Docket No. 1263

SLYTER CHAIR, INC.

OSHRC Docket No. 1263

Occupational Safety and Health Review Commission

April 8, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioner.

COUNSEL:

Robert A. Friel, Assoc. Reg. Sol., USDOL

George M. Hartung, Jr. and Rodney J. Waldbaum for the employer

Local 3119, U. Brotherhood of Carpenters & Joiners, for the employees

Local 40, Upholsterers Int. Union Labor Temple, for the employees

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On February 27, 1974, Administrative Law Judge Henry C. Winters rendered his decision in this case, vacating several items of a citation issued for several allegedly other than serious violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (hereinafter "the Act"). In response to the Secretary's petition for discretionary review, review of the Judge's disposition of these items was directed. Both parties have filed briefs on review. For the reasons stated herein, the Judge's report is not adopted.

Respondent Slyter Chair, Inc. employs about 70 workers in the manufacture of wood and upholstered furniture at its Tacoma, Washington, plant.

Item One, Sewing Machines

Item one of the non-serious citation alleged that respondent failed to comply with 29 CFR § 1910.212(a)(3)(ii) in that it failed to equip [*2] nine of its twelve sewing machines with a permanently attached guard so that the operator's fingers cannot pass under the sewing needles. The standard cited reads in pertinent part, as follows:

§ 1910.212 General Requirements for all machines.

(a) Machine Guarding --

* * *

(3) Point of operation guarding.

* * *

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device . . . shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

The nine sewing machines in issue vary in age from five to twenty-five years. They are used to sew together two or more pieces of upholstery material. The combined thicknesses of the materials varies up to three-eights of an inch. Each machine is equipped with a "walking foot", a small metal device shaped like a ski and pointed toward the operator. The sewing needle passes through a hole in the walking foot, and stitches the material underneath. The walking foot moves the material past the needle in incremental steps of about one-eighth inch. It moves during each [*3] cycle to a height that permits the material to move freely underneath. Its maximum height is adjustable, but is set at about three-eights of an inch. The needle rises about three-quarters of an inch or higher above the pressure foot which is behind the walking foot and which presses the material flat against the table.

The sewing machine operator guides and moves the material toward the walking foot. One hand moves to a position directly in front and within a few inches of the needle. (The compliance officer testified that while employees pushed material under the walking foot, their fingers came "right up to" the needle). The other hand moves to a point about one inch of, but not toward, the needle. The space between the walking foot and the sewing needle is large enough to permit an employee's hands or fingers to enter, and be sewn and punctured. n1 Some instances of lost-time injuries to the fingers of sewing machine operators have occurred.

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n1 Compare Collator Corp., No. 2004 (February 25, 1976).

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This evidence establishes the requisite employee exposure to injury from the point of operation. Buckeye Industries, Inc., 3 BNA OSHC 1837, CCH 1975-76 OSHD para. 20,239 (No. 8454, December 22, 1975). See Irvington-Moore, Div. of U.S. Natural Resources, Inc., 16 OSAHRC 608, 610, 3 BNA OSHC 1018, 1019, CCH 1974-75 OSHD para. 19,523 at 23,295 (No. 3116, April 7, 1975) (3 inches from point of operation). The Judge's statement, for which we find no support in the record, that injury was unlikely to occur and would be nominal anyway, does not preclude this result. "Avoidance of minor injuries, as well as of major ones, was intended to be within the purview of this liberal Act." Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Similarly, an infrequency of injury does not alone negate the existence of a hazard. Ibid. See generally, Gerry Division of Outdoor Sports Industries, Inc., 4 OSAHRC 1305, 1320-23, 1 BNA OSHC 1407, CCH 1973-74 OSHD para. 16,802 (No. 1916, December 19, 1973). That injury may be caused by any neglect, distraction, inattention or inadvertence of an operator does not detract from our conclusion. The standard [*5] was designed to provide against such human weaknesses. See generally, Akron Brick & Block Co., No. 4859 (January 14, 1976).

The Judge also held that the "walking foot" was a guard within the meaning of the standard. The standard, however, requires that the guard "be so designed and constructed as to prevent the operator from having any part of his body in the danger zone. . . ." But the "walking foot" at most serves as a minor impediment to injury, and does not satisfy the noted requirements for machine guards. The employees' fingers could still be struck by the sewing needles. The Judge's conclusion was therefore unwarranted. Cf. Irvington-Moore, supra.

Because we find that the unguarded point of operation of respondent's sewing machines exposed employees to injury contrary to 29 CFR § 1910.212(a)(3)(ii), the Secretary has satisfied his burden of proof. Buckeye Industries, Inc., supra. Cf. J.R. Simplot Co., 15 OSAHRC 755, BNA OSHC 1658, CCH 1974-75 OSHD para. 19,366 (No. 2094, March 3, 1975). The respondent affirmatively contends, however, that compliance with the standard is impossible.

The record shows that the Singer Company had [*6] accepted respondent's order for guards and has asked its factory to rush delivery, although they had not yet been shipped at the time of the hearing. This does not square with the asserted impossibility defense. See e.g., Diebold, Inc., 3 BNA OSHC 1897, CCH 1975-76 OSHD para. 20,333 (Nos. 6767 etc., January 22, 1976). Also, in other cases before us and our Administrative Law Judges, the existence of guards for sewing machines has been noted and discussed. See e.g., Gerry Division of Outdoor Sports Industries, Inc., supra; Helene Apparel, Inc., 3 BNA OSHC 1506, CCH 1975-76 OSHD para. 19,823 (No. 11037, August 8, 1975) (Administrative Law Judge); Gelhaar Uniform Co., 14 OSAHRC 544, 2 BNA OSHC 1477, CCH 1974-75 OSHD para. 19,186 (No. 1810, December 31, 1974). We accordingly find that respondent's failure to comply with 29 CFR § 1910.212(a)(3)(ii) violated section 5(a)(2) of the Act.

