“\ufeff\t\tDocument\t\t\t\t p.hiddenParagraph { visibility:hidden } p { margin-top:0; margin-bottom:0; font-family:Times New Roman; color:WindowText; font-size:10pt; font-size:10pt; } p { font-family:Times New Roman; font-size:12pt; } p.style_Normal { } span.style_DefaultParagraphFont { } table.style_TableNormal { } span.X3AS7TOCHyperlink { color:#000000; text-decoration:none; } p.X3AS7TABSTYLE { } span.BulletSymbol { font-family:’Symbol’; } body { margin-left:0px;margin-top:0px;margin-bottom:0px;margin-right:0px;} div.basic { width:21.59cm;height:27.94cm;} p.hiddenParagraph { font-size:2pt; visibility:hidden; } \t\t\t\t\t\t\t\t\tvar useragent = navigator.userAgent;\t\t\t\t\t\t\tvar navigatorname;\t\t\t\t\t\t\tif (useragent.indexOf(‘MSIE’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”MSIE\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Gecko’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (useragent.indexOf(‘Chrome’)!= -1)\t\t\t\t\t\t\tnavigatorname=\”Google Chrome\”;\t\t\t\t\t\t\telse\t\t\t\t\t\t\tnavigatorname=\”Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Mozilla’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”old Netscape or Mozilla\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\telse if (useragent.indexOf(‘Opera’)!= -1)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tnavigatorname=\”Opera\”;\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\tfunction symbol(code1,code2)\t\t\t\t\t\t\t{\t\t\t\t\t\t\tif (navigatorname == ‘MSIE’)\t\t\t\t\t\t\t\tdocument.write(code1);\t\t\t\t\t\t\telse\t\t\t\t\t\t\t\tdocument.write(code2);\t\t\t\t\t\t\t}\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NOS. 8220, 9562, 11242,\t\t\t\t\t\t\t\t\t\t11620 and 11883 (Consolidated)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTHE GREAT ATLANTIC & PACIFIC TEA\t\t\t\t\t\t\t\t\t\tCOMPANY,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tOctober 8, 1976\t\t\t\t\t\t\t\t\t\tDECISION\t\t\t\t\t\t\t\t\t\tBEFORE\t\t\t\t\t\tBARNAKO,\t\t\t\t\t\tChairman;\t\t\t\t\t\tMORAN\t\t\t\t\t\tand\t\t\t\t\t\tCLEARY,\t\t\t\t\t\tCommissioners.\t\t\t\t\t\tBY\t\t\t\t\t\tTHE\t\t\t\t\t\t\t\t\t\tCommission:\t\t\t\t\t\t\t\t\t\tA decision of Review Commission Judge Joseph Chodes, dated November 3, 1975, is\t\t\t\t\t\t\t\t\t\tbefore this Commission for review pursuant to 29 U.S.C. \u00a7 661.\t\t\t\t\t\t\t\t\t\tThat decision is affirmed on the basis of the decision by a divided Commission in Secretary v.\t\t\t\t\t\t\t\t\t\tGrand Union Company, 20 OSAHRC 663 (1975). That decision is dispositive of the instant\t\t\t\t\t\t\t\t\t\tcase.\t\t\t\t\t\t\t\t\t\tAccordingly, the citations issued in the five consolidated cases for violation of 29 C.F.R.\t\t\t\t\t\t\t\t\t\t\u00a7 1910.132(a) and the penalties proposed therefor are hereby vacated.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tFOR THE COMMISSION:\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tWilliam S. McLaughlin\t\t\t\t\t\t\t\t\t\tExecutive Secretary\t\t\t\t\t\t\t\t\t\tDATED: OCT 8, 1976\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tUNITED STATES\t\t\t\t\t\tOF\t\t\t\t\t\tAMERICA\t\t\t\t\t\t\t\t\t\tOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tSECRETARY OF LABOR,\t\t\t\t\t\t\t\t\t\tComplainant,\t\t\t\t\t\t\t\t\t\tv.\t\t\t\t\t\tOSHRC DOCKET NOS. 8220, 9562, 11242,\t\t\t\t\t\t\t\t\t\t11620 and 11883 (Consolidated)\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tTHE GREAT ATLANTIC & PACIFIC TEA\t\t\t\t\t\t\t\t\t\tCOMPANY,\t\t\t\t\t\t\t\t\t\tRespondent.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tNovember 3, 1975\t\t\t\t\t\t\t\t\t\tDECISION AND ORDER\t\t\t\t\t\t\t\t\t\tChodes, Judge:\t\t\t\t\t\t\t\t\t\tStatement of the Case\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThis is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970 (29 U.S.C. \u00a7 659) in which the respondent is contesting citations issued by the complainant\t\t\t\t\t\t\t\t\t\tunder the authority vested in complainant by section 9(a) of the Act (29 U.S.C. \u00a7 650(a)).