UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 15009
CENTRAL MEAT COMPANY,
Respondent.

April 18, 1977

DECISION

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge’s decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge’s decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge’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); Crane Co., 4 BNA OSHC 1016, 1975–76 CCH OSHD para. 20,508 (No. 3336, 1976); See also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge’s decision is accorded the significance of an unreviewed Judge’s decision. Leone Constr. Co., 3 BNA OSHC 1979, 1975–76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

DATED: APR 13, 1977

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

(SEAL)

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

I agree with affirming the Judge’s vacation of item 4 of the citation but, for the following reasons, would also vacate the remaining items in contest. Item 5 should be vacated because the evidence fails to establish that by locking certain doors respondent prevented the ‘free escape’ from the building as contemplated by the cited standard, 29 C.F.R. § 1910.36(b)(4). See Secretary v. Techno Products, Inc., OSAHRC Docket No. 3624, February 11, 1976 (dissenting opinion). Item 13 should be vacated because complainant has failed to 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 device or that one could be designed and constructed to provide respondent’s bandsaw with the protection required by that standard. Secretary v. K & T Steel Corporation, OSAHRC Docket No. 5769, February 24, 1976 (dissenting opinion). Items 14 and 16 should be vacated because the National Electric Code is not ‘reasonably available’ to respondent or others in the class of persons affected by those regulations. To find respondent in violation of provisions of that code is inconsistent with the requirements of the Administrative Procedure Act, the objectives of the Occupational Safety and Health Act, and respondent’s right 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. Schultz Roof Truss, Inc., OSAHRC Docket no. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Patton’s decision, his decision is attached hereto as Appendix A so that the law in this case may be known.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 15009
CENTRAL MEAT COMPANY,
Respondent.

July 15, 1976

DECISION AND ORDER

APPEARANCES

Carl B. Carruth, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

Mr. Sam Deese, Vice-President, Texas Meat Packers Corp., Fort Lauderdale, Florida, on behalf of respondent

STATEMENT OF THE CASE

Patton, Judge:

This is a proceeding pursuant to section 10 of the Occupational 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 the complainant against Central Meat Company, hereinafter referred to as respondent, under the authority vested in complainant by section 9(a) of the Act.

The citation was issued against Texas Meat Packers Corporation. The complainant has moved to amend to substitute Central Meat Company as respondent. This motion is granted as set forth below. The citation alleges 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 comply with Occupational Safety and Health Standards 29 C.F.R. 1910.22(a)(2), 29 C.F.R. 1910.36(b)(4) and (8), 29 C.F.R. 1910.212(a)(3)(ii), National Electrical Code, Article 250–45(d), as adopted by standard 29 C.F.R. 1910.309(a) and National 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, at Miami, Florida. Complainant and respondent appeared and presented evidence. The complainant has filed a written brief, but no brief was filed by the respondent. There was no motion to intervene.

It was alleged that the respondent violated 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 dry condition, in that pieces of meat and fat were on the floor creating a slipping hazard.

It was alleged that respondent violated standard 29 C.F.R. 1910.36(b)(4) and 29 C.F.R. 1910.36(b)(8), in that the three exits located on the west end of the building were locked, thus providing only one means of agrees at the east end for all employees in cooler, staging, cutting and dressing room areas.

It was alleged that respondent violated standard 29 C.F.R. 1910.212(a)(3)(ii), in that the blades of the two bandsaws in the cutting room were inadequately guarded, in that guide guards could not be lowered enough to protect the unused portions of the blades between the tables and the guides.

It was alleged that respondent violated the National Electrical 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 superwrapper machines at wrapping station and (3) Hollymatic portioning machine in the meatcutting room, which had exposed noncurrent-carrying metal parts where the working surface was wet.

It was alleged that respondent violated the 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 and three in the storage room were not covered, exposing live parts to accidental contact.

ISSUES IN THE CASE

At the beginning of the hearing, the respondent made a motion to dismiss the case on the ground that the action had been brought against Texas Meat Packers Corporation, whereas the proper respondent was Central Meat Company. This motion was taken under advisement. Subsequent to the hearing, the complainant filed a motion to amend so as to reflect the respondent 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 Packers Corporation and a partner in Central Meat Company, testified that Central Meat Company is a partnership, and that he is a partner (Tr. 5). Central Meat Company is a wholesale company which processes meat at its meat plant. It has three or four stockholders. Mr. Jerry Anden is a partner in Central Meat Company, and all three partners in Central Meat Company own stock in Texas Meat Packers Corporation. The office for both companies is located at the same place.

Central Meat Company has been in business since 1927. It was determined that owners wished to have a retail outlet and, therefore, Texas Meat Packers Corporation was established in June or July of 1975. Central Meat Company is engaged in processing and cutting meats. It does not slaughter any meat (Tr. 15). The two companies have the same owners and the same principal place of business (Tr. 6). Central Meat Company had three meatcutters at the time of inspection (Tr. 19). They have four or five meatcutters now (Tr. 19). There are two cleanup men (Tr. 20). They secure outside personnel to unload their trucks, paying so much a pound (Tr. 20). They employ meat wrappers. Their two truck drivers load the meat on the trucks (Tr. 21).