Item Four, Wood Shapers

Respondent uses eight spindle shapers for shaping furniture parts such as arms and legs. Depending upon the particular job to be done, the operators may or may not use jigs. The machines are hand-fed; and one of a number of blade types [*7] may be used. At the time of inspection, a metal band had been fixed above the blades, but that served as a guide to limit the depth of the cut in the workpiece. Below this band, the cutter blades were exposed. If not installed or used properly, the shaper blades could fly off at high speeds. Only experienced workmen, however, operated the shapers. Their hands would usually not come closer than six inches to the blades, but they would sometimes come within two inches.

The cited standard reads as follows:

1910.213 Woodworking machinery requirements.

* * *

(m) Wood shapers and similar equipment. (1) The cutting heads of each wood shaper, handfed panel raiser, or other similar machine not automatically fed, shall be enclosed with a cage or adjustable guard so designed as to keep the operator's hand away from the cutting edge. The diameter of circular shaper guards shall not be less than the greatest diameter of the cutter. In no case shall a warning device of leather or other material attached to the spindle be acceptable.

The critical question is whether the spindle shaper was "enclosed with a cage or adjustable guard so designed as to keep the operator's hand away from [*8] the cutting edge." The Judge found that a guard of this description was used on the shapers. We disagree.

Jigs are not guards, and in any event are not always used in respondent's operations. It is enough here to find that during operations the employees' hands could slip below the metal band and into the cutter blades. This hazard is most severe just before and after every cut. Accordingly, the metal band is not a guard within the meaning of 29 CFR § 1910.213(m)(1).

The Secretary insists, however, that a guard in compliance with the standard must rise up and over a work piece as it passes through the cutting head and thereafter return flush to the table top. The standard certainly permits a guard of this type, but it does not by its terms require only this type of guard. The standard is flexible in its requirements, and thereby gives the employer much latitude in choosing a guard suited for its operations. We therefore join in the Judge's conclusion on this point.

Respondent relies heavily upon the long experience of its operators. Administrative Law Judge Stuller cogently observed in Chappell Mfg. Co., 1 OSAHRC 908, 913, 1 BNA OSHC 3192, CCH 1971-73 OSHD para. 16,535 [*9] (No. 1900, September 27, 1973):

This defense is utterly bankrupt. There is no reason for exposing even the most experienced and careful employees to the danger of losing one or more fingers as a result of an inadvertent move when a simple guarding device in compliance with the law will remove these dangers.

We agree with Judge Stuller. Accordingly, we find that respondent violated section 5(a)(2) of the Act by failing to comply with 29 CFR § 1910.213(m)(1).

Item Nine, The Lacquer Thinner

Respondent, in its finishing room had employees engaged in spray finishing of furniture using flammable material. On May 31, 1972, lacquer thinner, a flammable liquid, was stored in the finishing room in a drum with a capacity of fifty-four gallons. The drum was about four or five feet from what is described as the spraying booth. The drum was full at the time of purchase, but what quantity of flammable liquid if any was in the drum on the day of the inspection is not shown in this record. The cited standard reads as follows:

1910.107 Spray finishing using flammable and combustible materials.

* * *

(e) Flammable and combustible liquids - storage and handling.

* * *

(2) Quantity. [*10] The quantity of flammable or combustible liquids kept in the vicinity of spraying operations shall be the minimum required for operations and shall ordinarily not exceed a supply for one day or for one shift. Bulk storage or portable containers of flammable or combustible liquids shall be in a separate, constructed building detached from other important buildings or cut off in a standard manner.

The Judge did not reach the merits of the citation. Rather, he raised sua sponte the question of whether the standard is unenforceably vague, and answered the question affirmatively. An Administrative Law Judge errs when he questions on his own motion the validity of a standard. Central Steel and Tank Co., 3 BNA OSHC 1711, CCH 1975-76 OSHD para. 20,172 (No. 2346, November 25, 1975). Cf. Juhr & Sons, No. 2314 (January 13, 1976). Here, the error was compounded when the parties were not informed that the Judge would examine the question. See D. Federico Company, Inc., No. 4395 (February 10, 1976). n2

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n2 For my own part, I would add that the Judge's discussion of the vagueness question seemed to confuse possible redundancy and perhaps questionable drafting with the kind of vagueness offensive to constitutional due process. See Brennan v. O.S.H.R.C. and Santa Fe Trail Transport Co., 505 F.2d 869 (10th Cir. 1974) and similar cases.

[*11]

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As a matter of policy, initial decisions should generally be brief, and decide only the necessary issues. But in dealing with extraordinary issues, we suggest that the Administrative Law Judges make factual findings. When the agency differs with an Administrative Law Judge in his decision on an extraordinary issue it has the alternatives of deciding the merits, or remanding the case to the Judge who has "lived with" the case. In this case there are no crucial credibility findings to be made concerning this item, and this is indeed fortunate because the Judge who presided has since retired.

We therefore turn to the merits of item nine. The evidence shows an undetermined amount of lacquer thinner in a 54-gallon drum. The Secretary would apparently have us infer that a 54-gallon drum would contain more than five gallons most of the time. The compliance officer did not examine the drum to ascertain even roughly the quantity of liquid within it. Also, we do not know whether or not the drum was refilled periodically and if so to what extent. Under these circumstances, we are reluctant to draw the [*12] aforementioned inference, and hold that the Secretary has not sustained his burden of proof.

The Secretary proposed penalties of $30 to accompany item one, and $75 for item four. We find these to be appropriate penalties.

Accordingly, items one (sewing machines) and four (spindle shapers) of the citation are affirmed, and penalties of $30 and $75 respectively are hereby assessed. Item nine is vacated.

So ORDERED.