\t\t\t\t\t\t\t\t\t\tThe citations alleged that inspections were made of the respondent\u2019s places of\t\t\t\t\t\t\t\t\t\temployment at the following locations:\t\t\t\t\t\t\t\t\t\tDocket Number\t\t\t\t\t\tLocation\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t8220\t\t\t\t\t\tStore No. 635, Route 59, Nyack, New York\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t9562\t\t\t\t\t\t90 Delaware Avenue, Paterson, New Jersey\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11242\t\t\t\t\t\t114 North Broadway, Tarrytown, New York\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11620\t\t\t\t\t\t208 Third Street, Marietta, Ohio\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t11883\t\t\t\t\t\t320 E. Gunn Hill Road, Bronx, New York\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe parties have agreed that all five consolidated cases in this proceeding be decided on\t\t\t\t\t\t\t\t\t\tthe basis of the official record in the consolidated cases of\t\t\t\t\t\tSecretary of Labor v. The Great\t\t\t\t\t\t\t\t\t\tAtlantic Tea Company, OSAHRC Docket Nos. 12444, 12552, 12636 and 12637 which were tried\t\t\t\t\t\t\t\t\t\tby Judge Duvall in Boston, Massachusetts, on June 9, 10 and 11, 1975. At the hearing it was\t\t\t\t\t\t\t\t\t\tagreed that the testimony relating to respondent\u2019s supermarket at Lancaster, New Hampshire\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\t\t\t\t\twould apply to all four cases (June 10, T\u201324).\t\t\t\t\t\t\t\t\t\tThe parties have further agreed that the only issue for decision is whether the respondent\t\t\t\t\t\t\t\t\t\tviolated the standard set forth at 29 C.F.R. \u00a7 1910.132(a). If a violation of the standard is found,\t\t\t\t\t\t\t\t\t\tthe penalties proposed are not contested.\t\t\t\t\t\t\t\t\t\tThe respondent has moved to withdraw its notice of contest to the contested items 2, 3, 4,\t\t\t\t\t\t\t\t\t\t5 and 6 of the citation issued in Docket No. 9562 and to contested item 2 in Docket No. 11883.\t\t\t\t\t\t\t\t\t\tRespondent represents that these items have been abated; it will pay the penalties proposed by\t\t\t\t\t\t\t\t\t\tthe complainant; a copy of the letter informing the undersigned of the withdrawal has been\t\t\t\t\t\t\t\t\t\tmailed to the authorized employee representative; a copy of the letter will be posted at the\t\t\t\t\t\t\t\t\t\tworkplaces involved in the two citations, and the complainant does not object to the withdrawal.\t\t\t\t\t\t\t\t\t\tA reasonable time has elapsed since the service and agreed posting was undertaken and no\t\t\t\t\t\t\t\t\t\tobjections have been received. The granting of respondent\u2019s motion is considered to be\t\t\t\t\t\t\t\t\t\tconsistent with the provisions of the Occupational Safety and Health Act of 1970.\t\t\t\t\t\t\t\t\t\tThe standard in controversy, 29 C.F.R. \u00a7 1910.132(a) provides:\t\t\t\t\t\t\t\t\t\tProtective equipment, including personal protective equipment for eyes, face,\t\t\t\t\t\t\t\t\t\thead, and extremities, protective clothing, respiratory devices, and protective\t\t\t\t\t\t\t\t\t\tshields and barriers, shall be provided, used, and maintained in a sanitary and\t\t\t\t\t\t\t\t\t\treliable condition wherever it is necessary by reason of hazards of processes or\t\t\t\t\t\t\t\t\t\tenvironment, chemical hazards, radiological hazards, or mechanical irritants\t\t\t\t\t\t\t\t\t\tencountered in a manner capable of causing injury or impairment in the function\t\t\t\t\t\t\t\t\t\tof any part of the body through absorption, inhalation or physical contact.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tThe description of the alleged violations vary somewhat in each of the citations. The\t\t\t\t\t\t\t\t\t\tviolation charged was failure by respondent\u2019s meat cutters to use metal mesh gloves in three\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t1\t\t\t\t\t\tTranscript references will be to the record of the hearing held before Judge Duvall in Boston,\t\t\t\t\t\t\t\t\t\tMassachusetts, on June 9, 10 and 11, 1975 in the consolidated cases of\t\t\t\t\t\tSecretary of Labor v. The\t\t\t\t\t\t\t\t\t\tGreat Atlantic & Pacific Tea Company, Docket Nos. 12444, 12552, 12637 and 12638.