“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5656 HANA SHOE CORPORATION \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 24, 1976DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissions.CLEARY, Commissioner:On November 16, 1973, respondent, HanaShoe Corporation, was issued a citation by complainant, the Secretary of Labor,alleging five violations of certain occupational safety and health standards.Respondent filed a notice of contest only as to item 5 of the citation. Thecontested item alleged a failure to enclose vertical and inclined belts onsewing machines. Complainant asserted that the alleged failure to guard thesewing machine belts contravened the standard at 29 CFR ? 1910.219(e)(3)(i)[hereinafter ? 1910.219(e)(3)(i)]. This standard provides as follows:? 1910.219 Mechanical power-transmissionapparatus.?(e) Belt, rope, and chain drives?(3) Vertical and inclined belts.(i) Vertical and inclined belts shall beenclosed by a guard conforming to standards in paragraphs (m) and (o) of thissection.?Following a hearing in this matter,Administrative Law Judge Abraham Gold vacated the contested item, holding that?1910.219(e)(3)(i) does not apply to respondent?s sewing machines. Complainanttook exception to this ruling and filed a petition for discretionary review ofthe Judge?s decision. The petition was granted and review was directed pursuantto section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651 et seq. [hereinafter cited as ?the Act?] on the following issue:Whether the Administrative Law Judge erred in findingthat the standard at 29 CFR ? 1910.219 (e)(3)(i) does not apply under the factsof this case?Upon consideration of the record, wereverse the Judge?s decision and modify the citation as follows.Respondent maintains a place of businessin Lewiston, Maine, where it is engaged in the manufacture of ladies? shoes. Atthis facility respondent operates approximately 250 Singer straight single needlesewing machines. These machines are mounted on tables and are powered byelectric motors located beneath each table. The power is transmitted from themotors to the sewing machines by means of an inclined belt which runs throughan opening in the table and connects to a pulley at the hand wheel of thesewing machine. The ends of the belt are fastened together by a metal clip.While the machine is operating the beltruns counterclockwise, i.e. toward the operator, at a speed of approximately800 to 900 feet per minute. The operator controls the speed of the machine bymeans of a foot pedal (treadle). When performing sewing operations the operatoruses both hands to guide the material through the left side of the machine.At times, the operator will ?palm? thehand wheel on the right side of the machine in order to stop stitching at acertain point, to make a complete turn, or to make a curve. When the operator?palms? the hand wheel the machine is not operating. Consequently, the belt isnot transmitting power to the pulley attached to the hand wheel when the wheelis ?palmed.?There is no dispute that at the time ofthe inspection none of the inclined belts was enclosed by guards. In citingrespondent for allegedly failing to comply with ? 1910.219(e)(3)(i),Complainant asserted that guarding was necessary to enclose the pinch pointswhere the belt runs over the pulley and where it passes through the table.Complainant also maintained that enclosure was necessary to confine the flightof the metal clip in the event the belt should break.Judge Gold set forth two reasons insupport of his conclusion that ? 1910.219(e)(3)(i) did not require the guardingof respondent?s sewing machines. First, he stated that when the cited standardis read in conjunction with 29 CFR ? 1910.219(e)(3)(ii)[1] it becomes apparent that ?\u00a01910.219(e)(3)(i)was intended to require guarding of belts on large industrial machinery, andnot on single-needle sewing machines. For his second reason supporting thepurported inapplicability of ? 1910.219(e)(3)(i), the Judge noted that:This record shows that the probability ofeven a very minor injury due to an unguarded nip point or broken belt on thisparticular type of machine is so remote as to be negligible. The purpose ofoccupational safety and health standards, as stated in 29 U.S.C. ? 652(8)[section 3(8) of the Act], is to require conditions, or the adoption or use ofone or more practices, means, methods, operations, or processes reasonablynecessary or appropriate to provide safe or healthful employment and places ofemployment. A standard requiring the guarding of the belt of a single-needlesewing machine is not reasonably necessary or appropriate to provide safe orhealthful employment and place of employment.?We reject the Judge?s conclusion regarding theinapplicability of ? 1910.219(e)(3)(i) to respondent?s sewing machines.The Commission decisions in CornishDress Mfg. Co., 3 BNA OSHC 1850, 1975?76 CCH OSHD para. 20,246 (No. 6765,December 23, 1975) and Van Raalte Co., Inc., 4 BNA OSHC 1151, 1975?76CCH OSHD para. 20,633 (No. 5007, April 19, 1976) are dispositive of thequestion of whether ? 1910.219(e)(3)(i) applies to respondent?s single-needlesewing machines.[2]In Cornish Dress Mfg. Co., supra,we specifically rejected the Judge?s interpretation that 29 CFR ? 