Docket No. 1916

GERRY DIVISION OF OUTDOOR SPORTS INDUSTRIES, INC.

OSHRC Docket No. 1916

Occupational Safety and Health Review Commission

October 19, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision of Judge John A. Carlson. Judge Carlson vacated one item and affirmed the remaining seven items of Complainant's citation charging non-serious violations of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). The Judge assessed a penalty in the amount of $30.

We have reviewed the record and find no prejudicial error therein.

Accordingly, it is ORDERED that the decision of the Judge be and the same is hereby affirmed.

[The Judge's decision referred to herein follows]

CARLSON, JUDGE OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et. seq., hereafter called the Act) contesting a citation issued by Complainant against the Respondent (hereafter referred to sometimes as "Gerry") under authority vested in complainant by Section 9(a) of the Act. The citation alleges that as a result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 5450 North Valley Highway, Denver, Colorado and described as follows:

"Manufacturer of outdoor camping equipment and wearing apparel," Respondent was determined to have violated section 5(a)(2) of the Act by failing to comply with certain Occupational Safety and Health Standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued December 4, 1972 alleges that violation resulted from a failure to comply with standards duly promulgated by the Secretary of Labor and codified in 29 CFR Part 1910.

As originally issued the Citation alleged eight separately numbered and described violations of various sections of Part 1910, all of an other-than-serious character.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act the Respondent was notified by a document dated December 4, 1972 by the Area Director for the Denver, Colorado area, Occupational Safety and Health Administration of a proposal to assess a penalty of $30 for the violation alleged in Item No. 1 of the Citation and a penalty of $30 with respect to Item No. 5; and was further notified that no penalties were proposed for any of the other alleged items of violation.

After Respondent contested this enforcement action complaint and answer were duly filed by the parties and the matter proceeded to hearing at Denver, Colorado on April 3, 1970. No appearance was made by any authorized representative of affected employees nor did any such employee appear on his own behalf. The record herein fully discloses that all required notices including the notice of the hearing were duly served and posted in accordance with the rules applicable thereto.

Whereas the complaint and answer put fully at issue all items of violation alleged in the Citation the parties at the outset of the hearing presented a joint stipulation which, if accepted, would effectively dispose of the first five numbered items of Citation either through withdrawal or vacation.

The proffered stipulation (joint exhibit 1), omitting caption and signature, reads as follows:

The parties agree and stipulate to the truth of the following facts:

1. The legal name of the Respondent is Gerry Division, Outdoor Sports Industries, Inc. Outdoor Sports Industries, Inc. is a Delaware corporation, with its principal office in Denver, Colorado.

2. Respondent admits that it was engaged in a business affecting commerce at the time of the alleged violations.

3. Respondent admits that at the time of the alleged violations it owned and controlled equipment of the type referred to in the complaint and the citation which is the subject of the complaint.

4. The average daily number of employees of the Respondent during the current or more recent calendar year is approximately 250.

5. Respondent has no history of previous violations of any law or regulation affecting the safety or health of employees.

6. Respondent prominently posted the citation, the complaint, the answer, and the notice of hearing shortly after the date of each such document on the bulletin board in the employee lunch room of Gerry Division, Outdoor Sports Industries, Inc., at 5450 North Valley Highway, Denver, Colorado -- 80216.

7. Respondent admits to the violations listed in the citation issued December 4, 1970, as items 1, 2, 3, 4. The parties agree that the penalty assessed for item number 1 is appropriate considering the requirements of the Act for assessment, of penalties.

8. Item 5 listed in the citation of December 4, 1972, does not state a violation under the Occupational Safety and Health Act of 1970. 29 CFR § 1910.217(a)(5) provides:

Excluded machines. Press breaks, hydraulic and pneumatic power presses, bulldozers, hot bending and hot metal pressers, forging presses and hammers, riveting machines and similar types of fastener applicators are excluded from the requirements of this section.

The Complainant agrees that Item 5 was inappropriately cited and agrees to withdraw the citation and the penalty assessment with respect to Item 5.

Giving attention to those portions of the stipulation by which Respondent sought, in essence, to withdraw its notice of contest as to items numbered 1 through 4 of the citation, it is found that withdrawal should be permitted as being in accord with the general purposes of the Act. These items, involved charges of violations relating, respectively, to using compressed air at excessive pressure for cleaning; failure to provide standard railings on certain stairways; inadequately guarded fans; and lack of guarding on a rivet machine. The record discloses that each of such violations has been abated (Tr. 69, 70). A letter from Respondent's attorney shows tender of the single $30.00 penalty involved. Inasmuch as full notice of the hearing and all previous steps in this proceeding was afforded all potential employee parties and none sought party status either prior to or at the time of hearing, no notice of such stipulated withdrawal is required. See Secretary of Labor v.