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tcases (Docket Nos. 8220, 9562, 11620) and failure to use metal mesh gloves and aprons in two\t\t\t\t\t\t\t\t\t\tcases (Docket Nos. 11242 and 11883).\t\t\t\t\t\t\t\t\t\tSummary of Evidence\t\t\t\t\t\t\t\t\t\tThe respondent operates approximately 3,500 retail supermarkets in the United States and\t\t\t\t\t\t\t\t\t\tCanada and has annual sales in excess of two billion dollars (June 9, T\u20138). For the purposes of\t\t\t\t\t\t\t\t\t\tdeciding the cases involved in this proceeding, meat cutters in respondent\u2019s meat departments\t\t\t\t\t\t\t\t\t\tdid not wear protective gloves (June 9, T\u2013158) or aprons (June 10, T\u201324).\t\t\t\t\t\t\t\t\t\tThe evidence indicates that metal mesh gloves are used by meat cutters in the wholesale\t\t\t\t\t\t\t\t\t\taspect of the meat industry (June 10, T\u2013102) but the opposite is true with respect to meat cutters\t\t\t\t\t\t\t\t\t\tin retail meat departments. Complainant\u2019s Compliance Officer visited about 20 stores and in\t\t\t\t\t\t\t\t\t\tnone of them were the meat cutters wearing protective gloves. It was his observation that the\t\t\t\t\t\t\t\t\t\tpractice of meat cutters was not to wear mesh gloves (June 10, T\u20133, 9, 15). Meat cutters\t\t\t\t\t\t\t\t\t\temployed by the respondent do not wear mesh gloves (June 10, T\u201348). A consultant in safety\t\t\t\t\t\t\t\t\t\tand accident prevention testified that in the course of his work he visited about 8,000\t\t\t\t\t\t\t\t\t\tsupermarkets and never observed a meat cutter using a protective glove (June 10, T\u201398).\t\t\t\t\t\t\t\t\t\tSome supermarkets do buy metal mesh gloves for their meat cutters to use on their non-\t\t\t\t\t\t\t\t\t\tcutting hand. There is evidence that the firm of Whiting and Davis, manufacturer of mesh\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\t\t\t\t\tgloves, sells them to retail meat departments, among them the Stop and Shop, Star Market,\t\t\t\t\t\t\t\t\t\tWaltham\u2019s Supermarkets and Fernandes, all located in the Boston area (June 9, T\u2013112).\t\t\t\t\t\t\t\t\t\tHowever, the uses to which the gloves are put or the extent of their use is not clearly established\t\t\t\t\t\t\t\t\t\tin the record.\t\t\t\t\t\t\t\t\t\tAt the hearing, the complainant produced the director of meat operations of the Iandoli\t\t\t\t\t\t\t\t\t\tSupermarket (a chain of 14 supermarkets) who testified that the firm, commencing in June 1973,\t\t\t\t\t\t\t\t\t\tissued 3-finger mesh gloves and mesh aprons and made it compulsory that all meat cutters wear\t\t\t\t\t\t\t\t\t\tthem (June 9, T\u201328, 33, 55). However, there is testimony that a meat cutter in an Iandoli\t\t\t\t\t\t\t\t\t\tSupermarket was observed boning meat without using a glove (June 10, T\u201354).\t\t\t\t\t\t\t\t\t\tRecords from Iandoli Supermarkets (Exhibits C\u20136, 7, 8, 9 and 10) and the testimony\t\t\t\t\t\t\t\t\t\trelating to the accidents referred to in the exhibits, show that from January 1971 to June 19,\t\t\t\t\t\t\t\t\t\t1973, when mesh gloves and aprons were not used, the meat departments of the 14 supermarkets\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t2\t\t\t\t\t\tMesh gloves are manufactured in three models, that is, with two fingers (thumb and index),\t\t\t\t\t\t\t\t\t\tthree fingers and five fingers for the whole hand (June 9, T\u2013118).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\thad a total of 20 injuries. Four of the injuries were suffered by a meat cutter who was deaf and\t\t\t\t\t\t\t\t\t\twas given special training because he was poor and had problems (June 11, T\u201383). Of the\t\t\t\t\t\t\t\t\t\tremaining 16 injuries, 5 related to the wrist and thigh and would not have been prevented even if\t\t\t\t\t\t\t\t\t\tgloves and aprons were utilized (June 11, T\u201384, 87, 88). Of the remaining 11 injuries which\t\t\t\t\t\t\t\t\t\tconceivably could have been prevented by the use of gloves, only one resulted in lost workdays,\t\t\t\t\t\t\t\t\t\tthat of Roger J. Goyette who cut the finger on his left hand on February 22, 1971, and lost 5\t\t\t\t\t\t\t\t\t\tdays. It is noted that Mr. Goyette suffered a similar injury on February 19, 1971 with no lost\t\t\t\t\t\t\t\t\t\tdays.