“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 77?3391 and 77?3890 \u00a0 SOUTHWESTERN ELECTRIC POWER COMPANY,? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 19, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge David G. Oringer is before the Commissionfor review pursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?) Judge Oringerconcluded that Respondent, Southwestern Electric Power Company, violatedsection 5(a)(2) of the Act, 29 U.S.C. ?\u00a0654(a)(2), by failing to guard therotating chucks of two lathes[1] as required by thestandard at 29 C.F.R. ? 1910.212(a)(1).[2] The judge also concluded,however, that the violations were de minimis in nature rather than nonseriousas alleged by the Secretary. The Secretary?s petition for review of the judge?sdetermination that the violations were de minimis was granted by CommissionerBarnako.??????????? Havingconsidered the Secretary?s exceptions to the judge?s decision, we conclude thatJudge Oringer properly determined that Respondent?s noncompliance with section1910.212(a)(1) was de minimis. The judge?s ruling is consistent with Commissiondecisions holding that certain violations of the Act are de minimis because thehazards presented are too trifling to warrant the imposition of an abatementrequirement or the assessment of a penalty. See Fabricraft, Inc., 79OSAHRC 49\/A2, 7 BNA OSHC 1540, 1979 CCH OSHD ? 23, 691 (No. 76?1410, 1979); NationalRolling Mills Co., 76 OSAHRC 121\/D7, 4 BNA OSHC 1719, 1976?77 CCH OSHD ? 21,114,(No. 7987, 1976).??????????? Accordingly,the judge?s decision is affirmed. SO ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:AUG 19, 1980\u00a0COTTINE, Commissioner, dissenting:The Commission errs in holding that the violation wasproperly classified as de minimis. The Commission has authority under section10(c) of the Act, 29 U.S.C. ? 659(c), to classify a violation as de minimiswhere the relationship of the violation to safety and health is so remote as tobe negligible. E.g., Clifford B. Hannay & Son, Inc., 78 OSAHRC12\/A2, 6 BNA OSHC 1335, 1978 CCH OSHD ? 22,525 (No. 15983, 1978), NationalRolling 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 OSHC1151, 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 onits lathe has a direct and immediate relationship to employee safety.Therefore, the violation is not properly classified as de minimis and insteadshould be classified as nonserious.??????????? Thelathes at issue are used by Respondent in machining various sizes and shapes ofmaterial. Each lathe has a 12-inch diameter chuck that is used to hold thepiece being machined. The chucks are cylindrical in shape. Within each chuckare three jaws that are adjusted to hold the work piece. Depending on the sizeof the piece, the jaws of a chuck can protrude beyond the surface of the chuckitself. The chuck rotates at between 25 and 1500 revolutions per minute duringthe operation of a lathe. The operator normally has both hands on the machine?scontrols while the chuck is rotating. However, sometimes the operator mayperform his duties with only one or no hand on the controls. For example,Respondent?s production manager testified that there are times when the latheoperator will hold the cutting tool directly at the face of the chuck.??????????? WalterC. Hogan, a compliance officer for the Occupational Safety and HealthAdministration, inspected Respondent?s facility. He observed that the lathechuck was not guarded to prevent the operator?s accidental contact with therotating chuck. Accordingly, the Respondent was cited for violating the machineguarding requirements of ? 1910.212(a)(1).[3] Hogan testified that anoperator?s hand could be struck by the protruding jaws of the chuck and heasserted that such an occurrence could result in a contusion, laceration, orbroken bone in the hand or finger. He suggested that the lathe chuck could beguarded by a curved barrier of metal or plexiglass that would be positionedbetween the operator and the chuck when the lathe was operating, but would behinged so that the operator could move the guard out of the way when setting upthe lathe for operation.??????????? TheRespondent?s production manager, Ray T. Whetstone, testified that there was norecord of injuries to Respondent?s employees operating these or similar lathes.He also stated that ?any type of guard on this lathe chuck presents additionalhazards that may cause an accident.? Specifically, Whetstone opined that thecutting tool could run into the guard. Although implying that this would behazardous, Whetstone did not describe how an injury could be caused if thisevent occurred. He also stated that the guard suggested by Hogan would createan additional pinch point at the location of the hinge. Finally, Whetstoneimplied that the presence of a guard would diminish the concentration of thelathe operators.??????????? JudgeOringer concluded that the Secretary had proven a ?technical violation? in thatthe lathes were unguarded.