1910.219(e)(3)(ii),when read in conjunction with ? 1910.219(e)(3)(i), limited the latter?sapplicability to large industrial machinery. In both Cornish Dress Mfg. Co.,supra and Van Raalte Co., Inc., supra, we rejected the argument that? 1910.219(e)(3)(i), as applied to single-needle sewing machines was contraryto section 3(8) of the Act. We held that such an argument contravenes theprinciple that this Commission lacks the authority to question the wisdom of astandard. See Van Raalte Co., Inc., supra and authorities cited therein.No argument has been advanced in the instant case compelling us to depart fromthis precedent.Accordingly, we hold that the citedstandard applies to respondent?s sewing machines. Moreover, we hold that theevidence of record establishes a failure to comply with ?\u00a01910.219(e)(3)(i).We note, however, that the record in thiscase indicates that the hazards resulting from the unguarded condition ofrespondent?s sewing machines are trifling. Indeed, even complainant?s witnessesadmitted that the probability of injury resulting from the unguarded conditionof the machines was slight. In addition, Judge Gold observed that ?. . . theprobability of even a very minor injury . . . is so remote as to benegligible.? Under these circumstances, we deem it inappropriate to orderabatement with the full terms of the standard. Accordingly, for the reasonsannounced in Van Raalte Co., Inc., supra, we amend item 5 of thecitation to allege a de minimis violation of the Act. The citation as amendedis affirmed.?So ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDated: AUG 24, 1976?MORAN, Commissioner, Dissenting:Judge Gold?s decision is eminently correctand should be affirmed. My colleagues? reversal of that decision is erroneousas a matter of law because a citation cannot be affirmed in view of theirfinding that the violation is ?de minimis.? In addition, no violation of anynature can be established on the basis of this record because the evidencefails to establish that the alleged violative condition constitutes a hazard.Judge Gold?s decision, which I incorporateby reference herein and attach as Appendix A, succinctly and accuratelydescribes the posture of the evidence as follows:?The two witnesses presented by theSecretary agreed that the probability of an injury due to an unguarded belt orbreaking belt was slight (Tr. 37, 38, 75, 76). Respondent?s stitching roomforeman who was employed as a machine operator for three years (Tr. 99)and thereafter as a stitching room foreman for about 23 years (Tr. 101),testified that he had never heard of an injury due to an unguarded belt, andhad never heard of a broken belt being flung out by the machine (Tr. 116). Hesaid that belts have broken on several occasions while he was stitching, andthe belt merely fell as the machine stopped (Tr. 115). The manager ofmaintenance at another shoe company testified that in over 27 years ofexperience in the shoe industry he had never heard of an injury due to anunguarded belt (Tr. 192); that he has seen a belt break, and when that happens,the belt is ?just absolutely motionless. It just hangs there? (Tr. 194). Heasserted that he had never seen a belt flung into the air upon breaking (Tr.194). An executive of still another shoe company wrote to all the shoecompanies in Maine on November 14, 1973 (Exh. C?1), inquiring as to records ofaccidents due to unguarded belts; thirteen factories responded to the effectthat in 37 million man-hours of work there were no reported injuries dueto unguarded belts (Tr. 156?157). Respondent?s Controller and AdministrativeManager for the past four years (Tr. 169), whose duties include chairing theSafety Committee (Tr. 170), stated that he sees and signs all accident reportsand that he has never seen a report of an accident resulting from an unguardedbelt (Tr. 170).? (Emphasis added.)?Complainant presented his evidence throughthe testimony of two witnesses who displayed a limited familiarity with sewingmachines and a lack of knowledge concerning the shoe industry. One of thesewitnesses had been involved with industries using sewing machines for about twoyears, but that involvement was limited solely to inspection of about 35 to 40factories which used sewing machines in some manner. Although the other witnesshad seen one or two sewing machines in operation while he worked for BethlehemSteel and, as a field insurance supervisor from 1965 to 1968, had visited about100 ?accounts . . . that utilized sewing machines,? he had observed the operationsof a shoe factory only once. Both witnesses speculated that respondent?semployees could be injured by the unguarded belts by receiving a minor injuryat a nip point or by being struck by a metal clip if a belt were to break.Neither, however, had observed an injury which had resulted from an unguardedbelt.The sole purpose of the OccupationalSafety and Health Act is to protect employees from injuries and illnessesresulting from their employment. 29 U.S.C. ? 