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Swift-Pork-OSHRC-Docket-No UNITED STATES OF AMERICA OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - : EDWARD C. HUGLER, Acting Secretary of : Labor, United States Department of Labor,1 : : Complainant, : : v. : : SWIFT PORK COMPANY, : OSHRC Docket No. 16-0510 and its successors, : : Respondent, : : UFCW, Local No. 431, : : Authorized Employee : Representative . : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE SECRETARY’S MEMORANDUM IN OPPOSITION TO RESPONDENT’S MOTION FOR SUMMARY JUDGMENT Complainant, EDWARD C. HUGLER, Acting Secretary of Labor, United States Department of Labor (“Secretary”), respectfully submits this response in opposition to Swift Pork Company’s Motion for Summary Judgment, filed January 27, 2017. In support thereof, the Secretary states as follows: INTRODUCTION This case arose from OSHA’s inspection of a Swift Pork Company (“Swift Pork”) plant in Beardstown, Illinois, on January 6, 2016, which revealed that Swift Pork violated 29 C.F.R. 1 This action was commenced in the name of Thomas E. Perez, Secretary of the Department of Labor. Mr. Perez is no longer Secretary of Labor and Edward C. Hugler is now the Acting Secretary. Therefore, Mr. Hugler is automatically substituted for Mr. Perez as the Complainant, pursuant to Fed. R. Civ. P. 25(d), and the caption of this action is amended accordingly. § 1910.141(c)(1)(i) (“the Sanitation standard”) by imposing unreasonable restrictions on employees’ use of toilet facilities. These restrictions included requiring employees to wait an unreasonable period of time after telling a supervisor they needed to use the toilet; pressuring employees whose medication increased their need to use the toilet to adjust the time they took their medications or reduce their water intake; and penalizing employees for leaving the production line to use the toilet, visit the nurse, or sharpen a knife more than once per day or more than six times in five days. As a result of these restrictions, employees have reduced their food and water intake, worn adult diapers during the work day for fear they would be disciplined for even routine toilet use, and even soiled themselves on the production line. Based on its investigation, OSHA issued a citation alleging that Swift Pork’s unreasonable restrictions on the use of toilet facilities violated the Sanitation standard’s requirement that toilet facilities “be provided.” 29 C.F.R. § 1910.141(c)(1)(i).2 Swift Pork argues that it is entitled to summary judgment for two reasons. First, it claims that the only basis for the citation is a 1998 Memorandum in which OSHA explained its interpretation of the Sanitation standard to prohibit unreasonable restrictions on employee use of toilet facilities. According to Swift Pork, the 1998 Memorandum was an improperly promulgated “legislative rule,” and the citation applying it must therefore be vacated. Second, Swift Pork claims that the standard as interpreted by the Secretary is void for vagueness. As we demonstrate below, these arguments are utterly without merit. As a threshold matter, Swift Pork was cited for violating the Sanitation standard, not the 1998 Memorandum. Accordingly, it is the Secretary’s interpretation of the Sanitation standard as embodied in the 2016 citation that is at issue before 2 The standard states, in relevant part, “toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section.” Table J-1 specifies the minimum number of toilet facilities that must be provided based on the number of employees. 2 the Commission. The Supreme Court has squarely recognized that the issuance of a citation reflecting the Secretary’s interpretation of a standard is an exercise of delegated lawmaking power independent of the publication of agency guidance materials. The Court recognized that the Secretary regularly uses “less formal means” of interpreting regulations prior to issuing citations, including issuing “interpretive rules” and agency enforcement guidelines, to provide notice to regulated parties of the Secretary’s construction of potentially ambiguous regulatory language. The 1998 Memorandum is just such an “interpretive rule” in that it simply interpreted the term “provide” in the Sanitation standard and did not impose any substantive requirements independent of the underlying standard And the Sanitation standard is not void for vagueness because a reasonable employer familiar with the standard and OSHA’s public statements explaining its meaning would understand that the standard requires employers not only to install the specified number of toilets but also to prohibit unreasonable restrictions on employees’ ability to use them when they need to do so. Accordingly, Swift Pork has not demonstrated that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). STATEMENT OF UNDISPUTED FACTS The Secretary does not contest Paragraphs 1–3, 5, 10, 12, 14–15, or 16 of Swift Pork’s Statement of Undisputed Facts. The Secretary asserts, however, that