[4] He rejected theRespondent?s contention that it would be more hazardous to operate the lathewith a guard than without one. Though he found that contact with the jaws ofthe chuck ?could result in a contusion, laceration, or a possible broken fingerbone,? Judge Oringer determined that the existence of an actual hazard had notbeen proven. As a result, he concluded that ?the risk of injury and the resultof injury is minimal here and at most the Secretary has proven a de minimisviolation.? In reaching this conclusion, Judge Oringer partially relied on theevidence that the Respondent?s employees had not suffered any injuries fromcontact with lathe chucks.??????????? Onreview, the Secretary argues that the judge erred in classifying the violationas de minimis. The Secretary notes that the Commission has only classifiedviolations as de minimis where there was only a negligible relationship toemployee safety, where the violation was trifling, or where there was no director immediate relationship to safety and health. The Secretary points out that arotating chuck, with its protruding jaws, rotates at high speeds and can causecontusions, lacerations and broken bones. Thus, he argues that the violativecondition posed more than a negligible relationship to employee safety andhealth. The Secretary maintains that this case is distinguishable from the deminimis violation in Hood Sailmakers, Inc., 77 OSAHRC 212\/C12, 6 BNAOSHC 1206, 1977?78 CCH OSHD ? 22,422 (No. 13996, 1977). He notes that ?[i]nthat 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 anabatement order or the imposition of a penalty.? ?The Secretary also contendsthat the judge erred in relying on the fact that Respondent?s employees had notsuffered 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 littlereliance should be placed on an individual employer?s accident-free record whenthe objective facts demonstrate the existence of a hazard.??????????? Theinjury that can result from contact with a rotating chuck is not, as JudgeOringer termed it, ?minimal.? In fact, Judge Oringer himself found that contactwith the chuck ?could result in a contusion, laceration, or a possible brokenfinger bone.? As the Secretary argues on review, these injuries are not sominor that they are properly described as having a negligible relationship toemployee safety and health.??????????? Additionally,Judge Oringer erred to the extent that he relied on the fact that theRespondent?s employees had not suffered injuries from the unguarded lathes inthe past. The Commission has held that the absence of injuries is notcontrolling with respect to the de minimis classification. Van Raalte Co.,Inc., supra. Rather, a hazard requiring abatement may exist in the absenceof recorded injuries, Arkansas-Best Freight Systems, Inc., v. OSHRC, 529F.2d 649 (8th Cir. 1976), for ?[o]ne purpose of the Act is to prevent the firstaccident.? Lee Way Motor Freight v. Secretary of Labor, 511 F.2d 864,870 (10th Cir. 1975). Moreover, the likelihood of an accident occurring duringoperation of the lathe, despite no record of accidents, is not so remote as tobe negligible. Although the lathe operator often uses both hands, there areoccasions when both hands are not needed to perform lathe operations. Duringthese times, the lathe operator stands near the machine with nothing betweenhis hands and the rotating chuck. There are also times that the operator willhold the cutting tool directly at the face of the chuck. Therefore, there is ahazard of employee contact with the chuck and resulting injury.??????????? Thiscase is clearly distinguishable from those cases where the Commission hasproperly classified a violation as de minimis. The common element in thosecases is the fact that, despite a technical failure to comply with thestandard, there was no evidence that employee health or safety was more thanremotely affected by the violation. See, e.g., Continental Oil Co.,supra (lack of one stairway railing and no vertical fall hazard); RustEngineering Co. and Allegheny Industrial Electric Co., 77 OSAHRC 37\/C8, 5BNA OSHC 1183, 1977?78 CCH OSHD ? 21,693 (Nos. 12200 & 12201, 1977)(configuration of scaffolding and frame used as ladder not in accordance withspacing requirements for rungs of ladders); Clifford B. Hanny & Son, Inc.,supra (configuration of spray booth violated 1971 National Electric Codeprovision adopted by OSHA; spray booth in conformance with provision in 1975edition); D. Fortunato, Inc., 79 OSAHRC 69\/B12, 7 BNA OSHC 1643, 1979CCH OSHD ? 