furthermore, Mr. Deesetestified that he understood from the beginning the nature of the allegationsand the precise work against which it was directed. He stated that theconfusion in names was something that only actually occurred to him on the dayof the hearing. There is no indication of any prejudice, nor that the CentralMeat Company failed to completely prepare its defense for the hearing. In viewof the interlocking ownership and operation of the two entities, the fact thatthe complainant was perhaps inadvertently misled by the respondent and theadmission by the respondent that it was in no way misled by the error in thename of Texas Meat Packers Corporation as respondent, the companies should betreated as a single respondent, the motion to dismiss should be denied, and themotion to amend should be allowed.HISTORYOF THE CASE??????????? The respondent?s contest of citation stated:This Letter is toinform you that we, Texas Meat Packers Corp., are contesting the followingpenalties. . . .\u00a0??????????? At the hearing of this cause, Mr. Sam Deese,vice-president of respondent who filed the notice of contest, stated that hedid not understand the legal distinction between the word ?penalty? and thecontesting of the merits of the citation, and that it was his full intention tocontest the citation on the merits as well as the penalties. The answer of therespondent contested the alleged violations as well as the penalties.??????????? At the hearing of the cause, this Judge held that thenotice of contest was unambiguous and plainly referred only to penalties andnot to a contest of the violation itself and, therefore, held that the onlyissue was the issue as to whether penalties should be assessed and, if so, inwhat amounts. Subsequently, this Judge became aware of the case of Secretaryv. William W. Turnbull, d\/b\/a Turnbull Millwork Co., ?? OSAHRC ?? (DOCKETNO. 7413, Dec. 15, 1975). Said case held that if a pro se respondent creditablytestified that he misunderstood the use of the word ?penalties,? and it was hisintention to contest the violation as well as the penalties, a contest of theviolation would be allowed, notwitstanding the factthat the word ?penalties? was used in the contest of citation. In view of thisdecision which appears controlling, an order was entered January 12, 1976,holding that the previous decision that the issues were restricted to penaltieswas in error, and that whether violations have occurred was also at issue. Thecase was reopened for the purpose of taking additional evidence in view of saidruling. Subsequent to entering said order, both parties advised the Judge thatthey did not desire to present any further evidence, but preferred that thecase be determined on the evidence already received. No further hearing wastherefore held.EVIDENCEAND DETERMINATION OF THE CASE ON THE MERITS??????????? It was testified by Mr. Deesethat respondent purchases meat from throughout the country (Tr. 15). Respondentis therefore engaged in interstate commerce and is within the jurisdiction ofthe Act.??????????? As above stated, it was alleged that the respondentviolated standard 29 C.F.R. 1910.22(a)(2), in that the floor in respondent?s meatcutting room was not maintained in a clean and drycondition, in that pieces of meat and fat were on the floor, creating aslipping hazard.??????????? Mr. Francis L. Silverberg, compliance officer, statedthat he inspected the meat processing plant (Tr. 34). He found there werepieces of meat and fat on the floor in the cutting area. Exhibit C?1 wasintroduced to reflect this condition. Part of the floor is terrage;and in said area, according to Mr. Silverberg, it was quite slippery (Tr. 38).He tested with his foot and thereby ascertained the slippery condition (Tr. 38,39). Mr. Young, the production manager, put salt on the floor which helped butdid not remove the condition (Tr. 39). The area was in the regular work areawhere cutting and sawing operations were taking place. Employees were travelingto the shower and locker room area and passing through it (Tr. 39). There iscutting, boning and sawing performed in this area; portioning and packingmachines are also used in the area (Tr. 40). There are only two employeesworking in said vicinity (Tr. 40). According to Mr. Silverberg, if a personfalls, he could hit his head on the metal cornertopsof edges. Mr. Silverberg said that Mr. Deese admittedat the time of inspection that they had a problem with employees keeping meatand fat off the floor. Mr. Deese testified at thehearing that some butchers become very careless, dropping little crumbs, piecesof fat and similar objects. They will fall on the floor and accumulate. Even whenscraped up, they will still leave a little film on the floor. They put saltdown for traction to take care of this (Tr. 123). Mr. Silverberg stated he hadnever seen any meat plant which was perfectly clean (Tr. 70). He stated it isnext to impossible for any meat processing plant not to drop meat and fat onthe floor (Tr. 