Central Meat Company is engaged in the sale of processed meat to retail stores, including Texas Meat Packers Corporation (Tr. 22). All meat supplies of Texas Meat Packers Corporation are purchased through Central Meat 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 not cut are processed, such as packaged meat as well as eggs, goes directly to the stores which are owned by Texas Meat Packers Corporation, rather than through Texas Meat Company (Tr. 30). Texas Meat Packers Corporation does not itself do any processing (Tr. 30). Texas Meat Packers Corporation acquires some meat from sources other than Central Meat Company (Tr. 30). Products that go directly to Texas Meat Packers Corporation are billed to Texas Meat Packers Corporation (Tr. 30). Probably 50 percent or less will be billed directly to the stores owned by Texas Meat Packers Corporation (Tr. 30). At the present time, all billings go through Central Meat Company’s office (Tr. 31). At the time of the inspection perhaps less than 50 percent of Central’s products went to Texas Meat but now more than 50 percent goes to Texas Meat (Tr. 32). Texas Meat has three retail stores now; the first one was acquired in June or July. At the time of inspection, as best Mr. Deese recalls, there was only one store (Tr. 32, 33). There might have been as much as 30 percent of the Central supplies going to Texas Meat at the time of the inspection (Tr. 33).

Mr. Jerry Anden is president of Texas Meat, and Mr. Deese is vice president (Tr. 24). Texas Meat was formed so that Central Meat Company could go into the retail meat 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 work for both companies (Tr. 11, 12). The secretary is now probably paid by Texas Meat, but Mr. Deese did not recall whose payroll she was on at the time of inspection (Tr. 12). It was stated that she is probably paid by one of the companies for work done for both companies (Tr. 13). The owners of Central Meat have no supervisory titles (Tr. 24). The Notice of Contest of Penalty has printed on its letterhead ‘Central Meat Co., Wholesale Fabricating and Portioning,’ and under it there had been typed ‘Texas Meat Packers Corporation.’

The citation and complaint relate to the part of the business that is performed by Central Meat Company. Mr. Deese stated that when he received the citation, he understood what the citation was about (Tr. 11). In answer to a question as to whether there was ever any doubt in his mind as to whether the inspection was of Texas Meat Packers or Central Meat, Mr. Deese stated that he had never given it any thought until the date of hearing (Tr. 13).

Mr. Darrell Young accompanied the compliance officer on the first part of the inspection, and Mr. Deese, as well 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 cutting area (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 he was the production manager. Mr. Silverberg noticed the name Central Meat on the front 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). He indicated 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 the citation should be sent (Tr. 37).

An important issue for determination is whether the case should be dismissed because of the failure of the citation to name the proper party. It is uncontested that the partnership operating under the name of Central Meat Company was the company which was performing the work referred to in the complaint and was the proper party to have been named. It is also undisputed that Texas Meat Packers Corporation is a corporation which is a retail outlet and does not process meat, nor perform any of the work referred to in the complaint. Unless the corporate veil may be penetrated, the motion to dismiss must be granted. It is therefore necessary to determine whether the interlocking ownership, direction and control of both companies is such as to make one company be, in effect, treated as the alter ege of the other company for the purposes of this action and whether an amendment correcting the party might therefore lie.

The complainant has not cited, nor has this Judge found a precedent of the Occupational Safety and Health Review Commission which would constitute, a binding precedent on this issue.

In the case of Searetary v. West Way Motor Freight Inc., Et al., 3 OSAHRC 46, 71 (1973), Judge Carlson held:

Respondents in this case have forcefully contended that because of the common ownership of the three operating companies, their utilization of a common freight terminal and offices and other factors bearing on the intercorporate relationship they should—perhaps along with the parent company be treated as a single employer for purposes of the Act and that, consequently The separate charging of the three for the selfsame allegedly violative incidents and separate charging of penalties amounted to an unauthorized and unfair attempt to pyramid both violations and monetary sanctions.

This judge is convinced that the Secretary proceeded within the scope of his authority under the act in treating each of the Respondents as separate employers for purposes of citation. It is elemental that subsidiary corporations retain their separate identities for all purposes in the absence of a showing that the parent—subsidiary relationship is being utilized to justify or conceal a wrongful or unjust act or purpose or to thwart some recognized and supervening public policy. There is no evidence in the present record that the related corporations were created or presently exist for other than legitimate purposes. . . .

It will be noted that in the above case the respondent after creating separate corporations was attempting to ignore the separate corporate structures and take advantage of the benefits of separate incorporation on one hand and at the same time retain advantages as though it was a separate entity. This case is somewhat distinguishable from the case at bar, in that in the case at bar it is not the respondent which has created the separate entities which are seeking to have them declared a single entity, but it is the complainant which is seeking to have them treated as though they were a single entity.

