VAN RAALTE COMPANY, INC.
OSHRC Docket No. 5007
Occupational Safety and Health Review Commission
April 19, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Albert H. Ross, Regional Solicitor, U.S. Department of Labor
Francis Carling, for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
On June 18, 1974, Judge Abraham Gold issued a decision vacating the one contested item of the Secretary of Labor's citation under 29 CFR § 1910.219(e)(3)(i).
The Secretary timely petitioned the Commission for review of the Judge's decision excepting to the Judge's holding that the standard at 29 CFR § 1910.219(e)(3)(i) is inapplicable to respondent's sewing machines and that compliance with the standard is not reasonably necessary to provide safe employment. The petition was granted, and review before the full Commission was ordered on these issues on July 17, 1974, in accordance with section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter referred to as "the Act"].
Respondent, Van Raalte Company, Inc., is engaged in the manufacture of ladies lingerie at its plant in Middleburry, Vermont. It has about 100 employees. As a result of an inspection, respondent was issued a citation on September 24, 1973, alleging five non-serious violations [*2] of the Act. Respondent's notice of contest was limited to item 4, which alleged a failure to comply with 29 CFR § 1910.219(e)(3)(i). n1 In pertinent part the citation reads as follows:
Failure to guard, by enclosing, vertical and inclined belts. Location: Straight needle type sewing machines.
No civil penalty was proposed by the Secretary.
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n1 The cited standard reads as follows:
§ 1910.219 Mechanical Power Transmission Apparatus
* * *
(e) Belt, rope, and chain drives
* * *
(3) Vertical and inclined belts
(i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.
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Judge Gold vacated this item of the citation. He held that the standard at 29 CFR § 1910.219(e)(3)(i) does not apply to the guarding of nip points on straight-needle sewing machines. In support of this conclusion, the Judge stated that the record does not establish that the standard, as applied to respondent's sewing machines, is an occupational safety and health standard [*3] within the meaning of section 3(8) of the Act. That section provides that a standard's requirements be "reasonably necessary or appropriate to provide safe or healthful employment and places of employment."
Respondent operated about 25 straight-needle sewing machines that were manufactured by Singer. The machines were all at least 20 years old. Each of the machines was powered by a motor located below the table upon which the machine rested. The power was transmitted to the machine by means of a leather belt, which was less than one-half inch in width and fastened together by a metal clip in the form of an elongated "O." The belt passed through a slot in the table and over a pulley that was about four inches in diameter. The pulley was connected to a handwheel that was about six inches in diameter.
According to the Secretary's expert witness, the Associate Assistant Regional Director in charge of Technical Support, there were three hazards created by respondent's failure to guard the belt and pulley on the sewing machines. First, the operator might inadvertently catch her finger in the nip point between the belt and the pulley or the belt and the table. Second, a passerby [*4] might come in contect with the belt and pulley. Third, the belt might break at the point where it is fastened, and fly off the pulley causing an injury.
Concerning the alleged hazard to the operator, the belt and pulley are at the right end of the sewing machine, where the handwheel almost forms a guard by itself. Sewing work is performed at the left end of the machine; the operator never touches the belt, and only touches the handwheel when the machine is turned off in order to change the needle, rethread the needle, or raise the needle to remove work from the machine. The likelihood of the operator coming into contact with a nip point, even through carelessness, was so remote as to be negligible. If a finger were to be caught in the nip point, the injury would likely be a slight bruise or wound.
With respect to the hazard to passersby, the Secretary's expert testified that because the nip point was located on the right side of the machines, there would only be a hazard to passersby if the right sides of the machines were adjacent to the aisles. The evidence indicates, however, that respondent's machines were arranged so that only the left sides of the machines were adjacent [*5] to the aisles.
Finally, concerning the alleged hazard created by the metal clip used to fasten the belt, the Secretary's witnesses speculated that if one of the belts would break, the clip "might slap the person [operator] on the body or arm." Both of the Secretary's witnesses stated that guarding the belts would be preferable to replacing the belts with belts having no metal clips, although they conceded that the latter was possible. On the other hand, respondent's witnesses, including the plant manager who has 38 years' experience in the industry, testified that when a belt breaks it drops harmlessly to the floor.