Similarly, that portion of the stipulation in which Complainant seeks, in essence, to vacate item 5 of the Citation should be honored by dismissal and vacation of the item and attendant penalty. Rivet machines, the subject of the alleged violation are specifically exempted by pertinent standard.

The items of alleged violation remaining in contest at the hearing were described in the citation as follows:

Item 6. 29 CFR 1910.212(a)(1), Sewing machines located throughout the establishment were not equipped with point of operation (needle) guards.

Item 7. 29 CFR 1910.215(a)(2), Dayton abrasive grinder, Model No. 40000 SA 722, was not provided with a safety guard covering spindle end, nut and flange projections.

Item 8. 29 CFR 1910.216(b)(9), Dayton abrasive grinder, Model No. 40000 SA 722, was not equipped with a peripheral guard.

An abatement date of January 2, 1973 was specified for each of the three items; no penalty was proposed for any of the three.

The cited standards as promulgated by the Secretary of Labor are as follows:

(Item 6) 29 CFR 1910.212 General requirements for all machines. (a) Machine guarding -- (1) Types of guarding. One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, in-going nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier guards, two-hand tripping devices, electronic safety devices, etc.

(Item 7) 29 CFR 1910.215 Abrasive wheel machinery. (a) General requirements -- (1) Machine guarding. Abrasive wheels shall be used only on machines provided with safety guards as defined in the following paragraphs of this section. . . .

(2) Guard design. The safety guard shall cover the spindle end, nut and flange projections. The safety guard shall be mounted so as to maintain proper alignment with the wheel, and the strength of the fastenings shall exceed the strength of the guard, except:

(i) Safety guards on all operations where the work provides a suitable measure of protection to the operator, may be so constructed that the spindle end, nut, and outer flange are exposed; and where the nature of the work is such as to entirely cover the side of the wheel, the side covers of the guard may be omitted; and

(ii) The spindle end, nut, and outer flange may be exposed on machines designed as portable saws.

(Item 8) 29 CFR 1910.215(b)(9) Exposure adjustment. Safety guards of the types described in subparagraphs (3) and (4) of this paragraph, where the operator stands in front of the opening, shall be constructed so that the peripheral protecting member can be adjusted to the constantly decreasing diameter of the wheel. The maximum angular exposure above the horizontal plane of the wheel spindle as specified in subparagraphs (3) and (4) of this paragraph shall never be exceeded, and the distance between the wheel periphery and the adjustable tongue or the end of the peripheral member at the top shall never exceed one-fourth inch (See Figures 0-18, 0-19, 0-20, 0-21, 0-22, and 0-23).

Subparagraphs (3) and (4) provide respectively:

(3) Bench and floor stands. The angular exposure of the grinding wheel periphery and sides for safety guards used on machines known as bench and floor stands should not exceed 90 degrees or one-fourth of the periphery. This exposure shall begin at a point not more than 65 degrees above the horizontal plane of the wheel spindle (See Figures 0-6 and 0-7 and subparagraph (9) of this paragraph).

Wherever the nature of the work requires contact with the wheel below the horizontal plane of the spindle, the exposure shall not exceed 125 degrees (See Figures 0-8 and 0-9).

(4) Cylindrical grinders. The maximum angular exposure of the grinding wheel periphery and sides for safety guards used on cylindrical grinding machines shall not exceed 180 degrees. This exposure shall begin at a point not more than 65 degrees above the horizontal plane of the wheel spindle (see Figures 0-10 and 0-11 and subparagraph (9) of this paragraph).

REVIEW OF THE EVIDENCE

Respondent admits in its answer herein that its Denver facility is engaged in the manufacture of camping equipment and related items; that it has employees; and that it is engaged in a business affecting commerce. Testimony of various witnesses disclosed that among the items manufactured were sleeping bags and jackets with goose duck down fill and back packs (Tr. 28, 45, 48, 78, 96).