\t\t\t\t\t\t\t\t\t\tAfter the institution of compulsory use of gloves and aprons in June 1973, there were\t\t\t\t\t\t\t\t\t\tthree reported injuries to the hands during the balance of 1973 and one in 1974 involving a day\u2019s\t\t\t\t\t\t\t\t\t\tlost time. This may be interpreted as some indication that the use of gloves could reduce injuries.\t\t\t\t\t\t\t\t\t\tA meat cutter for the respondent testified that he never used gloves and (aside from an\t\t\t\t\t\t\t\t\t\tinjury about 12 years previous while tying a piece of chuck which could not have been done with\t\t\t\t\t\t\t\t\t\ta glove on) has never suffered an injury (June 9, T\u2013160, 169, 170).\t\t\t\t\t\t\t\t\t\tDespite the obvious hazard involved in meat cutting with sharp knives which requires\t\t\t\t\t\t\t\t\t\tcare and skill on the part of the meat cutter in cutting, trimming and boning, meat cutters\t\t\t\t\t\t\t\t\t\tgenerally are opposed to the use of gloves on the hand that is not holding the knife. When Iandoli\t\t\t\t\t\t\t\t\t\tSupermarkets ordered its meat cutters to use gloves, the employees complained that, among\t\t\t\t\t\t\t\t\t\tother things, the gloves were cold, very bulky and \u2018gets in the way\u2019 (June 9, T\u201344).\t\t\t\t\t\t\t\t\t\tProbably the principal reason meat cutters do not want to use gloves is that the glove\t\t\t\t\t\t\t\t\t\tprevents the meat cutter from \u2018feeling\u2019 the meat. One of the respondent\u2019s meat cutters testified\t\t\t\t\t\t\t\t\t\tthat the \u2018feel\u2019 of the meat was particularly important when cutting veal (needs to be cut thin),\t\t\t\t\t\t\t\t\t\tboning chicken, and when working with \u2018round\u2019 because it is necessary to find the seam which\t\t\t\t\t\t\t\t\t\tcannot be done while wearing a glove (June 9, T\u2013170, 183, 184). Another employee of the\t\t\t\t\t\t\t\t\t\trespondent testified that \u2018sensitivity in your fingers is just as important as the knife in your right\t\t\t\t\t\t\t\t\t\thand\u2019 (June 10, T\u201353) because \u2018you can feel how much meat is left in the bones, how much\t\t\t\t\t\t\t\t\t\tpressure you need to pull it up, how much pressure you are to give with the knife to cut the meat\t\t\t\t\t\t\t\t\t\tloose\u2019 (June 10, T\u201379).\t\t\t\t\t\t\t\t\t\tAn additional problem with wearing gloves is that they need to be washed. The meat\t\t\t\t\t\t\t\t\t\tcutters at Iandoli Supermarket have wash periods at noon and at closing. The gloves are washed\t\t\t\t\t\t\t\t\t\twith a bristle brush and dipped in a sanitizing solution (June 9, T\u201339). Respondent\u2019s chief\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tsanitarian testified that the gloves were \u2018uncleanable because of bits of fat and meat particles in\t\t\t\t\t\t\t\t\t\tthe glove (June 10, T\u2013130, 142).\t\t\t\t\t\t\t\t\t\tThere is also a question of transmission of contamination such as trichniosis and\t\t\t\t\t\t\t\t\t\tsalmonella from one type of meat, for example pork or poultry to other meats when using a glove\t\t\t\t\t\t\t\t\t\tthat is not cleaned (June 10, T\u2013134). Exhibit R\u20134 is a letter from the director of the Division of\t\t\t\t\t\t\t\t\t\tFood and Drugs of the Massachusetts Department of Public Health. Referring to the use of mesh\t\t\t\t\t\t\t\t\t\tgloves by butchers, the director wrote the following:\t\t\t\t\t\t\t\t\t\tThey are extremely difficult to keep sanitary, and it is my considered opinion,\t\t\t\t\t\t\t\t\t\tthat when they become saturated with fat, they would provide a minimum of\t\t\t\t\t\t\t\t\t\ttraction to maintain the meat to be sliced in a stationary position. I, of course, am\t\t\t\t\t\t\t\t\t\taddressing my remarks specifically to the retail meat department.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tI not only question the problem that could be created in cross-contamination of meats and\t\t\t\t\t\t\t\t\t\tthe unsanitary condition that would develop in the use of a mesh glove, but I also question\t\t\t\t\t\t\t\t\t\twhether or not it would provide additional safety due to the lack of traction mentioned above.