Paragraphs 4, 6, 11, 13, and 17 are more accurately stated as follows: 4. The Secretary does not dispute that OSHA issued a one item, Serious citation alleging that Swift Pork violated 29 C.F.R. § 1910.141(c)(1)(i); however, he disputes the insertion of the word “available” into the citation. The subject citation states, “Toilet facilities were not provided in accordance with TABLE J-1 of this Section: On or about January 6, 2016, 3 employees were exposed to adverse illnesses and/or health effects, because of the employer imposed unreasonable restrictions on the use of the toilet facilities. See Citation, attached as Exhibit A. 6. The Secretary admits that Swift Pork had more toilet facilities present at the Beardstown plant than required by the Sanitation standard, but disputes that those toilet facilities were “available.” 11. The existence of the 1998 Memorandum is undisputed. See Mem. from John B. Miles, Jr. (April 6, 1998) (“1998 Memorandum”), attached as Exhibit B. However, the Secretary disputes Swift Pork’s claim that the 1998 Memorandum, “for the first time since the standard’s 1971 promulgation, reads this ‘reasonable access’ requirement into 1910.141(c)(1)(i).” Resp’t’s Mem. Supp. Summ. J. (Resp’t’s Mem.) 5. The term “reasonable access” is not used in the 1998 Memorandum. Ex. B. 13. The Secretary disputes Swift Pork’s characterization of Section 1.2 of USA Standard Requirements for Sanitation in Places of Employment, USAS Z4.1 – 1968 (Am. Nat’l Standards Inst. 1968) (“ANSI Z4.1”), as “intended to relate only to ‘design and construction of industrial and commercial buildings.’” See Resp’t’s Mem. 6 (quoting the forward to ANSI Z4.1). The standard itself explicitly states that its purpose is “to prescribe minimum sanitary requirements for the protection of the health of employees in establishments covered by this standard.” The forward to the standard quoted by Swift Pork explicitly states that “[t]his forward is not a part of USA Standard Requirements for Sanitation in Places of Employment, Z4.1 – 1968.” See ANSI Z4.1, attached as Exhibit C.3 3 The United States of America Standards Institute (USASI) changed its name to American National Standards Institute, Inc. (ANSI) in 1969, at which point former USAS Z4.1 – 1968 became ANSI Z4.1 – 1968. 4 17. OSHA did not go through notice and comment rulemaking, which the APA and the OSH Act only require for legislative rules, when it issued the 1998 Memorandum. STATEMENT OF ADDITIONAL FACTS ALLEGED BY THE SECRETARY The Secretary alleges the following facts that relate to whether the restrictions Swift Pork imposed on employee use of toilet facilities at the Beardstown plant were unreasonable and therefore violated the Sanitation standard. Swift Pork does not dispute these facts in its Memorandum in Support of Respondent’s Motion for Summary Judgment or argue that the restrictions it imposed on employee use of toilet facilities were reasonable. The Secretary believes these are material facts in dispute, and he is entitled to a hearing on the merits to prove them. On January 6, 2016, OSHA Compliance Officer (CSHO) Diana Strain4 conducted an inspection of Swift Pork’s Beardstown plant. OSHA’s investigation revealed that Swift Pork’s implementation of its restroom access policy placed unreasonable restrictions on employee use of toilet facilities at the Beardstown plant, exposing employees to a risk of serious health effects. See OSHA Investigation Forms 1A and 1B, attached as Exhibit D. Employees told CSHO Strain that they were often required to wait more than 30 minutes to be relieved from their duty station after telling a supervisor they needed to use the toilet, and some employees stated they were never relieved at all. In addition, employees were disciplined for leaving the line more than once per day, or 6 times in 5 days, whether to use the toilet, visit the nurse, or sharpen knives in the knife room. Employees suffering from medical conditions requiring more frequent use of toilet facilities were pressured by management to use the facilities less, to adjust the time they took their medications, and to drink less water to suppress their need to use the toilet facilities. Even 4 At the time of the inspection, Diana Strain was known as Diana Lopez. 5 employees without medical conditions adjusted their intake of food and water to avoid using the toilet facilities while working for fear of reprisal for even routine toilet use. See Ex. D; see also Redacted Notes of Emp. Interviews, attached as Exhibit E. Swift Pork’s unreasonable restrictions on the use of toilet facilities led to employees being afraid to ask permission to use the toilet facilities when the need arose, employees soiling themselves, and employees wearing adult diapers to avoid having to leave the production line to use the toilet facilities. Restricting employees’ access to toilet facilities may result in adverse health effects, such as urinary tract infections and dehydration.
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