Mrs. Doris Burnham, a compliance officer with the Occupational Safety and Health Administration of the Department of Labor testified on behalf of Complainant that she conducted an inspection of the Gerry plant premises on November 28, 1972 (Tr. 15). In the course of her inspection she observed approximately 100 "straight sewing machines" which were not equipped with "needle guards" or "finger guards." Approximately 75% of these machines were in use at the time (Tr. 16). Needle or finger guards were described by her as devices placed above the pressure foot in a position which would create a barrier preventing the operator's fingers from entering the path of the needle (Tr. 19). Only "straight sewing machines" were considered as being in violation of the standard cited (Tr. 16). The point of the needle on the approximately 20 of these machines which she examined closely was observed to elevate to a maximum height of approximately one inch above the pressure foot (Tr. 28, 49). According to the witness if one of the operator's fingers should stray into the opening created when the needle was in the upward position the finger, including the bone, could be pierced (Tr. 28, 30). The witness had general qualifications in the field of industrial safety including fourteen months with OSHA as an inspecting compliance officer with approximately 150 inspections completed (Tr. 13-14). She had no specific experience as an operator of commercial or industrial sewing machines (Tr. 36-40), but had some general exposure to safety conditions in "machine guarding" as an inspector at an ammunition plant from 1966 through 1970 (Tr. 14). Beyond her visual inspection of the sewing machines at the Gerry plant, the basis for any knowledge of needle hazard or commercial sewing machines appears to be expressed in the following testimony:

I have inspected various industries, sewing machine establishments. I have viewed the records available in the office and I see that numerous injuries are listed on getting fingers under needles. I know this happens quite often (Tr. 27).

[In the context of this portion of the testimony it is clear that the office referred to is the OSHA office, not that of Gerry.]

Mrs. Burnham further stated, in essence, that in forming her belief that the cited standard had been violated she did not give consideration to the level of experience of the operator, the nature of the particular procedure being done in terms of fabric or article in process of manufacture, or any other factor beyond the fact that "straight sewing" was being done and the opening between the pressure foot and the needle at the extreme point of elevation in the operating cycle was sufficient to permit a finger to move under the needle (Tr. 45 and 50). She observed no needle injuries while on the premises (Tr. 50).

Sewing machines bearing the brand names of Singer, Union Special and Pfaff were observed by the compliance officer in the plant; none of these was equipped with a finger guard (Tr. 43-44). She conceded that some machines may be fitted with attachments not specifically intended as guards which can effectively serve that function, but that her citation was directed only to straight sewing machines which had no finger protection (Tr. 44). The witness was shown pictures which were later identified as those of "surger" machines (Respondent's exhibits 7 and 8) and she stated that she did not recall seeing such machines at the Gerry facility and was unfamiliar with them (Tr. 51). She testified that the fabrics upon which the operators were sewing appeared to be nylon (Tr. 28), but conceded that she could not be certain (Tr. 52).

Complainant was permitted to introduce a single page document illustrating 23 differing designs of finger guards for Singer machines. No showing was made that the specific guards illustrated would fit any of Gerry's Singer machines and the document was hence admitted for the limited purpose for which it was offered: to demonstrate that such guards are manufactured and, in a general sense, known to the industry (Tr. 22-26).

Relative to items 7 and 8 of the citation alleging improper guarding of an abrasive grinder the compliance officer testified with the aid of a photograph taken at the time of inspection (Complainant's exhibit No. 2). The grinder, equipped with an abrasive wheel, was located in a maintenance room and according to the witness was not equipped with a guard covering the spindle end of the shaft. The purpose of such a guard is to protect the operator from flying fragments in the event the wheel should shatter while in use (Tr. 32). [The photograph depicts a grinder situated on a bench or table. It has a central motor housing with a wheel mounted on either side.] The witness testified, in essence, that the wheel in question was that shown on the left hand side of the photograph (Tr. 33, 34); that she was familiar with the common types of grinding wheels; that the wheel on the left was determined on visual inspection to be an abrasive wheel made of a carbon and silicon compound and not merely a wheel coated with an abrasive substance; whereas the wheel mounted on the right was a coated wheel (Tr. 40-43). The witness acknowledged that the left-side wheel was equipped with a partial guard (Tr. 34) but that such guard did not qualify as flange or spindle end guard as it did not extend over the outside or left hand side of the wheel, nor as a peripheral guard since it did not have an adjustable tongue which limits exposure of the peripheral edge of the wheel to no more than one quarter inch (Tr. 34-38; 57-61). The compliance officer stated that while the citation did not identify the left side wheel to be that allegedly in violation this matter was disclosed to management personnel of Respondent at the closing conference (Tr. 42, 43).

Mrs. Mary Francis Cook testified on behalf of Respondent. She is Personnel Director at Respondent's Denver plant, serves in the same capacity at a smaller plant in Alamosa, Colorado [not cited herein] and has been employed by Respondent since 1969 (Tr. 63). Respondent's employees have employee safety committees as a part of an organized safety program which the witness set up about four years ago. Periodic employee safety meetings are held, supervisors instructed concerning safety matters and a monthly news letter which includes safety features is published. Required OSHA reporting forms are maintained by the Personnel Department under Mrs. Cook's direction and employees are required to report all working injuries, no matter how slight, to her office. A first aid station is maintained in the Personnel Department and certain employees are trained in first aid techniques (Tr. 65, 66, 74). Also, tetanus inoculations are administered to employees semi-annually as a prophylaxis. This is admittedly done as a precaution against tetanus should an employee suffer a needle injury to a finger, though no cases of the disease were known in Respondent's history (Tr. 75, 76).