CONCURBY: MORAN (In Part)

DISSENTBY: MORAN (In Part)

DISSENT:

MORAN, Commissioner, Concurring in Part, Dissenting in Part:

Judge Winters correctly decided this case and his decision should be affirmed in all respects. Consequently, I agree only with that part of the Commission's decision which affirms the judge's vacation of item 9 of the citation for nonserious violation. This is the only proper disposition because of complainant's failure to sustain his burden of proof. n3

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n3 I do not join, however, in the discussion regarding the propriety of the Judge's action in addressing sua sponte the question of vagueness. As the United States Court of Appeals for the Fifth Circuit recently stated in Diamond Roofing Co. v. OSAHRC, No. 73-3704 (5th Cir., March 15, 1976):

"The purpose of OSHA is to obtain safe and healthful working conditions through promulgation of occupational safety and health standards which tell employers what they must do to avoid hazardous conditions. To strain the plain and natural meaning of words for the purpose of alleviating a perceived safety hazard is to delay the day when the occupational safety and health regulations will be written in clear and concise language so that employers will be better able to understand and observe them."

[*13]

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I dissent from the affirmance of item 4 which alleged a failure to comply with 29 C.F.R. § 1910.213(m)(1) because the occupational safety standards codified at 29 C.F.R. § 1910.213 have been improperly promulgated and are, therefore, unenforceable.

As to item 1, I find that Judge Winters properly vacated the charge on the basis that the complainant failed to establish employee exposure to injury, a prerequisite to the guarding requirement of 29 C.F.R. § 1910.212(a)(3)(ii) as stated therein. n4 Once again Messrs. Barnako and Cleary have found it proper to substitute their own judgment for that of the Judge who heard and decided this matter when the finding is in favor of the respondent. 1926.28(a). It was stated therein:

"[I]t is the judge who as trier [*14] of fact had the opportunity to observe the demeanor of the witnesses, evaluate their credibility, and weigh the evidence accordingly. Since his finding is supported by the evidence, it cannot be said that he erred. Under such circumstances, we do not believe it appropriate to reweigh the evidence on review and substitute our view of the evidence simply because a contrary factual finding is also possible. Accordingly, we will adopt the judge's decision on the merits concerning the existence of the violation." (Footnote omitted.)

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n4 So that readers of this opinion will have the opportunity to study Judge Winters' reasoning, his decision is attached hereto as Appendix A.

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There is ample support in this record for the Judge's finding of no violation, and his order should be affirmed. My colleagues seem to find some justification for their contrary conclusion in the fact that respondent has had some instances of lost-time injuries to the fingers of sewing machine operators. They do not mention, however, that these [*15] injuries were two at most on 12 machines, some of which had been in operation for as long as 25 years. They also conveniently fail to note that there is no evidence that these injuries had anything to do with the allegedly hazardous needles. In fact, as the Judge observed, respondent's president did not know if these injuries were caused by needles.

As I noted in my dissenting opinion in Secretary v. Okland Construction Company, supra, the same rules of interpreting evidence and standards for review should apply to all parties in proceedings before this Commission. Otherwise, we are promoting the type of justice George Orwell envisioned when he wrote: "All animals are equal, but some animals are more equal than others." n5

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n5 G. Orwell, Animal Farm, ch. 10, 1945.

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Finally, I note that Messrs. Barnako and Cleary state in this case that when they disagree with a judge's decision they have the alternative "of deciding the merits, or remanding the case to the judge." In prior cases they have stated that [*16] review of a judge's decision is "improper" if no party has petitioned therefor. In others they say the direction for review must specify an "issue." Both of these past statements are ignored in their pronouncement in this case.

APPENDIX A

DECISION AND ORDER

Charles G. Preston, for the complainant

George M. Hartung, Jr. and Rodney J. Waldbaum, for the respondent

HENRY C. WINTERS, Judge

STATEMENT OF THE CASE

This is an action brought by the Secretary of Labor under Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651) to affirm three citations issued July 19, 1972, one alleging non-serious violations in 12 item numbers, and each of the other two alleging serious violations; and to affirm proposed civil penalties totaling $1,600.00.

The citations were issued by the Secretary's Area Director as a result of an inspection made by a compliance officer of a plant operated by Slyter Chair, Inc., Respondent, at Tacoma, Washington where Respondent has employees engaged in the manufacture of furniture.

Citation for Serious Violation Number 1 alleges the following violations:

	Description of	Date on which
Standard or Regulation	alleged violation	alleged violation
allegedly violated	May 31, 1972	must be corrected
29 CFR 1910.107(c)(6)	Failure to install explosion	August 29, 1972
	proof type non-spark producing
	motors (Class I, Division I,
	Group D) at exhaust duct and
	conveyor power motor locations
	in the spray area in the spray
	room. Also, failure to install
	in the spray area explosion
	proof type wiring and lamps for
	Class I, Group D locations, in
	conformance with provisions of
	29 CFR 1910.309 and as specified
	for Class I, Div. I, hazardous
	locations, per article 500 of
	the National Electrical Code-1971.

[*17]

Citation for Serious Violation Number 2 alleges the following violations:

	Description of	Date on which
Standard or Regulation	alleged violation	alleged violation
allegedly violated	May 31, 1972	must be corrected
29 CFR 1910.107(j)(2) &	Failure to adequately seperate	Immediately upon
1910.107(j)(3)	heat lamp drying enclosures from	receipt of this
	the spray area near lacquer	Citation.
	spray booths in the spray room.
	Also, failure to provide an	This violation to be
	interlocked ventilating system	abated by discontinu-
	enclosures arranged to: a)	ing use of heat lamps
	Thoroughly ventilate the heating	in the spray room
	facility before the system can	without interlocked
	be started. b) Maintain a safe	ventilating system.
	atmosphere at any source of	In addition, by
	ignition. c) Automatically shut	August 29, 1972
	down the heating system in the	employer must submit
	event of failure of the	a time phased plan of
	ventilating system. The alleged	abatement for approval
	violation of the above two	to include removal and
	standards considered to result	or final installation
	in one serious violation of	date for new approved
	exposure of personnel in an	facility. Implementa-
	atmosphere where flammable	tion progress reports
	vapors or mists from the	are required every
	spraying operation are not	30 days.
	separated by a wall or partition
	and where the drying enclosures
	are not provided with an
	interlocked ventilating system.

