COTTINE, Commissioner, dissenting:

The Commission errs in holding that the violation was properly classified as de minimis. The Commission has authority under section 10(c) of the Act, 29 U.S.C. § 659(c), to classify a violation as de minimis where the relationship of the violation to safety and health is so remote as to be negligible. E.g., Clifford B. Hannay & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1335, 1978 CCH OSHD ¶ 22,525 (No. 15983, 1978), National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1976–77 CCH OSHD ¶ 21,114 (No. 7987, 1976); Van Raalte Co., Inc., 76 OSAHRC 48/B8, 4 BNA OSHC 1151, 1975–76 CCH OSHD ¶ 20, 633 (No. 5507, 1976), Continental Oil Co., 79 OSAHRC 42/C3, 7 BNA OSHC 1432, 1979 CCH OSHD ¶ 23,626 (No. 13750, 1979). However, in this case, the Respondent’s failure to guard the rotating chucks on its lathe has a direct and immediate relationship to employee safety. Therefore, the violation is not properly classified as de minimis and instead should be classified as nonserious.

The lathes at issue are used by Respondent in machining various sizes and shapes of material. Each lathe has a 12-inch diameter chuck that is used to hold the piece being machined. The chucks are cylindrical in shape. Within each chuck are three jaws that are adjusted to hold the work piece. Depending on the size of the piece, the jaws of a chuck can protrude beyond the surface of the chuck itself. The chuck rotates at between 25 and 1500 revolutions per minute during the operation of a lathe. The operator normally has both hands on the machine’s controls while the chuck is rotating. However, sometimes the operator may perform his duties with only one or no hand on the controls. For example, Respondent’s production manager testified that there are times when the lathe operator will hold the cutting tool directly at the face of the chuck.

Walter C. Hogan, a compliance officer for the Occupational Safety and Health Administration, inspected Respondent’s facility. He observed that the lathe chuck was not guarded to prevent the operator’s accidental contact with the rotating chuck. Accordingly, the Respondent was cited for violating the machine guarding requirements of § 1910.212(a)(1).[3] Hogan testified that an operator’s hand could be struck by the protruding jaws of the chuck and he asserted that such an occurrence could result in a contusion, laceration, or broken bone in the hand or finger. He suggested that the lathe chuck could be guarded by a curved barrier of metal or plexiglass that would be positioned between the operator and the chuck when the lathe was operating, but would be hinged so that the operator could move the guard out of the way when setting up the lathe for operation.

The Respondent’s production manager, Ray T. Whetstone, testified that there was no record of injuries to Respondent’s employees operating these or similar lathes. He also stated that ‘any type of guard on this lathe chuck presents additional hazards that may cause an accident.’ Specifically, Whetstone opined that the cutting tool could run into the guard. Although implying that this would be hazardous, Whetstone did not describe how an injury could be caused if this event occurred. He also stated that the guard suggested by Hogan would create an additional pinch point at the location of the hinge. Finally, Whetstone implied that the presence of a guard would diminish the concentration of the lathe operators.

Judge Oringer concluded that the Secretary had proven a ‘technical violation’ in that the lathes were unguarded.[4] He rejected the Respondent’s contention that it would be more hazardous to operate the lathe with a guard than without one. Though he found that contact with the jaws of the chuck ‘could result in a contusion, laceration, or a possible broken finger bone,’ Judge Oringer determined that the existence of an actual hazard had not been proven. As a result, he concluded that ‘the risk of injury and the result of injury is minimal here and at most the Secretary has proven a de minimis violation.’ In reaching this conclusion, Judge Oringer partially relied on the evidence that the Respondent’s employees had not suffered any injuries from contact with lathe chucks.