The witness testified that the Denver plant employed approximately 200 full time sewing machine operators (Tr. 69). At the time of the inspection approximately 150 sewing machines were utilized on the Denver premises, and at the time of hearing 180. The witness stated that the machines in the plant were of three basic types: double needle, single needle and surger (Tr. 73, 74). Mrs. Cook testified that in the four years she was at the Gerry Denver facility only one sewing machine needle injury had occurred which would be recordable under the record keeping requirements of the Act. On that occasion a trainee, described as "a very nervous individual," suffered "a needle through the finger accident" which required surgical treatment (Tr. 67, 68). No other needle injuries have required treatment of a physician and none has resulted in any infection. Needle injuries requiring no more than first aid treatment by nonprofessional personnel have occurred at the rate of 7 to 8 per year at the Denver plant over the past four years (Tr. 69). By comparison, Mrs. Cook estimated that the Alamosa plant, which had had 100 sewing machine operators using similar equipment, had approximately 3 or 4 annual unrecordable needle injuries over the same period. She stated that unless a needle "actually penetrates and goes in and hits a bone it would be non-recordable" (Tr. 72, 73).

Mrs. Cook testified that Respondent had not experimented with needle guards since the OSHA inspection but had done so previously, having had guards on single needle surgers and double needle Phaffs. In response to a question as to why guards were tried on those particular machines the witness stated:

They had decided to try them at one time and they were not felt to be effective. The girls wouldn't leave them on so we didn't go on with it.

She acknowledged that she knew of no injuries while the guards were in use (Tr. 76).

Respecting the alleged violation involving grinding equipment the witness stated that Respondent did have at the Denver plant an abrasive wheel mounted on the left side of a Dayton abrasive grinder, Model No. 40,000 SA-722; that such wheel was now equipped with a guard covering the spindle end and also a peripheral guard; and that the wheel mounted on the right side was made of nylon (Tr. 70, 71).

Respondent presented two additional witnesses both of whom were supervisors of sewing machine operators in the cited facility. Mrs. Helen F. Cathey trains and supervises some 15 such operators who sew on back packs made of a coated nylon material (Tr. 78-80, 91). Her experience with industrial or commercial sewing machines began in 1959 and her experience with Gerry 1971 (Tr. 78-80). In her work for other employers she used machines generally equipped with needle guards. The machines were of essentially the same type used at Gerry (Tr. 81, 86). With respect to guards she observed:

Well, they are very clumsy. I found that the material can catch into the guard while you are sewing. Also, it is possible that you can get your finger in the needle with one on. It is hard on you when you are sewing, you can't see where you are going. You have to sit in a strange position looking over the guard to see where you are sewing (Tr. 81).

She also stated that the use of guards tended to cause the operator to experience backache and neckache because of the body position required (Tr. 81).

Mrs. Cathey asserted that there was no way that a "surger" machine could be equipped with a finger guard and that in fact there was no necessity for guarding since the surger, which makes a special double needle stitch, has a pressure foot so large that it, in itself, acts as a guard (Tr. 82, 90).

On sewing machines fitted with a "folder" attachment, such attachment prevents the use of a conventional guard and in fact serves itself as a guard (Tr. 82).

The witness expressed the opinion that there was in fact no "hazard at the point of operation on any sewing machine in the Gerry Plant" (Tr. 83). At the same time she acknowledged that an inexperienced seamstress was more likely "to get a finger pricked" than an experienced one (Tr. 83). On cross-examination she was shown Complainant's exhibit 3, illustrating various Singer guards and specifically the guard designated 160603. She stated, in essence, that she did not know whether it would be clumsy in operation since she had not used one like it, but felt it would necessitate removal before needles could be changed. She indicated that the guards with which she had had experience were not "like part of a spring, spiral wire," but larger pieces of metal connected to the post supporting the pressure foot (Tr. 87-89). She later stated that she had used one of the illustrated Singer guards, 12-1344, a solid metal piece, not a wire, that it would fit Respondent's single needle Singer machines; and that it was the only one which she recognized (Tr. 93, 94). She then stated she "imagined" one of the wire metal models could be fitted and that it would possibly tend less to obscure the operator's vision (Tr. 95). She had never suffered a needle injury, but had seen them happen to others (Tr. 88). She was of the view that most of such incidents were the result of hurry or carelessness on the part of worker (Tr. 91), or occurred with inexperienced operators (Tr. 94). Trainees at the Denver plant work with unguarded machines (Tr. 96).

