Pilgrim's Pride Corporation

Plain-English summary

Pilgrim's Pride operated a chicken-processing plant where employees pushed wheeled carts through a hallway to a freezer. The hallway floor had numerous shallow depressions where its asphalt-like covering had cracked and flaked away. Judge Ken S. Welsch found that the alternative floor-cleaning standard did not apply because the condition was not shown to interfere with cleaning. He found that the aisle and passageway standard did apply because the hand-pushed cart was mechanical handling equipment and the damaged floor was not in good repair. The violation was other than serious because a tipping cart presented a risk of minor injury, but the shallow depressions and absence of prior injury did not support a penalty. The violation was affirmed with no penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.22(a)(3) and 1910.22(b)(1).
• Outcome: Other-than-serious violation of 29 C.F.R. § 1910.22(b)(1) affirmed, with no penalty.
• Key point: A hand-pushed cart qualified as mechanical handling equipment, so a passageway used by the cart had to be kept in good repair.

Full text (OSHRC public release)

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Secretary of Labor,
Complainant,

                          v.                                                     OSHRC Docket No. 98-1848

                                                                                        EZ

Pilgrim’s Pride Corporation,
Respondent,

United Food & Commercial Worker,
AFL-CIO-CLC, Local 540,
Authorized Employee
Respondent.
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APPEARANCES

Ernest A. Burford, Esq.                                  Levi G. McCathern, II, Esq.          Mr. Juan Gonzales
Office of the Solicitor                                   McCathern, Wadlington, Mooty, LLP       United Food & Commercial
U. S. Department of Labor                                Dallas, Texas                           Workers Union, AFL-CIO-CLC
Dallas, Texas                                                      For Respondent                 Dallas, Texas
       For Complainant                                                                                     For Employess

Before: Administrative Law Judge Ken S. Welsch

                                                               DECISION AND ORDER
           Pilgrim’s Pride Corporation (PPC) processes chickens in a plant in Lufkin, Texas. On

September 25, 1998, PPC received an “other” than serious citation after an inspection by the
Occupational Safety and Health Administration (OSHA). The citation alleges that PPC violated §
1910.22(b)(1), or in the alternative § 1910.22(a)(3), because a hallway floor had numerous
depressed areas caused by the cracking and flaking of the asphalt covering. The citation proposes
a $1,000 penalty. PPC timely contested the citation.
PPC requested and the case was designated for E-Z Trial proceedings pursuant to
Commission Rules of Procedure at § 2200.200, et. seq. Party status was granted to the United
Food & Commercial Workers, Local 540, as authorized employee representative. In a telephone
conference call on January 14, 1999, the parties stipulated coverage and identified the issues for
hearing (E-Z Trial Prehearing Conference Order; Tr. 6).
The E-Z Trial hearing was held on January 21, 1999, in Houston, Texas. PPC argues that
the cited standards did not apply; and, if applicable, there was no hazard. For the reasons stated,
a violation of § 1910.22(b)(1) is affirmed and no penalty is assessed.
Background
PPC’s chicken processing plant in Lufkin, Texas, has operated for more than 20 years (Tr.
116). The plant employs in excess of 1,000 employees and operates two shifts (Tr. 59). The
employees are members of the United Commercial and Food Workers Union, Local 540 (Tr. 5).
The plant’s general manager is Cecil Jackson (Tr. 10).
In the portion of the plant known as the Weldatron/Labeling department, the processed
chicken is packaged and labeled. Once packaged, the chickens are placed on trays in a steel-
framed cart (Tr. 12, 25). The cart is approximately five feet high and three feet square. It weighs
an estimated 200 pounds (Tr. 26). The cart sits on three-inch wheels at each corner and needs to
be pushed by an employee (Tr. 75-76). It is not self-propelled. When the cart is filled with
packaged chicken, an employee referred to as a blast tunnel feeder pushes the cart from the
Weldatron/Labeling department into a closed hallway for storage in the freezer (Exh. C-2; Tr.
61).
The hallway is approximately six to seven feet wide, twenty to thirty feet long, with an
eight to nine foot ceiling (Tr. 60). The freezer is on the right side of the hallway (Tr. 61). The
floor in the hallway consists of a cement foundation covered with a one-quarter inch asphalt-like
substance manufactured by Tuffco (Exhs. C-1, R-4; Tr. 62, 64-65). Because of the cold
temperature in the freezer and the dampness from the Weldatron/Labeling department, the
asphalt-like substance on the floor cracks and flakes off leaving shallow, depressed areas. PPC
recognizes the cracks in the asphalt as an ongoing problem (Exh. R-4).
On July 9, 1998, OSHA’s north Houston area office received a formal employee
complaint alleging six unsafe conditions at the PPC plant. The complaint included an allegation
that “in the Weldatron and Labeling Department there are pot holes on the floor. Employees
push meat racks (carts) over the floor which weigh over 700 pounds”1 (Exh R-1; Tr. 74).
After PPC refused to permit the inspection, OSHA sought and obtained an inspection

    1
     Although the complaint alleges the cart weighed 700 pounds, compliance officer Shelton estimated the

weight based on his observation at 200 pounds (Tr. 26).

