UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 11745 & 11767
GRAND UNION COMPANY,
Respondent.

February 5, 1976

DECISION

BEFORE BARNAKO, Chairman, MORAN and CLEARY, Commissioners.

MORAN, Commissioner:

A decision of Review Commission Judge Henry K. Osterman, dated July 31, 1975, is before this Commission for review pursuant to 29 U.S.C. § 661(i). That decision held that in each of these consolidated cases the respondent failed to comply with the occupational safety and health standard codified at 29 C.F.R. § 1910.132(a) in that its retail store butchers were not protected by wire mesh gloves.

In Secretary v. Grand Union Company, 20 OSAHRC —— (Docket Nos. 7533 & 7031, October 28, 1975), a divided Commission held that 29 C.F.R. § 1910.132(a) does not require retail store butchers to wear wire mesh gloves while cutting meat. That decision is dispositive of the instant cases.

Accordingly, the Judge’s decision is reversed and the citations for violations of 29 C.F.R. § 1910.132(a) are vacated.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: FEB 5, 1976

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 11745 & 11767
GRAND UNION COMPANY,
Respondent.

July 31, 1975

APPEARANCES:

Albert H. Ross, Regional Solicitor U.S. Department of Labor, Boston, Massachusetts by Joan Entmacher, Esq. for the Secretary of Labor

Stephen Auditore, Esq. Grand Union Company for Respondent

DECISION AND ORDER

The above-numbered matters were initiated by the filing of separate Notices of Contest by Respondent following the issuance of separate Citations charging the Respondent with violations of health and safety standards issued by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereafter the Act).

The record in Docket No. 11745 shows that on December 19, 1974 subsequent to an inspection of Respondent’s retail store located on Grove Street, Peterborough, New Hampshire, Respondent was issued a Citation charging eleven (11) separate non-serious violations of the Secretary’s standards. A total of $75 in penalties was proposed for these alleged violations. Thereafter Respondent filed a Notice of Contest challenging only one of the alleged violations; i.e., the allegation that Respondent was in violation of 29 C.F.R. § 1910.132(a) [Failure to provide protective hand equipment (mesh gloves) for the use of retail meat-cutters].

The record in Docket No. 11767 discloses that on December 26, 1974 after an inspection of Respondent’s retail store located on Daniel Webster Highway, Allenstown, New Hampshire, Respondent was issued a Citation charging thirteen (13) non-serious violations. The total penalty proposed was the sum of $60. Respondent’s Notice of Contest challenged only Item 5 of the Citation which alleged a violation of 29 C.F.R. § 1910.132(a). 132(a). In both cases herein penalties were not proposed for the items challenged by the Respondent. In both cases those items of the Citations not challenged by Respondent’s Notices of Contest have become the final order of this Commission by operation of law.

Separate hearings in these matters were held in Boston on March 28, 1975. At the hearings it was stipulated inter alia, in each case, that the testimony of four witnesses given on February 5, 1974 in the matter of Secretary of Labor v. The Grand Union Company, Docket No. 10813 before Judge David Knight shall be applicable to the matters herein (Jt. Exh. 1). The testimony of these four witnesses is crucial to a determination of the cases at bar.

The testimony of Wayne Holbrook a meat-cutter in Respondent’s Greenfield, Massachusetts store indicated that he cuts various types of meat for a variety of cuts required by customers; that he uses knives which necessarily are tapered and sharp; and that he has suffered a number of injuries on his unprotected hand while boning meat, some of which required medical attention (Tr. No. 10813—26–46).

Robert Kazakiewich a former meat-cutter in Respondent’s Greenfield, Massachusetts store testified that he also suffered several injuries to his unprotected hand while boning and cutting meat. Not all of his injuries were reported (Tr. No. 10813—57–59).

Roger Branowicki, a director of meat operations for another chain of supermarkets, testified that since June 1973 his organization has made it compulsory for meat-cutters to use 3-fingered mesh gloves to protect the hand which does not wield the cutting knife. As a result of this policy injuries to meat-cutters have been eliminated in the past two years (Tr. No. 10813—90–103). This witness also testified that the use of mesh gloves has not interfered with the efficiency of the meat-cutters using this device (Tr. No. 10813—98).

Jack Calderone the national meat salesman for the Respondent stated that although he was not familiar with the record of injuries sustained by Respondent’s meat-cutters he believed that the use of mesh gloves in a retail operation was not practicable (Tr. No. 10813—132–134).

In my view the evidence incorporated herein clearly establishes the need for some type of protective hand equipment for use by meat-cutters. A mesh glove worn on the hand which holds the meat would clearly eliminate or diminish substantially those injuries which result when a knife slips in a meat-cutting operation. I conclude, therefore, that in each case the Respondent was in violation of 29 C.F.R. §1910.132(a) for failure to provide protective equipment on the respective dates of inspection.

ORDER

1. The Citation issued to Respondent on December 19, 1974 relating to Respondent’s store located on Grove Street, Peterborough, New Hampshire, [Docket No. 11745] is AFFIRMED. of 29 C.F.R. § 1910.132(a) for failure Respondent on December 26, 1974 relating to Respondent’s store located on Daniel Webster Highway, Allenstown, New Hampshire, [Docket No. 11767] is AFFIRMED.

HENRY K. OSTERMAN

Judge, OSAHRC

Dated: July 31, 1975

Hyattsville, Maryland