FABRICRAFT, INC.

OSHRC Docket No. 76-1410

Occupational Safety and Health Review Commission

June 29, 1979

[*1]

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Tedrick A. Housh, Regional Solicitor, USDOL

Thomas F. Gordon, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

A decision of Administrative Law Judge Paul E. Dixon, dated February 22, 1977, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. [hereinafter cited as "the Act"]. n1 That decision affirmed as nonserious a citation that alleged noncompliance with the standard published at 29 CFR 1910.212(a)(3)(ii) n2 for the respondent's failure to provide 44 of its sewing machines with needle guards. A $30 penalty was assessed. For the reasons that follow, we affirm the finding of a violation, but find the violation to be de minimis.

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n1 Former Commissioner Moran sua sponte directed that this case be reviewed "for error by the Commission to determine whether there is substantial evidence of record to support findings of fact 1 through 15 and conclusions of law 1 through 4." This is tantamount to an issueless direction for review as covered by our Policy Statement of December 1, 1976, published at 41 Fed. Reg. 53015 (1976). Respondent filed a brief in response to the direction for review. The Secretary did not file a brief on review but indicated that he would consider filing a brief if the Commission clarified what specific issues were on review.

n2 29 CFR 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 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.

[*2]

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Respondent, Fabricraft, Inc., manufactures women's sportswear, employing about 97 persons at its plant in Sugar Creek, Missouri. It is not disputed that all but two of respondent's 46 single needle sewing machines lacked needle guards at the time of the inspection. It also is undisputed that the machine operators' hands come within one-half inch of the needlesduring the sewing operation. The record establishes that respondent's employees suffered two needle puncture injuries in January 1974 after which respondent installed needle guards on all the sewing machines in question. The guards were removed from the machines after a three-month period. Don Bachofer, respondent's president and plant manager, testified that the guards were removed because they were the direct cause of accidents and because most employees did not want the guards on the machines. Thereafter, the decision whether to guard the needles was left to the discretion of the operators, only two of whom wanted the guards installed.

Mr. Bachofer testified that use of a needle guard, in his opinion, creates a greater hazard because the [*3] guard raises the operator's finger above the sewing table and closer to the descending needle. Under these conditions, the operator in case of an accident is likely to have her finger mashed by the needle bar, the bar that carries the needle, as well as punctured by the needle. In addition, Mr. Bachofer testified that the operator could get her finger trapped between the needle bar and the guard, making it more difficult for the operator to move her finger out of the way of a descending needle and in that way also increasing the likelihood of an accident. Finally, Mr. Bachofer testified that if the operator, while attaching a zipper, inadvertently allowed the zipper slide to enter the needle guard, the slide, guard, or needle could be broken and fly into the operator's face.

One of respondent's employees, June Bernal, testified that she had been injured while sewing both with the needle guard on the machine and without a guard. It was her opinion that the guard increases both the severity of any injury and the likelihood of an accident. In illustrating the latter point, Ms. Bernal explained that while threading the needle an operator might accidentally press the foot treadle [*4] that starts the machine, and the guard would prevent quick removal of her fingers from the area of the needle.

A second employee, Paula Lucero, testified that she had caught her finger in the guard, without injury, when she activated the treadle while threading a needle. She agreed with the opinions expressed by respondent's other witnesses that the guard creates a greater hazard. Ms. Lucero also testified, however, that she had punctured her finger while working without a needle guard for another employer.

Respondent raises the same arguments on review that it urged before the judge. Its first contention is that the standard, as applied in this case, is "inappropriate" n3 under 652(8) n4 of the Act because the guards do not provide safe or healthful conditions of employment. Judge Dixon rejected that argument, finding that any injuries that occurred on the guarded machines were caused not by the guards but by the accidental energizing of the machine while the operator's hands were in the danger zone. The judge found that this hazard could be eliminated by removal of the guard each time the operation on the machine was changed. The judge also found that the operator could [*5] remove and replace the guard quickly and with very little effort.

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n3 In making this argument, respondent does not appear to be challenging the validity of the standard, but rather its applicability to the cited machines. In this regard, we note respondent's statement in its brief that it "does not challenge the standard as a general principle."

n4 29 U.S.C. 652(8) provides that:

The term "occupational safety and health standard" means a standard which requires 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.