651. Thus, when there is nooccupational hazard to employees arising out of a cited condition, there is noviolation of the Act. The Commission has previously recognized this soundprinciple in Secretary v. Straight Creek Constructors, 7 OSAHRC 1158,1162 (1974), where Commissioner Cleary was the author of the lead opinion. Themajority departs from that holding in this case and in so doing attempts tostretch the coverage of the Act to regulate conditions that pose no hazard toemployees.The evidence in this case clearlyestablishes the nonexistence of a hazard. By affirming a ?de minimisviolation? my colleagues acknowledge this fact. That acknowledgement precludestheir affirmance of the citation.The Act provides that the Secretary ofLabor may issue ?a notice in lieu of a citation with respect to deminimis violations? which are defined as ?violations which have no direct orimmediate relationship to safety or health.? 29 U.S.C. ? 658(a) (emphasisadded). Thus, by finding a de minimis violation, the majority has in effectconcluded that the unguarded belts do not constitute a hazard. In such asituation, Congress has decreed that it is improper to issue a citation butthat the Secretary may issue a notice in lieu thereof. Since the Commissiondoes not have the authority to issue a notice, it must vacate any citation thatpertains to a nonhazardous condition. See my dissenting opinions in Secretaryv. Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28,1976, and Secretary v. Van Realte Company, OSAHRC Docket No. 5007. April29, 1976, where I have discussed this matter at greater length and pointed outthe significance of distinguishing de minimis violations and violations forwhich citations may be issued.?APPENDIXA\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5656 HANA SHOE CORPORATION \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 7, 1975DECISIONAND ORDERAppearances:RobertYetman, Esq., for ComplainantDavidP. Cluchey, Esq., for Respondent\u00a0Thiscase arose under 29 U.S.C. ? 659(c). Hearing was held at Portland, Maine, onAugust 14, 1974.Respondentwas cited on November 16, 1973, for five nonserious violations of safetystandards. A penalty of $35 was proposed for item 4, and no penalty for any ofthe other items. Respondent filed a notice of contest only as to the fifth item[3]which charged a violation of 29 C.F.R. ? 1910.219(e)(3)(i) for failure toenclose vertical and inclined belts of sewing machines with guards.Thecited standard reads:Subpart0?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 tostandards in paragraphs (m) and (o) of this section.?Under29 U.S.C. ? 666(c), a civil penalty of up to $1,000 may be assessed for anonserious violation.Inresponse to the complaint Respondent admitted (Tr. 6, Ans. I, II) that it is aMaine corporation with a principal address at Lewiston, Maine; that it isengaged in the manufacture of Ladies? shoes; that it regularly receives,handles, and ships goods that move or have moved across state lines ininterstate commerce, and is engaged in a business affecting commerce, withinthe meaning of the Act; that it has about 375 employees; and that its place ofbusiness at Lewiston, Maine, was inspected by a representative of theDepartment of Labor on November 6, 1973.Respondenthas about 250 Singer straight single-needle sewing machines at the facilityunder consideration (Tr. 11, 40, 55, 103). The machines are mounted on a tableand powered by individual electrical motors (Tr. 18, 105) located under thetable. The power reaches the machines by means of an inclined belt (Tr. 18, 56,148), which come up through an opening in the table and goes around a pulley atthe hand wheel which is to the right of the operator (Tr. 19). The belts areV-shaped, measuring 11\/32 of an inch in width at the top and 1\/4 of an inch atthe bottom (Tr. 103). The ends of the belt are fastened by a metal clip (Tr.129, 148). The belt runs counterclockwise, that is, toward the operator (Tr.104, 129), the machine operating at a speed of about 800 to 900 feet per minute(Tr. 17, 50).Atthe time of the inspection, none of the belts was enclosed by a guard (Tr. 20,55?56, 139?140).Themachine operator sits facing the machine, the hand wheel and pulley to theright of the operator; the work is performed on the left side of the machine(Tr. 107?180), the operator guiding the material with both hands through thesewing operation (Tr. 111). The operator presses down on the toe of a footpedal (treadle) to run the machine, and presses down on the heel part to shopthe action of the machine (Tr. 133?134). At times the operator places her righthand on the hand wheel; the operator palms the wheel during normal operations(Tr. 134, 135), such as to stop the stitching at a certain point, make acomplete turn, or make a curve (Tr. 136?138). When the operator touches thehand wheel, the machine is not in operation (Tr. 133). Respondent uses onlycommercial bobbins which are installed on the left side at the bottom of themachine (Tr. 105?106).Itwas the testimony of the inspecting officer that an employee can receive apinch at the point where the belt goes over the pulley and at the point wherethe belt passes through the table (Tr. 20?21); and that there is also a hazardto the employee if the belt breaks since the metal clip can fly off the beltand cause a laceration (Tr. 21?22).Anassociate Assistant Regional Director opined that an operator or passerby couldget a pinch or abrasion at the nip point (Tr. 65?67), and that the operatorcould