Mrs. Mickey Tsuchiya supervises about 30 sewing machine operators in the jacket department at Denver, has worked with commercial sewing machines for approximately 25 years, and had worked for Respondent since 1968 (Tr. 98). She identified eight photographs consisting of pictures of various machines in her department (Respondent's exhibits 1 through 8) which depicted typical hand placements of operators as they sewed. Three of these show Phaff machines which were equipped with needle guards; two were of "surger" machines. The remaining three were "straight" sewing machines, presumably without guards (Tr. 99-100). The machines pictured were as they were at the time of inspection. The witness had five guarded Pfaffs in her department which were used only for quilting operations on down jackets (Tr. 101, 108). The guard remained on because they could not be removed without removing the pressure foot to which they were attached (Tr. 117). She substantiated Mrs. Cathey's testimony that needles on surger machines could not injure fingers, nor could straight sewing machines equipped with folder attachments (Tr. 105, 106, 110). She agreed that the wire guards on the Phaff machines were small, and did not appreciably interfere with quilting operations, but that such a guard would interfere with more exacting edge stitching on garments (Tr. 106, 108, 109). She characterized commercial sewing as "very exacting work" requiring a "clear line of vision," (Tr. 113) and indicated that a commercial machine was more powerful and faster than those designed for home use (Tr. 116).

Mrs. Tsuchiya offered the opinion that no machine at Gerry required a needle guard (Tr. 103) and stated that in her experience operators of machines with guards "don't like it" because of greater difficulty in seeing the needle (Tr. 106). She acknowledged that she had had her finger pierced by a needle some 20 years earlier when she was a trainee and was "half asleep" (Tr. 103); that there is a "hazard" if an operator becomes careless (Tr. 112); and that the likelihood of finger injury is greater without a guard than if one is provided (Tr. 111, 112). It was her opinion, however, that with but one minor nonreportable injury per 52,000 work hours, as disclosed by Respondent's records, no hazard could be said to exist (Tr. 113). This figure was arrived at on the premise that each of 200 sewing machine operators working a 40 hour week, with overtime compensating for vacation or sick time, produces an annual total of 416,000 work hours which, when divided by 8, the annual number of injuries, yields the 52,000 hours per minor injury result (Tr. 120-123).

This witness testified that the pay of Respondent's sewing machine operators depends in part, at least, upon the amount of their production (Tr. 115, 119); and that in her belief the requirement of needle guards would adversely affect the quality of the product unless operators worked at a slower speed to compensate. She stated specifically in this latter regard: "Then their efficiency goes down. They'd probably get a cut in pay" (Tr. 118, 119). She stated that if "maybe a hundred or so" injuries occurred in 52,000 hours of work, a hazard would exist (Tr. 120).

CORRECTION OF THE TRANSCRIPT

At page 63 of the hearing transcript in line 4 thereof the words "in all reasonable instances" are stricken and the words "given all reasonable inferences" substituted therefor.

DISCUSSION

The dominant controversy in this case centers about the applicability of 29 CFR 1910.212 to Respondent's commercial sewing machines (item 6 of the citation); and more specifically upon whether the standard requires the installation of "needle guards" or "finger guards" on such machines. As to this matter Respondent has marshalled a number of carefully conceived and skillfully presented arguments.

Before these are considered it should be noted that certain facts emerge from the record substantially without dispute. Complainant's compliance officer looked at approximately 100 "straight sewing machines" which were not equipped with finger guards. She looked more closely at approximately 20 which had an opening of about one inch between the pressure foot and a fully raised needle. Respondent has never truly contended that its straight sewing machines have (with a few specific exceptions) been equipped with guards. Complainant on the other hand has made it clear that it does not regard the "surger" machines, or conventional machines equipped with "folder" or similar attachments to be in violation. Respondent does not claim that finger injuries are an unknown occurrence in the industry at large, or in its own operation, nor does it contend that guards for sewing machines are unknown to the industry. Its witnesses were familiar with guards, knew of needle injuries, and one had been a victim of such an injury many years earlier. Respondent has instituted a program of tetanus inoculations to prevent "lockjaw" in the event of a finger injury.

There were some areas of evidentiary conflict but none were profound. Counsel for Respondent objected to the competence of Complainant's compliance officer to testify in the posture of an expert with respect to commercial sewing machines, was overruled, and granted a continuing objection in this regard. The degree of her expertise was clearly not great, and her opinion testimony relative to sewing machines has hence been accorded scant weight by this judge. But the limits of her expertise does not diminish the impact of the essentially uncontroverted account of her visual observations concerning unguarded machines.