We previously agreed with the Secretary that the standard 29 CFR § 1910.219(e)(3)(i) applies to respondent's machines. n2 The belts and pulleys on respondent's sewing machines clearly fall within the purview of 29 CFR § 1910.219 [power transmission apparatus], 29 CFR § 1910.219(e) [belt, rope, and chain drives], and 29 CFR § 1910.219(e)(3) [vertical and inclined belts]. Moreover, at no place in the standard or in the original ANSI standard, B. 15.1 (1953 revision) or (1972 revision), is there any express or implied exclusion of straight needle sewing machines from [*6] the coverage of the standard. Accordingly, section 1910.219(e)(3)(i) applies to respondent's straight needle sewing machines.
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n2 Cornish Dress Mfg. Co., BNA 3 OSHC 1850, CCH 1975-76 OSHD para. 20,246 (No. 6765, December 23, 1975).
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We also agree with the Secretary that the Administrative Law Judge erred in considering whether the guarding of the sewing machines was necessary or appropriate for purposes of section 3(8) of the Act.
In Cornish Dress Mfg. Co., BNA 3 OSHC 1850, CCH 1975-76 OSHD para. 20,246 (No. 6765, December 23, 1975), we reiterated the well-settled principle that the Commission lacks the power to question the wisdom of a standard. See e.g., The Budd Company, 7 OSAHRC 160, 165, BNA 1 OSHC 1548, 1551, CCH 1973-74 OSHD para. 17,387 (Nos. 199 & 215, March 8, 1974), aff'd 513 F.2d 201 (3d Cir. 1975). In Cornish Dress, we recognized that we cannot declare a standard invalid on the ground that it allegedly requires practices not "reasonably necessary or appropriate to provide [*7] safe or healthful employment and places of employment" within the meaning of section 3(8) of the Act. That would be plainly questioning the wisdom of the standard. See also, General Electric Company, 17 OSAHRC 49, 62-63, BNA 3 OSHC 1031, 1040-1041, CCH 1974-75 OSHD para. 19,567 at 23,366 (No. 2739, April 21, 1975). That portion of Cornish Dress remains undisturbed.
We turn now to the matter of an appropriate order. Respondent argues that to require guarding the machines is a drastic measure because there is no hazard posed by the unguarded belts. See page 14 of respondent's brief. We agree with respondent that the hazards resulting from the unguarded belts are trifling. In addition to the facts we cited above, we note that there have been no injuries occurring as a result of this condition in the last 38 years. n3 The Commission has held that when a violation is trifling the de minimis maxim may be applied when it is appropriate not to order abatement with the full terms of the standard. General Electric Company, 17 OSAHRC at 69-70, BNA 3 OSHC at 1044, CCH 1974-75 OSHD at para. 23,369. See also R.H. Bishop Co., 8 OSAHRC 930, 931-32, [*8] BNA 1 OSHC 1767, 1768-1769, CCH 1973-74 OSHD para. 17,930 at 22,225 (No. 637, May 30, 1974). We conclude that this is a sounder approach than that takes in Cornish Dress concerning abatement. Accordingly, we overrule Cornish Dress to this extent.
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n3 This fact is not necessarily controlling. A hazard may, for example, be found to exist in the absence of any recorded injuries. Arkansas-Best Freight System, Inc. v. O.S.H.R.C., No. 75-1249 (8th Cir., January 29, 1976). This is merely evidence of hazardousness vel non. It is neither the determinative factor nor a legal test.
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Accordingly, item 4 of the citation is amended to be de minimis and is affirmed.
So ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
Judge Gold's decision was correct and it should be affirmed. Messrs. Barnako and Cleary misrepresent his decision when they claim that he questioned "the wisdom of the standard." He did no such thing. He found that the standard did not cover the facts in issue in this case. To quote [*9] from his decision - the full text of which is attached hereto as Appendix A -
". . . In such situation, guards are not 'reasonably necessary or appropriate' to provide safe employment and a safe place of employment. Hence, 29 C.F.R. § 1910.219(e)(3)(i) does not apply here, and Item No. 4 of the citation will be ordered vacated."
There is nothing there referring to the "wisdom" of the standard. He addresses himself only to its application.