In the case of Secretary v. Bob McCaslin Steel Erection Company, 18 OSAHRC 826 (1975), Judge Risteau held where companies are jointly owned, public policy requires that employees of one corporation be treated as employees of the other. This case was reviewed by the Review Commission at a time when there were only two Commissioners on the Commission, there being a vacancy as to the third Commissioner. The decision was affirmed by a one-to-one vote of the Commissioners. Since there was no majority, the affirmation does not constitute a precedent of the Review Commission.

In the case of Secretary v. Alprey Electric Company & Craft Construction Company, 11 OSAHRC 227, 232, 233–234 (1974), appeal docketed, No. 74–2181, 4th Cir., October 29, 1974, Judge Duvall held:

‘Specifically, Urban argues that complainant did not issue the three citations ‘to the employer’ since Urban Developers, Inc., to whom the citations were issued, it a separate legal entity unconnected with the respondent, Urban Builders, Inc. . . .

‘In reviewing the adequacy of the original notice, the fairness of the while procedure is the principal consideration. See Davis, Administrative Law Treatise, sec. 8.04, p. 523, 525. Here the record shows that Urban’s President, Mr. Hoffman, personally and through his superintendent, Mr. Gester, was aware of the inspection (Tr. 35–36). Subsequent to issuance of the citation but before Urban contested, Mr. Hoffman attended an informal conference with complainant’s representatives to discuss the alleged violations (Stipulation paragraph 2, Tr. 13–14). Following the opportunity to review the citation with the OSHA Area Director, Mr. Hoffman signed the notice of contest letter dated September 12, 1973, as President, Urban Builders, Inc. In these circumstances, where there is no substantial evidence that the misdirected citation prejudiced the respondent (Urban Buildings, Inc.), I would deem said citation to have been constructively amended by the subsequent complaint which was properly directed to respondent Urban. See Commission Rules of Procedure, Rule 33(a)(3).

Such amendment would conform to the evidence and subserve the presentation of the merits of the action without prejudicing respondent Urban’s defense on the merits. Federal Rules of Civil Procedure, Rule 15. Indeed, an amendment changing the party against whom a claim is asserted relates back if the defense asserted arose out of conduct set forth in the original pleading and within the period provided by law for commencing the action against respondent, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining 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 would have 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 the citations and notification of proposed penalties be amended by adding Al J. Schneider Company, Inc. and Al J. Schneider and Associates, Inc. as named employer respondents. The stipulation was made subject to respondent’s retention of the right to move to strike upon conclusion of the trial. Respondent did move for dismissal of the citations on the ground that evidence of the record did not establish them as employers of any employee affected by the alleged violations.

The Review Commission stated (7 OSAHRC at 529):

. . . Employees were switched as needed between all three corporations and the building projects. There was one superintendent for both projects, and he did not know which corporation employed him. There was one engineer for both projects, and he was employed by Schneider and Associates. The Judge’s findings are fully supported by the record. Accordingly, his conclusion that the three named companies operated as a joint enterprise in constructing the Louisville Trust Building was correct, and it was therefore proper for all three to be named in the citations and notification of proposed penalties.

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 the plaintiff moved to amend by substituting a second corporation for the first corporation as the party sought to be joined, the motion should have been granted in view of the fact that the companies had identical organizers, officers, directors and offices; and there was no question that the defendant knew or should have known of the mistake from the beginning; and, but for a mistake concerning the identity of the proper party, the action would have been brought against it. It was stated that it was obvious to the party to be joined that 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 was therefore held that plaintiff had satisfied the requirements of Rule 15(c). In said case the statute of limitations had run and the court held that the motion to amend would relate back to the date of the filing of the original complaint.

In light of the above decisions, it would appear that the motion to amend should be granted, and the motion to dismiss the case should be denied.

All of the stock in the corporation was owned by the same persons who were partners in the partnership. Offices were in the same place. Business was conducted out of the same place for both entities. The same secretary performed secretarial duties for both companies. One company, according to Mr. Deese, probably paid the secretary for services rendered both companies. Texas Meat Packers Corporation was created so as to give a retail outlet for the partnership. All credit references for both companies are handled through the partnership. All equipment is purchased by the partnership. It would appear from the above facts that the companies are completely interrelated. It will further be noted that the compliance officer testified that Mr. Young, an executive of Central Meat Company who accompanied him at the beginning of the inspection, told him in answer 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 the respondent’s executive. Furthermore, Mr. Deese testified that he understood from the beginning the nature of the allegations and the precise work against which it was directed. He stated that the confusion in names was something that only actually occurred to him on the day of the hearing. There is no indication of any prejudice, nor that the Central Meat Company failed to completely prepare its defense for the hearing. In view of the interlocking ownership and operation of the two entities, the fact that the complainant was perhaps inadvertently misled by the respondent and the admission by the respondent that it was in no way misled by the error in the name of Texas Meat Packers Corporation as respondent, the companies should be treated as a single respondent, the motion to dismiss should be denied, and the motion to amend should be allowed.

HISTORY OF THE CASE

The respondent’s contest of citation stated:

This Letter is to inform you that we, Texas Meat Packers Corp., are contesting the following penalties. . . .