Turning now to Respondent's position relative to the alleged non-applicability of the cited standard, Gerry maintains, firstly, that the framers of 29 CFR 1910.212(a) did not intend that it cover industrial sewing machines since the machines listed in subparagraph (3)(iv) of the section are all capable of inflicting significantly more severe injuries at the point of operation than a sewing machine -- which can do no more than pierce a finger. Specifically (3)(iv) provides:

The following are some of the machines which usually require point of operation guarding:

(a) Guillotine cutters.

(b) Shears.

(d) Power presses.

(e) Milling machines.

(f) Power saws.

(g) Jointers.

(h) Portable power tools.

(i) Forming rolls and calendars.

Other related portions of the standard, not heretofore set forth, read as follows:

1910.212(a) Maching guarding.

(2) General requirements for machine guards. Guards shall be affixed to the machine where possible and secured elsewhere if for any reason attachment to the machine is not possible. The guard shall be such that it does not offer an accident hazard in itself.

(3) Point of operation guarding. (i) Point of operation is the area on a machine where work is actually performed upon the material being processed.

(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.

With respect to the naming of more dangerous machines in (3)(iv) Respondent is contending, in essence, that in construing the standard the maxim expressio unis est exclusio alterius -- or more simply, express mention is implied exclusion -- should be utilized to limit application the standard to more treacherous classes of machines. This judge cannot accept such a thesis. The language of 1910.212(a), read as whole, is clear and unambiguous in its intent. It is of general application and requires guarding of any machine with a point of operation which "exposes an employee to injury." Resort to such intrinsic aids at the "express mention" doctrine in the construction of a statute (or a regulation) is not indicated where the overall intent of the enacting or promulgating authority is manifest. In other circumstances it is to be applied only with care and circumspection. 82 CJS, Statutes § 333. This is particularly so when certain examples are enumerated following a generally enunciated principle. See, for example, Robb v. Ramey Associates, Inc. 14 A2d 394.

In a further and related argument Respondent urges that even if the language of the allegedly pertinent standard were prima facie broad enough to cover industrial sewing machines, consideration must be given to all conditions surrounding the use of the machines in order to permit a final conclusion that a certain machine falls within the purview of the standard as posing a hazard cognizable thereunder. In this regard Respondent relies heavily upon what it suggests is a virtually injury free record with unguarded commercial sewing machines. To compel Respondent to equip its machines with guards would, it is contended, be to compel a fruitless and indeed counterproductive act, since "minor finger pricks" are experienced at the rate of but one par 52,000 worker hours with only one severe or recordable injury in over 1,600,000 hours. On the other hand, workers find sewing with finger guards more fatiguing than without; and use of guards does not entirely eliminate the possibility of needle inflicted injury.

It must surely be recognized that Respondent's record as to needle injuries has been a good one. There can be little question that the statistical incidence of injury in a certain employer's history may be material in matters of assessment of appropriate penalties (as regards gravity of a violation), or may affect periods of time deemed reasonable for correcting violations. Considerable question exists, however, as to the materiality of such injury history in determinations of whether a certain condition or procedure was violative a standard whose breach was alleged to be of a non-serious character. Complainant contends in this regard, that in the case of Secretary of Labor v. Manhattan Hosiery Corporation, Such case is of little assistance here, however, since the final decision was reached through agreed settlement. The same is essentially true of Secretary of Labor v. Schnadig Corporation,

Upon the entire record, this judge is convinced that 29 CFR 1910.212(a) requires Respondent to provide finger guards on its machines for the reason that the substantial and credible evidence shows that both a "hazard" and an "exposure to injury" exist at the point of operation of most of its machines. The fact that few injuries have occurred, and virtually none has been severe, does not alter the fact that exposure exists.

There may indeed be some point at which the possibility of injury in an alleged non-serious violation becomes so remote that a rule de minimus intrudes to make a standard inapplicable based solely on injury statistics. n1 But that point is not reached in the instant case. A "hazard," by common definition ". . . is the source from which an accident may arise, or 'a danger or risk lurking in a situation which by chance or fortuitity develops into an active agency of harm.'" Ketona Chemical Corporation v. Glove Indemnity Company 404 F2d 181 (1968).

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n1 While Respondent's injury statistics were not challenged by Complainant, and are therefore regarded as substantially correct by the judge it should be observed that they are somewhat liberal in injuries per hours worked since a few of the machines used in the calculations were guarded, and others, concededly, did not require guarding.

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A hazard is present under the facts of the instant case and is to be protected against by use of point of operation guards designed to keep machine operators' fingers from the path of the needle.