This Commission decision is unique because it concludes that, on the one hand, the cited condition posed no hazard to employees - but, on the other hand, the employer is in violation of the Act just the same. Glaring inconsistencies are not unusual in Commission decisions. Nevertheless, they deserve notice and I shall attempt to give this inconsistency its due.
It goes without saying, I believe, that the Act's sole purpose is to protect employees from injuries and illnesses arising out of their employment. Consequently if an employee cannot be injured or become ill as a result of a condition at his workplace, such condition does not constitute a violation of the Act. That, most certainly, is the situation in this case. Judge Gold applied [*10] this logic to his disposition and I submit that such logic would find acceptance with all reasonable people.
Despite their admission that there is, in this case, no occupational hazard to employees arising out of the cited condition, Messrs. Barnako and Cleary cannot bring themselves to a finding of "no violation." They "find" a violation which they proceed to classify as "de minimis" - a term the Act identifies as having "no direct or immediate relationship to safety or health." 29 U.S.C. § 658(a).
I submit that such a disposition is not only internally inconsistent but is also contrary to the Congressional direction in 29 U.S.C. § 658(a). n4 That section permits the Secretary to provide for the issuance of a "notice" instead of a "citation" when an alleged violation is classified as "de minimis." Secretary v. J.E. Chilton Millwork & Lumber Company, 1 OSAHRC 307, 319 (1972).
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n4 "The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health."
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The distinction between de minimis violations and violations for which citations may issue is significant. The Act requires abatement only of conditions ennumerated in a citation (29 U.S.C. § 658(a)), and a failure to correct the conditions stated therein may result in increased employer liability under 29 U.S.C. § 659(b) and § 666(d) for failure to abate. These sanctions are not applicable to notices that are issued for de minimis violations.
The majority appears to justify its affirmance of the citation, even without an abatement requirement, on the basis that the cited condition has a direct relationship to safety or health. n5 It is contrary to the purpose of the Act stated in 29 U.S.C. § 651(b) "to assure so far as possible . . . safe and healthful working conditions," to conclude that a violation exists which affects employee safety or health and yet not require it to be corrected. Either a violative condition exists which must be corrected or it does not and no abatement is necessary. n6 It's gotta be this or that.
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n5 Although the majority opinion is not free of ambiguity on this point, a reading of the text and the cases cited therein leads to these conclusions. I fear, however, that because the order is not clear respondent may yet face additional liability if abatement is not accomplished. With customary equivoque, Messrs. Barnako and Cleary state that "the de-minimis maxim may be applied when it is appropriate not to order abatement . . . ." Is this one of these appropriate instances? Respondent can only guess and take his chances.
n6 It is rather ironic that in the event respondent is cited in the future for failure to comply with the same standard cited herein this affirmance of what my colleagues consider to be a "trifling" violation may serve as the basis for the assessment of up to $10,000 in penalties for a repeated violation of the Act under 29 U.S.C. § 666(a).
[*12]
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In view of their affirmance of the citation in this case, I am compelled to conclude that Messrs. Barnako and Cleary have somehow arrived at a definition for "de minimis" which does not jibe with that of Congress. Of course, they do not explain that difference, and it is apparent that this is simply another instance where they have interpreted words to mean what they want them to mean. n7 As in those cases, I decline to associate with such folly.
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[*13]
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APPENDIX A
DECISION AND ORDER
Robert A. Yetman, for Complainant
Francis Carling, for Respondent
This case arose under Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(c). Hearing was held at Burlington, Vermont, on February 26, 1974.
Respondent was cited on September 24, 1973, for five nonserious violations of safety standards. A penalty of $30 was proposed for Item No. 2 of the five alleged infractions; no penalty was suggested for any of the other items cited. Respondent filed a notice of contest only as to Item No. 4, n1 which charged a violation of 29 C.F.R. § 1910.219(e)(3)(i) for failure to enclose vertical and inclined belts on straight needle sewing machines by guards conforming to paragraphs (m) and (o) of 29 C.F.R. § 1910.219.
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n1 Each uncontested cited item and proposed penalty therefor became a final order of the Commission upon the expiration of 15 working days from the date on which Respondent received the notification of proposed penalties. 29 U.S.C. § 659(a).
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The cited standard reads:
Subpart O - Machinery and Machine Guarding
* * *
§ 1910.219 - Mechanical power-transmission apparatus
* * *
(e) Belt, rope, and chain drives.