72).??????????? Mr. Deese testified that it isimpossible not to drop some pieces of meat and other objects on the floor. Hestated that they completely clean and sterilize the total work area every two,three or four hours. They have an employee who is constantly cleaning. All hedoes is remove material and scraps and put salt where needed (Tr. 122, 123).Other employees also have salt to use when needed (Tr. 123). Salt is put downan average of a half dozen times a day. They are not permitted to use anythingelse because it would contaminate the meat (Tr. 123). The area becomes wet tosome extent because of ice on the chickens. It is impossible to prevent havingsome dripping (Tr. 124). The wrapping area is six inches higher than the restof the plant, and it is highly unusual to ever have a damp floor there (Tr.124).??????????? It is admitted that from the nature of the work, it isimpossible to accomplish absolute cleanliness. There would of necessity be somedropping on the floor. A slippery condition apparently existed at the time ofthe inspection, and every effort should be made to avoid a slippery conditionon the floors which could result in employee injury. It would appear, however,that the respondent has made an extremely diligent effort to have goodhousekeeping in its plant. An employee spends his entire time in cleaning thefloor and putting down salt to prevent a hazardous condition due to anysubstance being on the floor. In view of the small number of employees and thesmall size of the plant, having one employee work full time at such a taskwould appear to be a substantial effort by the respondent. The respondenttestified that salt is put down a half dozen times a day, and there is a completecleaning of the floor every two to four hours. The other employees are alsogiven salt for their use if a slick condition develops. It would appear thatthe respondent has made as much effort to keep a safe floor as could reasonablybe expected.??????????? At the time of inspection, there was a total of not morethan five or six employees working for the respondent, one of them being theman whose total time was spent in cleaning the floor, and otherwise making itsafe. It would appear to be a rather substantial ratio of work hours devoted tosafety. At the time of inspection, respondent only had three meatcutters. At the present time, the respondent has fouror five meatcutters and two cleanup men (Tr. 19, 20).??????????? Some brief periods of time when the floor may be slickand in need of attention would be almost impossible to avoid. Complainant hasnot, therefore, sustained its burden insofar as said allegations are concerned,and said allegations should be dismissed.??????????? It is also alleged that respondent violated standard 29C.F.R. 1910.36(b)(4) and 29 C.F.R. 1910.36(b)(8), in that the three exitslocated at the west end of the building were locked, thus providing only onemeans of egress at the east end for all employees of cooler, staging, cuttingand dressing room areas.??????????? Standard 29 C.F.R. 1910.36(b)(4) is as follows:?In every buildingor structure exits shall be so arranged and maintained as to provide free andunobstructed egress from all parts of the building or structure at all timeswhen it is occupied. No lock or fastening to prevent free escape from theinside of any building shall be installed except in mental, penal, orcorrective institutions where supervisory personnel is continually on duty andeffective provisions are made to remove occupants in case of fire or otheremergency.????????????? Mr. Silverberg testified that exits on the west side ofthe building were padlocked, thus providing no means of egress at the east endfor employees in the coolers, cutting and dressing room areas. There was onlyone open door to get out of the entire building (Tr. 46, 47). This door was onthe east side (Tr. 47). The building is approximately 60 by 30 feet indimension. The west part, which is the back part, was partitioned by a wallfrom the front part. Doorways in the building lead to the front part, theoffice being in the front part of the building (Tr. 47, 48). Insulatingmaterial covered a large part of the wall in the egress area, which constituteda fire hazard (Tr. 48, 49). He took a sample, and the test showed it was combustible.He touched a match to it, and it burned quickly, almost instantaneously (Tr.49, 50, 51). It seemed to light up all at once (Tr. 51, 52). If ignited, itwould be extremely hazardous, and smoke would probably prevent getting out (Tr.52). If there was a fire in the cooler in the east end of the building, therewas no way to get out. If there was a fire east of the door, which was lockedat the west end, it would block people from going over the cutting and stagingareas, and they would have no way out (Tr. 53).??????????? The door in the west section which was padlocked led tothe refrigerated walk-in cooler. It was not a processing area, but was aworking area in the sense that people went in and moved beef and materials