[*18]

Citation Number 1 alleges the following non-serious violations:

		Description of	Date on which
Item	Standard or Regulation	alleged violation	alleged violation
Number	allegedly violated	May 31, 1972	must be corrected
1	29 CFR 1910.212(a)	Failure to equip (9) sewing	August 30, 1972
	(3)(ii)	machines with a permanently
		attached guard so that the
		operator's fingers cannot
		pass under the needle in the
		upholstery department. Also,
		failure to provide a guard
		for circular cutter blade in
		the upholstery department.
2	29 CFR 1910.36(b)(5)	Failure to provide exit signs	August 30, 1972
		in exit aisleways between
		racks in the miscellaneous
		and fabrication department.
3	29 CFR 1910.23(a)(1)	Failure to provide standard	August 30, 1972
		stair railing on stairs to
		superintendent's office.
4	29 CFR 1910.213(m)(1)	Failure to guard the #12	October 11, 1972
		spindle shaper cutter, a
		composite cutting head with
		two knives was being used
		to make a step cut on the
		material.
5	29 CFR 1910.213(i)(1)	Failure to guard the entire	August 30, 1972
		band saw blade except for
		the working portion of the
		blade between the bottom of
		the guide rolls and the table,
		#11 band saw.
6	29 CFR 1910.213(d)(1)	Failure to adjust the guard	Immediately upon
		on the miter saw to completely	receipt of this
		enclose the saw blade portion	Citation.
		above the table ("TANNEWITZ"
		miter saw).
7	29 CFR 1910.151(b)	Failure to retain a qualified	October 11, 1972
		person to render first aid,
		on all shifts worked.
8	29 CFR 1910.94(c)(4)	Failure to provide noncom-	October 11, 1972
	(ii)	bustible fire doors for the
		spray room. (Spray room:
		as defined in 29 CFR 1910.94
		(c)(1)(iii)).
9	29 CFR 1910.107(e)(2)	Failure to limit amount of	August 9, 1972
		flammable lacquer thinner
		kept by the spraybooth to a
		minimum quantity not to
		exceed a supply needed for
		one day or one shift. Bulk
		storage of lacquer in a 54
		gallon drum for dispensing
		was by the booth not removed
		to an approved storage room.
10	29 CFR 1910.107(g)(7)	Failure to post "No Smoking"	August 9, 1972
		signs at spray area and
		flammable storage locations.
11	29 CFR 1910.107(g)(3)	Failure to keep dirty rags and	August 9, 1972
		waste lacquer used for cleaning
		in an approved metal container.
12	29 CFR 1910.107(c)(9)	Failure to provide a permanent	August 9, 1972
		and effective electrical path
		for grounding the spray booth,
		the flammable containers and,
		exhaust ducts in the spray area.

[*19]

By Notification of Proposed Penalty, issued July 19, 1972, the Secretary's area, director proposed the following penalties:

Serious Violations:

Citation Number 1	$650.00
Citation Number 2	$650.00

Other Violations:

Citation Number 1
Item No.
1	$30.00
2	0
3	0
4	$75.00
5	35.00
6	35.00
7	0
8	35.00
9	35.00
10	0
11	0
12	55.00

By notice of contest, dated August 2, 1972, the Respondent contests all alleged violations; and all proposed penalties except the penalties proposed for Item Nos. 2, 3, 7 10 and 11 of Citation Number 1.

The Secretary in its Complaint, filed August 14, 1972, seeks to have each citation and each proposed penalty affirmed. The Respondent in its Answer, filed August 22, 1972, denies that the violations have occurred and moves that the Complaint be dismissed and no penalties imposed and that it be awarded its costs and attorney fees.

This case was heard by this Judge at Seattle, Washington on December 11, 12, and 13, 1972. Proposed findings and briefs were submitted by the parties at the opening of the hearing. Item No. 3 of Citation Number 1 was vacated on the motion of the Secretary, for the reason [*20] that the wrong standard was cited.

As part of its initial brief, filed March 9, 1973, the Secretary made the following motions:

"Complainant having considered the entire evidence of record hereby makes the following motions:

A. That the Notification of Proposed Penalty, issued July 19, 1972, be amended by vacating the Citation for Serious Violation No. 1 of 2 and No. 2 of 2, issued July 19, 1972, and the proposed penalty of $1,300.00, and that paragraphs four, five and eight of the Complaint should be accordingly modified.

B. That the Notification of Proposed Penalty, issued July 19, 1972, be amended by vacating in Citation No. 1, issued July 19, 1972, items No. 2, 3, 8, 10, and 12, and the proposed penalties of $35.00 for item number 8 and $55.00 for item number 12. No penalties were proposed for items number 2, 3, and 10. Therefore paragraph six of the Complaint should be accordingly modified."

By order of March 2, 1973, the foregoing motion to dismiss was set for hearing and a copy of the order was posted to give Respondent's employees an opportunity to object to the granting of the motion. No employee appeared at the hearing on March 26, 1973 nor otherwise voiced an objection. [*21] Since this Judge agreed with the conclusion of both the Secretary and the Respondent that there is insufficient evidence to sustain the allegations of the two citations for serious violation and of Item Numbers 2, 3, 8, 10 and 12 of Citation Number 1, the decision was orally announced at the hearing that the motion to dismiss would be granted. That decision is here confirmed.

The issues remaining for decision are whether the Respondent violated the Act as alleged at Item Numbers 1, 4, 5, 6, 7, 9 and 11 of Citation Number 1; and, if so, what penalties, if any, are appropriate.

DISCUSSION

Item Number 1

The standard alleged to be violated at Item Number 1 reads as follows:

1910.212 General requirements for all machines.

(a) Machine guarding - . . . (3) Point of operation guarding. . . . (i.e.) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle. [*22]

It is alleged that each of nine separate sewing machines and one circular cutter blade are not properly guarded.