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We concur in the judge's rejection of respondent's argument, but for a different reason. It is a well settled principle that any determination as to the necessity or appropriateness of a standard is within the discretion of the Secretary. It is not our function to review the wisdom of a standard. Van Raalte Company, Inc., 76 OSAHRC 48/B8, 4 BNA [*6] OSHC 1151, 1975-76 CCH OSHD P20,633 (N3. 5007, 1976).

Respondent also asserts that the Secretary failed to establish the existence of a hazard from the use of sewing machines without needle guards. Judge Dixon properly rejected this contention, noting the actual puncture wounds received by respondent's employees from unguarded needles. The judge also relied upon the undisputed evidence that there was a one-half inch space between the needle in the raised position and the material being sewn, large enough to permit an operator's finger to pass under the needle. Such evidence establishes employee exposure to injury from the point of operation. Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1975-76 CCH OSHD P20,589 (No. 1263, 1976).

Respondent's third contention is that installation of a needle guard diminishes, rather than enhances, employee safety. Judge Dixon rejected this argument based on an earlier Commission decision holding that the standard at 29 CFR 1910.212(a)(2) n5 imposes an affirmative duty on an employer to guard a machine in a manner that does not create a separate hazard to employees. Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, [*7] 1975-76 CCH OSHD P20,239 (No. 8454, 1975), aff'd, 587 F.2d 231 (5th Cir. 1979). In its brief on review, respondent contends that the Commission decision in Buckeye creates an affirmative defense. Respondent has misread our decision. In that case, we specifically said that the requirement of 29 CFR 1910.212(a)(2) that the guard not offer an accident hazard in itself does not provide an employer with a defense, but instead imposes an affirmative duty on the employer to ensure that any guard is uses is both efficacious and safe.

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n5 29 CFR 1910.212 General requirements for all machines.

(a) Machine guarding --

* * *

(2) General requirements for machine guards. . . . The guard shall be such that it does not offer an accident hazard in itself.

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The Commission has, however, recognized the existence of a so-called "greater hazard" defense. In order to establish that defense, three elements must be shown: (1) that compliance with a standard will diminish, rather than enhance, employee safety; [*8] (2) that alternative means of protecting the employees are unavailable (and if available, used); and (3) that a variance application under 29 U.S.C. 655(d) is inappropriate, i.e., would not be granted. Cornell & Company, Inc., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1976-77 CCH OSHD P21,532 (No. 9353, 1977). The judge found, and we agree, that any increased hazard is due to the failure to remove the guard during a change over or threading operation when there is a possibility that the machine will be accidentally energized. There is no persuasive evidence that there is any increased hazard in the sewing operation. Moreover, Fabricraft has failed to establish the latter two elements. Accordingly, respondent has not met its burden of proof as to this affirmative defense.

Respondent's final contention is that any violation, if proved, should be de minimis rather than nonserious. Although we have found that some hazard exists from the unguarded needles on respondent's sewing machines, the likelihood of an accident appears remote. Only two needle puncture injuries n6 were recorded in respondent's log from 1971 to July 1976. Moreover, the injuries that did occur on the unguarded [*9] machines were all minor. Under these circumstances, we believe that Fabricraft employees were exposed to only a slight hazard not warranting an abatement requirement or the imposition of a penalty. Hood Sailmakers, Inc., 77 OSAHRC 212/C12, 6 BNA OSHC 1206, 1977-78 CCH OSHD P22,422 (No. 13996, 1977).

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n6 These injuries were received by employees Georgia Jeffers and Mary Beale in January 1974. The machines apparently were unguarded, Mr. Bachofer having testified that all the machines were guarded only in February, March, and April, 1974. The record also reveals, however, that Ms. Bernal received one or two such injuries when using the unguarded machines. At the time of the hearing, she had worked for Fabricraft for eight years. The dates of her injuries were not specified.

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Accordingly, a de minimis violation of 29 CFR 1910.212(a)(3)(ii) is affirmed unless, within ten days of the issuance of our decision, the Secretary moves for the opportunity to submit a brief regarding the disposition of the charge as de [*10] minimis. n7

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n7 When a "for error" direction for review has been issued and the Commission is considering reversing any part of the judge's decision in response to an objection by the aggrieved party, it has been the practice, pursuant to subparagraph D2 of the Commission's Policy Statement of December 1, 1976, supra note 1, to allow the opposing party an opportunity to brief the issue. In this case, we are allowing the Secretary this opportunity by the issuance of a conditional order.

