UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 5656
HANA SHOE CORPORATION
Respondent.

August 24, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissions.

CLEARY, Commissioner:

On November 16, 1973, respondent, Hana Shoe 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. The contested item alleged a failure to enclose vertical and inclined belts on sewing machines. Complainant asserted that the alleged failure to guard the sewing 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-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.

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. Complainant took exception to this ruling and filed a petition for discretionary review of the Judge’s decision. The petition was granted and review was directed 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’] on the following issue:

Whether the Administrative Law Judge erred in finding that the standard at 29 CFR § 1910.219 (e)(3)(i) does not apply under the facts of this case?

Upon consideration of the record, we reverse the Judge’s decision and modify the citation as follows.

Respondent maintains a place of business in Lewiston, Maine, where it is engaged in the manufacture of ladies’ shoes. At this facility respondent operates approximately 250 Singer straight single needle sewing machines. These machines are mounted on tables and are powered by electric motors located beneath each table. The power is transmitted from the motors to the sewing machines by means of an inclined belt which runs through an opening in the table and connects to a pulley at the hand wheel of the sewing machine. The ends of the belt are fastened together by a metal clip.

While the machine is operating the belt runs counterclockwise, i.e. toward the operator, at a speed of approximately 800 to 900 feet per minute. The operator controls the speed of the machine by means of a foot pedal (treadle). When performing sewing operations the operator uses both hands to guide the material through the left side of the machine.

At times, the operator will ‘palm’ the hand wheel on the right side of the machine in order to stop stitching at a certain 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 is not transmitting power to the pulley attached to the hand wheel when the wheel is ‘palmed.’

There is no dispute that at the time of the inspection none of the inclined belts was enclosed by guards. In citing respondent for allegedly failing to comply with § 1910.219(e)(3)(i), Complainant asserted that guarding was necessary to enclose the pinch points where the belt runs over the pulley and where it passes through the table. Complainant also maintained that enclosure was necessary to confine the flight of the metal clip in the event the belt should break.

Judge Gold set forth two reasons in support of his conclusion that § 1910.219(e)(3)(i) did not require the guarding of respondent’s sewing machines. First, he stated that when the cited standard is read in conjunction with 29 CFR § 1910.219(e)(3)(ii)[1] it becomes apparent that § 1910.219(e)(3)(i) was intended to require guarding of belts on large industrial machinery, and not on single-needle sewing machines. For his second reason supporting the purported inapplicability of § 1910.219(e)(3)(i), the Judge noted that:

This record shows that the probability of even a very minor injury due to an unguarded nip point or broken belt 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) [section 3(8) of the Act], 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 the belt of a single-needle sewing machine is not reasonably necessary or appropriate to provide safe or healthful employment and place of employment.

We reject the Judge’s conclusion regarding the inapplicability of § 1910.219(e)(3)(i) to respondent’s sewing machines.

The Commission decisions in Cornish Dress 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, 1975–76 CCH OSHD para. 20,633 (No. 5007, April 19, 1976) are dispositive of the question of whether § 1910.219(e)(3)(i) applies to respondent’s single-needle sewing 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’s applicability 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 contrary to section 3(8) of the Act. We held that such an argument contravenes the principle that this Commission lacks the authority to question the wisdom of a standard. See Van Raalte Co., Inc., supra and authorities cited therein. No argument has been advanced in the instant case compelling us to depart from this precedent.

Accordingly, we hold that the cited standard applies to respondent’s sewing machines. Moreover, we hold that the evidence of record establishes a failure to comply with § 1910.219(e)(3)(i).

We note, however, that the record in this case indicates that the hazards resulting from the unguarded condition of respondent’s sewing machines are trifling. Indeed, even complainant’s witnesses admitted that the probability of injury resulting from the unguarded condition of the machines was slight. In addition, Judge Gold observed that ‘. . . the probability of even a very minor injury . . . is so remote as to be negligible.’ Under these circumstances, we deem it inappropriate to order abatement with the full terms of the standard. Accordingly, for the reasons announced in Van Raalte Co., Inc., supra, we amend item 5 of the citation to allege a de minimis violation of the Act. The citation as amended is affirmed.