The Respondent operates some twelve sewing machines, n1 varying in age from 5 to 25 years. They are used to sew together two or more pieces of upholstery material. The combined thickness of the material being fed into the sewing machines varies up to 3/8 of an inch. Each machine is equipped with a walking foot as well as a pressure foot. The pressure foot is located behind the needle and holds the material tight to the table. The walking foot is a metal device which operates in coordination with the needle and moves the material through the machine in a walking motion. Generally, each cycle or step moves the material an 1/8 of an inch back. As the needle moves up and down it moves through a hole in the walking foot. After the walking foot has moved the material back, the pressure foot holds the material inert and the needle moves through the walking foot into the material. The walking foot moves during each cycle to a height which will permit the material to move freely under it. The maximum height is adjustable but is set at approximately 3/8 of an inch. The [*23] machine is operated at less than its capacity of 1000 strokes per minute.

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n1 Respondent's president testified (TR 17) there were "possibly" twelve sewing machines at his facility. The compliance officer testified (TR 81) that "approximately" nine machines were in use at the time of the inspection. The citation is definite in alleging that nine machines were not guarded but is indefinite in that it does not identify which nine machines are involved in the charge. Undoubtedly, each machine has a different serial number or other identifying feature to distinguish it from all others.

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The operator moves the material along with his hands to prevent puckering of the material and to guide the material so it is properly sewn. One hand moves directly toward the needle up to within a few inches of the needle. The other hand moves to a point about an inch to one side of the needle but does not move toward the needle. The material is moved forward in bites of six to eight inches at a time. Each machine is operated eight [*24] hours a day.

The compliance officer estimated that in the operation he observed, the point of the needle moved in each stroke to a height of 3/4 of an inch "or higher" above the pressure foot so that, in his opinion, it was possible for an operator's finger to go under the point of the needle. The front of the walking foot is shaped like a ski with the tip pointing in the direction of the operator's hand. The walking foot would not be an absolute barrier to the finger of a person who was deliberately trying to put the tip of it under the needle. In normal operations, however, the operator's hand would not come close enough to the point where the needle penetrates the material so as to be subjected to a hazard created by the point of operation. Moreover, in the unlikely event an operator because of inattention or distraction would neglect to remove his or her hand before it reached the point of operation, the front of the walking foot and the material itself would for all practical purposes prevent other than nominal injury to the hand of the operator. In the 5 to 25 years of operation of these machines, the Respondent's president knew of only one or two instances when a sewing [*25] machine operator lost time due to a finger injury, and he was not certain whether such injury was caused by the needle.

This Commission has held that industrial sewing machines are among the kind of machines covered by the standards at 29CFR1926.212, and may, depending upon particular design and use, be required to be equipped with special finger guards. n2 Where, as here, neither the operator of the machine nor any other employee is subjected to a hazard, and where, as here, the point of operation does not, because of the construction, design and use of the machine, expose any employee to injury, no special additional guard is required.

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The Respondent operates two types of electrically-powered circular cutters, which are used to cut cloth and other upholstery material. One type has a two-inch blade; and the other, a five-inch blade. At the time of the inspection there were four of the latter type [*26] available for use. These cutters are used by six employees 50 percent of the time. One of the five-inch blade cutters is here involved. n3 The record contains only a rather sketchy description of the operation of this machine. Apparently, the cutter is partable. It is used to make straight cuts and is pushed against the material. When the machine is in use, neither hand of the employee is in front of the spinning blade.

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n3 The citation does not specify which of the two types of cutters is involved in the charge. At the hearing the compliance officer testified that he had in mind one of the five-inch type of cutters when he recommended the charge. It is presumed that the area director was of the same mind when issuing the citation. There is no indication in this record as to which one of the four five-inch type was involved in the charge.

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The front of this very sharp, spinning circular blade was not guarded at the time of the inspection. At the time of the hearing a guard had been installed. During the last [*27] 15 years, there has been, to the knowledge of Respondent's president, but one lost time injury to an employee using the five-inch cutter. A woman employee while reaching across the table received a small cut when she moved her hand into the blade of the idle machine.

The failure to guard the point of operation of the portable power cloth cutter constitutes a violation of 29 CFR 1910.212(a)(3)(ii). Considering the four criteria of Section 17(j), particularly the relatively low gravity of the violation and the good faith of the Respondent, this Judge concludes that no penalty should be assessed. The abatement time proposed by the Secretary is reasonable.

Item Number 4

The standard alleged to be violated reads as follows:

1910.213 Woodworking machinery requirements.

* * *

(m) Wood shapers and similar equipment. (1) The cutting heads of each wood shaper, hand-fed panel raiser, or other similar machine not automatically fed, shall be enclosed with a cage or adjustable guard so designed as to keep the operator's hand away from the cutting edge. The diameter of circular shaper guards shall be not less than the greatest diameter of the cutter. In no case shall a warning [*28] device of leather or other material attached to the spindle be acceptable.

The Respondent operates eight spindle shapers for shaping furniture parts such as arms and legs. Employees operating these machines sometimes utilize jigs and at other times do not. A number of different kinds of blades are used depending upon the particular job to be done. A number of different guards are used in the various operations. Usually an employee's hands would not come within six inches of the blades but in some circumstances would come within two inches.

At the time of the inspection, the particular spindle shaper involved in the charge was equipped with a guard and the employee operating it was using a jig. There is no evidence in this record from which a reasonable person could conclude that the particular machine observed by the compliance officer was not enclosed with an adjustable guard so designed as to keep the operator's hand away from the cutting edge or was not otherwise in compliance with the above-quoted standard.

The Judge is unable to agree with the contention of the Secretary that to adequately guard the cutting head, it would be necessary to have a guard that would rise up [*29] and over a work piece as it was passed through the cutting head and that returned flush to the table after the work piece was passed through thereby preventing a worker from contacting the heads before and after contact of the work piece. If that is what the framers of the standard intended, they could have said so in so many words, but they did not. There is no evidence in this record to suggest that before or after the actual cutting operation the operator would have the occasion to put his hands near the cutting head except when the blades were at rest. The compliance officer's concern that a cutter blade might come loose at a time when the work piece is not against the blades and fly out the injure an employee is unwarranted on the basis of this record; nor is this the hazard against which this standard is directed.