* * *
(3) Vertical and inclined belts.
(i) Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraphs (m) and (o) of this section.
Under 29 U.S.C. § 666(c), a civil penalty of up to $1,000 may be assessed for a nonserious violation.
In response to the complaint, Respondent admitted that it is a a New York corporation with its principal office at New York City; that it is engaged in the manufacture of clothing; that during the course of its operations it is responsible for the regular receipt, handling and shipment of goods that are moving or have moved across state lines in interstate commerce, and is engaged in a business affecting commerce, within the meaning of Section 3(5) of the Act; that it has about 100 employees at a facility located at Middlebury, Vermont; that this worksite was inspected on September 11, 1973; and that on said date it did not enclose certain vertical and inclined belts [*15] on its straight needle sewing machines by guards of the kind described in the cited standard.
The machines under consideration number about 25, and are Singer-type straight-needle machines (Tr. 12, 13); each machine is mounted on a table (or bench) through which a belt extends from the drive wheel of the motor under the table to the hand wheel of the sewing machine (Tr. 12, 57); the electric power (Tr. 23) passes to the machines from the motor by means of this round leather belt which is about 3/8 inch in diameter and at full throttle operates at about 3,000 feet per minute (Tr. 12). The ends of the belt are fastened together by a metal clip which forms almost an elongated "O" on the belt (Tr. 12, 22).
The machine operator sits facing the machine, the drive wheel and belt to her right, probably 12-14 inches from the operator (Tr. 13, 14, 53). The work is performed on the left side of the machine, and when the sewing operation is being performed, both hands of the operator are occupied on the left side (Tr. 14), holding the material under the needle or at that point of the operation (Tr. 17, 31). The operator presses on a foot pedal to run the sewing machine; the harder she presses [*16] on the pedal the faster the machine operates; and to stop the operation she has only to lift her foot off the pedal and the machine stops at once (Tr. 18, 19, 59).
The drive belt, which runs counterclockwise on this particular type of machine (Tr. 57), passes through a slot or hole in the table and up over a pulley that is approximately 4 inches in diameter; the pulley is connected to a handwheel which is about 6 inches in diameter; the hole in the table is about one inch in diameter (Tr. 23, 24).
There is a nip point back of the pulley between the belt and the pulley (Tr. 12, 13) and another nip point where the belt goes down into the table (Tr. 13). The compliance officer testified that it would be possible for a person to get a finger caught at the intake point (Tr. 12). He felt there was a "good possibility" of abrasions or lacerations to the hand if the person came in contact with the metal clip on the belt (Tr. 12).
An operator would not have occasion to place her hand on the belt in the usual course of operation (Tr. 14), and would touch the wheel only when changing needles or rethreading the machine (Tr. 14), at which time the machine would be stopped (Tr. 18, 60). The [*17] compliance officer admitted that it would be "very difficult" to get a hand into the nip point behind the pulley (Tr. 23).
In other testimony, the compliance officer said that although both hands of the operators were occupied during the sewing operation there was the possibility that an operator could place a hand on the belt if distracted (Tr. 14).
An expert in safety engineering, called by Complainant, opined that during the normal operation of the machine the operator is not exposed to any hazard, "unless there is a lapse of attention, something of that nature" (Tr. 31). He also saw a possible hazard to employees other than the operator if the machines were so located in the plant that an employee passing a machine could "get involved with the drive belt" (Tr. 30, 36).
Respondent's plant manager, who has worked at a variety of jobs for Respondent for 38 years, and in all those years has worked with straight-needle sewing machines (Tr. 45, 46), declared that he had never heard of any employee being injured by the belt (Tr. 46), "not even a pinched finger" (Tr. 47). A floor lady, employed by Respondent for 27 years, stated that to her knowledge there has never been an accident [*18] at the plant involving a belt on a sewing machine (Tr. 66).
The plant manager explained that these machines were in two rows at the plant, with the left, or working, side on the aisle side of each row, and the handwheel about 18 inches from the handwheel of the adjacent sewing machine, so that it is impossible for someone to walk between the rows of sewing machines (Tr. 47-48). In other words, a passing employee cannot pass a machine on the belt side.
