HOOD SAILMAKERS, INC.

OSHRC Docket No. 13996

Occupational Safety and Health Review Commission

December 15, 1977

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert Ross, Regional Solicitor

Henry G. Stewart, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Foster Furcolo, dated March 8, 1976, is before the Commission for review pursuant to 29 U.S.C. 661(i). That decision vacated item 9 of a citation which alleged a nonserious violation of 29 C.F.R. 1910.212(a)(1) n1 for the respondent's failure to provide its sewing machines with needle guards. For reasons that follow, that decision is reversed and a de minimis violation is affirmed.

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n1 This standard provides that:

One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are -- barrier guards, two-hand tripping devices, electronic safety devices, etc.

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On review, [*2] the complainant contends that the Judge erred in concluding that 29 C.F.R. 1910.212(a)(2) n2 provides the respondent with a defense and that "the Respondent has established [thereunder] by a preponderance of the evidence that the guard increases, rather than decreases, the hazard." The complainant also takes exception to the Judge's finding that:

In the circumstances here, the Complainant has not proven the present availability of any practices, means, methods, operations, or processes that are reasonably necessary or appropriate to decrease of correct whatever hazard the respondent's employees are exposed to from the respondent's sewing machine needles.

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n2 Section 1910.212(a)(2) provides in pertinent part that "(t)he guard shall be such that it does not offer an accident hazard in itself."

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The Commission agrees with the complainant's contentions. Judge Furcolo's decision is contrary to the Commission's decision in Buckeye Industries, Inc., n3 where the Commission held that 29 C.F.R. 1910.212(a)(2) does [*3] not establish a defense. As pointed out in that decision, section 1910.212(a)(2) imposes an affirmative duty on employers to guard their machines in a manner that does not create a separate hazard to their employees. In Buckeye Industries, the Commission also held that there was no burden on the complainant to prove the existence of an appropriate means of abatement in order to establish a machine guarding violation under 29 C.F.R. 1910.212. As the Commission observed in that decision, however, an employer may defend against a machine guarding violation on the ground that compliance with the standard was impossible.

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n3 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), appeal docketed, No. 76-1467 (5th Cir., February 19, 1976).

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In its review brief, the respondent contends that it "proved by a preponderance of the evidence that, after two attempts [to guard its machines], it was impossible to comply with the standard." The Commission rejects this contention.

The respondent's [*4] master mechanic testified that he could design a guard "that would both protect the operators from having their fingers punctured and would not offer any additional danger to the employees." Moreover, the complainant's inspecting officer testified as to several needle guards that were available for use on the respondent's sewing machines. In fact, the respondent had used needle guards on its machines for brief periods of time in 1971 and 1973. They were removed because the machine operators considered them to be a nuisance and a hazard. In view of this evidence, the Commission finds that it was possible to install guards.

The respondent also seems to argue that it could not install a guard which would not diminish employee safety. The Commission has recognized the existence of the so-called "greater hazard" defense. Building Products Company, 77 OSAHRC 165/A2, 5 BNA OSHC 1773, 1977-78 CCH OSHD para. 20,527 (No. 14240, 1977); Weyerhauser Co., 77 OSAHRC 9/A2, 4 BNA OSHC 1972, 1976-77 CCH OSHD para. 21,465 (No. 1231, 1977). That defense is established if it is shown that (1) compliance with a standard would diminish, rather than enhance, employee safety, (2) alternative [*5] means of protection were unavailable, and (3) a variance application under 29 U.S.C. 655(d) was inappropriate. The respondent clearly failed to establish the latter two elements. Although there is some conflict in the evidence on the first element, the Commission also finds that it has not been established.

Some witnesses testified that the installation of guards would increase the likelihood of needle injuries. However, this testimony is speculative, and some employees had been injured by unguarded needles. The respondent's executive vice president testified, concerning the prior use of guards on two occasions, that he didn't think that they had "a statistically significant period [of testing] to assess accident rate when guards are on versus accident rate when guards are off." The Commission finds that this testimony and that of the respondent's master mechanic are particularly persuasive in rejecting the respondent's contention that the use of guards would have diminished employee safety.

The Commission issued a supplemental briefing order in this case requesting briefs on the issue of whether the violation should be characterized as de minimis. The complainant declined [*6] the opportunity to file a supplemental brief but objected to the Commission's raising this issue for the first time on review.

The complainant's contention that the issue was raised sua sponte by the Commission is erroneous. The question was raised by the respondent in its brief in response to the direction for review. Furthermore, where a citation has been vacated below and the Commission finds a violation exists, it is incumbent on the Commission to determine whether the complainant has established the characterization as alleged or in a lesser degree. Alfred S. Austin Construction Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1975-76 CCH OSHD para. 20,660 (No. 4809, 1976).

It is undisputed that some hazard exists in that the fingers of respondent's employees could get punctured while threading the machine, replacing the bobbin, or guiding the material into the machine. The likelihood of an accident occurring, however, is remote. Respondent's accident records show that only six injuries were reported during the four year period of 1972-1975. The machines were in operation an estimated 250,000 work hours during that period. Moreover, the injuries which did occur were all minor. [*7] None of the accidents resulted in a loss of work time. The evidence of the trifling nature of the hazard is corroborated by the testimony of three of respondent's machine operators. Compare Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1976-77 CCH OSHD para. 20,589 (No. 1263, 1976). Under these circumstances, the Commission concludes that respondent's employees were exposed to a hazard too slight to warrant an abatement order or the imposition of a penalty. See Illinois Bell Telephone Company, 77 OSAHRC 178/A2, 5 BNA OSHC 1884, 1977-78 CCH OSHD para. 22,209 (No. 2097, 1977); Rust Engineering Company, 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH OSHD para. 21,693 (No. 12200, 1977); Van Raalte Company, Inc., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1976-77 CCH OSHD para. 20,633 (No. 5007, 1976).

Accordingly, a de minimis violation of 29 C.F.R. 1910.212(a)(1) is affirmed.