On review, the Secretary argues that the judge erred in classifying the violation as de minimis. The Secretary notes that the Commission has only classified violations as de minimis where there was only a negligible relationship to employee safety, where the violation was trifling, or where there was no direct or immediate relationship to safety and health. The Secretary points out that a rotating chuck, with its protruding jaws, rotates at high speeds and can cause contusions, lacerations and broken bones. Thus, he argues that the violative condition posed more than a negligible relationship to employee safety and health. The Secretary maintains that this case is distinguishable from the de minimis violation in Hood Sailmakers, Inc., 77 OSAHRC 212/C12, 6 BNA OSHC 1206, 1977–78 CCH OSHD ¶ 22,422 (No. 13996, 1977). He notes that ‘[i]n that case, unlike the one at bar, ‘the injuries which occurred were all minor’ so that the hazard was ‘trifling’ in nature and ‘too slight to warrant an abatement order or the imposition of a penalty.’ ‘The Secretary also contends that the judge erred in relying on the fact that Respondent’s employees had not suffered injuries from unguarded lathes. Citing A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1977–78 CCH OSHD ¶ 21, 573, (No. 12501, 1977), aff’d, 576 F.2d 948 (1st Cir. 1978), he argues that little reliance should be placed on an individual employer’s accident-free record when the objective facts demonstrate the existence of a hazard.

The injury that can result from contact with a rotating chuck is not, as Judge Oringer termed it, ‘minimal.’ In fact, Judge Oringer himself found that contact with the chuck ‘could result in a contusion, laceration, or a possible broken finger bone.’ As the Secretary argues on review, these injuries are not so minor that they are properly described as having a negligible relationship to employee safety and health.

Additionally, Judge Oringer erred to the extent that he relied on the fact that the Respondent’s employees had not suffered injuries from the unguarded lathes in the past. The Commission has held that the absence of injuries is not controlling with respect to the de minimis classification. Van Raalte Co., Inc., supra. Rather, a hazard requiring abatement may exist in the absence of recorded injuries, Arkansas-Best Freight Systems, Inc., v. OSHRC, 529 F.2d 649 (8th Cir. 1976), for ‘[o]ne purpose of the Act is to prevent the first accident.’ Lee Way Motor Freight v. Secretary of Labor, 511 F.2d 864, 870 (10th Cir. 1975). Moreover, the likelihood of an accident occurring during operation of the lathe, despite no record of accidents, is not so remote as to be negligible. Although the lathe operator often uses both hands, there are occasions when both hands are not needed to perform lathe operations. During these times, the lathe operator stands near the machine with nothing between his hands and the rotating chuck. There are also times that the operator will hold the cutting tool directly at the face of the chuck. Therefore, there is a hazard of employee contact with the chuck and resulting injury.

This case is clearly distinguishable from those cases where the Commission has properly classified a violation as de minimis. The common element in those cases is the fact that, despite a technical failure to comply with the standard, there was no evidence that employee health or safety was more than remotely affected by the violation. See, e.g., Continental Oil Co., supra (lack of one stairway railing and no vertical fall hazard); Rust Engineering Co. and Allegheny Industrial Electric Co., 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977–78 CCH OSHD ¶ 21,693 (Nos. 12200 & 12201, 1977) (configuration of scaffolding and frame used as ladder not in accordance with spacing requirements for rungs of ladders); Clifford B. Hanny & Son, Inc., supra (configuration of spray booth violated 1971 National Electric Code provision adopted by OSHA; spray booth in conformance with provision in 1975 edition); D. Fortunato, Inc., 79 OSAHRC 69/B12, 7 BNA OSHC 1643, 1979 CCH OSHD ¶ 23, 781 (No. 76–3103, 1979) (insufficient number of garbage containers, but containers were emptied daily and did not create a fire hazard).