This item number and the penalty proposed therefor must be vacated.

Item Number 5

The standard alleged to be violated reads as follows:

1910.213 Woodworking machinery requirements.

* * *

(i) Bandsaws and band resaws. (1) All portions of the saw blade shall be enclosed or guarded, except for the working portion of the blade between the bottom of the [*30] guide rolls and the table. Bandsaw wheels shall be fully encased. The outside periphery of the enclosure shall be solid. The front and back of the band wheels shall be either enclosed by solid material or by wire mesh or perforated metal. Such mesh or perforated metal shall be not less than 0.037 inch (U.S. Gage No. 20), and the openings shall be not greater than three-eighths inch. Solid material used for this purpose shall be of an equivalent strength and firmness. The guard for the portion of the blade between the sliding guide and the upper-saw-wheel guard shall protect the saw blade at the front and outer side. This portion of the guard shall be self-adjusting to raise and lower with the guide. The upper-wheel guard shall be made to conform to the travel of the saw on the wheel, and the top member of the guard should have at least a 2-inch clearance outside the saw and be lined with smooth materials preferably metal. Effective brass brakes should be provided to stop the wheel in case of blade breakage.

The compliance officer observed an employee of Respondent cutting a pattern in a thin piece of plywood using a band saw which was equipped with some safety guards but [*31] on which the working position of the blade was not guarded for a distance of about 24 inches up from the table. Respondent's officials were aware that the guards did not completely meet OSHA requirements. They had been so advised by a State inspector who hade made a previous inspection of the plant. Respondent's president explained that the material to make the additional guard had not arrived at the time of the instant inspection. There is a clear-cut violation, as alleged. Under the pertinent criteria, no penalty is appropriate. Since the Respondent asserts that the violation has been abated, the violation should be required to be corrected immediately.

Item Number 6

The standard alleged to be violated reads as follows:

1910.213 Woodworking machinery requirements.

* * *

(d) Hand-fed crosscut table saws. Each circular crosscut table saw shall be guarded by a hood which shall meet all the requirements of paragraph (c)(1) of this section for hoods for circular ripsaws.

The incorporated paragraph reads as follows:

(1) Each circular hand-fed ripsaw shall be guarded by a hood which shall completely enclose that portion of the saw above the table [*32] and that portion of the saw above the material being cut. The hood and mounting shall be arranged so that the hood will automatically adjust itself to the thickness of and remain in contact with the material being cut but it shall not offer any considerable resistance to insertion of material to saw or to passage of the material being sawed. The hood shall be made of adequate strength to resist blows and strains incidental to reasonable operation, adjusting, and handling, and shall be so designed as to protect the operator from flying splinters and broken saw teeth. It shall be made of material that is soft enough so that it will be unlikely to cause tooth breakage. The material should not shatter when broken, should be nonexplosive, and should be no more flammable than wood. The hood shall be so mounted as to insure that its operation will be positive, reliable, and in true alignment with the saw; and the mounting shall be adequate in strength to resist any reasonable side thrust or other force tending to throw it out of line.

Respondent operates a hand-fed crosscut table saw. It is a tilting arbor miter saw used to cut wood furniture parts at angles other than ninety degrees. [*33] It is equipped with a hood over the circular blade. The hood is mounted on an arm which is attached to the table. The hood is manually adjustable but is not capable of remaining in contact with and automatically adjusting to the height of the material being cut. In order to change the adjustment of the hood some specific action is required on the part of the machine operator. At the time of the inspection, the saw was being used to cut angular pieces of wood and jigs were being used.

The theory upon which the Secretary has issued a citation and filed a complaint with respect to the miter saw is that the "failure to adjust the guard on the miter saw to completely enclose the saw blade portion above the table" constitutes a violation of the standard at 29 CFR 1910.213(d)(1). It is clear that the Secretary is alleging that the gravamen of the offense is the failure to adjust the guard presently on the machine. The thrust of the oral testimony elicited from the compliance officer is to the same effect (TR 101):

Q. Item number six of the citation, you cited for failure to adjust the guard on the miter saw to completely enclose the saw blade portion [*34] above the table. What was the adjustment that was not accomplished?

A. Well, there was a homemade guard which consisted of a half-moon cap which fitted on top of the saw blade, but it was on a bar, it would be adjustable up and down by adjusting a neutral bar or handle. This would work up and down toward the top of the blade or away from the top of the blade. As it was being used it was not covering the top of the blade completely. It could not be so adjusted because of the sawing of the jig which was being used to cut these angular pieces of wood.

One isolated leading question dealt with the fact that the hood did not automatically adjust to cover the material being cut. But the next question again went back to the subject of manual adjustment (TR 103):

Q. Did you make any attempt to adjust the guard?

A. I asked that they see how for down the homemade guard could be brought down. It was determined that it could not be brought down all the way because it would interfere with the fixture.

The defense of the Respondent was understandably concerned with the subject of manual adjustment of the guard presently on the saw.

It was developed in this record that the hood on the [*35] miter saw was not homemade but was furnished by the manufacturer, and to the knowledge of Respondent's president, is the standard guard used throughout the United States on this type of machine.

Three experts in the use of miter saws, namely, the Respondent's president, a business agent for the furniture workers local union at Tacoma, and a safety inspector for the State of Washington were called as witnesses by the Respondent. Each was of the opinion that it would be unsafe to operate the miter saw with the hood resting on the material or adjusted down extremely close to it, because of the chance that the material may bind and the material and any jig being used may be thrown back at the operator.