get a ?slight cut or abrasion? from the metal clip if the belt were tobreak (Tr. 69).Thetwo witnesses presented by the Secretary agreed that the probability of aninjury due to an unguarded belt or breaking belt was slight (Tr. 37, 38, 75,76). Respondent?s stitching room foreman who was employed as a machine operatorfor three years (Tr. 99) and thereafter as a stitching room foreman for about23 years (Tr. 101), testified that he had never heard of an injury due to anunguarded belt, and had never heard of a broken belt being flung out by themachine (Tr. 116). He said that belts have broken on several occasions while hewas stitching, and the belt merely fell as the machine stopped (Tr. 115). Themanager of maintenance at another shoe company testified that in over 27 yearsof experience in the shoe industry he had never heard of an injury due to anunguarded belt (Tr. 192); that he has seen a belt break, and when that happens,the belt is ?just absolutely motionless. It just hangs there? (Tr. 194). Heasserted that he had never seen a belt flung into the air upon breaking (Tr.194). An executive of still another shoe company wrote to all the shoecompanies in Maine on November 14, 1973 (Exh. C?1), inquiring as to records ofaccidents due to unguarded belts; thirteen factories responded to the effectthat in 37 million man-hours of work there were no reported injuries due tounguarded belts (Tr. 156?157). Respondent?s Controller and Administrative Managerfor the past four years (Tr. 169), whose duties include chairing the SafetyCommittee (Tr. 170), stated that he sees and signs all accident reports andthat he has never seen a report of an accident resulting from an unguarded belt(Tr. 170).Straightsingle-needle sewing machines are not specifically mentioned in the citedstandard. Sections 219(e)(3)(i) and 219(e)(3)(ii) must be construed withreference to each other. The latter states:(ii) All guardsfor inclined belts shall be arranged in such a manner that a minimum clearanceof seven (7) feet is maintained between belt and floor at any point outside ofguard.?Themachines have inclined belts. The belt runs from a point about two feet or twoand a half feet from the floor up to the top of the pulley which is about threeand a half feet above the floor (Tr. 147?148). The wording of 219(e)(3)(ii),encompassing all guards for inclined belts, and requiring a clearance of aleast seven feet between the inclined belt and the floor, strongly suggeststhat the standard at 219(e)(3)(i) is intended for large industrial machinery,and not for the single-needle sewing machines involved here.Thisrecord shows that the probability of even a very minor injury due to anunguarded nip point or broken belt on this particular type of machine is soremote as to be negligible. The purpose of occupational safety and healthstandards, as stated in 29 U.S.C. ? 652(8), is to require conditions, or theadoption or use of one or more practices, means, methods, operations, orprocesses reasonably necessary or appropriate to provide safe or healthfulemployment and places of employment. A standard requiring the guarding of thebelt of a single-needle sewing machine is not reasonably necessary orappropriate to provide safe or healthful employment and place of employment.Item #5 of the citation will be vacated.Findingsof Fact1.Respondent is and at all times pertinent herein was a Maine corporationmaintaining a ladies? shoe manufacturing plant at Lewiston, Maine, where itemployed about 375 persons in a business affecting commerce.2.At all times relevant to this action, Respondent had under its ownership,operation and control about 250 electrically powered Singer single-needlesewing machines which were operated by its employees at said plant.3.Said workplace was inspected by an official at the Department of Labor onNovember 6, 1973.4.On said date and at said workplace, Respondent did not enclose with guards theinclined belts on these machines.Conclusionsof Law1.The Occupational Safety and Health Review Commission has jurisdiction over theparties 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 November 6, 1974, Respondent was not in violation of Section 5(a)(2) of theAct, 29 U.S.C. ? 654(a)(2), for alleged failure to comply with the safetystandard at 29 C.F.R. 1910.219(e)(3)(i), since this standard does not apply tothe machines involved herein.OrderITIS ORDERED that Item #5 of the citation issued on November 16, 1973, and therelating proposed penalty notice be and the same hereby are VACATED.?ABRAHAM GOLDJudge, OSHRCDated: JAN 7, 1975?Boston, Massachusetts[1] Subdivision (ii) of ? 1910.219(e)(3)provides as follows:Allguards for inclined belts shall be arranged in such a manner that a minimumclearance of seven (7) feet is maintained between belt and floor at any pointoutside of guard.[2] The facts regarding the nature ofthe sewing machines and their operation in the Cornish Dress Mfg. Co.and Van Raalte Co., Inc. cases are virtually identical to thosepresented in the instant case.[3] The uncontested cited items and therelating portions of the proposed penalty notice became a final order of theCommission upon the expiration of 15 working days from the date on whichRespondent received the notice. 29 U.S.C. ? 659(a).”