It is more than happenstance that finger guards are manufactured; that other places where Respondent's own witnesses have worked have used such guards; and that Respondent maintains a program of tetanus inoculation as a prophylaxis. Finger guards are small, simple and inexpensive devices, and their use reduces the risk of injury as Respondent's witnesses concede.

This writer is persuaded by the evidence that some reduction in production speed may result from the use of guards. Respondent's evidence to the effect that operators dislike using guards must be tempered to some extent by the acknowledgment that the pay of seamstresses depends in some measure on their production record.

Consideration has been given to Respondent's suggestion that use of needle guards may actually increase risk of injury to operators but such defense fails in that no evidence of substance was presented in support thereof.

In view of Respondent's concern that use of guards will tend to interfere in some degree with the sewing machine operator's ability to see the needle and considering the several makes and types of machines used, it is believed that Respondent should be permitted more time than the 30 days allowed in the original citation in which to comply with the requirements of the standard. Since Respondent's overall safety record is good with respect to needle injuries, it would appear that 60 days from the date this decision becomes final would be a reasonable period for abatement. During such time Respondent could take whatever steps it may deem feasible to secure and install those types of guards for each machine which would minimize any possible vision problems.

While it is accepted as true that inexperienced operators are more prone to injury than those with extensive training and skill, the same could be said for any work endeavor involving an element of identifiable hazard. This does not mean that experienced employees should be expected to work without point of operation guards.

The time devoted at the hearing to the presentation of evidence going to items 7 and 8 of the citation (those relating to alleged deficient guarding of a grinding wheel) was relatively brief, as was the attention devoted by counsel for both parties to this matter in their respective post hearing briefs. Clearly, the predominant concern of both parties in this case was with the question of needle guarding on sewing machines, item 6.

With respect to the grinding wheel this judge is convinced that Complainant succeeded in establishing by substantial, credible and reliable evidence that Respondent had in its maintenance room an abrasive wheel which required both flange or spindle end guarding as prescribed in 29 CFR 1910.215(a)(2) and an adjustable peripheral guard as prescribed by 29 CFR 1910.215(b). As disclosed by the compliance officer's testimony and substantiated by photographic evidence, the wheel in question did have a guard extending from the motor housing over the right hand side of the wheel and over the peripheral or grinding edge; but there was no guard over the left side or "outside" surface of the wheel -- the spindle end side -- nor was the peripheral guard adjustable to compensate for "the constantly decreasing diameter of the wheel" as 1910.215(b) demands. Complainant's evidence in these matters was nowhere directly controverted in the evidentiary portions of the record.

Respondent does suggest in its brief that the citation as to items 7 and 8 was so vague and indefinite as to deprive it of an adequate notice or understanding of the violation charged. While the citation could surely have been more specific, it was, despite lack of amplification in the complaint, sufficiently clear to provide Respondent with an adequate opportunity to defend. Had there been a genuine question as to what bench grinder or wheel was referred to, clarification could have been sought by motion for more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure (Commission Rule 2(b)). It is further to be noted that the testimony of the compliance officer that the specific wheel and grinder believed to be in violation were identified by her to Respondent's representatives at the closing conference following the inspection was in no way contradicted by Respondent.

No penalties were proposed by Complainant as to any of the three items of the citation contested at the hearing. This judge, upon independent review of such facts of record as would bear upon matters of penalty, agrees that no monetary penalties should have been assessed.

FINDINGS OF FACT

Upon the entire record the following findings of fact are made:

1. That Respondent was at all times material hereto a Delaware corporation with its principal office in Denver, Colorado.

2. That Respondent is now, was on November 28, 1972, and for some time previously engaged in the manufacture of outdoor sporting equipment at a plant facility located at 5450 North Valley Highway, Denver, Colorado.

3. That such plant facility was on November 28, 1972 inspected by a Complance Officer representing the Complainant, which inspection resulted in the issuance of the citation setting forth the alleged non-serious violations ultimately contested, as previously described in this decision.

4. That Respondent at the time material hereto employed approximately 200 workers as sewing machine operators.

5. That at the time of Complainant's inspection approximately 150 commercial or industrial sewing machines were used in such plant; and at the date of hearing herein, 180 machines.

6. That certain of such machines are known as "surgers," and are so designed that the operators' fingers are effectively shielded from contact with the needle or needles of the machine by certain structural components of the machine.

7. That most of Respondent's sewing machines are known as "straight sewing machines"; that on these machines the point of the needle during its full cycle of operation, elevates to an approximate height of one inch above the pressure foot (a flat metal device situated immediately above the surface upon which the fabric lies while being sewn); and that should the finger of an operator be inadvertently placed in the space between the pressure foot and the raised needle the finger can be pierced.

8. That "finger guards" or "needle guards" are designed for commercial sewing machines of the general type and description used by Respondent.