At the hearing of this cause, Mr. Sam Deese, vice-president of respondent who filed the notice of contest, stated that he did not understand the legal distinction between the word ‘penalty’ and the contesting of the merits of the citation, and that it was his full intention to contest the citation on the merits as well as the penalties. The answer of the respondent contested the alleged violations as well as the penalties.

At the hearing of the cause, this Judge held that the notice of contest was unambiguous and plainly referred only to penalties and not to a contest of the violation itself and, therefore, held that the only issue was the issue as to whether penalties should be assessed and, if so, in what amounts. Subsequently, this Judge became aware of the case of Secretary v. William W. Turnbull, d/b/a Turnbull Millwork Co., —— OSAHRC —— (DOCKET NO. 7413, Dec. 15, 1975). Said case held that if a pro se respondent creditably testified that he misunderstood the use of the word ‘penalties,’ and it was his intention to contest the violation as well as the penalties, a contest of the violation would be allowed, notwitstanding the fact that the word ‘penalties’ was used in the contest of citation. In view of this decision which appears controlling, an order was entered January 12, 1976, holding that the previous decision that the issues were restricted to penalties was in error, and that whether violations have occurred was also at issue. The case was reopened for the purpose of taking additional evidence in view of said ruling. Subsequent to entering said order, both parties advised the Judge that they did not desire to present any further evidence, but preferred that the case be determined on the evidence already received. No further hearing was therefore held.

EVIDENCE AND DETERMINATION OF THE CASE ON THE MERITS

It was testified by Mr. Deese that respondent purchases meat from throughout the country (Tr. 15). Respondent is therefore engaged in interstate commerce and is within the jurisdiction of the Act.

As above stated, it was alleged that the respondent violated 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 dry condition, in that pieces of meat and fat were on the floor, creating a slipping hazard.

Mr. Francis L. Silverberg, compliance officer, stated that he inspected the meat processing plant (Tr. 34). He found there were pieces of meat and fat on the floor in the cutting area. Exhibit C–1 was introduced 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 but did not remove the condition (Tr. 39). The area was in the regular work area where cutting and sawing operations were taking place. Employees were traveling to the shower and locker room area and passing through it (Tr. 39). There is cutting, boning and sawing performed in this area; portioning and packing machines are also used in the area (Tr. 40). There are only two employees working in said vicinity (Tr. 40). According to Mr. Silverberg, if a person falls, he could hit his head on the metal cornertops of edges. Mr. Silverberg said that Mr. Deese admitted at the time of inspection that they had a problem with employees keeping meat and fat off the floor. Mr. Deese testified at the hearing that some butchers become very careless, dropping little crumbs, pieces of fat and similar objects. They will fall on the floor and accumulate. Even when scraped up, they will still leave a little film on the floor. They put salt down for traction to take care of this (Tr. 123). Mr. Silverberg stated he had never seen any meat plant which was perfectly clean (Tr. 70). He stated it is next to impossible for any meat processing plant not to drop meat and fat on the floor (Tr. 72).

Mr. Deese testified that it is impossible not to drop some pieces of meat and other objects on the floor. He stated 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 he does 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 down an average of a half dozen times a day. They are not permitted to use anything else because it would contaminate the meat (Tr. 123). The area becomes wet to some extent because of ice on the chickens. It is impossible to prevent having some dripping (Tr. 124). The wrapping area is six inches higher than the rest of 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 is impossible to accomplish absolute cleanliness. There would of necessity be some dropping on the floor. A slippery condition apparently existed at the time of the inspection, and every effort should be made to avoid a slippery condition on the floors which could result in employee injury. It would appear, however, that the respondent has made an extremely diligent effort to have good housekeeping in its plant. An employee spends his entire time in cleaning the floor and putting down salt to prevent a hazardous condition due to any substance being on the floor. In view of the small number of employees and the small size of the plant, having one employee work full time at such a task would appear to be a substantial effort by the respondent. The respondent testified that salt is put down a half dozen times a day, and there is a complete cleaning of the floor every two to four hours. The other employees are also given salt for their use if a slick condition develops. It would appear that the respondent has made as much effort to keep a safe floor as could reasonably be expected.

At the time of inspection, there was a total of not more than five or six employees working for the respondent, one of them being the man whose total time was spent in cleaning the floor, and otherwise making it safe. It would appear to be a rather substantial ratio of work hours devoted to safety. At the time of inspection, respondent only had three meatcutters. At the present time, the respondent has four or five meatcutters and two cleanup men (Tr. 19, 20).

Some brief periods of time when the floor may be slick and in need of attention would be almost impossible to avoid. Complainant has not, therefore, sustained its burden insofar as said allegations are concerned, and said allegations should be dismissed.

It is also alleged that respondent violated standard 29 C.F.R. 1910.36(b)(4) and 29 C.F.R. 1910.36(b)(8), in that the three exits located at the west end of the building were locked, thus providing only one means of egress at the east end for all employees of cooler, staging, cutting and dressing room areas.