The violation in this case directly relates to employee safety is therefore not properly classified as de minimis. This case is factually similar to cases in which the Commission has held the violation to be nonserious. In Slyter Chair, Inc., 76 OSAHRC 46/A2, 4 BNA OSHC 1110, 1975–76 CCH OSHD ¶ 20, 589 (No. 1263, 1976), the Respondent was cited for violating § 1910.212(a)(3)(ii)[5] in that it failed to guard the needles of nine sewing machines. Although the judge determined that the occurrence of an injury was unlikely and that the injury received would be a minor puncture wound, the Commission affirmed a nonserious violation, stating that the Act is intended to prevent minor as well as major injuries. In Signode Corp., 76 OSAHRC 43/A2, 4 BNA OSHC 1078, 1975–76 CCH OSHD ¶ 20,575, (No. 3527, 1976), appeal denied, No. 76–1456 (7th Cir. Feb. 9, 1977), the Respondent received a citation alleging noncompliance with § 1910.212(a)(1) in that rotating paddles on a rewind machine were unguarded. It was found that an employee operating the machine could catch a finger or hand against the rotating paddles and that an employee’s clothing could become snagged in the paddles, pulling him towards the machine and causing injury. There had been no accidents caused by the unguarded paddles and it was found that the likelihood of an accident actually occurring was small. However, the Commission held that the unguarded machines constituted a hazard and affirmed a nonserious violation.

The majority’s affirmance of a de minimis violation is therefore inconsistent with precedent. Moreover, National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 1719, 1977–78 CCH OSHD ¶21,114 (No. 7987, 1976), cited by the majority, is factually distinguishable from the case before us. In National the Commission properly found a de minimis violation based on the negligible relationship to safety of the hazard posed by a 3 foot fall where employees working adjacent to an open pit were only briefly exposed, wore non-skid shoes, and were standing on ‘all-grip’ plates. The majority also cites to Fabricraft, Inc., 79 OSAHRC 49/A2, 7 BNA 1540, 1979 CCH OSHD ¶23,691 (No. 76–1410, 1979). However, the violation in Fabricraft, Inc.[6] directly affected employee safety and that the decision was therefore similarly inconsistent with safety and that decision was therefore distinguished nor overruled.

Accordingly, consistent with Commission precedent, I would affirm the alleged violation as nonserious. The unguarded chuck poses a hazard and the violation bears a direct relationship to employee safety and health.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NOS. 77–3391 and 77–3890
SOUTHWESTERN ELECTRIC POWER COMPANY,
Respondent.

FOR THE COMPLAINANT

Ronald M.Gaswirth, Regional Solicitor

James F. Gruben, Attorney

Office of the Solicitor

U. S. Department of Labor

555 Griffin Square Building, Suite 501

Dallas, Texas 75202

FOR THE RESPONDENT

Ray T. Whetstone, Manager of Production

Southwestern Electric Power Company

P. O. Box 2116

Shreveport, Louisiana 71156

DECISION AND ORDER

ORINGER, JUDGE:

This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the ‘Act’) to review a citation issued by the Secretary of Labor (hereinafter referred to as ‘Complainant’) pursuant to section 9(a), and a proposed assessment of penalties thereon issued, pursuant to section 10(a) of the Act.

In this cause, bearing Docket No. 77–3391, the Secretary issued a citation against the respondent alleging ‘other than serious’ violations, the only one of which still in issue is item no. three alleging a violation of the standard set forth at 29 C.F.R. 1910.212(a)(1), for which no penalty was proposed.

Subsequent thereto, the Secretary cited the respondent again at a different site for ‘other than serious’ violations, one of which was another allegation of violation of the standard set forth at 29 C.F.R. 1910.212(a)(1) which concerned another unguarded chuck on a Le Blond Lathe. Again, no penalty was proposed. The parties moved to consolidate this latter case bearing Docket No. 77–3890 with the aforementioned case bearing Docket No. 77–3391 and agreed that the findings of fact, conclusions of law and decision and order in Docket No. 77–3391 would apply equally to Docket No. 77–3890 without any further trial of the issues. Both parties, however, reserved their rights to an appeal in the event of dissatisfaction with the decision in Docket No. 77–3391 which will become the decision in Docket No. 77–3890 as well.