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DISSENTBY: COTTINE

DISSENT:

COTTINE, Commissioner, dissenting:

The Commission has authority under section 10(c) of the Act, 29 U.S.C. 659(c), to classify a violation as de minimis where the relationship of the violation to safety and health is so remote as to be negligible. E.g., General Electric Co., 75 OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD P19,567 (No. 2739, 1975); Alfred S. Austin Constr. Co., 76 OSAHRC 50/A2, 4 BNA OSHC 1166, 1975-76 CCH OSHD P20,650 (No. 4809, 1976); National Rolling Mills Co., 76 OSAHRC 121/D7, 4 [*11] BNA OSHC 1719, 1976-77 CCH OSHD P21,114 (No. 7987, 1976). Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHED P22,525 (No. 15983, 1978). However, the Respondent's failure to guard its sewing machine needles in this case has a direct and immediate relationship to employee safety. Therefore, the violation is not properly classified as de minimis and instead should be classified as nonserious.

The majority states, "Although we have found that some hazard exists from the unguarded needles on respondent's sewing machines, the likelihood of an accident apears remote." This equivocal conclusion ignores the preventative purpose of the standard. The majority admits that a hazard exists. Moreover, as noted in Van Raalte Co., Inc., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975-76 CCH OSHD P20,633 (No. 5907, 1976), the total absence of injuries is not controlling as to whether a violation is de minimis. Rather, a hazard requiring abatement may exist in the absence of recorded injuries, Arkansas-Best Freight Systems, Inc. v. OSHRC, 529 F.2d 649 (8th Cir. 1976), for "[o]ne purpose of the Act is to prevent the first accident." Lee Way Motor Freight, Inc. [*12] v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975). Furthermore, "[a]voidance 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). The likelihood of an accident occurring is not so remote as to be negligible. As my colleagues state, "[T]he machine operators' hands come within one-half inch of the needles during the sewing operation." In addition, the record evidence reveals that at least three injuries resulting from contact with the needles have occurred at the Respondent's facility. Finally, I do not regard puncture wounds, the likely injury inflicted by sewing machine needles, to be so minor that they are properly described as having a negligible relationship to employee safety and health.

In Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1975-76 CCH OSHD P20,589 (No. 1263, 1976), the Commission found an employer in nonserious violation of 1910.212(a)(3)(ii) for failure to guard the needles of nine sewing machines. In that case the Commission found employee exposure to injury from the point of operation based on the fact [*13] that the sewing machine operators regularly placed their hands within an inch of the needles. As a result, some injuries had occurred. The Commission indicated that the judge's statement (for which it found no support in the record) that injury was unlikely to occur and would be nominal if it did occur, did not preclude affirmance of a nonserious violation. I would apply that precedent to this case and affirm the alleged violation as nonserious because it has more than a negligible relationship to safety and health. *

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* The Commission has properly categorized violations as de minimis where the relationship of the violation to safety and health was so remote as to be negligible. See, e.g., Continental Oil Co.,    OSAHRC   ,    BNA OSHC   , 1979 CCH OSHD P    (No. 13750 1979) (lack of one stairway railing and no vertical fall hazard); Clifford B. Hannay & Son, Inc., supra (configuration of spray booth violated 1971 National Electric Code provision adopted by OSHA; spray booth in conformance with provision in 1975 edition); Perini Corp., 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977-78 CCH OSHD P21,790 (No. 12589, 1977) (rungs of scaffold used as ladder not in accordance with spacing requirements for rungs of ladders); Rust Engineering Co. and Allegheny Industrial Electrical Co., Inc., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977-78 CCH SHD P21,693 (Nos. 12200 & 12201, 1977) (configuration of scaffold endframe used as ladder not in accordance with spacing requirements for rungs of ladders); National Rolling Mills Co., supra (failure to guard 3-foot-deep pit; infrequent exposure; use of grip plates and nonskid shoes); Alfred S. Austin Const. Co., supra (transporting employees by crane under circumstances essentially satisfying the Secretary's criteria for avoiding citation).

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