\t\t\t\t\t\t\t\t\t\tThe chief inspector of the Bureau of Food Division of the city of Boston testified that he\t\t\t\t\t\t\t\t\t\tnever personally, or through reading periodicals and articles relating to food and health, became\t\t\t\t\t\t\t\t\t\taware of any contamination resulting from the wearing of mesh gloves, although this was\t\t\t\t\t\t\t\t\t\ttheoretically possible (June 10, T\u20137, 8, 12\u201314).\t\t\t\t\t\t\t\t\t\tThe safety and accident consultant, previously referred to, gave the following reasons\t\t\t\t\t\t\t\t\t\twhy meat cutters should not utilize protective gloves (June 10, T\u201399):\t\t\t\t\t\t\t\t\t\tPrincipally, because we felt that some of the side effects or promoting such usage would\t\t\t\t\t\t\t\t\t\tmore than outweigh any imaginary advantages. Number one, because of the changeability of the\t\t\t\t\t\t\t\t\t\tactivities of the meat cutter, who is doing the cutting, grinding, and then going to the bandsaw, to\t\t\t\t\t\t\t\t\t\ta call from a customer, we felt it would provide him with a false sense of security. Secondly, we\t\t\t\t\t\t\t\t\t\tfelt the potential because he might forget he was wearing a glove, and he would work the\t\t\t\t\t\t\t\t\t\tbandsaw, might result in an accident more serious than any knife cut, and lastly, and hardly the\t\t\t\t\t\t\t\t\t\tleast, was the contamination due to a violation of all concepts of sanitation would preclude the\t\t\t\t\t\t\t\t\t\tuse of gloves under those conditions.\t\t\t\t\t\t\t\t\t\tInsofar as the failure of some of respondent\u2019s employees to wear protective aprons is\t\t\t\t\t\t\t\t\t\tconcerned, the evidence shows that mesh aprons are worn by meat cutters in retail meat\t\t\t\t\t\t\t\t\t\tdepartments, including the meat departments of the respondent (June 9, T\u2013158\u2013160 and June 10,\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tT\u201348). The testimony of the compliance officer who inspected the premises at Lancaster, New\t\t\t\t\t\t\t\t\t\tHampshire was that the meat cutter was cutting steak at the time of inspection, and he was\t\t\t\t\t\t\t\t\t\twearing an apron. He was asked whether there was a hazard to the abdomen and whether the\t\t\t\t\t\t\t\t\t\tknife could slip or slide. His answer was (June 10, T\u20136):\t\t\t\t\t\t\t\t\t\t\u2018On the particular job that he was performing I would not say yes or no. The meat\t\t\t\t\t\t\t\t\t\tto a certain extent is slippery and there is always that possibility that it could\t\t\t\t\t\t\t\t\t\tslide.\u2019\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tDuring boning operations (removing the bone and taking the meat away from the bone)\t\t\t\t\t\t\t\t\t\tthere are occasions when the knife comes toward the meat cutter and it could slip down on the\t\t\t\t\t\t\t\t\t\tbone (June 9, T\u2013148, 150, 151).\t\t\t\t\t\t\t\t\t\tDiscussion\t\t\t\t\t\t\t\t\t\tThe question for determination is whether respondent\u2019s failure to require its meat cutters\t\t\t\t\t\t\t\t\t\tto use metal mesh gloves and aprons, or other personal protective equipment, when cutting or\t\t\t\t\t\t\t\t\t\tboning meat, is a violation of the pertinent standard. With respect to the wearing of protective\t\t\t\t\t\t\t\t\t\tequipment for the hands, the question was answered in the negative by the undersigned in\t\t\t\t\t\t\t\t\t\tSecretary of Labor v. Food Fair Stores, Inc., d\/b\/a Pantry Pride, OSAHRC Docket No. 7111,\t\t\t\t\t\t\t\t\t\twhich is currently under review by the Commission. The record in the instant case is more fully\t\t\t\t\t\t\t\t\t\tdeveloped than in Food Fair Stores where the decision was based on the depositions of the\t\t\t\t\t\t\t\t\t\tCompliance Officer and two meat cutters.\t\t\t\t\t\t\t\t\t\tOfficial notice may be taken that in cutting, trimming, or boning meat there is a\t\t\t\t\t\t\t\t\t\tpossibility that the meat cutter utilizing, as he does, sharp knives, will cut himself. This is true\t\t\t\t\t\t\t\t\t\teven if a mesh glove is worn because the fourth and fifth fingers (and also the middle finger if a\t\t\t\t\t\t\t\t\t\ttwo-finger glove is used) are always exposed to the knife (June 11, T\u2013101). However, the\t\t\t\t\t\t\t\t\t\tevidence indicates that the hazard is minimal insofar as employees engaged in this occupation in\t\t\t\t\t\t\t\t\t\tretail supermarkets are concerned, and that in the event of an accidental cut, the injury is not of\t\t\t\t\t\t\t\t\t\tserious proportions. Undoubtedly, this is due to the training, experience and skill acquired by\t\t\t\t\t\t\t\t\t\tmeat cutters in the performance of their tasks.