Standard 29 C.F.R. 1910.36(b)(4) is as follows:

‘In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.’

Mr. Silverberg testified that exits on the west side of the building were padlocked, thus providing no means of egress at the east end for employees in the coolers, cutting and dressing room areas. There was only one open door to get out of the entire building (Tr. 46, 47). This door was on the east side (Tr. 47). The building is approximately 60 by 30 feet in dimension. The west part, which is the back part, was partitioned by a wall from the front part. Doorways in the building lead to the front part, the office being in the front part of the building (Tr. 47, 48). Insulating material covered a large part of the wall in the egress area, which constituted a 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, it would 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, there was no way to get out. If there was a fire east of the door, which was locked at the west end, it would block people from going over the cutting and staging areas, and they would have no way out (Tr. 53).

The door in the west section which was padlocked led to the refrigerated walk-in cooler. It was not a processing area, but was a working area in the sense that people went in and moved beef and materials from there to the processing area (Tr. 74, 75). Mr. Silverberg stated he would not expect anyone to have doors open in a freezer area (Tr. 75). He stated that Mr. Deese admitted at the time of inspection that the three rear doors were locked for security purposes (Tr. 76). When he went out to the compressor area, he went through a door which had to be unlocked with a key (Tr. 76).

Mr. Deese testified that there is one exit on the west side, but claimed it only had a bolt on it which could slide back and denied that it was locked and had to be opened with a key (Tr. 117).

Mr. Silverberg reiterated on rebuttal, however, that the compressor room door was locked and had to be unlocked with a key. He was on his way to inspect the compressor area. Mr. Young unlocked the door for him.

Mr. Deese testified that there were three rear doors and two front doors, one of the front doors now having been eliminated (Tr. 121, 122). There was an exit on the west side, the one leading to the compressor, the one on which Mr. Deese maintained there was a bolt; the other two doors on the west side led to the cooler. He stated that they were locked, but no one worked there (Tr. 117). The doors opened to the loading docks (Tr. 117). It was necessary to keep them locked because, if they did not, someone from the outside could come in and steal the meat (Tr. 118). The frozen meat is kept there. It is possible to enter the freezer from both inside and outside. He stated that someone could steal from either direction (Tr. 119). He maintained that he showed the compliance officer the bolt on the door, and he (Mr. Deese) slid the bolt over and walked out of the door. He admitted there is another lock there (Tr. 139). He stated the first he had heard that said door was locked was at the hearing (Tr. 40).

Testimony of Mr. Silverberg and Mr. Deese as to whether the door leading to the compressor room was only bolted from the inside or whether it was locked in such a manner that a key had to be inserted is not necessarily contradictory. Mr. Young accompanied Mr. Silverberg at the first part of the inspection, and Mr. Deese accompanied Mr. Silverberg on only part of the inspection. It would seem that what happened is that Mr. Silverberg found the door locked when only Mr. Young accompanied him, and at that time it was necessary for Mr. Young to insert a key in order to exit the door. Mr. Silverberg must have subsequently gone through the door in company with Mr. Deese, at which time 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 key apparently was a surprise to Mr. Deese. The fact remains that the weight of the evidence is to the effect that the door was locked, 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 the rear of the building, the standard was violated by said door being locked.

Mr. Young is a supervisor of the company and even if having the door locked was contrary to Mr. Deese’s instructions, Mr. Young, as production manager, is far enough up the hierarchy to act on behalf of the respondent. Respondent must, therefore, be held responsible for the door being locked, in violation of the standard.

The situation is quite different, however, as to the other two west end doors. Both of said doors led to the freezer room and were not used for the purpose of exiting the property. None of the doors had an exit sign over them. the only purpose of the outside door leading to the freezer was to bring meat from the trucks into the freezer room. The only purpose of the inside door was to go into the freezer room to remove the meat for processing from inside the building. It was apparently never contemplated that the freezer would be used as a passageway or as a means of exiting the building. The doors leading to the freezer, therefore, would not come under the definition of the word ‘exit’ as said term is used in the standard. A respondent should have a right to secure its valuable property. To leave a door unlocked at a point where employees were not constantly working, which door leads only into the freezer, would be an open invitation to any person desiring a side of meat to go 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 the amount of $70 was proposed as a result of the doors being locked. Although the complainant contended that the respondent was in violation in having all three doors locked, and it is held that the respondent was in violation only of having one door locked, this does not reduce the hazard to the employees. The inflammable material on the walls which burned instantaneously when tested increased the fire hazard; and according to the testimony, employees could very well have been trapped by only being able to use the front door or doors. The proposed penalty in the amount of $70, therefore, appears to be proper.

It was alleged that respondent violated standard 29 C.F.R. 1910.212(a)(3)(ii), in that the blades of two bandsaws in the cutting room were inadequately guarded, because guide guards could not be lowered enough to protect the unused portions of the blades between the tables and the guides.

Standard 29 C.F.R. 1910.212(a)(3)(ii) is as follows:

‘The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.’