9. That such guards, when in place, do not furnish absolute protection against needle inflicted injury but substantially reduce its likelihood; that the use of guards tends to some degree to reduce the operator's ability to see the point at which the needle stitches the fabric and hence tends to reduce either the speed with which the operation can be done, or the quality of the product.

10. That when Respondent's straight sewing machines are fitted with certain attachments such as "folders" these attachments, owing to their structural nature and configuration can serve as adequate finger guards.

11. That Respondent has several Phaff machines used in quilting operations which are fitted with needle guards, but the great majority of Respondent's machines are not equipped with guards, or attachments which would serve as guards.

12. That in the past four years Respondent's sewing machine operators working at its Denver facility have experienced but one needle injury of a severity requiring medical attention (in that case surgery) and have experienced each year approximately 7 or 8 injuries requiring no treatment beyond first aid measures, which latter type injuries were not considered by Respondent to be "recordable" under OSHA reporting requirements.

13. That in Respondent's sewing operations employee overtime roughly equals vacation or sick leave time and that based on a 40 hour work week with the average work force of 200 sewing machine operators, over the four years just past Respondent's history of sewing machine needle injuries is one recordable injury of type clearly requiring treatment by a physician in over 1,600,000 work hours, and one minor injury not requiring physician's treatment for each 52,000 work hours.

14. That on the date of inspection of Respondent's plant by Complainant's representative a bench mounted Dayton grinder having an abrasive wheel mounted on the left side thereof lacked the type of guard described in 29 CFR 1910.215(a)(2); was not equipped with a peripheral guard as described in 29 CFR 1910.215(b) (and other subsections specifically referenced therein); and that the absence of such guards exposed any operator of the wheel to potential injury should the wheel shatter or disintegrate while in use.

15. The Respondent at its Denver plant maintains a general safety program of high quality and has now furnished the abrasive wheel guards referred to in the finding immediately above.

CONCLUSIONS OF LAW

1. That Respondent has been at all times material hereto an employer in a business affecting commerce.

2. That Respondent is hence under the jurisdiction of the Act and this Commission under provisions of Section 3(5) of the Act.

3. That commercial or industrial sewing machines as used in Respondent's Denver plant have a "point of operation" presenting "hazards" to the operators thereof as those terms are used in 29 CFR 1910.212(a) in that there is a reasonable possibility that an operator's finger or fingers may be pierced or otherwise injured by a needle unless a needle or finger guard designed for that purpose is attached to the machine; or unless the machine is equipped with an attachment such as a "folder" of a design which will serve the purpose of a finger guard by effectively deflecting or barring the operator's finger from the otherwise exposed path of the needle; or unless the machine is a "surger" the design of which similarly prevents finger exposure.

4. That Respondent violated 29 CFR 1910.212(a) as alleged in items 6 of the citation by failing to provide needle guards on all machines which do not fall within either of the exceptions described in the finding immediately above.

5. That reasonable time for abatement of the above described violation, under all the facts herein, is 60 days, rather than 30.

6. That Respondent violated 29 CFR 1910.215(a)(2) as alleged in item 7 of the citation by failing to provide a safety guard over the spindle end, nut and flange projection of an abrasive wheel.

7. That Respondent violated 29 CFR 1910.215(b)(9) as alleged in item 5 of the citation by failing to provide an adjustable peripheral safety guard on the same abrasive wheel.

8. That no monetary penalties should be assessed for any of the above enumerated violations.

9. That as to the violation of item 6, a reasonable period for abatement thereof would, under all the facts of record, be 60 days rather than the 30 day period proposed by Complainant.

ORDER

In accordance with the foregoing it is ORDERED:

(1) That Respondent's stipulated motion for leave to withdraw its notice of contest as to items 1, 2, 3 and 4 of the Citation is hereby granted; and the Citation with respect thereto is affirmed, as is the penalty of $30.00 proposed in connection with item 1.

(2) That Complainant's stipulated motion for leave to vacate the citation as to item 5 of the citation and the attendant proposed penalty is hereby granted; and such item and proposed penalty are vacated.

(3) That item 6 of the citation is hereby affirmed with respect to the violation charged.

(4) That affirmation of such item 6 is not to be construed to have application to "surger" machines, or sewing machines having attachments such as folders affixed thereto, where the design of the machine or the attachments is such that the operator's fingers are shielded from needle contact to the same extent, or substantially the same extent, as would be the case if needle guards were affixed.

(5) That item 6 of the citation is hereby modified to extend the period permitted for abatement from the 30 days therein proposed to 60 days, such 60 day period to run from the date this decision may become final.

(6) That items 7 and 8 of the citation are hereby affirmed.