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warrant (Tr. 12). With the inspection warrant, Safety and Health Compliance Officer James
Shelton on September 3, 1998, conducted a limited, complaint-based inspection of the plant (Tr.
11). The inspection took approximately three hours and did not confirm any of the complaint
items, except for the cracks in the hallway floor (Tr. 40, 59).
Shelton identified approximately fifteen to twenty shallow, depressed areas where the
asphalt-like substance on the hallway floor had cracked and flaked off. The depressed areas
ranged in size from two to three inches by six inches, to as large as twelve inches by a foot and a
half (Tr. 65-66). The depressions were shallow, measuring one-quarter inch deep (Tr. 64). On
the left side of the hallway, there was a three and half by six foot piece of one-eighth inch plastic
covering a few, but not all of the depressed areas (Exh. C-1; Tr. 66-67). Shelton testified that he
observed an employee pushing the cart through the depressed areas. He described the employee
as “being very careful” (Tr. 68). He did not see the cart hung up or stopped by the depressions.
After the OSHA inspection, PPC repaired the floor by patching the depressed areas on
September 5-6, 1998. On September 19, 1998, PPC also covered the entire hallway floor with a
steel casing (Tr. 100). PPC states that it spent in excess of $10,000 attempting to repair the
hallway floor (Tr. 47).

                                         Discussion
   The Secretary has the burden of proving a violation.
           In order to establish a violation of an occupational safety or health
           standard, the Secretary has the burden of proving: (a) the
           applicability of the cited standard, (b) the employer’s
           noncompliance with the standard’s terms, © employee access to the
           violative conditions, and (d) the employer’s actual or constructive
           knowledge of the violation (i.e., the employer either knew or, with
           the exercise of reasonable diligence could have known, of the
           violative conditions).

   The citation alleges that the condition of the hallway floor between the

Weldatron/Labeling department and freezer violated § 1910.22(b)(1), or in the alternative §
1910.22(a)(3). Section 1910.22(b)(1) provides that:

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Where mechanical handling equipment is used, sufficient safe
clearances shall be allowed for aisles, at loading docks, through
doorways and wherever turns or passage must be made. Aisles and
passageways shall be kept clear and in good repairs, with no
obstruction across or in aisles that could create a hazard.

In the alternative, Section 1910.22(a)(3) provides that:
To facilitate cleaning, every floor, working place, and passageway
shall be kept free from protruding nails, splinters, holes, or loose
boards.

                                     Alleged Violation

The Application of § 1910.22(a)(3) or § 1910.22(b)(1)
PPC argues that neither standard is applicable to the condition of the hallway floor. The
court agrees as to § 1910.22(a)(3) because there is no showing that the depressed areas in the
floor caused a problem in cleaning the hallway. However, § 1910.22(b)(1) is found applicable.
Section 1910.22(b)(1) requires that floors be kept in good repair. The hallway floor
between the Weldatron/Labeling department and the freezer had fifteen to twenty large depressed
areas caused by the flaking and cracking of the asphalt-like covering. PPC does not dispute the
condition of the floor. The floor was not in good repair. The metal cart used to transport the
packaged chickens to the freezer needs to regularly cross this floor. The cart is a mechanical
handling piece of equipment.
In applying a standard, the words must be interpreted in a reasonable manner consistent
with a common sense understanding. The words are to be viewed in context, not in isolation, and
judged in light of their application to the facts of the case. Ormet Corp., 14 BNA OSHC 2134-
2135 (No. 85-531, 1991).
Section 1910.22(b)(1) addresses “aisles and passageways,” such as the hallway at PPC,
and requires that they be kept clear and in good repair. The cart is “mechanical handling
equipment” because the metal cart is on wheels and is used to haul chickens to the freezer. The
cart needs to be pushed by an employee. As noted by the Secretary, Webster’s Seventh New
Collegiate Dictionary defines “mechanical” as (1) “of or relating to machinery or tools,” (2)
“produced or operated by a machine or tool,” (3) “of or relating to manual operations.” Based on
the broad definition of “mechanical,” the Review Commission has concluded that “mechanical
handling equipment” is not

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restricted to vehicles with motors but include hand trucks and barrel carts. Pratt & Whitney
Aircraft, 9 BNA OSHC 1653, 1662 (No. 13401, 1981).

Terms of § 1910.22(b)(1) Were Violated
Upon establishing the application of § 1910.22(b)(1), the issue is whether it was violated.
PPC does not dispute that the hallway floor was not free of numerous shallow depressed areas
caused by the loosening and cracking of the asphalt-like substance covering the floor. The
depressed areas were numerous and throughout the floor. According to Ronnie Harrison’s
affidavit, the floor is subject to temperatures between 42 degrees and minus 35 degrees (Exh. R-
4). The temperature variation and dampness in the area causes the asphalt covering to crack and
flake. The terms of § 1910.22(b)(1) were violated because the floor was uneven and not in good
repair. The cart had to regularly travel across the cracks and depressions to access the freezer.

