CORNISH DRESS MANUFACTURING COMPANY
OSHRC Docket No. 6765
Occupational Safety and Health Review Commission
December 23, 1975
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Albert H. Ross, Regional Solicitor, U.S. Department of Labor
Howard Pottak, Vice-President of Manufacturing, Cornish Dress Manufacturing Co., for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
The issues presented in this case are whether Administrative Law Judge Abraham Gold erred in concluding (1) that 29 C.F.R. 1910.219(e)(3)(i) n1 was intended to apply to large industrial machinery, and not to straight, single-needle sewing machines and (2) that no violation of 29 C.F.R. 1910.219(e)(3)(i) existed because the probability of injury resulting from the condition specified in the citation was so remote as to be negligible. For the reasons which follow, we reverse the Judge on these points and find a violation of 29 C.F.R. 1910.219(e)(3)(i).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 This section provides: "Vertical and inclined belts shall be enclosed by a guard conforming to standards in paragraph (m) and (o) of this section."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Respondent's employees operate straight, single-needle sewing [*2] machines driven by a small V-shaped belt and a round leather belt with its ends fastened by a metal clip. The belts rotate at a speed of 800 to 900 feet per minute. The Secretary alleges that Respondent was in violation of 29 C.F.R. 1910.219(e)(3)(i) because the belts were not guarded.
Respondent admits that the belts were not guarded and that conceivably machine operators could have come into contact with exposed nip points. Respondent's defense is that the possibility of such contact was extremely remote and that the injuries that could result would be negligible. In this regard, Respondent's vice president testified that he had only heard of one accident of that kind during his 25 years of experience in the industry and pointed out that the accident produced a very minor injury.
Judge Gold vacated the violation, first noting that 29 C.F.R. 1910.219(e)(3)(i) must be construed with reference to its companion standard, 29 C.F.R. 1910.219(e)(3)(ii), which states, "All guards for inclined belts shall be arranged in such a manner that a minimum clearance of seven (7) feet is maintained between belt and floor at any point outside of guard." In his opinion, the wording of that regulation [*3] requiring a clearance of at least seven feet between the inclined belt and the floor makes it clear that the standard 29 C.F.R. 1910.219(e)(3)(i) was intended for large industrial machinery, and not for straight, single-needle sewing machines.
We find that that interpretation is inconsistent with the introductory statement for section 1910.219, which says, "This section covers all types and shapes of power-transmission belts, except the following when operating at two hundred and fifty (250) feet per minute or less. . ." That statement makes it clear that "all types. . . of power-transmission belts" are covered, unless they are excluded by the following exceptions and are operated at 250 feet per minute or less. The belts in question were operated at a speed of 800 or 900 feet per minute. Accordingly, we conclude that 1910.219(e)(3)(i) is applicable to Respondent's sewing machines.
Then Judge Gold found that the probability of even a very minor injury was so remote as to be negligible. Therefore, he concluded that a standard requiring guarding for the belts on Respondent's sewing machines is not reasonably necessary or appropriate to provide safe or healthful employment, [*4] Accordingly, he vacated.
In so acting, the Judge, in essence, determined that a standard requiring guards for sewing machine power-transmission belts is unnecessary. That is, he questioned the wisdom of the standard. It may be that the standard is unnecessary as to sewing machines, but we have said "it is not our function to review the wisdom of the standard" The Budd Company, 7 OSAHRC 160, 165, 1 O.S.H.C. 1548, 1551, OSHD para. 17,387 (1974). By that we mean it is not our function to determine whether there is a need for a standard for that function is legislative in nature whereas our function is to adjudicate.
In reaching our conclusion herein we would point out that the Act's variance provisions, 29 U.S.C. 655(d), are available for situations of the kind presented in this case.
We conclude, therefore, that the Judge erred in vacating the citation. The citation for violation of 29 C.F.R. 1910.219(e)(3)(i) is affirmed. In light of Respondent's good faith in attempting to secure guards for its sewing machines, its lack of prior history, and giving due weight to the low gravity of the violation, no penalty is assessed. It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting: [*5]
The Judge ordered the correct disposition in this case and it should be affirmed. The majority's holding that respondent's contentions involved an attack on the wisdom of the standard misrepresents respondent's defense.
The evidence in this case clearly demonstrates that the hazard caused by failure to guard the belt drives of the sewing machines was minimal. More importantly, respondent proved that when the machines were equipped with the only guarding available to respondent, they were much more hazardous. Respondent therefore established a valid defense. See Secretary v. Industrial Steel Erectors, Inc., 6 OSAHRC 154 (1974); Secretary v. American Bridge, Division of U.S. Steel Corp., 12 OSAHRC 22 (1974).