fromthere to the processing area (Tr. 74, 75). Mr. Silverberg stated he would notexpect anyone to have doors open in a freezer area (Tr. 75). He stated that Mr.Deese admitted at the time of inspection that thethree rear doors were locked for security purposes (Tr. 76). When he went outto the compressor area, he went through a door which had to be unlocked with akey (Tr. 76).??????????? Mr. Deese testified that thereis one exit on the west side, but claimed it only had a bolt on it which couldslide back and denied that it was locked and had to be opened with a key (Tr.117).??????????? Mr. Silverberg reiterated on rebuttal, however, that thecompressor room door was locked and had to be unlocked with a key. He was onhis way to inspect the compressor area. Mr. Young unlocked the door for him.??????????? Mr. Deese testified that therewere three rear doors and two front doors, one of the front doors now havingbeen eliminated (Tr. 121, 122). There was an exit on the west side, the oneleading to the compressor, the one on which Mr. Deesemaintained there was a bolt; the other two doors on the west side led to thecooler. He stated that they were locked, but no one worked there (Tr. 117). Thedoors opened to the loading docks (Tr. 117). It was necessary to keep themlocked because, if they did not, someone from the outside could come in andsteal the meat (Tr. 118). The frozen meat is kept there. It is possible toenter the freezer from both inside and outside. He stated that someone couldsteal from either direction (Tr. 119). He maintained that he showed the complianceofficer the bolt on the door, and he (Mr. Deese) slidthe bolt over and walked out of the door. He admitted there is another lockthere (Tr. 139). He stated the first he had heard that said door was locked wasat the hearing (Tr. 40).??????????? Testimony of Mr. Silverberg and Mr. Deeseas to whether the door leading to the compressor room was only bolted from theinside or whether it was locked in such a manner that a key had to be insertedis not necessarily contradictory. Mr. Young accompanied Mr. Silverberg at thefirst part of the inspection, and Mr. Deeseaccompanied Mr. Silverberg on only part of the inspection. It would seem thatwhat happened is that Mr. Silverberg found the door locked when only Mr. Youngaccompanied him, and at that time it was necessary for Mr. Young to insert akey in order to exit the door. Mr. Silverberg must have subsequently gonethrough the door in company with Mr. Deese, at whichtime it was only bolt-locked, having previously been unlocked with a key by Mr.Young. Mr. Young did not testify. The fact that the door was locked with a keyapparently was a surprise to Mr. Deese. The factremains that the weight of the evidence is to the effect that the door waslocked, and a key had to be inserted and turned before the door could be opened.??????????? In view of the fact that there was no open exit in therear of the building, the standard was violated by said door being locked.??????????? Mr. Young is a supervisor of the company and even ifhaving the door locked was contrary to Mr. Deese?sinstructions, Mr. Young, as production manager, is far enough up the hierarchyto act on behalf of the respondent. Respondent must, therefore, be held responsiblefor the door being locked, in violation of the standard.??????????? The situation is quite different, however, as to theother two west end doors. Both of said doors led to the freezer room and werenot used for the purpose of exiting the property. None of the doors had an exitsign over them. the only purpose of the outside door leading to the freezer wasto bring meat from the trucks into the freezer room. The only purpose of theinside door was to go into the freezer room to remove the meat for processingfrom inside the building. It was apparently never contemplated that the freezerwould be used as a passageway or as a means of exiting the building. The doorsleading to the freezer, therefore, would not come under the definition of theword ?exit? as said term is used in the standard. A respondent should have aright to secure its valuable property. To leave a door unlocked at a pointwhere employees were not constantly working, which door leads only into thefreezer, would be an open invitation to any person desiring a side of meat togo in and steal it. Locking of the doors leading to the freezer room,therefore, did not constitute a violation of the standard. A penalty in theamount of $70 was proposed as a result of the doors being locked. Although thecomplainant contended that the respondent was in violation in having all threedoors locked, and it is held that the respondent was in violation only ofhaving one door locked, this does not reduce the hazard to the employees. Theinflammable material on the walls which burned instantaneously when testedincreased the fire hazard; and according to the testimony, employees could verywell have been trapped by only being able to use the front door or doors. Theproposed penalty in the