Mr. Silverberg testified that there were two bandsaws in the cutting area. The guides would not come all the way down to thin portions of 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 actual measurement (Tr. 54). He observed employees cutting meat at the table. An employee was cutting a portion approximately an inch and a half thick, lying flat on the table and the bandsaw with the guides only came within five inches from 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 a saw-toothed blade (Tr. 54). Mr. Silverberg stated an employee could lose several fingers or suffer even worse injury (Tr. 55). He stated that if an employee was cutting a thick piece of meat and there were five inches of saw blade exposed, if he was pushing on the meat, he could get his hand into the saw. If the guide guard would slip down in position very close to the surface of the material being cut, the guide would prevent the employee from getting his hand into the exposed blade area (Tr. 70). If the machine only cut meat of five to eight inches in thickness, it would be satisfactory. He stated it would be impossible to lower the saw on a pork loin as it might go from eight inches at one end to three inches at another.

Mr. Deese testified that they have 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 none had a guard that went all the way down to the table. He checked manufacturers and 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 14 pounds, 14 to 17 pounds, 17 to 20 pounds and 20 pounds and up (Tr. 126). According to Mr. Deese, the main purpose of the guard on the meat saws is not to protect the hand, because if at any time an employee is pushing a piece of meat and it slips going into the saw, his hand would hit the saw, even if there was only a half-inch area (Tr. 127). If a blade guide is raised too much, the blade becomes flexible and will not cut straight. The main reason they use a guide is to stabilize the blade, rather than protect themselves. 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 that are not adaptable to the lowering of the guard on the saw. Pork loin, for example, will vary in size perhaps being 8 inches at one end and 3 inches at the other. It does not follow, however, that a lowered blade would not be an added safety device as to other more even cuts of meat. The meat being cut at the time of inspection was only an inch and a half thick and apparently was the type of meat which was conducive to the lowering of the guard. The fact that an employee could not be protected in all situations by having a guard which meets the requirements of the standard does not mean that an employee should not be protected 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 a single piece of meat which may be eight inches thick at one end and three inches at the other. It is required that a respondent use a guard which may be lowered on those cuts of meat which are even enough to permit such action to be taken. The respondent testified that a diligent search had failed to reveal a machine on which a guard could be so lowered. If such machine is not ordinarily manufactured, the respondent should have one custom-built to conform to the standard. The fact that the use of such a guard is not common in the industry does not constitute a defense for the respondent. The fact that the industry as a whole does not conform to the standard and does not adopt the safest possible practice 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 the standards, if possible. It would appear that as to certain cuts of meat, it is possible to use a safeguard insofar as the standard is concerned. The allegations of the complaint as to violation of said standard, therefore, have been sustained. Due to the difficulty of securing a proper guard, the abatement date should be extended to August 1, 1976.

The proposed penalty of $35 is justified in view of the risk to the hands of the employees.

It was also alleged that respondent violated the National Electrical 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 in the staging area.

Mr. Silverberg testified that the tying machine had a male attachment plug on the cord which would plug into the available receptacle, but the grounding lug was broken off of the male attachment plug, which rendered it in an ungrounded condition. He stated this would cause electrical shock or electrocution (Tr. 56).

Mr. Deese testified that the tying machine must have been brought into the plant for a tryout because he did not even know they had one (Tr. 127, 128).

It would appear that the allegations of violation in this regard have been sustained. The evidence of the complainant is to the effect that there was improper grounding, which could have resulted in shock or electrocution. Mr. Deese did not deny that this was true but merely stated that he was not aware that the machine was even there and, therefore, was not aware of its condition. He stated that it must have been brought in temporarily for a tryout. The fact that it was being used temporarily would, of course, not mean that the respondent was in compliance with the Act if its employees were subjected to a hazard because of use of the machine. The evidence of the complainant is uncontradicted; and, therefore, the complainant’s allegations have been sustained.

It was alleged that the respondent violated the National Electrical 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 machines were provided with electrical current to operate by the household-type wire extension cords. The respondent did not provide effective grounding for these units, and employees using them would be subject to electric shock hazards. There was no ground connection (Tr. 56, 57).

Mr. Deese stated that he did not know whether there was grounding on the two superwrapper machines at the wrapping station. He stated they have plugs into which the connection is made. All are directly under the plug put there especially for that purpose. Mr. Deese stated that it could have been done in the manner testified to by Mr. Silverberg. He stated he was not going to say that it was impossible for that to have happened (Tr. 128).

The complainant’s evidence establishes that there was improper grounding of the cords connecting said machine. This testimony is not contradicted, and Mr. Deese testified it could have happened. Therefore, the complainant’s allegations have been sustained.

It was alleged that respondent violated the National Electrical 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 meatcutting room, which had exposed noncurrent-carrying parts where the working surface was wet.

Mr. Silverberg testified that the Hollymatic machine was serviced electrically by another household-type extension cord. It was not grounded. He stated that a grounded piece of equipment, if serviced by a proper three-wire cord, would have been correct (Tr. 60).