Respondent's vice president testified that he had attempted to acquire guarding from the Singer Company, the manufacturer of the sewing machines, but was told by their representative that the company did not manufacture the type of guard required by 29 C.F.R. § 1910.219(e)(3)(i) for the type of machine used in respondent's plant. The witness testified that the representative told him that Singer did supply belt drive guarding for below the sewing machine table [*6] (already installed in all the machines at respondent's plant), but not for above the table.
Accordingly, the vice president bought the only type of guarding that he could find, upon another company's assurance that the guard was "OSHA approved." He installed the guards "under duress," as he phrased it, because he felt the guards, made of plastic, created more hazards than they prevented.
One of the guards that had been in use in respondent's plant for about two months was received into evidence. It was frayed and broken. The vice president demonstrated that when the wheel of the sewing machine rotated the guard would "bounce" around, rubbing against the belt or the handwheel, and the guard would "break off and then get thrown and hit somebody." In fact, the guard placed in evidence had rubbed against the handwheel and broken, leaving an edge that was sharp and capable of causing lacerations to an operator.
Complainant tried to refute respondent's evidence by attempting to prove that sturdier guards were available. His expert witness testified that Singer does supply guards, but failed to say whether the available guards were for above the table or for below. Furthermore, although [*7] he testified that Singer does supply some type of guarding for single needle machines, he admitted that he did not know whether any guards were available for the particular type of machine used in respondent's plant. He failed to show that any guards were actually available to respondent. The expert could only state vaguely that he had been shown sturdier guards, but did not say whether they were ever placed on the market so that they would be available to respondent. He finally added hopefully that if no safe guards were available on the market, respondent could have them made.
The testimony of the respondent's vice president that the plastic guards created greater hazards than the negligible danger created by unguarded nip points went unrebutted by complainant, and complainant was not able to refute respondent's evidence that any guard - other than the plastic guard - was available to respondent. Thus, a perfectly valid defense was established.
Nevertheless, with this decision, the majority is requiring respondent to go to needless effort and expense to install a device clearly shown to cause greater hazards than those it was designed to prevent. It is my view that such a [*8] holding subverts the purposes of the Act to make workplaces safer for employees and is contrary to the requirement that the employer's duty "be achievable and not be a mere vehicle for strict liability." National Realty and Construction Company v. OSAHRC, 489 F.2d 1257, 1266 n.36 (D.C. Cir. 1973).
Accordingly, I would affirm the disposition ordered in the Judge's decision which is attached hereto as Appendix A.
APPENDIX A
DECISION AND ORDER
Robert A. Yetman, for complainant
Howard Pottak, for respondent
This case arose under 29 U.S.C. § 659(c). Hearing was held at Boston, Massachusetts, on August 7, 1974.
Respondent was cited on February 7, 1974, for two nonserious violations of safety standards. No penalty was proposed for either item. Respondent filed a notice of contest only as to the second item n1 which charged a violation of 29 C.F.R. § 1910.219(e)(3)(i) for failure to enclose vertical and inclined belts by guards conforming to paragraphs (m) and (o) of 29 C.F.R. § 1910.219.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The uncontested cited item and the proposal of no penalty therefor became a final order of the Commission upon the expiration of 15 working days from the date on which Respondent received the proposed penalty notice. 29 U.S.C. § 659(a).
[*9]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The cited standard reads:
Subpart 0 - 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 Massachusetts corporation with its principal office at Brockton, Massachusetts; 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 the Act; that it has about 35 employees at a facility located at Cornish, Maine; and that this worksite was inspected on January 31, 1974.
Respondent uses straight, single-needle Singer sewing machines at the worksite [*10] where it manufactures dresses (Tr. 22, 26, 51). Of its 35 machines in operation at the time of the inspection, 33 had no guards on them; two special machines (one a button sewing machine) were equipped with guards which were built into them (Tr. 56).
Each machine is mounted on a table and is run by an electric motor set under the table; the power reaches the machines by means of an inclined belt which extends from the wheel of the motor to the pulley attached to the hand wheel on the machine. The belt, approximately 1/2 inch wide, passes through a slot in the table about one inch in width and six inches in length, or through two holes in some tables, each hole measuring about 1/2 inch in diameter (Tr. 58). There are two types of belt (Tr. 14-15), one being a round leather belt, with the ends fastened by a metal clip, the other continuous and V-shaped. Both operate at a speed of 800 to 900 feet per minute (Tr. 15).