amount of $70, therefore, appears to be proper.??????????? It was alleged that respondent violated standard 29C.F.R. 1910.212(a)(3)(ii), in that the blades of two bandsaws in the cuttingroom were inadequately guarded, because guide guards could not be loweredenough to protect the unused portions of the blades between the tables and theguides.??????????? Standard 29 C.F.R. 1910.212(a)(3)(ii) is as follows:?The point ofoperation of machines whose operation exposes an employee to injury, shall beguarded. The guarding device shall be in conformity with any appropriatestandards therefor, or, in the absence of applicable specific standards, shallbe so designed and constructed as to prevent the operator from having any partof his body in the danger zone during the operating cycle.????????????? Mr. Silverberg testified that there were two bandsaws inthe cutting area. The guides would not come all the way down to thin portionsof the meat that would be cut. One came down within eight inches of the table,and the other came down to within five inches of the table by actualmeasurement (Tr. 54). He observed employees cutting meat at the table. Anemployee was cutting a portion approximately an inch and a half thick, lyingflat on the table and the bandsaw with the guides only came within five inchesfrom the table, which exposed three and a half inches open blade above the meat(Tr. 54). He stated that it was a powered saw being operated, the saw being asaw-toothed blade (Tr. 54). Mr. Silverberg stated an employee could loseseveral fingers or suffer even worse injury (Tr. 55). He stated that if anemployee was cutting a thick piece of meat and there were five inches of sawblade exposed, if he was pushing on the meat, he could get his hand into thesaw. If the guide guard would slip down in position very close to the surfaceof the material being cut, the guide would prevent the employee from gettinghis hand into the exposed blade area (Tr. 70). If the machine only cut meat offive to eight inches in thickness, it would be satisfactory. He stated it wouldbe impossible to lower the saw on a pork loin as it might go from eight inchesat one end to three inches at another.??????????? Mr. Deese testified that theyhave two meat saws. The guards used on the saws are standard in the industry(Tr. 124). He stated he went to seven locations and checked meat saws, and nonehad a guard that went all the way down to the table. He checked manufacturersand did not find any (Tr. 125). Meat sizes vary. Pork loins run 8 to 12 pounds,which is standard in the industry. There are also pork loins weighing 12 to 14pounds, 14 to 17 pounds, 17 to 20 pounds and 20 pounds and up (Tr. 126).According to Mr. Deese, the main purpose of the guardon the meat saws is not to protect the hand, because if at any time an employeeis pushing a piece of meat and it slips going into the saw, his hand would hitthe saw, even if there was only a half-inch area (Tr. 127). If a blade guide israised too much, the blade becomes flexible and will not cut straight. The mainreason they use a guide is to stabilize the blade, rather than protectthemselves. He testified there is not much protection possible in cutting meat(Tr. 127). It appears from the evidence that there are some types of meat thatare not adaptable to the lowering of the guard on the saw. Pork loin, forexample, will vary in size perhaps being 8 inches at one end and 3 inches atthe other. It does not follow, however, that a lowered blade would not be anadded safety device as to other more even cuts of meat. The meat being cut atthe time of inspection was only an inch and a half thick and apparently was thetype of meat which was conducive to the lowering of the guard. The fact that anemployee could not be protected in all situations by having a guard which meetsthe requirements of the standard does not mean that an employee should not beprotected by such a guard in those instances where such protection is possible.It is not required that the respondent lower and raise the guard, cutting asingle piece of meat which may be eight inches thick at one end and threeinches at the other. It is required that a respondent use a guard which may belowered on those cuts of meat which are even enough to permit such action to betaken. The respondent testified that a diligent search had failed to reveal amachine on which a guard could be so lowered. If such machine is not ordinarilymanufactured, the respondent should have one custom-built to conform to thestandard. The fact that the use of such a guard is not common in the industrydoes not constitute a defense for the respondent. The fact that the industry asa whole does not conform to the standard and does not adopt the safest possiblepractice is not an excuse to any individual meat processer who fails to do so.It is the obligation of the entire industry to conform its practices to thestandards, if possible. It would appear that as to certain cuts of meat, it ispossible to use a safeguard insofar as the