So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

Dated: AUG 24, 1976

MORAN, Commissioner, Dissenting:

Judge Gold’s decision is eminently correct and should be affirmed. My colleagues’ reversal of that decision is erroneous as a matter of law because a citation cannot be affirmed in view of their finding that the violation is ‘de minimis.’ In addition, no violation of any nature can be established on the basis of this record because the evidence fails to establish that the alleged violative condition constitutes a hazard.

Judge Gold’s decision, which I incorporate by reference herein and attach as Appendix A, succinctly and accurately describes the posture of the evidence as follows:

‘The two witnesses presented by the Secretary agreed that the probability of an injury 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 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, and had never heard of a broken belt being flung out by the machine (Tr. 116). He said that belts have broken on several occasions while he was stitching, and the belt merely fell as the machine stopped (Tr. 115). The manager of maintenance at another shoe company testified that in over 27 years of experience in the shoe industry he had never heard of an injury due to an unguarded 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). He asserted 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 shoe companies in Maine on November 14, 1973 (Exh. C–1), inquiring as to records of accidents due to unguarded belts; thirteen factories responded to the effect that in 37 million man-hours of work there were no reported injuries due to unguarded belts (Tr. 156–157). Respondent’s Controller and Administrative Manager for the past four years (Tr. 169), whose duties include chairing the Safety Committee (Tr. 170), stated that he sees and signs all accident reports and that he has never seen a report of an accident resulting from an unguarded belt (Tr. 170).’ (Emphasis added.)

Complainant presented his evidence through the testimony of two witnesses who displayed a limited familiarity with sewing machines and a lack of knowledge concerning the shoe industry. One of these witnesses had been involved with industries using sewing machines for about two years, but that involvement was limited solely to inspection of about 35 to 40 factories which used sewing machines in some manner. Although the other witness had seen one or two sewing machines in operation while he worked for Bethlehem Steel and, as a field insurance supervisor from 1965 to 1968, had visited about 100 ‘accounts . . . that utilized sewing machines,’ he had observed the operations of a shoe factory only once. Both witnesses speculated that respondent’s employees could be injured by the unguarded belts by receiving a minor injury at 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 unguarded belt.

The sole purpose of the Occupational Safety and Health Act is to protect employees from injuries and illnesses resulting from their employment. 29 U.S.C. § 651. Thus, when there is no occupational hazard to employees arising out of a cited condition, there is no violation of the Act. The Commission has previously recognized this sound principle in Secretary v. Straight Creek Constructors, 7 OSAHRC 1158, 1162 (1974), where Commissioner Cleary was the author of the lead opinion. The majority departs from that holding in this case and in so doing attempts to stretch the coverage of the Act to regulate conditions that pose no hazard to employees.

The evidence in this case clearly establishes the nonexistence of a hazard. By affirming a ‘de minimis violation’ my colleagues acknowledge this fact. That acknowledgement precludes their affirmance of the citation.

The Act provides that the Secretary of Labor may issue ‘a notice in lieu of a citation with respect to de minimis violations’ which are defined as ‘violations which have no direct or immediate relationship to safety or health.’ 29 U.S.C. § 658(a) (emphasis added). Thus, by finding a de minimis violation, the majority has in effect concluded that the unguarded belts do not constitute a hazard. In such a situation, Congress has decreed that it is improper to issue a citation but that the Secretary may issue a notice in lieu thereof. Since the Commission does not have the authority to issue a notice, it must vacate any citation that pertains to a nonhazardous condition. See my dissenting opinions in Secretary v. Alfred S. Austin Construction Company, OSAHRC Docket No. 4809, April 28, 1976, and Secretary v. Van Realte Company, OSAHRC Docket No. 5007. April 29, 1976, where I have discussed this matter at greater length and pointed out the significance of distinguishing de minimis violations and violations for which citations may be issued.

APPENDIX A

[3] which charged a violation of 29 C.F.R. § 1910.219(e)(3)(i) for failure to enclose vertical and inclined belts of sewing machines with guards.

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 (Tr. 6, Ans. I, II) that it is a Maine corporation with a principal address at Lewiston, Maine; that it is engaged in the manufacture of Ladies’ shoes; that it regularly receives, handles, and ships goods that move 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 375 employees; and that its place of business at Lewiston, Maine, was inspected by a representative of the Department of Labor on November 6, 1973.

