George A. Hormel and Company

Plain-English summary

Hormel asked the Commission to reconsider an earlier decision requiring guardrails on the carcass side of a shaving platform. The company argued that it had applied for a variance and that strict compliance would create a greater hazard. The Commission found that Hormel had not proved alternative fall-protection methods were unavailable. It also expected the Secretary of Labor to act promptly on the variance application and noted that any later failure-to-abate penalty could be contested. The Commission denied reconsideration, leaving the earlier order in place.

Decision snapshot

• Cited standard(s): None identified by number in this order.
• Outcome: The petition for reconsideration was denied.
• Key point: A greater-hazard defense failed because Hormel did not establish that alternative protective measures were unavailable.

Full text (OSHRC public release)

Docket No. 1410

GEORGE A. HORMEL AND COMPANY

OSHRC Docket No. 1410

Occupational Safety and Health Review Commission

October 21, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

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ORDER ON PETITION FOR RECONSIDERATION

VAN NAMEE, COMMISSIONER: Respondent George A. Hormel and Company (Hormel) petitions for reconsideration of our decision dated September 20, 1974.
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In support of its petition, Hormel states, contrary to our statement "[o]n the record, however, Hormel has not filed for a variance. . .," that it had in fact filed a variance application.
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It points out that Judge Wienman refused to receive a copy of the application in evidence, and that the Secretary refused to act on the application before termination of the enforcement proceeding.
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Accordingly, says Hormel, it is entitled to disposition in accordance with our decision in
Industrial Steel Erectors,

We cannot agree.
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The gravamen of Hormel's defense is that a greater hazard will exist if it must comply strictly according to the terms of the cited standard, i.e., by erecting guardrails on the carcass side of its shaving platform.
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We are not persuaded that a greater hazard will exist if Hormel uses alternate means to protect its employees from falls.
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Thus, this case differs [*2]
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from
Industrial Steel Erectors
in that Respondent there proved both the existence of a greater hazard and the unavailability of alternative protective means.

We are not unmindful of the predicament Hormel raises, i.e., that in the absence of action by the Secretary on the variance application it must erect guardrails under our order of suffer the consequences of a notification of daily penalties under 29 U.S.C. 659(b) and 666(d).
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We believe the predicament to be more imaginary than real.
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We would expect the Secretary to move rapidly on the variance application.
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If, on the other hand, he reinspects and issues a notice for failure to abate, we can
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determine whether an additional penalty is appropriate, assuming Hormel timely contests the notice. In determining whether an additional penalty would be appropriate we would look to see if the fall hazard still exists or whether it has been eliminated by any means of abatement.
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If there is no hazard there is no gravity to consider and the employer's good faith is demonstrated.

Accordingly, the petition for reconsideration is denied.
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DISSENTBY: MORAN

DISSENT:

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MORAN, CHAIRMAN, dissenting: I would grant the petition for reconsideration [*3]
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because the preceding opinion demonstrates even better than the petition itself the inequity which results from the decision issued by this Commission on September 20, 1974.

For the respondent to comply with the September 20th ruling, it must erect guardrails. To do so will create a condition which is more hazardous to its employees than the existing condition.
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The decision recognizes this -- but then goes on to say, in effect, "Don't worry about it -- maybe the Secretary will grant your variance request -- but even if he doesn't, we'll protect you if you contest his failure-to-abate action."

This to me is not justice under law.
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It's a plea to place your trust in the people who enforce the law to do what's right.
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It's totally in conflict with one of the basic precepts of our government: that ours is a government of laws -- not of men.

The Commission's action here creates a predicament for respondent that is real, not imaginary. If a notification for failure to abate is issued pursuant to 29 U.S.C. �
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659(b), respondent has no alternative but to once again proceed to trail.
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Expenses in time and money can be substantial as a result thereof.
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The decision in this case took more [*4]
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than two years to issue.
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If a failure-to-abate citation issues -- and takes a similar length of time to complete -- the costs will be high and we can give no assurance as to what our disposition might be as there is no guaranty any of us will be members of this Commission in the winter of 1976.

This further accentuates the absurdness of the Commission's original decision as well as its action on this petition.
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