Mr. Deese testified that it did have ungrounded wire but stated it was not plugged into the wall. One of the employees, according to Mr. Deese, had picked up a wire there, but Mr. Deese did not know how it got into the plant. He stated there were a couple of little short extension cords around. The cord was hooked to the machine, but not plugged into the wall (Tr. 128). He testified that he was not saying that the Hollymatic machine was not used that day, simply that it was not plugged in at the time of inspection. According to Mr. Deese, it could have been plugged in earlier (Tr. 140).

Mr. Silverberg, on rebuttal testimony, stated that he discussed 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 ungrounded cord (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 not connected. He admitted, however, that it could have been used earlier in the morning, so it was apparently provided by the respondent for the purpose of being used. To provide a machine for the purpose of being used, which machine is in an unsafe condition, does not conform to the standard and is a violation of the Act. It is not necessary to wait until an employee uses the machine and is 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 without proper grounding. The evidence was not objected to on the ground of hearsay. The new Federal Codified Rules of Evidence provide that a statement offered against a party by his agent or servant concerning a matter within the scope of his agency or employment made during the existence of the relationship is not hearsay testimony (Rule 801). Said evidence may therefore be received and considered. The complaint, in view of the above facts, has been sustained as to allegations of said violation.

A penalty in the amount of $60 was proposed for all three of 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 there are three separate violations, and that any of them could conceivably have caused electrocution of an employee, the proposed penalty of $60 is certainly minimal, and the full amount of said proposed penalty should be assessed.

Mr. Silverberg testified that in the area there were panel boxes with exposed parts. The covers were either missing or open. There were also three of them in the maintenance shop or storage room area. All of these were accessible to contact by employees. There could be serious electrical shock or possibly electrocution (Tr. 62). There was a gravity-type metal conveyor in the compressor room which presented a tripping hazard. It could cause someone to fall into the boxes (Tr. 63).

Mr. Deese testified that the panel boxes were not covered because they were being repaired at the time of inspection. He stated that he told Mr. Silverberg at the time of inspection that they had an electrical breakdown and had to replace all of the panel boxes. There was breakdown of an electrical circuit box. They put a new circuit box in the old system, and the motors had to be rewired back into the circuit box. The electrician was working on them at the time of inspection. He still had some of the material laying there with which he had been working. He had not 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 electrical system, getting the time clocks, boxes and so forth together (Tr. 130). The electrician was in the building during inspection (Tr. 136, 137).

It certainly is important that employees by protected against electrical hazard, and every precaution should be taken to see that employees 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 record is devoid of evidence as to how long a time the covers had been off of the boxes, as to how much time and effort would be required to place them on the boxes, as to where in the plant the electrician was and what he was doing at the time of inspection, as to how long it had been since he had worked on the boxes and when he would work on the boxes again. It is also not established whether it was necessary for the tops to be off all of the boxes at the same time.

The allegation of the respondent that the tops were not on the boxes because necessary repairs were being made is an affirmative defense. It is necessary for the party raising the affirmative defense to carry the burden of going forward with the evidence and establishing all facts necessary to make that defense. If the electrician was not working on the boxes for a period of several hours or if it was not necessary for the tops to be off all of the boxes while he was working, it would not be an adequate defense to say that the electrician was performing work relating to the boxes on the day of 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 be sustained. In the absence of evidence clarifying these points, the respondent has not carried the burden of establishing that it was necessary for the tops to be off of the boxes and to establish that the standard, therefore, has not been violated. The hazard to the employees certainly remained, irrespective of the reason for the tops not being on the boxes, and it is necessary to show that the respondent had no real choice in order to sustain respondent’s position. Complainant has made out a prima facie case, and the respondent admits the tops were not on the boxes. The affirmative defense not having been adequately established, the complainant’s allegations of violation have been sustained. The proposed penalty of $40 is proper in view of the danger of shock to employees.

FINDINGS OF FACT

1. Respondent Central Meat Company owns and operates a meat processing plant in which all of the allegations of violation are alleged to have occurred.

2. The Central Meat Company is a partnership, Texas Meat Packers Corporation is a corporation which is a retail outlet for products of the Central Meat Company.

3. Texas Meat Packers Corporation purchases unprocessed meat from companies other than Central Meat Company but purchases all of its processed meat from Central Meat Company.

4. All of the stockholders of Texas Meat Company are the same 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 for both companies is done by the same persons at the same location.

6. At the time of inspection, the compliance officer of the complainant making said inspection was told by an executive of the respondent, Central Neat Company, that the correct name of the processing plant was Texas Meat Packers Corporation.

7. The complaint was issued against Texas Meat Packers Corporation and not against Central Meat Company.

8. The complainant subsequent to the hearing filed a motion to amend so as to reflect the correct name of the respondent as Central Meat Company.

9. Central Meat Company purchases a large part of its meat from points beyond the State of Florida and is engaged in a business affecting interstate commerce.

10. On or about September 2, 1975, there was some meat on the floor of the cutting room, and the floor in said area was in a slippery condition at the time of inspection.

11. The respondent, who employed only five of six people at the time of the inspection, employed one employee who worked full time at keeping the floor clean and free from hazards.