\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\t\t\t\t\tIf the complainant, after considering all relevant factors, promulgated3 a standard which\t\t\t\t\t\t\t\t\t\tspecifically required the use of metal mesh gloves by meat cutters in retail meat departments, it\t\t\t\t\t\t\t\t\t\twould probably pass muster as the wisdom of a standard that has a relationship to safety would\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t3\t\t\t\t\t\tPursuant to section 6(b) of the Act (29 U.S.C. \u00a7 655(b)).\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\tmost likely not be questioned by the Commission.\t\t\t\t\t\tSee Secretary of Labor v. Bucheit Sons\t\t\t\t\t\t\t\t\t\tCompany, 1 OSAHRC 609. The situation in the instant cases is otherwise in that the respondent\t\t\t\t\t\t\t\t\t\twas not put on notice that the general language of the standard in question required that meat\t\t\t\t\t\t\t\t\t\tcutters in retail meat departments use metal mesh gloves, or any other type of personal protective\t\t\t\t\t\t\t\t\t\tequipment to protect the non-knife-holding hand.\t\t\t\t\t\t\t\t\t\tThe many problems involved in wearing gloves while cutting, trimming or boning meat,\t\t\t\t\t\t\t\t\t\tinclude difficulty in working efficiently with gloves on, glove-cleaning procedures, need to\t\t\t\t\t\t\t\t\t\tchange gloves when different types of meat are worked on, possible danger that the glove will\t\t\t\t\t\t\t\t\t\tbecome enmeshed in other equipment, sanitation problems and the resistance of experienced\t\t\t\t\t\t\t\t\t\tmeat cutters to the use of gloves. While somewhat conflicting, there is evidence in support of the\t\t\t\t\t\t\t\t\t\trespondent\u2019s position that all things considered, it is more hazardous to wear mesh gloves than to\t\t\t\t\t\t\t\t\t\twork without them. All of these factors undoubtedly account for the general nonuse of protective\t\t\t\t\t\t\t\t\t\tgloves by meat cutters in retail stores. No other equipment has been suggested which could\t\t\t\t\t\t\t\t\t\tprotect the hands of meat cutters when performing their regular work. Under the circumstances,\t\t\t\t\t\t\t\t\t\treliance has been on the experience and expertise of the meat cutter and the paucity of injuries is\t\t\t\t\t\t\t\t\t\tproof that this reliance was well placed. The millennium in working conditions is a goal which\t\t\t\t\t\t\t\t\t\tcannot always be achieved. Section 2 of the Act (29 U.S.C. \u00a7 651) recognizes that the purpose of\t\t\t\t\t\t\t\t\t\tthe legislation is to assure safe working conditions only \u2018as far as possible.\u2019\t\t\t\t\t\t\t\t\t\tGiven this background, can it be said that the respondent, a nationwide organization of\t\t\t\t\t\t\t\t\t\tretail supermarkets whose meat cutters over the years have not used mesh gloves, should be\t\t\t\t\t\t\t\t\t\tfound in violation of a safety standard which, in general language, provides that personal\t\t\t\t\t\t\t\t\t\tprotective equipment for extremities shall be used whenever it is necessary by reasons of hazards\t\t\t\t\t\t\t\t\t\tcapable of causing injury or impairment in the function of any part of the body through physical\t\t\t\t\t\t\t\t\t\tcontact?\t\t\t\t\t\t\t\t\t\tCommissioner Van Namee, in\t\t\t\t\t\tSecretary of Labor v. Smoke-Craft, Inc., 8 OSAHRC 597,\t\t\t\t\t\t\t\t\t\treferring to the standard involved herein, stated that [t]he existence of a hazard in itself does not\t\t\t\t\t\t\t\t\t\testablish a violation of this standard.\u2019 The citation in that case was vacated, the Commissioner\t\t\t\t\t\t\t\t\t\tpointing out that there was not evidence that protective equipment was customarily provided in\t\t\t\t\t\t\t\t\t\tthe sausage manufacturing industry to employees using a cutting saw.