23, 781 (No. 76?3103, 1979) (insufficient number of garbagecontainers, but containers were emptied daily and did not create a firehazard).??????????? Theviolation in this case directly relates to employee safety is therefore notproperly classified as de minimis. This case is factually similar to cases inwhich 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 ?\u00a01910.212(a)(3)(ii)[5] in that it failed to guardthe needles of nine sewing machines. Although the judge determined that theoccurrence of an injury was unlikely and that the injury received would be aminor puncture wound, the Commission affirmed a nonserious violation, statingthat the Act is intended to prevent minor as well as major injuries. In SignodeCorp., 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), theRespondent received a citation alleging noncompliance with ? 1910.212(a)(1) inthat rotating paddles on a rewind machine were unguarded. It was found that anemployee operating the machine could catch a finger or hand against therotating paddles and that an employee?s clothing could become snagged in thepaddles, pulling him towards the machine and causing injury. There had been noaccidents caused by the unguarded paddles and it was found that the likelihoodof an accident actually occurring was small. However, the Commission held thatthe unguarded machines constituted a hazard and affirmed a nonseriousviolation.??????????? Themajority?s affirmance of a de minimis violation is therefore inconsistent withprecedent. Moreover, National Rolling Mills Co., 76 OSAHRC 121\/D7, 4 BNAOSHC 1719, 1977?78 CCH OSHD ?21,114 (No. 7987, 1976), cited by the majority, isfactually distinguishable from the case before us. In National the Commissionproperly found a de minimis violation based on the negligible relationship tosafety of the hazard posed by a 3 foot fall where employees working adjacent toan open pit were only briefly exposed, wore non-skid shoes, and were standingon ?all-grip? plates. The majority also cites to Fabricraft, Inc., 79OSAHRC 49\/A2, 7 BNA 1540, 1979 CCH OSHD ?23,691 (No. 76?1410, 1979). However,the violation in Fabricraft, Inc.[6] directly affected employeesafety and that the decision was therefore similarly inconsistent with safetyand that decision was therefore distinguished nor overruled.??????????? Accordingly,consistent with Commission precedent, I would affirm the alleged violation asnonserious. The unguarded chuck poses a hazard and the violation bears a directrelationship to employee safety and health.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NOS. 77?3391 and 77?3890 \u00a0 SOUTHWESTERN ELECTRIC POWER COMPANY,? \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FOR THE COMPLAINANTRonald M.Gaswirth, Regional SolicitorJames F. Gruben, AttorneyOffice of the SolicitorU. S. Department of Labor555 Griffin Square Building, Suite 501Dallas, Texas 75202\u00a0FOR THE RESPONDENTRay T. Whetstone, Manager of ProductionSouthwestern Electric Power CompanyP. O. Box 2116Shreveport, Louisiana 71156?DECISION AND ORDERORINGER, JUDGE:??????????? Thisis a proceeding under section 10(c) of the Occupational Safety and Health Actof 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the ?Act?) to reviewa citation issued by the Secretary of Labor (hereinafter referred to as?Complainant?) pursuant to section 9(a), and a proposed assessment of penaltiesthereon issued, pursuant to section 10(a) of the Act.??????????? Inthis cause, bearing Docket No. 77?3391, the Secretary issued a citation againstthe respondent alleging ?other than serious? violations, the only one of whichstill in issue is item no. three alleging a violation of the standard set forthat 29 C.F.R. 1910.212(a)(1), for which no penalty was proposed.??????????? Subsequentthereto, the Secretary cited the respondent again at a different site for?other than serious? violations, one of which was another allegation ofviolation of the standard set forth at 29 C.F.R. 1910.212(a)(1) which concernedanother unguarded chuck on a Le Blond Lathe. Again, no penalty was proposed.The parties moved to consolidate this latter case bearing Docket No. 77?3890with the aforementioned case bearing Docket No. 77?3391 and agreed that thefindings 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 ofthe issues. Both parties, however, reserved their rights to an appeal in theevent of dissatisfaction with the decision in Docket No. 77?3391 which willbecome the decision in Docket No. 77?3890 as well.??????????? Thedescription 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 \u00a0 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.? \u00a0 \u00a0 \u00a0 In Docket No. 77?3890, the violation was described as follows: \u00a0 STANDARD, REGULATION OR SECTION OF THE ACT ALLEGEDLY VIOLATED DESCRIPTION OF ALLEGED VIOLATION \u00a0 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.? \u00a0 \u00a0THE ISSUES??????????? 