12. The floor was cleaned at a two to four hour frequency.

13. Salt was frequently poured on the floor to prevent a slipping hazard.

14. It is impossible to completely prevent meat from falling on the floor and to completely prevent a slippery condition from temporarily arising.

15. The respondent’s building was 60 by 30 feet in dimensions, and there were three exits on the west and rear ends of the building and two exits on the front of the building.

16. Two of the exits on the west end of the building entered the freezer room area in which the meat of the respondent was stored.

17. The entrances to the freezer room were not exits from which employees were to enter and leave the premises, but were places through which delivery of the meat could be made from the exterior of the building and could 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 freezer room locked to prevent theft of the meat.

19. The respondent at the time of inspection maintained the exit from the compressor room on the west end of the premises in a locked condition, and it was necessary to unlock it with a key.

20. Part of the building had a very inflammable substance on the walls which increased hazard in case of fire.

21. There would have been a substantial hazard of employees working in certain parts of the building being trapped by fire with no 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 other having it at an eight-inch level. Said guards could not be adjusted downward to shorten said distance.

23. Some of the meat processed by the respondent was uneven 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 adjustable guard could have been adjusted to a level just above the meat and the meat still be properly processed.

24. There was a hazard of employees’ hands going into the saw in the area between the guard and the base of the saw, thereby causing possible loss of fingers or suffering more severe injury.

25. Respondent on said date maintained a tying machine in the staging area which had ungrounded cords and plugs.

26. The respondent on said date maintained two superwrapper machines at the wrapping station, which had ungrounded cords and plugs.

27. The respondent on said date had a Hollymatic portioning machine in the meatcutting room which had exposed noncurrent-carrying metal parts and had ungrounded cords and plugs. The working surface in said area was wet.

28. The Hollymatic machine was not plugged in at the time of inspection but had been used on or about said date without the proper grounding of the cord.

29. On said date, the respondent had five panel boxes in the 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 as part of electrical repair, but the record does not establish whether it was necessary for all of the tops of said boxes to be removed at one time and does not establish the length of time that tops remained off said boxes.

CONCLUSIONS OF LAW

1. In light of the fact that the respondent was misled by an executive of Central Meat Company as to the correct name of the respondent, and the interlocking ownership, operation and control of Texas Meat Packers Corporation and Central Meat Company, motion to amend the citation and complaint so as to reflect the respondent as Central Meat Company, rather than Texas Meat Packers Corporation should be granted.

2. The respondent Central Meat Company is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational 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 room was not maintained in a clean and dry condition, have not been sustained and should be dismissed.

4. The respondent on or about September 2, 1975, was in violation of standard 29 C.F.R. 1910.36(b)(4) and 29 C.F.R. 1910.36(b)(8), in that the door on the west and of the building leading to the compressor room was 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 not been sustained and should be dismissed.

6. Respondent on or about September 2, 1975, violated standard 29 C.F.R. 1910.212(a)(3)(ii), in that the blades of two bandsaws in the cutting room were inadequately guarded.

7. The respondent on or about September 2, 1975, violated the National Electrical 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 in the staging area, two superwrapper machines in the wrapping station and the Hollymatic portioning machine in the meatcutting room.

8. Respondent on or about September 2, 1975, violated the 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 and three in the storage room were not covered, exposing live parts to accidental contact.

ORDER

It is therefore ORDERED that:

Motion to dismiss on the ground that the complainant filed the citation and complaint against Texas Meat Packers Corporation, whereas the proper respondent was Central Meat Company, is denied.

The motion to amend the citation and complaint so as to reflect the respondent as Central Meat Company, rather than Texas Meat Packers Corporation is granted.

The allegation of violation of standard 29 C.F.R. 1910.22(a)(2), in that the respondent’s meatcutting room was not maintained in a clean and dry condition, are dismissed.

The allegations that respondent violated standard 29 C.F.R. 1910.36(b)(4), in that the doors leading to the freezer room were locked, are dismissed.

The allegations that respondent violated standard 29 C.F.R. 1910.36(b)(4), in that the door to the compressor room on the west end of the building was locked, are affirmed. A penalty in the amount of $70 is assessed. The proposed abatement date is affirmed.

The respondent on or about September 2, 1975, violated standard 29 C.F.R. 1910.212(a)(3)(ii), in that the blades of two bandsaws in the cutting room were inadequately guarded. A penalty in the amount of $35 is assessed. The abatement date is August 1, 1976.

The respondent on or about September 2, 1975, violated the National Electrical 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 in the staging area, two superwrapper machines at wrapping station and the Hollymatic portioning machine in the meatcutting room. A penalty in the amount of $60 is assessed for said violations. The proposed abatement date is affirmed.

The respondent on or about September 2, 1975, violated the 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 said violation. The proposed abatement date is affirmed.

On or about September 2, 1975, the respondent violated the 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 is assessed for said violation. The proposed abatement date is affirmed.

Dated this 15th day of July 1976.

JOHN S. PATTON

Judge