The machine operator sits facing the machine, the drive wheel and drive belt to her right, about 12 to 15 inches from the operator (Tr. 19, Exh. R-2). The work is performed on the left side of the machine, and during the sewing operation both hands of the operator [*11] are occupied on the left side, holding and guiding the material at or near the point of operation (Exh. R-2).
A switch turns on the power; the operator presses down on a foot pedal (treadle) to run the machine; the harder she presses on the pedal, the faster the machine runs; to stop the operation, all she has to do is lift her foot off the pedal; in addition, she can press her right knee against a lifter which lifts the pedal off the machine (Tr. 52).
There is a nip point where the belt runs over the top of the pulley located next to the hand wheel and another nip point where the belt goes down through the table (Tr. 17, 18). The compliance officer testified that there is a possibility of a belt burn if an operator got a finger caught (Tr. 18). He also said that the metal clip on the belt can become so worn that it will cause the belt to break, and this can result in a serious laceration if an employee is struck by the end of the belt (Tr. 18-19), but he admitted that "nothing might happen" (Tr. 19).
At this worksite, an operator places her hand on the hand wheel only when changing the position of the needle (Tr. 53). In so doing, the operator lifts her hand above the machine [*12] and lets it drop onto the wheel (Tr. 55). The plant uses automatic bobbin winders; the operator must stop the machine before placing the bobbin onto a spindle; she then depresses a lever which pushes and holds the bobbin winder wheel against the belt; the operator then resumes the sewing operation, and when the bobbin is fully wound, a lever disengages the winder which comes to a resting position (Tr. 53-54).
Mr. Pottak, the vice-president of manufacturing for the parent company, asserted that he presently has about 450 sewing machine operators working indirectly for him; that he has been in the business for 25 years and he knows of only one instance where an operator caught a finger in the belt, and that occurred at the instant worksite two weeks after the issuance of the citation (Tr. 51, 52), when a trainee on her first day on the job pinched her finger "a little bit," and went back to work (Tr. 57).
He testified that he inquired of the Singer company about a guard and was informed that it did not manufacture any for these machines (Tr. 62); that he bought guards at a cost of $4.50 or $5.00 each (Tr. 65); that this was the better of two types of guard of which he is aware (Tr. [*13] 62); that the guard is made of approximately 1/8 inch plastic, designed to shield the belt completely from the table to the machine point, with the hand wheel rising 1/2 inch above it (Tr. 58, 59). Mr. Pottak displayed a frayed, cracked plastic guard (Exh. R-3), which he claimed had been in use about two months (Tr. 60). According to the witness, the guard vibrates, it rubs against the belt and hand wheel, and it cracks (Tr. 60). He argued that the guards are impractical and constitute a worse hazard than operating without them.
Straight, single-needle sewing machines are not specifically mentioned in the cited standard. Sections 219(e)(3)(i) and 219(e)(3)(ii) are pari materia and must be construed with reference to each other. The latter states:
(ii) All guards for inclined belts shall be arranged in such a manner that a minimum clearance of seven (7) feet is maintained between belt and floor at any point outside of guard.
The machines have inclined belts. The tables on which the machines are mounted are about 32 inches above the floor, and the wheel is about 12 inches above the table (Exhs. R-1, R-2, R-3). The wording of 219(e)(3)(ii), requiring a clearance of [*14] at least seven feet between the inclined belt and the floor, makes it clear that the standard at 219(e)(3)(i) is intended for large industrial machinery, and not for the likes of straight single-needle sewing machines.
This record shows that the probability of even a very minor injury due to an unguarded nip point on this particular type of machine is so remote as to be negligible. 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. A standard requiring the guarding of nip points of industrial straight, single-needle sewing machines is not reasonably necessary or appropriate to provide safe or healthful employment and places of employment. Item #2 of the citation will be vacated.
Findings of Fact
1. Respondent is and at all times pertinent herein was a Massachusetts corporation maintaining a clothing manufacturing plant at Cornish, Maine, where it employed about 35 persons in a business affecting commerce.
2. At all times [*15] relevant to this action, Respondent had under its ownership, operation and control 35 electrically operated Singer straight, single-needle sewing machines, which were operated by its employees, at said Cornish plant.
3. Said workplace was inspected by an official at the Department of Labor on January 31, 1974.
4. On said date and at said workplace, Respondent did not enclose with guards the inclined belts on 33 of these machines.
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 January 31, 1974, 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.
Order
IT IS ORDERED that Item #2 of the citation issued on February 7, 1974, and the proposed penalty notice be and the same hereby are VACATED.
ABRAHAM [*16] GOLD, Judge, OSHRC
Dated: October 1, 1974
Boston, Massachusetts