The description of the alleged violation in Docket No. 77–3391 reads as follows:

STANDARD, REGULATION OR SECTION OF THE ACT ALLEGEDLY VIOLATED

DESCRIPTION OF ALLEGED

VIOLATION

29 C.F.R. 1910.212(a)(1)

‘Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by:

The revolving chuck of the Le Blond Lathe, SN–8E2887, located toward the west side of the Machine Shop.’

In Docket No. 77–3890, the violation was described as follows:

STANDARD, REGULATION OR SECTION OF THE ACT ALLEGEDLY VIOLATED

DESCRIPTION OF ALLEGED

VIOLATION

29 C.F.R. 1910.212(a)(1)

‘Machine guarding was not provided to protect operator(s) and other employees from hazard(s) created by rotating parts:

The unguarded chuck on the LeBlond Lathe, S/N 9E599.’

THE ISSUES

1. Is the respondent in a business that affects commerce and is this cause within the jurisdiction of this tribunal?

2. Was the respondent in violation of the standard alleged on the day in question or at any time prior thereto?

3. In the event the respondent was in violation of the Secretary’s standard, what is the appropriate penalty, if any, that should be assessed?

In Docket No. 77–3391, the only case that was actually tried, the respondent moved to withdraw his notice of contest to the allegation of ‘serious’ violation of the standard set forth at 29 C.F.R. 1910.213(c)(1) after the Secretary moved to reduce his proposed penalty from $300 to $150 therefor. Both motions were granted, thereby affirming the ‘serious’ violation of the standard set forth at 29 C.F.R. 1910.213(c)(1) and a penalty of $150 was assessed therefor.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the citations, notification of proposed penalties, notices of contest, pleadings, representations, stipulations and admissions of the parties, it is concluded that the preponderance of the credible evidence of record supports the following

FINDINGS OF FACT

1. The respondent generates electric power and operates in three states of the union (Tr. 6).

2. The compliance officer, Mr. Hogan, has conducted approximately 415 inspections, half of which were in industrial establishments, of which 20 percent involved lathes, which would roughly approximate 45 to 50 establishments with lathes (Tr. 10). In all of his investigations of accidents, the compliance officer has known of none involving lathes chucks (Tr. 16, 17).

3. Much of the time during the operation of the lathe in question, both hands are obligated, however, in the opinion of the compliance officer, there are times when both hands would not be obligated (Tr. 19).

4. The compliance officer has seen engine lathe guards of two types, one constructed out of a curved portion of flat metal in about a hundred and eighty degree are hinged to the rear of the opposite side of the chuck from the operator and hinged to a back part or post where it can be thrown back out of the way when the operator sets up the machine. When he gets ready to start the machine, he pushes the guard forward. Other types that he has observed were fashioned of sections of plexi-glass mounted on an articulating arm (Tr. 20).

5. The respondent’s exhibit R–1 depicted a guard that would meet the standard, however, the compliance officer’s opinion was that its design did not make it practical for use (Tr. 21, 22).

6. It was the opinion of the compliance officer that if the hinge and mounting point for the guard shown on exhibit R–1 was placed on the opposite side of the chuck from the operator and the lower back edge was where the hinge was mounted and the width of the guard was no greater than what was necessary to detect the body of a chuck, it could work by folding it back (Tr. 27). In other words, the compliance officer was of the opinion that the hinge should have been parallel to the chuck rather than perpendicular to it (Tr. 28).

7. The greater majority of lathes that are guarded are production type lathes where the lathe is set up primarily to handle one particular piece or size or length of stock (Tr. 29, 30). This is not the situation that exists at the respondent’s plant (Tr. 30). In this plant, various sizes and configurating pieces of material or equipment are mounted into the jaws of the chuck (Tr. 30).

8. The compliance officer worked in plants where there were unguarded lathes, however, they worked at a very low speed and did not have guards because of the slow movement (Tr. 31, 32).

9. In the event of an accident on the lathe in question, if an employee inadvertently get his hand or fingers in an area of the jaws, it could result in a contusion, laceration or a possible broken finger bone (Tr. 34).

