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Unions Make Case in Challenge to Hog Slaughter Rule (2)

Jan. 27, 2020, 1:04 PMUpdated: Jan. 27, 2020, 4:15 PM

A group of labor unions will try to convince a Minnesota federal court of their legal standing to fight against a new hog slaughter rule they say endangers workers.

The United Food and Commercial Workers International Union and a group of UFCW locals sued the Agriculture Department in October 2019 after the agency proposed to eliminate maximum speed limits for hog slaughter production lines. The government says faster line speeds could increase line production by 12.5%, and that flexible oversight would lead to better control of pathogens and safer conditions for workers.

The unions want the rule set aside because of the danger it poses for workers in an already-hazardous industry where workers suffer injuries and illness more than twice as often as workers in all other private industries, according to documents filed in U.S. District Court for the District of Minnesota. The unions say they represent 40% of workers who would be subject to the rule.

But first the unions must show they have a right to challenge the rule in court. They will press their case during oral arguments Jan. 27.

The judge in the case is considering the USDA’s motion to dismiss the unions’ claim. The agency says the unions can’t challenge the rule because the USDA doesn’t have a statutory mandate to regulate worker safety—a job for the Occupational Safety and Health Administration instead.

In its motion, the USDA said it took into consideration comments about worker safety in the final rule.

That’s not enough for the unions.

“To the extent that USDA claims that it sufficiently responded to worker safety concerns simply by pointing to its supposed lack of regulatory authority and the existence of the Occupational Safety and Health Administration, it is wrong,” the UFCW said in its opposition brief to the USDA’s motion to dismiss.

Sarah Little, a spokeswoman for the North American Meat Institute, said in an email that plants opting into the higher speed lines “must provide safety attestations annually, demonstrating a commitment to worker safety.”

The attestations are submitted to OSHA for review, she said, adding that USDA inspectors will continue to inspect all live animals before slaughter and all carcasses after slaughter.

How the Rule Came to Be

The proposed Modernization of Swine Slaughter Inspection rule (83 FR 4780) initially was published by the Agriculture Department’s Food Safety and Inspection Service in February 2018. The proposal received 83,548 comments in its two-month comment period.

House Democrats called on Secretary Sonny Perdue to withdraw the rule. In an April 2018 letter, lawmakers cited potential risks for “worker safety, public health, and animal welfare” and requested a peer-reviewed risk assessment of the rule and an extended comment period.

In response, the Agriculture Department consulted five peer reviewers, and updated its original risk assessment.

The House Appropriations Committee attempted to stall the proposal. Rep. Rosa DeLauro (D-Conn.) introduced an amendment last June to the 2020 Agriculture Appropriations bill (H.R. 3164), co-sponsored by Rep. David Price (D-N.C.). It would have required the agency’s inspector general to investigate the data behind the new system. The committee voted 29-21 to adopt the amendment, which then passed in the House.

DeLauro’s provision, however, wasn’t included in the final version of the appropriations bill, which was signed into law on Dec. 20, 2019 (Public Law 116-94).

A spokesperson for the Food Safety and Inspection Service declined to comment, citing pending litigation.

Other Cases Challenging Rule

Debbie Berkowitz, worker health and safety program director with the National Employment Law Project, said she fears for the safety of all workers as line production speeds increase.

“When a plant increases production, all workers are working harder and faster,” not just line workers, she said. “For sanitation workers there’s more to clean; material handlers, there’s more to transport—they can barely keep up.”

Little at the Meat Institute said the demand for qualified workers is high and “the meat and poultry industry works hard to attract and retain a stable workforce.”

“Promoting safe workplaces has rewards for both workers and businesses,” she said, “including increased productivity, consistent product quality, improved employee morale, and reduced absenteeism, as well as reduced expenses associated with injury and illness.”

The USDA’s swine slaughter rule poses a serious risk to animal welfare, food safety, and the environment, a coalition of animal rights groups alleged in a complaint filed in the Western District of New York in December.

“If some of those claims brought on the environmental impacts are based on arbitrary and capricious decision-making, the claim that there’s a violation of the Federal Meat Inspection Act does overlap with our case,” said Adam Pulver, an attorney at Public Citizen Litigation Group, which is representing the unions.

“Assuming we prevail and motion is denied, the government would have to produce administrative record, including all the purported analysis of worker safety,” Pulver said. “We have received part of it from FOIA though it is heavily redacted, but they wouldn’t be able to redact anything we’re relying on.”

The case is UFCW, Local No. 663 v. USDA, D. Minn., No. 0:19-cv-02660-JNE-TNL, oral argument 1/27/20.

(Updated to add additional comment from the North American Meat Institute.)

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com; Megan U. Boyanton in Washington at mboyanton@bgov.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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