Now, the Secretary is attempting to change the theory on which a violation is claimed to have existed. In its brief the Secretary is no longer complaining of the failure to adjust but is asserting in effect that the hood on the saw cannot comply with the standard regardless of how it is adjusted. Section 5 of the Administrative Procedure Act (5 U.S.C. 554(b)) requires that persons entitled to an agency hearing shall be timely informed of the matters of fact and law asserted. It is [*36] well settled that an agency may not change theories in midstream without giving respondents reasonable notice of the change. Rodale Press, Inc. v. F.T.C. 407 F.2d, 1252, 1256-1257 (D.C. Cir. 1968). Moreover, Section 9(a) of the Act, which requires that the citation describe with particularity the nature of the offense, would likewise prohibit such a change in theories.

Although the Secretary has not as yet moved to amend Item 6 to incorporate such change in theory, it would be too late to do so. Such a drastic amendment would amount to the issuance of a new citation. Since more than six months have elapsed since the occurrence of the violation, the Secretary is prohibited by the provisions of Section 9(c) of the Act from issuing a new citation covering occurrence on May 31, 1972.

Item Number 6 and the penalty proposed therefor must be vacated.

This Judge finds it unnecessary to decide in this case the effect of the Secretary's failure to incorporate into 29 CFR 1910.213 a note contained in Section 4.1 of the ANSI Safety Code for Woodworking, pertaining to circular, rip, crosscut, resaw and swing cut-off saws, which provides as follows:

NOTE: It is recognized that the standards [*37] for saw guards in 4.1 are not perfectly applicable to all operations for which saws are used. The standards given are those which woodworkers have agreed are most generally useful. Since there are a considerable number of cases not satisfactorily met by these standards, the enforcing authority should exercise rather wide latitude in allowing the use of other devices which give promise of affording adequate protection. It may be expected that by so doing further progress in saw guarding will be encouraged.

This Judge further does not find it necessary to decide the effect here of the standard at 29 CFR 1910.212(a)(2) which provides that a machine guard shall be such it does not offer an accident hazard in itself.

Item Number 7

The standard alleged to be violated reads as follows:

1910.151 Medical Services and First Aid.

* * *

(b) In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. First aid supplies approved by the consulting physician shall be readily available.

It is only a three minute drive from the Respondent's [*38] plant to a hospital, which is 10 or 11 blocks away. At the time of the inspection it was the policy of the Respondent that if it was necessary for an employee to require the services of a physician, even for a cut finger or a sliver, the employee is taken to the hospital.

The Secretary argues that since only injuries requiring a physician are taken to the hospital the requirement that hospital be used for treatment of all injured employees has not been satisfied. This Judge considers this argument to be without merit.

It is the conclusion of this Judge that the hospital was in near proximity to the Respondent's plant and that the hospital was used for the treatment of all injured employees. That part of the standard which requires the presence of a person adequately trained to render first aid is not applicable.

Item No. 7 should be vacated.

Item Number 9

The standard alleged to be violated reads as follows:

1910.107 Spray Finishing Using Flammable and Combustible Materials.

* * *

(e) Flammable and combustible liquids - storage and handling.

* * *

(2) Quantity. The quantity of flammable or combustible liquids kept in the vicinity of spraying operations shall [*39] be the minimum required for operations and shall ordinarily not exceed a supply for one day or for one shift. Bulk storage of portable containers of flammable or combustible liquids shall be in a separate, constructed building detached from other important buildings or cut off in a standard manner.

Respondent in its finishing room had employees engaged in spray finishing of furniture using flammable materials. On May 31, 1972 lacquer thinner, a flammable liquid, was stored in the finishing room in a drum with a capacity of fifty-four gallons. The drum was about four or five feet from what is described as the spraying booth. The drum was full at the time of purchase but what quantity of flammable liquid, if any, was in the drum on the day of the inspection is not shown in this record.

Here, as in any other case, before deciding whether a violation has been proved, one must determine what is required by the standard allegedly violated. When determining what is required by a standard, one should not attempt to interpret the language only with reference to a particular set of facts involved in an alleged violation, but should read the language from the viewpoint of an employer [*40] who has not done anything yet, but wants to act in such a way so as not to be in violation. When one reads the above quoted standard from the latter standpoint, one reaches the inevitable conclusion that the language is so vague, indefinite and confusing as to be unenforceable.

As this standard is read, the first uncertainty arises concerning the meaning of the phrase "in the vicinity of". The standard applies to flammable or combustible liquids kept "in the vicinity of" spraying operations. How far away must such liquids be kept in order not to be "in the vicinity of" the spraying operations" It does not solve the dilemma by saying that "four or five feet away" is certainly "in the vicinity of". An employer is entitled to know exactly what he must do to comply. How far must he move the drum in order to comply. How far must he move the drum in order to "abate" the so-called violation? May such liquids even be kept in the same room or in the same building where spraying operations are conducted and not be "in the vicnity of" the spraying operations? One may only speculate.

The next uncertainty is encountered in connection with the phrase "minimum required for operations". [*41] One person's minimum is another person's maximum. What one person considers as being "required", another may consider as being "desired" but not "required". The standard attempts to give some help in deciding what such minimum should not exceed, but fails in the attempt by using the indefinite term "ordinarily" and the indefinite phrase "supply for one day or one shift". What is ordinary to one person may be extraordinary to another. One may guess (but not know with certainty) that the phrase "one day or one shift" should be interpreted as though it were followed by the words "whichever is lesser".

If the first sentence of this standard results in confusion, the second sentence results in confusion worse confounded. An employer could only speculate whether this particular provision is concerned with storage of containers of storage of liquids. Considering the context, his best guess would probably be that the concern is over the storage of flammable or combustible liquids in containers because it would be unusual (but not inconceivable) to refer to storage of containers as "bulk" storage. At the same time, the precise meaning of the word "bulk" is not clear. For example, [*42] does a standing, factory-sealed 54-gallon drum of flammable liquid constitute "bulk" storage? Does it become "bulk" when the seal is broken? The framer of this standard must have considered that there was some kind of storage in containers which would not qualify as "bulk storage" but there is a lack of definite communication. The next imprecise, undefined term is the word "portable". Is the above mentioned 54-gallon drum "portable"?