10. There were no injuries whatsoever in the plant records of the instant respondent (Tr. 34, 35).

11. The respondent’s representative, Mr. Whetstone, is a graduate mechanical engineer who has worked on the start up of power plants, lay outs and designs and has been employed for the past seven years as manager of production with overall responsibility for operation, maintenance and safety in the power plants, particularly for those persons under his jurisdiction (Tr. 37, 38).

12. There are two classifications of employees who would be using the lathe in question. The first such employee would be a machinist and the other is a combination welder-machinist (Tr. 38, 39). In addition thereto, other employees are allowed to use the machine shop to do their personal work (Tr. 39).

13. The respondent company has six operating plants, one beginning in 1926, another in 1947, another in 1950, another in 1954, another in 1964, and the last one started up in 1977. There were no records of any type of accident in any of these plants in all of the years, involving a lathe (Tr. 39, 40).

14. The respondent’s company has an outstanding safety record among electric utilities (Tr. 40, 41, 42, 43).

15. It was the opinion of Mr. Whetstone, the respondent’s representative, that guarding the particular lathe in question would be more dangerous than having it unguarded (Tr. 47).

16. The respondent places their lathes out of the line of traffic against the wall so that there is no one behind the operator and he is restricted (Tr. 49).

17. In operating this machine because of the different sizes of the stock, the respondent would sometime use the guard and other times not use it (Tr. 58, 59).

18. More than 50 percent of the work done on the lathe in question could not be performed with the guard on the machine (Tr. 67).

19. The compliance officer is of the opinion that there is no additional hazard in a man performing some jobs with a guard and some without a guard. In his opinion it would be no different moving the guard out of the way than it would be to any other set up or operational procedure on the lathe (Tr. 70).

20. The manufacturer of this lathe, which was delivered in late 1975 or early 1976, does not furnish or supply guards for engine lathes inasmuch as it is the opinion of the manufacturer that it cannot design a guard that will be satisfactory in all situations (Tr. 71, 72).

21. This is the first electrical utility that has been cited for an unguarded engine lathe (Tr. 72, 73).

22. The above findings are applied to Docket No. 77–3890 pursuant to the stipulation entered into by the parties.

OPINION

The standard allegedly violated in this cause, to wit, 29 C.F.R. 1910.212(a)(1) reads as follows:

(a) Machine guarding—(1) Type 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, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are-barrier guards, two-hand tripping devices, electronic safety devices, etc.

In order to understand this standard, you have to read part two as well, which reads:

(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.

The standard makes clear and unequivocal that it has been promulgated to do away with ‘hazards.’ The evidence of record reveals that in approximately seven plants, the oldest of which has been operating for more than thirty years where millions of man hours have been employed, not one injury has occurred on a chuck on a Le Blond Lathe such as is the focal point of the instant allegation of violation. The evidence further indicates that more than 50 percent of the operations of the respondent could not be performed with a guard on this machine. The evidence further indicates that it is on rare occasions that both hands are not utilized in the operation of the machine.

While it is true that the Secretary has a duty to prevent the first accident, in my opinion, the Secretary has failed to sustain the burden of proof that there is in this case an actual hazard. I am not convinced by the respondent’s testimony that utilization of a guard would be more dangerous than the lack of a guard, however in my opinion, no actual hazard has been proven. In the event of a hazard, the compliance officer testified there might be contusions, abrasions, lacerations or a possible fracture of the fingers or the hand. The respondent and its employees indicate that the use of a guard might relax them to where it would be more dangerous than working with a guard.

In my opinion, a technical violation was proven. The Le Blond Lathe is in fact unguarded and some little less than 50 percent of its work could be performed with a proper guard fixed on it. However in my opinion, the risk of injury and the result of injury is minimal here and at most the Secretary has proven a de minimis violation.

While it is true that the late Mr. Justice Clark, speaking for the Second Circuit Court of Appeals in, ‘The Society of the Plastics industry, Inc. v. The Occupational Safety and Health Administration, et al, 509 F.2d 1301 (2nd Cir. 1975), stated inferentially that this act was technological forging legislation, that case involved cancer and the life and death of many employees. That case involved thirteen deaths as a result of the chemical involved. In the instant cause, there has not been any accident in over thirty years. The difference in impact, in hazard and in danger to employees is vast.