1. Isthe respondent in a business that affects commerce and is this cause within thejurisdiction of this tribunal???????????? 2.Was the respondent in violation of the standard alleged on the day in questionor at any time prior thereto???????????? 3. Inthe event the respondent was in violation of the Secretary?s standard, what isthe appropriate penalty, if any, that should be assessed???????????? InDocket No. 77?3391, the only case that was actually tried, the respondent movedto withdraw his notice of contest to the allegation of ?serious? violation ofthe standard set forth at 29 C.F.R. 1910.213(c)(1) after the Secretary moved toreduce his proposed penalty from $300 to $150 therefor. Both motions weregranted, thereby affirming the ?serious? violation of the standard set forth at29 C.F.R. 1910.213(c)(1) and a penalty of $150 was assessed therefor.??????????? Havingheard the testimony and observed the demeanor of the witnesses, and havingconsidered the same, together with the citations, notification of proposedpenalties, notices of contest, pleadings, representations, stipulations andadmissions of the parties, it is concluded that the preponderance of thecredible evidence of record supports the followingFINDINGS OF FACT??????????? 1.The respondent generates electric power and operates in three states of theunion (Tr. 6).??????????? 2.The compliance officer, Mr. Hogan, has conducted approximately 415 inspections,half of which were in industrial establishments, of which 20 percent involvedlathes, which would roughly approximate 45 to 50 establishments with lathes(Tr. 10). In all of his investigations of accidents, the compliance officer hasknown of none involving lathes chucks (Tr. 16, 17).??????????? 3.Much of the time during the operation of the lathe in question, both hands areobligated, however, in the opinion of the compliance officer, there are timeswhen both hands would not be obligated (Tr. 19).??????????? 4.The compliance officer has seen engine lathe guards of two types, oneconstructed out of a curved portion of flat metal in about a hundred and eightydegree are hinged to the rear of the opposite side of the chuck from theoperator and hinged to a back part or post where it can be thrown back out ofthe way when the operator sets up the machine. When he gets ready to start themachine, he pushes the guard forward. Other types that he has observed werefashioned 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 itpractical for use (Tr. 21, 22).??????????? 6. Itwas the opinion of the compliance officer that if the hinge and mounting pointfor the guard shown on exhibit R?1 was placed on the opposite side of the chuckfrom the operator and the lower back edge was where the hinge was mounted andthe width of the guard was no greater than what was necessary to detect thebody of a chuck, it could work by folding it back (Tr. 27). In other words, thecompliance officer was of the opinion that the hinge should have been parallelto the chuck rather than perpendicular to it (Tr. 28).??????????? 7.The greater majority of lathes that are guarded are production type latheswhere the lathe is set up primarily to handle one particular piece or size orlength of stock (Tr. 29, 30). This is not the situation that exists at therespondent?s plant (Tr. 30). In this plant, various sizes and configuratingpieces 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 theslow movement (Tr. 31, 32).??????????? 9. Inthe event of an accident on the lathe in question, if an employee inadvertentlyget 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 instantrespondent (Tr. 34, 35).??????????? 11.The respondent?s representative, Mr. Whetstone, is a graduate mechanicalengineer who has worked on the start up of power plants, lay outs and designsand has been employed for the past seven years as manager of production withoverall responsibility for operation, maintenance and safety in the powerplants, particularly for those persons under his jurisdiction (Tr. 37, 38).??????????? 12.There are two classifications of employees who would be using the lathe inquestion. The first such employee would be a machinist and the other is acombination welder-machinist (Tr. 38, 39). In addition thereto, other employeesare 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, anotherin 1947, another in 1950, another in 1954, another in 1964, and the last onestarted up in 1977. There were no records of any type of accident in any ofthese plants in all of the years, involving a lathe (Tr. 39, 40).??????????? 