standard is concerned. Theallegations of the complaint as to violation of said standard, therefore, havebeen sustained. Due to the difficulty of securing a proper guard, the abatementdate should be extended to August 1, 1976.??????????? The proposed penalty of $35 is justified in view of therisk to the hands of the employees.??????????? It was also alleged that respondent violated the NationalElectrical Code, Article 250?45(d), as adopted by standard 29 C.F.R.1910.309(a), in that ungrounded cords and plugs connected the tying machine inthe staging area.??????????? Mr. Silverberg testified that the tying machine had amale attachment plug on the cord which would plug into the availablereceptacle, but the grounding lug was broken off of the male attachment plug,which rendered it in an ungrounded condition. He stated this would causeelectrical shock or electrocution (Tr. 56).??????????? Mr. Deese testified that thetying machine must have been brought into the plant for a tryout because he didnot even know they had one (Tr. 127, 128).??????????? It would appear that the allegations of violation in thisregard have been sustained. The evidence of the complainant is to the effectthat there was improper grounding, which could have resulted in shock orelectrocution. Mr. Deese did not deny that this wastrue but merely stated that he was not aware that the machine was even thereand, therefore, was not aware of its condition. He stated that it must havebeen brought in temporarily for a tryout. The fact that it was being usedtemporarily would, of course, not mean that the respondent was in compliancewith the Act if its employees were subjected to a hazard because of use of themachine. The evidence of the complainant is uncontradicted; and, therefore, thecomplainant?s allegations have been sustained.??????????? It was alleged that the respondent violated the NationalElectrical Code, Article 250?45(d), as adopted by standard 29 C.F.R.1910.309(a), in that ungrounded cords and plugs connected two superwrapper machines at the wrapping station.??????????? Mr. Silverberg testified that there were two superwrapper machines at the wrapping station. The machineswere provided with electrical current to operate by the household-type wireextension cords. The respondent did not provide effective grounding for theseunits, and employees using them would be subject to electric shock hazards.There was no ground connection (Tr. 56, 57).??????????? Mr. Deese stated that he didnot know whether there was grounding on the two superwrappermachines at the wrapping station. He stated they have plugs into which theconnection is made. All are directly under the plug put there especially forthat purpose. Mr. Deese stated that it could havebeen done in the manner testified to by Mr. Silverberg. He stated he was notgoing to say that it was impossible for that to have happened (Tr. 128).??????????? The complainant?s evidence establishes that there wasimproper grounding of the cords connecting said machine. This testimony is notcontradicted, and Mr. Deese testified it could havehappened. Therefore, the complainant?s allegations have been sustained.??????????? It was alleged that respondent violated the NationalElectrical Code, Article 250?45(d), as adopted by standard 29 C.F.R.1910.309(a), in that ungrounded cords and plugs connected the Hollymatic portioning machine in the meatcuttingroom, which had exposed noncurrent-carrying parts where the working surface waswet.??????????? Mr. Silverberg testified that the Hollymaticmachine was serviced electrically by another household-type extension cord. Itwas not grounded. He stated that a grounded piece of equipment, if serviced bya proper three-wire cord, would have been correct (Tr. 60).??????????? Mr. Deese testified that it didhave ungrounded wire but stated it was not plugged into the wall. One of theemployees, according to Mr. Deese, had picked up awire there, but Mr. Deese did not know how it gotinto the plant. He stated there were a couple of little short extension cordsaround. The cord was hooked to the machine, but not plugged into the wall (Tr.128). He testified that he was not saying that the Hollymaticmachine was not used that day, simply that it was not plugged in at the time ofinspection. According to Mr. Deese, it could havebeen plugged in earlier (Tr. 140).??????????? Mr. Silverberg, on rebuttal testimony, stated that hediscussed this situation with Mr. Holmes, the employee who used the machine.Mr. Holmes said that he used the machine, and it was serviced by an ungroundedcord (Tr. 147).??????????? It is uncontradicted that the wire to the Hollymatic machine was not properly grounded. Mr. Deese stated that at the time of inspection, it was notconnected. He admitted, however, that it could have been used earlier in themorning, so it was apparently provided by the respondent for the purpose ofbeing used. To provide a machine for the purpose of being used, which machineis in an unsafe condition, does not conform to the