\t\t\t\t\t\t\t\t\t\tThe standard, insofar as it applies to the instant cases, does not, in the language of the\t\t\t\t\t\t\t\t\t\tcourt in\t\t\t\t\t\tRyder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974), afford the respondent\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t\u2018a reasonable warning of the proscribed conduct in light of common understanding and\t\t\t\t\t\t\t\t\t\tpractices.\u2019 Injuries resulting from meat cutting and boning are infrequent and are not of serious\t\t\t\t\t\t\t\t\t\tproportions. Common understanding and practice in the retail meat industry did not require meat\t\t\t\t\t\t\t\t\t\tcutters to use metal mesh gloves or other protection for the hands at the times when the citations\t\t\t\t\t\t\t\t\t\tinvolved herein were issued.\t\t\t\t\t\t\t\t\t\tThere remains the issue of whether a meat cutter in a retail meat department is required\t\t\t\t\t\t\t\t\t\tby the standard to wear a protective apron. While a potential injury to the hand is ever present\t\t\t\t\t\t\t\t\t\twhen cutting or boning meat, the evidence does not establish that the same is true with respect to\t\t\t\t\t\t\t\t\t\tthe abdominal area. Conceivably, many meat-cutting operations, such as trimming and slicing\t\t\t\t\t\t\t\t\t\tmeat, would not present a hazard which could be avoided by wearing an apron.\t\t\t\t\t\t\t\t\t\tThe evidence is equivocal with respect to whether the meat cutter in the Lancaster, New\t\t\t\t\t\t\t\t\t\tHampshire store was exposed to the hazard of abdominal injury if he were not wearing a mesh\t\t\t\t\t\t\t\t\t\tapron. The testimony of the compliance officer was that he could not say \u2018yes or no.\u2019 This is not\t\t\t\t\t\t\t\t\t\ta sufficient basis for a finding that a hazard existed. The situation could be different with respect\t\t\t\t\t\t\t\t\t\tto the need for aprons when boning is being done, as this is an operation which involves freer use\t\t\t\t\t\t\t\t\t\tof the knife. Testimony in the record shows that on occasion the knife comes toward the body so\t\t\t\t\t\t\t\t\t\tthat it would be prudent to wear a protective apron.\t\t\t\t\t\t\t\t\t\tThe respondent was aware of the hazard to the abdominal area and of the practice of its\t\t\t\t\t\t\t\t\t\temployees to wear protective aprons. It is considered that failure to wear the protective\t\t\t\t\t\t\t\t\t\tequipment while engaged in operations which expose meat cutters to the hazard of abdominal\t\t\t\t\t\t\t\t\t\tinjuries would be a violation of the pertinent standard. Protective aprons offer protection without\t\t\t\t\t\t\t\t\t\tany of the disadvantages attendant upon the utilization of mesh gloves. However, as pointed out\t\t\t\t\t\t\t\t\t\tabove, the evidence in the record does not establish exposure by respondent\u2019s employees to any\t\t\t\t\t\t\t\t\t\thazard which could be prevented by protective aprons.\t\t\t\t\t\t\t\t\t\tFindings of Fact\t\t\t\t\t\t\t\t\t\tOn the basis of the citations, notices of proposed penalties, notices of contest, pleadings,\t\t\t\t\t\t\t\t\t\tstipulations, the testimony and exhibits adduced at the hearing held in the consolidated cases of\t\t\t\t\t\t\t\t\t\tSecretary of Labor v. The Great Atlantic and Pacific Tea Company, Docket Nos. 12444, 12552,\t\t\t\t\t\t\t\t\t\t12636 and 12637, and the representations of the parties, it is concluded that on the basis of the\t\t\t\t\t\t\t\t\t\trecord as a whole, a preponderance of the evidence supports the following findings of fact:\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t1. The respondent operates approximately 3,500 retail supermarkets throughout the\t\t\t\t\t\t\t\t\t\tUnited States and Canada with annual sales in excess of two billion dollars (T\u20138).\t\t\t\t\t\t\t\t\t\t2. In each of the consolidated cases an employee of the respondent cut meat without\t\t\t\t\t\t\t\t\t\tusing a metal mesh glove or any other personal protective equipment to protect the hands and\t\t\t\t\t\t\t\t\t\tfingers.\t\t\t\t\t\t\t\t\t\t3. The use of a protective glove while meat is being cut or boned would be awkward,\t\t\t\t\t\t\t\t\t\tinterfere with the free movement of the fingers, and prevent the meat cutter from getting a \u2018feel\u2019\t\t\t\t\t\t\t\t\t\tof the meat being cut or boned.