14.The respondent?s company has an outstanding safety record among electricutilities (Tr. 40, 41, 42, 43).??????????? 15.It was the opinion of Mr. Whetstone, the respondent?s representative, thatguarding the particular lathe in question would be more dangerous than havingit unguarded (Tr. 47).??????????? 16.The respondent places their lathes out of the line of traffic against the wallso 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, therespondent 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 beperformed with the guard on the machine (Tr. 67).??????????? 19.The compliance officer is of the opinion that there is no additional hazard ina man performing some jobs with a guard and some without a guard. In hisopinion it would be no different moving the guard out of the way than it wouldbe 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 theopinion of the manufacturer that it cannot design a guard that will besatisfactory in all situations (Tr. 71, 72).??????????? 21.This is the first electrical utility that has been cited for an unguardedengine lathe (Tr. 72, 73).??????????? 22.The above findings are applied to Docket No. 77?3890 pursuant to thestipulation entered into by the parties.OPINION??????????? Thestandard 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 theoperator and other employees in the machine area from hazards such as thosecreated by point of operation, ingoing nip points, rotating parts, flying chipsand sparks. Examples of guarding methods are-barrier guards, two-hand trippingdevices, electronic safety devices, etc.\u00a0??????????? Inorder to understand this standard, you have to read part two as well, whichreads:(2) General requirements for machineguards. Guards shall be affixed to the machine where possible and securedelsewhere if for any reason attachment to the machine is not possible. Theguard shall be such that it does not offer an accident hazard in itself.???????????? Thestandard makes clear and unequivocal that it has been promulgated to do awaywith ?hazards.? The evidence of record reveals that in approximately sevenplants, the oldest of which has been operating for more than thirty years wheremillions of man hours have been employed, not one injury has occurred on achuck on a Le Blond Lathe such as is the focal point of the instant allegationof violation. The evidence further indicates that more than 50 percent of theoperations of the respondent could not be performed with a guard on thismachine. The evidence further indicates that it is on rare occasions that bothhands are not utilized in the operation of the machine.??????????? Whileit is true that the Secretary has a duty to prevent the first accident, in myopinion, the Secretary has failed to sustain the burden of proof that there isin this case an actual hazard. I am not convinced by the respondent?s testimonythat 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 ahazard, the compliance officer testified there might be contusions, abrasions,lacerations or a possible fracture of the fingers or the hand. The respondentand its employees indicate that the use of a guard might relax them to where itwould be more dangerous than working with a guard.??????????? In myopinion, a technical violation was proven. The Le Blond Lathe is in factunguarded and some little less than 50 percent of its work could be performedwith a proper guard fixed on it. However in my opinion, the risk of injury andthe result of injury is minimal here and at most the Secretary has proven a deminimis violation.??????????? Whileit is true that the late Mr. Justice Clark, speaking for the Second CircuitCourt of Appeals in, ?The Society of the Plastics industry, Inc. v. TheOccupational Safety and Health Administration, et al, 509 F.2d 1301 (2nd Cir.1975), stated inferentially that this act was technological forginglegislation, that case involved cancer and the life and death of manyemployees. That case involved thirteen deaths as a result of the chemicalinvolved. In the instant cause, there has not been any accident in over thirtyyears. The difference in impact, in hazard and in danger to employees is vast.Focus should initially be centered on thecharacter of the potential hazard. Where violations will result in death orserious bodily harm, more stringent enforcement measures should be demandedthan if the result of noncompliance is merely minor injury. Likewise, where theemployee?s conduct endangers innocent bystanders, there is reason to force theemployer to adopt more drastic means to secure compliance than if the dangersresulting from noncompliance accrue only to the noncomplying employee himself.49 Moreover, if the likelihood of thehazard is slight, the employer should be held to a lower standard of care thanwhere occurrence is statistically more certain.