Other questions occur. Under what conditions can there be a "separate" building which is not "detached"? What is the significance of the use of the adjective "constructed"? Is there any other kind of building than a "constructed building"? How does one distinguish between an "important" building and an unimportant building? How does one "cut off" a building? How does a "standard" manner of cutting off a building differ from a non-standard one?

There is absolutely no good reason for a standard to be so imprecise, unclear, vague, and confusing. To impose a penalty for violation of this standard would deprive a person of property without due process of law, in violation of the Fifth Amendment of the U.S. Constitution. This Judge finds it unnecessary [*43] to decide that the Secretary has not proved there was any liquid in the 54-gallon container on the day of the inspection.

Item No. 9 and the penalty proposed therefor should be vacated.

Item Number 11

The standard alleged to be violated provides:

1910.107 Spray Finishing Using Flammable and Combustible Materials.

* * *

(g) Operations and Maintenance

* * *

(3) Residue disposal. Residue scrapings and debris contaminated with residue shall be immediately removed from the premises and properly disposed of. Approved metal waste cans shall be provided wherever rags or waste are impregnated with finishing with finishing material and all such rags or waste deposited therein immediately after use. The contents of waste cans shall be properly disposed of at least twice daily or the end of each shift.

Section 1910.107(a), headed "Definitions applicable to this section", contains the following definition:

(9) Approved. Shall mean approved and listed by the following nationally recognized testing laboratories: Underwriters Laboratories, Inc.; Factory Mutual Engineering Corp

On May 31, 1972 a five-gallon metal drum, previously emptied and without a cover, was used by Respondent's [*44] employees as a metal waste can for dirty rags impregnated with finishing material. The waste can was placed on the floor under the spigot of the 54-gallon drum of lacquer thinner (discussed in connection with Item No. 9) where employees washed their hands with lacquer thinner. In connection with the washing of hands, lacquer thinner would fall into the waste can with the rags. The contents were "then emptied and thrown away" (TR 66).

The Secretary takes the position that the term "approved metal waste can" as used in 29 CFR 1910.107(g) is the equivalent of "Safety can" as defined in 29 CFR 1910.106(a)(29). The Secretary's brief makes no mention of 29 CFR 1910.107(a)(9), quoted above. The Secretary offered no evidence as to what type of waste can are approved by the organizations mentioned in section 1910.107(a)(9) nor was this Judge requested to take official notice of anything in connection with this item number. This contention of the Secretary is without merit. In reaching this conclusion this Judge has taken into consideration the provisions of 29 CFR 1910.107(e)(1), 1910.106(a)(34) and (35).

The Secretary has failed to prove a violation. Item No. 11 should be vacated. [*45]

In consideration of the entire record and of the proposals and briefs submitted by the parties, the Judge makes and enters the following:

FINDINGS OF FACT

1. On May 31, 1972 at a worksite in Tacoma, Washington, Slyter Chair, Inc., a corporation, Respondent, failed to comply with standards promulgated by the Secretary in the following respects:

(a) The Respondent failed to provide a guard for circular cutter blade in the upholstery department, contrary to 29 CFR 1910.212(a)(3)(ii) (Item No., Citation No. 1); and

(b) The Respondent failed to guard the entire band saw blade, except for the working portion of the blade between the bottom of the guide rolls and the table, on #11 band saw, contrary to 29 CFR 1910.213(i)(1) (Item No. 5, Citation No. 1).

2. The instances of non-compliance described in paragraph 1 of these Findings of Fact had a direct and immediate relationship to safety and health but were not of a serious nature.

3. At all times herein pertinent, the Respondent acted in good faith.

4. Respondent has no history of past violation.

5. The proposed times for abatement of the violations referred to in paragraph 1 of these Findings of Fact are reasonable.

[*46] CONCLUSIONS OF LAW

1. At all times herein pertinent, the Respondent was and is engaged in a business affecting commerce and subject to the provisions of the Act.

2. This Commission has jurisdiction of the parties and of the subject matter of this case.

3. The instances of non-compliance referred to in paragraph 1 of Findings of Fact constitute non-serious violations of standards promulgated pursuant to Section 6 of the Act and subject the Respondent to assessment of civil penalties as provided in Section 17(c) of the Act.

4. Due consideration having been given to the appropriateness of the penalties with respect to the size of the business of Respondent, the gravity of each violation, the good faith of the Respondent and the history of previous violations, no monetary penalties should be imposed for the violations found to have existed.

5. With respect to violations alleged in Citation No. 1, issued July 19, 1972, except to the extent that the violations referred to in paragraph 1 of Findings of Fact and paragraph 3 of Conclusions of Law have been found to exist, the Secretary has failed to prove a violation of the Act and the pertinent portions of Citation No. 1 and [*47] any penalties proposed therefor, should be vacated.

6. With respect to violations alleged in Citation for Serious Violation No. 1 and Citation for Serious Violation No. 2, issued July 19, 1972, the Secretary has failed to prove a violation, and the Secretary's motion to vacate such citations and corresponding proposed penalties should be granted.

ORDER

In view of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

(1) Citation for Serious Violation No. 1, issued July 19, 1972, be, and it hereby is, vacated;

(2) Citation for Serious Violation No. 2, issued July 19, 1972, be, and it hereby is, vacated;

(3) Item No. 1 of Citation No. 1, issued July 19, 1972, to the extent that it alleges a failure to guard a circular cutter blade in the upholstery department and to the extent it proposes a time for abatement, be, and it is hereby, affirmed;

(4) Item No. 5 of Citation No. 1, issued July 19, 1972, including the proposed time for abatement, be, and it is hereby, affirmed;

(5) Citation No. 1, issued July 19, 1972, to the extent it is not herein specifically affirmed, be and it is hereby, vacated,

(6) Notification of Proposed Penalty, issued July 19, 1972, be, [*48] and it is hereby vacated.

Dated at Seattle, Washington this 27 day of February 1974.

HENRY C. WINTERS, Judge