PPC Knew the Condition of the Floor
PPC does not dispute that it was aware of the depressed areas in the floor caused by the
cracking and flaking of the asphalt covering. PPC acknowledges that the cracking is an ongoing
problem. According to maintenance manager Ron Harrison’s affidavit, the condition of the floor
was abated by placing a steel casing over the entire floor after the OSHA inspection (Exh. R-4).
The record does not show when the Tuffco flooring was installed or if ever replaced prior
to the OSHA inspection. Jackson told the compliance officer that PPC periodically patched the
floor (Tr. 42). However, compliance officer Shelton did not observe any areas that appeared to
be patched (Tr. 69). Other than considering that it was an ongoing problem, there is no evidence
of how long the depressed areas in the floor existed. It is reasonable to assume that the cracks
existed at least from July 9th when OSHA received the formal complaint to September 3rd when
OSHA conducted the inspection.

Employee Exposure
Six employees, referred to a blast tunnel feeders, regularly pushed the carts over the
depressed areas, the cracks and loosened asphalt. The compliance officer testified that the
employees had to carefully push the cart through these areas in the floor. The cart was subject to

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possible tipping from the wheels getting stuck or off-balance in the loosened asphalt and
depressed areas. The issue is not whether an accident is likely to occur. Whiting-Turner
Contracting Co., 13 BNA OSHC 2155, 2157 (No. 87-1238, 1989).

                              Other-Than-Serious Classification
    The condition of the hallway floor is cited as other-than-serious because the compliance

officer did not believe that an employee pushing the cart was exposed to serious injury or possibly
death. He testified that the employee was exposed to possible minor injury, such as lacerations
and bruises, from the cart falling over (Tr. 30). There is no evidence that an employee was
actually injured from a falling cart.
For an other-than-serious violation, there is a direct and immediate relationship between
the violative condition and occupational safety. However, unlike a serious violation, the
probability of death or serious physical injury does not exist. A de minimis violation, on the other
hand, “is one in which there is technical non-compliance with a standard but the departure from
the standard bears such a negligible relationship to employee safety and health as to render
inappropriate the assessment of a penalty or the entry of an abatement or order.” Keco Indus.,
Inc., 11 BNA OSHC 1832, 1834 (No. 81-1976, 1984). Also, Otis Elevator Co., 17 BNA OSHC
1167, 1168 (No. 90-2046, 1995) (a de minimis violation is one where the deviation from the cited
standard increases the risk of injury so slightly that the relationship of the violation to safety and
health was not direct or immediate).
Based on the record, an other-than-serious classification is appropriate. The loose asphalt
and depressed areas in the floor caused the employees pushing the cart to proceed cautiously
through the hallway. If the cart tipped over because of the loose asphalt or depressed areas, the
employee was exposed to a minor injury. The compliance officer observed an employee carefully
maneuvering the cart over the cracks in the floor (Tr. 68). The cart is tall and appears awkward
to push. To avoid tipping, it needs to be pushed easily and without obstruction.

                   Penalty Consideration for Violation of § 1910.22(b)(1)
    The Commission is the final arbiter of penalties in all contested cases. In determining an

appropriate penalty, the Commission is required to consider the size of the employer’s business,

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history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered. For an other-than-serious violation, section
17(c ) Occupational Safety and Health Act provides that a penalty “may” be assessed. It is not
mandatory.
PPC is a large employer with more than 1,000 employees (Tr. 59). There are only six
employees, however, identified for the two shifts who regularly push the carts to the freezer
(Tr. 22). Also, according to OSHA, PPC has received other citations in the past three years (Exh.
R-1). There is no evidence whether PPC has the appropriate written safety programs (Tr. 31).
Therefore, there is no showing that PPC is entitled to credit for size, history or good faith.
However, no penalty is shown as reasonable. In considering gravity, severity is not
evaluated because the violation is classified as other-than-serious. The record also does not
support the compliance officer’s classification of greater probability (Tr. 30). The depressed areas
were one-quarter inch deep. The compliance officer did not observe the cart hung up or stopped
by the cracks or loosened asphalt (Tr. 68). He did not see it bounce an unusual amount (Tr. 48).
There is no record of an employee injury caused by the cart or the floor. Also, the hallway floor
was the only item found unsafe from the formal complaint (Tr. 40). PPC recognized the problem
as ongoing and in the past attempted to patch the floor.

                               FINDINGS OF FACT AND
                               CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

                                          ORDER


   Based upon the foregoing decision, it is ORDERED that:

. Item 1, alleged violation of § 1910.22(b)(1), is affirmed and no penalty is assessed.

                                           KEN S. WELSCH
                                           Judge

Date: February 18, 1999

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