The compliance officer pointed to the metal fastener on the belt as a possible hazard. He said that if it broke, it "might slap the person on the body or arm" but the probability of such accident was "quite low, very low" (Tr. 14-15). Complainant's expert witness also referred to the fastener as a hazard (Tr. 30, 36). The plant manager testified that usually a broken belt just falls off the machine and drops on the floor, and he did not know of any injury every having resulted from a broken belt (Tr. 57, 58). He did not believe that he had ever known of a broken belt flying through the air (Tr. 58).
The cited standard encompasses the guarding of electrically powered machines. Straight-needle sewing machines are not specifically [*19] mentioned therein, and it is the view of this Judge that the standard was not intended to, and does not, apply to the guarding of nip points of such machines. The purpose of occupational safety and health standards, as stated in 29 U.S.C. § 652(8), is to require conditions, or the adoption or use of one or more practices, means, methods, operations, or processes reasonably necessary or appropriate to provide safe or healthful employment and places of employment. The evidence in this record does not demonstrate that a standard requiring the guarding of nip points of industrial straight-needle sewing machines is reasonably necessary or appropriate to provide safe or healthful employment and places of employment. The evidence in this record does not demonstrate that a standard requiring the guarding of nip points of industrial straight-needle sewing machines is reasonably necessary or appropriate to provide safe employment and places of employment.
There are two nips on the machines involved in this case. While running the machine, the operator uses both hands to guide the cloth to the point of operation and would have no reason to reach the belt. An operator would reach the handwheel [*20] -- but only after stopping the machine -- to change the needle or rethread the machine. Complainant's two witnesses admitted that there was no hazard in the ordinary course of events but they thought it possible for an operator to touch the belt due to distraction or inattention. The probability of getting a finger caught at the intake point at the back of the pulley was, in the opinion of the compliance officer, rather remote (Tr. 17). With the handwheel measuring about 6 inches in diameter and the pulley about 4 inches, he felt that the handwheel "almost forms a guard itself" (Tr. 23). Since the hole in the table is about one inch in diameter and the belt is approximately 3/8 inch in diameter, it is easy to understand why the compliance officer conceded that a person would almost have to do it deliberately to get a finger caught in the nip point where the belt goes down through the table (Tr. 24).
Respondent presented evidence that the plant has never experienced any injury due to the lack of a guard on these machines. According to the plant manager, an effort was made to use a guard on one machine, but it was discarded when it was found to be very flimsy; it rubbed against [*21] the belt, made noise, and was in the way when the operator had to raise the needle to thread the machine (Tr. 60, 61, 64).
On the basis of this record, it is found that the probability of an even very minor injury to an employee due to an unguarded nip point on these particular machines is so remote as to be negligible. In such situation, guards are not "reasonably necessary or appropriate" to provide safe employment and a safe place of employment. Hence, 29 C.F.R. § 1910.219(e)(3)(i) does not apply here, and Item No. 4 of the citation will be ordered vacated. No penalty was recommended by Complainant.
FINDINGS OF FACT
1. Respondent is and at all times pertinent herein was a New York corporation maintaining a clothing manufacturing plant at Middlebury, Vermont, where it employed about 100 persons in a business affecting commerce.
2. At all times relevant to this action, Respondent had under its ownership, operation and control 25 electrically operated Singer straight-needle sewing machines, which were operated by its employees, at said Middlebury plant.
3. Said workplace was inspected by an official of the Department of Labor on September 11, 1973.
4. On said date [*22] and at said workplace, Respondent did not enclose with guards the belts on these 25 machines.
5. The enclosure of these particular machines with guards is not reasonably necessary or appropriate in order to provide safe employment and a safe place of employment.
CONCLUSIONS OF LAW
1. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter, within the contemplation of Sections 3 and 4(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § § 652 and 653(a).
2. On September 11, 1973, Respondent was not in violation of Section 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2), for alleged failure to comply with the safety standard at 29 C.F.R. 1910.219(e)(3)(i), since this standard does not apply to the machines involved herein.
IT IS ORDERED that Item No. 4 of the citation issued on September 24, 1973, be and the same hereby is VACATED.
ABRAHAM GOLD, Judge, OSHRC
Dated: June 18, 1974
Boston, Massachusetts