Focus should initially be centered on the character of the potential hazard. Where violations will result in death or serious bodily harm, more stringent enforcement measures should be demanded than if the result of noncompliance is merely minor injury. Likewise, where the employee’s conduct endangers innocent bystanders, there is reason to force the employer to adopt more drastic means to secure compliance than if the dangers resulting from noncompliance accrue only to the noncomplying employee himself.49 Moreover, if the likelihood of the hazard is slight, the employer should be held to a lower standard of care than where occurrence is statistically more certain.

(See Atlantic and Gulf Stevedores, Inc. v. OSHRC, et al, Harvard Law Review, Vol. 90:1041, at page 1050; ‘Employee noncompliance with OSHA safety standards.’) (Emphasis added)

In accordance with the above considerations, I find that the Secretary has proven a violation, however, it is de minimis in scope and notice should have been issued rather than a citation. Of course, the proposal of no penalty was appropriate in the premises.

Inasmuch as Docket No 77–3890 was consolidated with this cause and the parties agreed that the decision in the instant cause, 77–3391, be the decision in 77–3890, I similarly find a de minimis violation of the standard in that case as well.

Based on the aforementioned findings of fact, opinion and the entire record, the judge makes the following

CONCLUSIONS OF LAW

1. At all times herein mentioned, the respondent, Southwestern Electric Power Company, was engaged in a business affecting commerce within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970, and the Commission had jurisdiction to hear and decide the within controversy.

2. The complainant failed to sustain the burden of proof by a preponderance of the credible evidence of record that the respondent was in violation of the standard set forth at 29 C.F.R. 1910.212(a)(3)(ii) as an ‘other than serious’ violation and, did prove that a violation existed, however, it was de minimis in nature and rather than a citation a de minimis notice should have been issued.

3. In Docket No. 77–3890 the citation alleging a violation of the standard set forth at 29 C.F.R. 1910.212(a)(1) is vacated and in substitution thereof a de minimis notice of the violation of the same standard is substituted therefor. No penalty is proposed.

In view of the foregoing, good cause appearing therefor, it is ORDERED that:

1. The citation alleging a ‘serious’ violation of the standard set forth at 29 C.F.R. 1910.213(c)(1) in Docket No. 77–3391 is AFFIRMED and a penalty of $150 is ASSESSED therefor.

2. The citations in both Docket Nos. 77–3391 and 77–3890 alleging violations by this respondent of the standard set forth at 29 C.F.R. 1910.212(a)(1) in nonserious manner are VACATED and de minimis violations of the same standard are substituted in lieu therefor. The penalties are VACATED.

SO ORDERED this 9th day of May, 1978, in Atlanta, Georgia.

DAVID G. ORINGER

JUDGE, OSHRC

[1] Docket No. 77–3391 involves a Le Blond lathe located at Respondent’s electric power generating plant near Cason, Texas. Docket No. 77–3890 involves a Le Blond lathe at Respondent’s power generating facility near Gentry, Arkansas. The parties stipulated that the two lathes are identical and are put to identical uses, and moved that the cases be consolidated, with the evidence presented being equally applicable to both cases. Judge Oringer granted the motion for consolidation.

[2] This standard provides:

§ 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, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.

[3] This standard provides:

§ 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, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.

[4] The Respondent has not taken exception to the judge’s determination that if failed to comply with the standard.

[5] 29 CFR § 1910.212 General requirements for all machines.

(a) Machine guarding—

(3) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. The guarding device shall be in conformity with any appropriate standards therefore, 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.

[6] See my dissenting opinion in Fabricraft, Inc., supra.

49 See 540 F.2d at 547 (Campbell, J., concurring). See generally G. Calabresi, The Costs of Accidents 135, 174–75 (1970).