Respondent has about 250 Singer straight single-needle sewing machines at the facility under consideration (Tr. 11, 40, 55, 103). The machines are mounted on a table and powered by individual electrical motors (Tr. 18, 105) located under the table. 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 at the hand wheel which is to the right of the operator (Tr. 19). The belts are V-shaped, measuring 11/32 of an inch in width at the top and 1/4 of an inch at the 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).

At the time of the inspection, none of the belts was enclosed by a guard (Tr. 20, 55–56, 139–140).

The machine operator sits facing the machine, the hand wheel and pulley to the right 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 the sewing operation (Tr. 111). The operator presses down on the toe of a foot pedal (treadle) to run the machine, and presses down on the heel part to shop the action of the machine (Tr. 133–134). At times the operator places her right hand 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 a complete turn, or make a curve (Tr. 136–138). When the operator touches the hand wheel, the machine is not in operation (Tr. 133). Respondent uses only commercial bobbins which are installed on the left side at the bottom of the machine (Tr. 105–106).

It was the testimony of the inspecting officer that an employee can receive a pinch at the point where the belt goes over the pulley and at the point where the belt passes through the table (Tr. 20–21); and that there is also a hazard to the employee if the belt breaks since the metal clip can fly off the belt and cause a laceration (Tr. 21–22).

An associate Assistant Regional Director opined that an operator or passerby could get a pinch or abrasion at the nip point (Tr. 65–67), and that the operator could get a ‘slight cut or abrasion’ from the metal clip if the belt were to break (Tr. 69).

The two witnesses presented by the Secretary agreed that the probability of an injury 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 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, and had never heard of a broken belt being flung out by the machine (Tr. 116). He said that belts have broken on several occasions while he was stitching, and the belt merely fell as the machine stopped (Tr. 115). The manager of maintenance at another shoe company testified that in over 27 years of experience in the shoe industry he had never heard of an injury due to an unguarded 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). He asserted 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 shoe companies in Maine on November 14, 1973 (Exh. C–1), inquiring as to records of accidents due to unguarded belts; thirteen factories responded to the effect that in 37 million man-hours of work there were no reported injuries due to unguarded belts (Tr. 156–157). Respondent’s Controller and Administrative Manager for the past four years (Tr. 169), whose duties include chairing the Safety Committee (Tr. 170), stated that he sees and signs all accident reports and that he has never seen a report of an accident resulting from an unguarded belt (Tr. 170).

Straight single-needle sewing machines are not specifically mentioned in the cited standard. Sections 219(e)(3)(i) and 219(e)(3)(ii) 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 belt runs from a point about two feet or two and a half feet from the floor up to the top of the pulley which is about three and 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 a least seven feet between the inclined belt and the floor, strongly suggests that the standard at 219(e)(3)(i) is intended for large industrial machinery, and not for the single-needle sewing machines involved here.

This record shows that the probability of even a very minor injury due to an unguarded nip point or broken belt 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 the belt of a single-needle sewing machine is not reasonably necessary or appropriate to provide safe or healthful employment and place of employment. Item #5 of the citation will be vacated.

Findings of Fact

1. Respondent is and at all times pertinent herein was a Maine corporation maintaining a ladies’ shoe manufacturing plant at Lewiston, Maine, where it employed 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-needle sewing machines which were operated by its employees at said plant.

3. Said workplace was inspected by an official at the Department of Labor on November 6, 1973.

4. On said date and at said workplace, Respondent did not enclose with guards the inclined belts on 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 November 6, 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 #5 of the citation issued on November 16, 1973, and the relating proposed penalty notice be and the same hereby are VACATED.

ABRAHAM GOLD

Judge, OSHRC

Dated: JAN 7, 1975

Boston, Massachusetts

[1] Subdivision (ii) of § 1910.219(e)(3) provides as follows:

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.

[2] The facts regarding the nature of the sewing machines and their operation in the Cornish Dress Mfg. Co. and Van Raalte Co., Inc. cases are virtually identical to those presented in the instant case.

[3] The uncontested cited items and the relating portions of the proposed penalty notice became a final order of the Commission upon the expiration of 15 working days from the date on which Respondent received the notice. 29 U.S.C. § 659(a).