\t\t\t\t\t\t\t\t\t\t4. A protective glove used when cutting or boning meat requires cleaning when blood\t\t\t\t\t\t\t\t\t\tand fat have accumulated and whenever a different kind of meat is to be worked on, as for\t\t\t\t\t\t\t\t\t\texample, a change from pork or poultry to beef.\t\t\t\t\t\t\t\t\t\t5. The hazard of injury while cutting and boning meat without a protective glove on the\t\t\t\t\t\t\t\t\t\thand holding the meat is minimal and any injury which might occur would not be expected to be\t\t\t\t\t\t\t\t\t\tof serious proportions.\t\t\t\t\t\t\t\t\t\t6. In the operation of meat departments of retail supermarkets protective equipment such\t\t\t\t\t\t\t\t\t\tas metal mesh gloves is not customarily used to protect the hands of meat cutters.\t\t\t\t\t\t\t\t\t\t7. In Dockets 11242 and 11883 employees of the respondent cut meat without using a\t\t\t\t\t\t\t\t\t\tprotective apron or other personal protective device to protect the abdominal area.\t\t\t\t\t\t\t\t\t\t8. In the operation of meat departments of retail supermarkets protective equipment such\t\t\t\t\t\t\t\t\t\tas aprons is customarily used in the industry to protect the abdominal areas.\t\t\t\t\t\t\t\t\t\t9. The evidence does not establish that the employees of the respondent who were not\t\t\t\t\t\t\t\t\t\twearing protective aprons were engaged in operations which exposed to injury any part of the\t\t\t\t\t\t\t\t\t\tbody which would be protected if a protective apron were worn.\t\t\t\t\t\t\t\t\t\tConclusions of Law\t\t\t\t\t\t\t\t\t\t1. The respondent at all times material hereto was engaged in business affecting\t\t\t\t\t\t\t\t\t\tcommerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of\t\t\t\t\t\t\t\t\t\t1970.\t\t\t\t\t\t\t\t\t\t2. The respondent at all times material hereto was subject to the requirements of the\t\t\t\t\t\t\t\t\t\tOccupational Safety and Health Act and the standards promulgated thereunder, and the\t\t\t\t\t\t\t\t\t\tCommission has jurisdiction of the parties and of the subject matter herein.\t\t\t\t\t\t\t\t\t\t\u00a0\t\t\t\t\t\t\t\t\t\t3. The standard set forth at 29 C.F.R. \u00a7 1910.132(a) did not afford the respondent a\t\t\t\t\t\t\t\t\t\treasonable warning that protective personal equipment was required to protect the hands of meat\t\t\t\t\t\t\t\t\t\tcutters in its retail supermarkets in light of common understanding and practices and the standard\t\t\t\t\t\t\t\t\t\tis therefore impermissibly vague.\t\t\t\t\t\t\t\t\t\t4. The standard at 29 C.F.R. \u00a7 1910.132(a) did afford the respondent reasonable warning\t\t\t\t\t\t\t\t\t\tthat protective, personal equipment was needed to protect the abdominal area of meat cutters in\t\t\t\t\t\t\t\t\t\tits retail meat departments from injury in light of common understanding and practices, but the\t\t\t\t\t\t\t\t\t\tevidence failed to establish that respondent\u2019s employees who were not wearing protective\t\t\t\t\t\t\t\t\t\tequipment were exposed to the hazard of injury to the abdominal area.\t\t\t\t\t\t\t\t\t\t5. The respondent did not violate 29 C.F.R. \u00a7 1910.132(a).\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tORDER\t\t\t\t\t\t\t\t\t\tUpon the basis of the foregoing findings of fact and conclusions of law, and upon the\t\t\t\t\t\t\t\t\t\tentire record, it is\t\t\t\t\t\t\t\t\t\tORDERED that the citations issued in the five consolidated cases for violation of 29\t\t\t\t\t\t\t\t\t\tC.F.R. \u00a7 1910.132(a) and the proposed penalties are hereby vacated; and it is further\t\t\t\t\t\t\t\t\t\tORDERED that the respondent\u2019s motion to withdraw its notice of contest to items 2, 3, 4,\t\t\t\t\t\t\t\t\t\t5 and 6 of the citation issued in Docket No. 9562 and to item 2 of the citation in Docket No.\t\t\t\t\t\t\t\t\t\t11883 is hereby granted and the citations and proposed penalties are affirmed.\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tJOSEPH, CHODES\t\t\t\t\t\t\t\t\t\tJudge, OSAHRC\t\t\t\t\t\t\t\t\t\tDated: NOV 3, 1975\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\tHyattsville, Maryland\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t”