standard and is a violationof the Act. It is not necessary to wait until an employee uses the machine andis perhaps electrocuted to bring a citation. It will further be noted that Mr.Holmes, an employee of the respondent, stated that the did use it withoutproper grounding. The evidence was not objected to on the ground of hearsay.The new Federal Codified Rules of Evidence provide that a statement offeredagainst a party by his agent or servant concerning a matter within the scope ofhis agency or employment made during the existence of the relationship is nothearsay testimony (Rule 801). Said evidence may therefore be received andconsidered. The complaint, in view of the above facts, has been sustained as toallegations of said violation.??????????? A penalty in the amount of $60 was proposed for all threeof the above alleged violations of National Electrical Code, Article 250?45(d),as adopted by standard 29 C.F.R. 1910.309(a). In view of the fact that thereare three separate violations, and that any of them could conceivably havecaused electrocution of an employee, the proposed penalty of $60 is certainlyminimal, and the full amount of said proposed penalty should be assessed.??????????? It was alleged that respondent violated the NationalElectrical Code, Article 110?17, as adopted by standard 29 C.F.R. 1910.309(a),in that five panel boxes in the compressor area and three in the storage roomwere not covered, exposing live parts to accidental contact.??????????? Mr. Silverberg testified that in the area there werepanel boxes with exposed parts. The covers were either missing or open. Therewere also three of them in the maintenance shop or storage room area. All ofthese were accessible to contact by employees. There could be seriouselectrical shock or possibly electrocution (Tr. 62). There was a gravity-typemetal conveyor in the compressor room which presented a tripping hazard. Itcould cause someone to fall into the boxes (Tr. 63).??????????? Mr. Deese testified that thepanel boxes were not covered because they were being repaired at the time ofinspection. He stated that he told Mr. Silverberg at the time of inspectionthat they had an electrical breakdown and had to replace all of the panelboxes. There was breakdown of an electrical circuit box. They put a new circuitbox in the old system, and the motors had to be rewired back into the circuitbox. The electrician was working on them at the time of inspection. He stillhad some of the material laying there with which he had been working. He hadnot put the covers back on the boxes at the time they were seen by Mr.Silverberg (Tr. 130). He stated the electrician was working on the electricalsystem, getting the time clocks, boxes and so forth together (Tr. 130). Theelectrician was in the building during inspection (Tr. 136, 137).??????????? It certainly is important that employees by protectedagainst electrical hazard, and every precaution should be taken to see thatemployees do not come into contact with live wires. It would not be possible,however, to keep the boxes covered while they were being worked on. The recordis devoid of evidence as to how long a time the covers had been off of theboxes, as to how much time and effort would be required to place them on theboxes, as to where in the plant the electrician was and what he was doing atthe time of inspection, as to how long it had been since he had worked on theboxes and when he would work on the boxes again. It is also not establishedwhether it was necessary for the tops to be off all of the boxes at the sametime.??????????? The allegation of the respondent that the tops were noton the boxes because necessary repairs were being made is an affirmativedefense. It is necessary for the party raising the affirmative defense to carrythe burden of going forward with the evidence and establishing all factsnecessary to make that defense. If the electrician was not working on the boxesfor a period of several hours or if it was not necessary for the tops to be offall of the boxes while he was working, it would not be an adequate defense tosay that the electrician was performing work relating to the boxes on the dayof inspection. On the other hand, if the tops had to be off all of the boxes,and he was away from the boxes for only a minute or two, the defense should besustained. In the absence of evidence clarifying these points, the respondenthas not carried the burden of establishing that it was necessary for the topsto be off of the boxes and to establish that the standard, therefore, has notbeen violated. The hazard to the employees certainly remained, irrespective ofthe reason for the tops not being on the boxes, and it is necessary to showthat the respondent had no real choice in order to sustain respondent?sposition. Complainant has made out a prima facie case, and the respondentadmits the tops were not on the boxes. The affirmative defense not having beenadequately established, the complainant?s allegations of violation have beensustained. The proposed penalty of $40 is proper in view of the danger of shockto employees.FINDINGSOF FACT??????????? 1. Respondent Central Meat Company owns and operates ameat processing plant in which all of the allegations of violation are allegedto have occurred.??????????? 