\u00a0(See Atlantic and Gulf Stevedores, Inc. v. OSHRC,et al, Harvard Law Review, Vol. 90:1041, at page 1050; ?Employeenoncompliance with OSHA safety standards.?) (Emphasis added)??????????? Inaccordance with the above considerations, I find that the Secretary has provena violation, however, it is de minimis in scope and notice should have beenissued rather than a citation. Of course, the proposal of no penalty wasappropriate in the premises.??????????? Inasmuchas Docket No 77?3890 was consolidated with this cause and the parties agreedthat the decision in the instant cause, 77?3391, be the decision in 77?3890, Isimilarly find a de minimis violation of the standard in that case as well.??????????? Basedon the aforementioned findings of fact, opinion and the entire record, thejudge makes the followingCONCLUSIONS OF LAW??????????? 1. Atall times herein mentioned, the respondent, Southwestern Electric PowerCompany, was engaged in a business affecting commerce within the meaning ofsection 3 (5) of the Occupational Safety and Health Act of 1970, and theCommission had jurisdiction to hear and decide the within controversy.??????????? 2.The complainant failed to sustain the burden of proof by a preponderance of thecredible evidence of record that the respondent was in violation of thestandard 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 minimisin nature and rather than a citation a de minimis notice should have beenissued.??????????? 3. InDocket No. 77?3890 the citation alleging a violation of the standard set forthat 29 C.F.R. 1910.212(a)(1) is vacated and in substitution thereof a de minimisnotice of the violation of the same standard is substituted therefor. Nopenalty is proposed.??????????? In viewof the foregoing, good cause appearing therefor, it is ORDERED that:??????????? 1.The citation alleging a ?serious? violation of the standard set forth at 29C.F.R. 1910.213(c)(1) in Docket No. 77?3391 is AFFIRMED and a penalty of $150is ASSESSED therefor.??????????? 2.The citations in both Docket Nos. 77?3391 and 77?3890 alleging violations bythis respondent of the standard set forth at 29 C.F.R. 1910.212(a)(1) innonserious manner are VACATED and de minimis violations of the same standardare substituted in lieu therefor. The penalties are VACATED.SO ORDERED this 9th day of May, 1978, in Atlanta,Georgia.?DAVID G. ORINGERJUDGE, OSHRC[1] Docket No.77?3391 involves a Le Blond lathe located at Respondent?s electric powergenerating plant near Cason, Texas. Docket No. 77?3890 involves a Le Blondlathe at Respondent?s power generating facility near Gentry, Arkansas. Theparties stipulated that the two lathes are identical and are put to identicaluses, and moved that the cases be consolidated, with the evidence presentedbeing equally applicable to both cases. Judge Oringer granted the motion forconsolidation.[2] This standardprovides:?1910.212 General requirements for all machines.(a)Machine Guarding?(1) Types of guarding. One or more methods of machine guardingshall be provided to protect the operator and other employees in the machinearea from hazards such as those created by point of operation, ingoing nippoints, rotating parts, flying chips and sparks. Examples of guarding methodsare?barrier guards, two-hand tripping devices, electronic safety devices, etc.[3] This standardprovides:?1910.212 General requirements for all machines.(a)Machine guarding?(1) Types of guarding. One or more methods of machine guardingshall be provided to protect the operator and other employees in the machinearea from hazards such as those created by point of operation, ingoing nippoints, rotating parts, flying chips and sparks. Examples of guarding methodsare?barrier guards, two-hand tripping devices, electronic safety devices, etc.[4] The Respondenthas not taken exception to the judge?s determination that if failed to complywith the standard.[5] 29 CFR ? 1910.212General requirements for all machines.(a)Machine guarding?(3)Point of operation guarding.(ii)The point of operation of machines whose operation exposes an employee toinjury, shall be guarded. The guarding device shall be in conformity with anyappropriate standards therefore, or, in the absence of applicable specificstandards, shall be so designed and constructed as to prevent the operator fromhaving any part of his body in the danger zone during the operating cycle.[6] See my dissentingopinion in Fabricraft, Inc., supra.49 See 540 F.2d at547 (Campbell, J., concurring). See generally G. Calabresi, The Costs ofAccidents 135, 174?75 (1970).”