ASSOCIATED MEAT PACKERS, INC.
OSHRC Docket No. 1160
Occupational Safety and Health Review Commission
October 16, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision of Judge Henry C. Winters. Judge Winters affirmed Complainant's amended citation for a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") and assessed a penalty in the amount of $550 therefor.
In response to the direction for review Complainant submitted a document styled "Notice of Withdrawal" in which he stated that he was withdrawing the citation and penalty proposed. On the circumstances of this case, however, Complainant has no power unilaterally to withdraw his citation.
Both section 12(g) of the Act and Commission Rule 2(b) (29 CFR 2200.2(b)) provide that in the absence of a specific Commission rule proceedings before the Commission shall be in accordance with the Federal Rules of Civil Procedure. Since we have adopted no rule regarding the withdrawal of a citation, the provisions of Federal Rule 41(a)(2) n1 have particular application.
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n1 In pertinent part the Rule is as follows: ". . . an action shall not be dismissed at the [complainant's] instance save upon the order of the court and upon such terms and contitions as the court deems proper . . ."
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Respondent has been put to the expense of a trial and has incurred the costs usually incident thereto. Thereafter the matter came up for review at which time Complainant came to believe Respondent had not violated the standard after all, hence his attempt at a unilateral withdrawal.
Under the circumstances we will grant his motion to withdraw with prejudice.
Accordingly, it is ORDERED that the citation be and the same is hereby vacated with prejudice.
[The Judge's decision referred to herein follows]
WINTERS, JUDGE, OSAHRC: This action involves Respondent's contest of Amended Citation for Serious Violation Number 1, hereinafter called the Amended Citation, and the proposed penalty of $550.00 n1 in Amended Notification of Proposed Penalty, both issued June 30, 1972.
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n1 The Amended Notification of Proposed Penalty also includes proposed penalties for nonserious violations which were not contested.
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The Amended Citation alleges that on the basis of an inspection of Respondent's workplace located at 8349 N.E. Vancouver, Portland, Oregon and described as abattoir, the Respondent violated the Occupational Safety and Health Act of 1970 (hereinafter called the Act) in the following respects:
MAY 19, 1972
The air powered 10 inch diameter blade of the Jarvis saw was not equipped with a guard that would cover the lower two thirds (2/3) of the rotating blade (located in boning room). The eleven inch diameter rotating circular saw blade of the Kent-Master air powered saw was not provided with a guard of any type that would prevent contact with the saws blade, of lower half (de-horn location). The 13 inch circular saw blade of the Kent-Master saw used by the hog-splitter and in close proximity to other workmen had only the top 1/3 of its blade effectively guarded. The front of the blade and its lower section were completely exposed.
The standard or regulation allegedly violated is 29 CFR 1910.212(a)(1) which reads as follows:
1910.212 General requirements for all Machines.
(a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip-points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.
The Amended Citation set October 23, 1972 as the date on which the alleged violation must be corrected. n2
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n2 The original Citation for Serious Violation Number 1 which was issued June 19, 1972, set July 18, 1972 as the abatement date. In all other respects it was identical to the Amended Citation. In other words, the only purpose of issuing an amended citation was to postpone the abatement date from July 18 to October 23, 1972.
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The Secretary's Complaint filed herein on July 24, 1972 seeks affirmance of the Amended Citation and Respondent's Answer, among other things, denies the allegations of the violations described in the Amended Citation.
At the opening of the hearing in this matter at Portland, Oregon before this Judge on November 8, 1972, the Secretary and the Respondent, without offering any evidence, proposed a settlement whereby the Secretary would further amend the Amended Citation by extending the time for correcting and abating the violations charged therein until September 1, 1973; and the Respondent would in turn withdraw its Notice of Contest. No employee or employee representative appeared at the hearing.
Pursuant to the order of this Judge, notice of the proposed settlement was served upon authorized employee representatives and was posted where the Citation was posted. A reasonable time has passed and no employee or employee representative has objected to such settlement.
DISCUSSION
The issue here is whether three circular bladed power saws used by the Respondent in cutting meat in its meat packinghouse are sufficiently guarded so as to comply with the applicable standards. Each of the three saws has some guarding. The Secretary, while admitting that if the blades were completely covered they could not function as saws, contends that the standard requires that machinery such as that here involved be guarded in some manner to protect both the operator and other employees in the vicinity from the hazard of being cut by these fast, quick-spinning saw blades. The real question is: How can the Respondent so guard the machine as to enable it not only to perform the function for which it is designed and at the same time provide the requisite protection for the employees?
The Respondent contends that the saws in question are properly guarded; that they could not cause death or serious physical injury the way they are now guarded; and that it offered to prove that in more than 15 years of use, there is no record of any person being injured by them. The Respondent, in an effort to resolve the situation has filed an application for a variance. A copy of the application for a variance, filed also on behalf of Pacific Meat Company, n3 is in this docket.
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Secretary v. Pacific Meat Company.
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The Respondent has given assurance that it will pay the penalty imposed herein immediately upon being advised that the Order approving the settlement has become the final order of the Commission; and that it will abate the violations involved herein on or before September 1, 1973, unless in the meantime the requirement for abatement is nullified by the issuance of a variance order by the Secretary or by amendment of the involved standard.
This Judge, while having expressed reservations about postponing for such a long period of time the abatement date of a serious violation, finds that, all factors considered, the approval of the settlement is consistent with the provisions and objectives of the Act, is in the public interest and should be approved. Had the substance of this settlement been agreed to before the Notice of Contest was filed, the same result would have been accomplished without the intervention of this Commission. The Judge is aware that prolonged litigation might result in even a later abatement date, if the settlement were not approved. The Judge finds that the proposed penalty of $550.00 is not inconsistent with the criteria of Section 17(j) of the Act, and is approved.
ORDER
Accordingly, it is ORDERED:
(1) The settlement whereby the Secretary amends the abatement date to September 1, 1973 and the Respondent withdraws its Notice of Contest be, and it is hereby, approved;
(2) Amended Citation for Serious Violation Number 1, issued June 30, 1972, be, and it is hereby, amended by striking "October 23, 1972" as the date on which the alleged violation must be corrected and by substituting therefor the date "September 1, 1973;"
(3) The Amended Citation as so further amended be, and it is hereby, affirmed; and
(4) The penalty of $550.00 as proposed in Amended Penalty issued June 30, 1972 be, and it is hereby, affirmed