2. The Central Meat Company is a partnership,Texas Meat Packers Corporation is a corporation which is a retail outlet forproducts of the Central Meat Company.??????????? 3. Texas Meat Packers Corporation purchases unprocessedmeat from companies other than Central Meat Company but purchases all of itsprocessed meat from Central Meat Company.??????????? 4. All of the stockholders of Texas Meat Company are thesame persons who are the partners of Central Packing Company.??????????? 5. Both of said companies operate out of the same location,and the same secretary does the work for both corporations. The billing forboth companies is done by the same persons at the same location.??????????? 6. At the time of inspection, the compliance officer ofthe complainant making said inspection was told by an executive of therespondent, Central Neat Company, that the correct name of the processing plantwas Texas Meat Packers Corporation.??????????? 7. The complaint was issued against Texas Meat PackersCorporation and not against Central Meat Company.??????????? 8. The complainant subsequent to the hearing filed amotion to amend so as to reflect the correct name of the respondent as CentralMeat Company.??????????? 9. Central Meat Company purchases a large part of itsmeat from points beyond the State of Florida and is engaged in a businessaffecting interstate commerce.??????????? 10. On or about September 2, 1975, there was some meat onthe floor of the cutting room, and the floor in said area was in a slipperycondition at the time of inspection.??????????? 11. The respondent, who employed only five of six peopleat the time of the inspection, employed one employee who worked full time atkeeping the floor clean and free from hazards.??????????? 12. The floor was cleaned at a two to four hourfrequency.??????????? 13. Salt was frequently poured on the floor to prevent a slippinghazard.??????????? 14. It is impossible to completely prevent meat fromfalling on the floor and to completely prevent a slippery condition fromtemporarily arising.??????????? 15. The respondent?s building was 60 by 30 feet indimensions, and there were three exits on the west and rear ends of thebuilding and two exits on the front of the building.??????????? 16. Two of the exits on the west end of the buildingentered the freezer room area in which the meat of the respondent was stored.??????????? 17. The entrances to the freezer room were not exits fromwhich employees were to enter and leave the premises, but were places throughwhich delivery of the meat could be made from the exterior of the building andcould be taken from the freezer room to be processed in the interior of the building.??????????? 18. It was necessary to keep the doors to the freezerroom locked to prevent theft of the meat.??????????? 19. The respondent at the time of inspection maintainedthe exit from the compressor room on the west end of the premises in a lockedcondition, and it was necessary to unlock it with a key.??????????? 20. Part of the building had a very inflammable substanceon the walls which increased hazard in case of fire.??????????? 21. There would have been a substantial hazard ofemployees working in certain parts of the building being trapped by fire withno exit at the west end of the building.??????????? 22. The respondent had two bandsaws in the cutting room,one of which had its blade at a five-inch level above the base and the otherhaving it at an eight-inch level. Said guards could not be adjusted downward toshorten said distance.??????????? 23. Some of the meat processed by the respondent wasuneven in size, making it impossible to closely adjust the guard to the meat,but other meat processed by the respondent was even enough that an adjustableguard could have been adjusted to a level just above the meat and the meatstill be properly processed.??????????? 24. There was a hazard of employees? hands going into thesaw in the area between the guard and the base of the saw, thereby causing possibleloss of fingers or suffering more severe injury.??????????? 25. Respondent on said date maintained a tying machine inthe staging area which had ungrounded cords and plugs.??????????? 26. The respondent on said date maintained two superwrapper machines at the wrapping station, which hadungrounded cords and plugs.??????????? 27. The respondent on said date had a Hollymaticportioning machine in the meatcutting room which hadexposed noncurrent-carrying metal parts and had ungrounded cords and plugs. Theworking surface in said area was wet.??????????? 28. The Hollymatic machine wasnot plugged in at the time of inspection but had been used on or about saiddate without the proper grounding of the cord.??????????? 29. On said date, the respondent had five panel boxes inthe compressor area and three in the storage room which were not covered,exposing live parts to accidental contact.??????????? 30. Said panel boxes were on said date being worked on aspart of electrical repair, but the record does not establish whether it wasnecessary for all of the tops of said boxes to be removed at one time and doesnot establish the length of time that tops remained off said boxes.CONCLUSIONSOF LAW??????????? 1. In light of the fact that the respondent was misled byan executive of Central Meat Company as to the correct name of the respondent,and the interlocking ownership, operation and control of Texas Meat PackersCorporation and Central Meat Company, motion to amend the citation andcomplaint so as to reflect the respondent as Central Meat Company, rather thanTexas Meat Packers Corporation should be granted.??????????? 2. The respondent Central Meat Company is engaged in abusiness affecting interstate commerce and is within the jurisdiction of theOccupational Safety and Health Act.??????????? 3. Allegations of violation of standard 29 C.F.R. 1910.22(a)(2),in that the floor in respondent?s meatcutting roomwas not maintained in a clean and dry condition, have not been sustained andshould be dismissed.??????????? 4. The respondent on or about September 2, 1975, was inviolation of standard 29 C.F.R. 1910.36(b)(4) and 29 C.F.R. 1910.36(b)(8), inthat the door on the west and of the building leading to the compressor roomwas locked.??????????? 5. The allegations of violation of standard 29 C.F.R.1910.36(b)(4) in that the doors leading to the freezer room were locked notbeen sustained and should be dismissed.??????????? 6. Respondent on or about September 2, 1975, violatedstandard 29 C.F.R. 1910.212(a)(3)(ii), in that the blades of two bandsaws inthe cutting room were inadequately guarded.??????????? 7. The respondent on or about September 2, 1975, violatedthe National Electrical Code, Article 250?45(d), as adopted by standard 29C.F.R. 1910.309(a), in that ungrounded cords and plugs connected the tyingmachine in the staging area, two superwrappermachines in the wrapping station and the Hollymaticportioning machine in the meatcutting room.??????????? 8. Respondent on or about September 2, 1975, violated theNational Electrical Code, Article 110?17, as adopted by standard 29 C.F.R.1910.309(a), in that five panel boxes in the compressor area and three in thestorage room were not covered, exposing live parts to accidental contact.ORDER??????????? It is therefore ORDERED that:??????????? Motion to dismiss on the ground that the complainantfiled the citation and complaint against Texas Meat Packers Corporation, whereasthe proper respondent was Central Meat Company, is denied.??????????? The motion to amend the citation and complaint so as toreflect the respondent as Central Meat Company, rather than Texas Meat PackersCorporation is granted.??????????? The allegation of violation of standard 29 C.F.R.1910.22(a)(2), in that the respondent?s meatcuttingroom was not maintained in a clean and dry condition, are dismissed.??????????? The allegations that respondent violated standard 29C.F.R. 1910.36(b)(4), in that the doors leading to the freezer room werelocked, are dismissed.??????????? The allegations that respondent violated standard 29C.F.R. 1910.36(b)(4), in that the door to the compressor room on the west endof the building was locked, are affirmed. A penalty in the amount of $70 isassessed. The proposed abatement date is affirmed.??????????? The respondent on or about September 2, 1975, violatedstandard 29 C.F.R. 1910.212(a)(3)(ii), in that the blades of two bandsaws inthe cutting room were inadequately guarded. A penalty in the amount of $35 isassessed. The abatement date is August 1, 1976.??????????? The respondent on or about September 2, 1975, violatedthe National Electrical Code, Article 250?45(d), as adopted by standard 29C.F.R. 1910.309(a), in that ungrounded cords and plugs connected the tyingmachine in the staging area, two superwrappermachines at wrapping station and the Hollymaticportioning machine in the meatcutting room. A penaltyin the amount of $60 is assessed for said violations. The proposed abatementdate is affirmed.??????????? The respondent on or about September 2, 1975, violatedthe National Electrical Code, Article 110?17, as adopted by standard 29 C.F.R.1910.309(a), in that three panel boxes in the storage room were not covered,exposing live parts to accidental contact. No penalty is assessed for saidviolation. The proposed abatement date is affirmed.??????????? On or about September 2, 1975, the respondent violatedthe National Electrical Code, Article 110?17, as adopted by standard 29 C.F.R.1910.309(a), in that five panel boxes in the compressor area were not covered,exposing live parts to accidental contact. A penalty in the amount of $40 isassessed for said violation. The proposed abatement date is affirmed.?Dated this 15th day of July 1976.?JOHN S. PATTONJudge\u00a0”