CONSOLIDATED ALUMINUM CORPORATION

OSHRC Docket No. 77-1091

Occupational Safety and Health Review Commission

December 19, 1980

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BEFORE: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Robert W. Doty and John C. Artz, for the employer

Gary Harman, Sfty Chairman, USWA Local 5760, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge Joseph Chodes is before the Commission pursuant to section 12(j) of the Act, 29 U.S.C. §   661(i).

In his decision, Judge Chodes entered an order which, in pertinent part, affirmed four subitems of a citation alleging noncompliance with the standard at 29 C.F.R. §   1910.212(a)(1). n1 In affirming these subitems, the judge rejected the following contentions raised by the Respondent, Consolidated Aluminum Corporation ("CONALCO"), in its contest of the citation: (a) that its employees were not exposed to a hazard; (b) that it would be infeasible, if not impossible, to install the machine guarding sought by the Secretary of Labor ("the Secretary"); and (c) that the instant citation is barred because the cited conditions are covered by [*2]     Under the terms of that agreement, the four citation subitems alleging noncompliance with 29 C.F.R. §   1910.212(a)(1) would have been vacated. n2

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n1 The cited standard provides as follows:

§   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.

n2 With respect to most of the contested citations and citation items, Judge Chodes ordered the same disposition that the Secretary and the Respondent assertedly had agreed upon in their oral settlement agreement. However, the dispositions differed not only with respect to the four subitems referred to above but also with respect to citation 2, item 2(a) (vacated under the agreement, affirmed with a $100 penalty by the judge); citation 2, item 7(a) (amended to an other than serious violation with no penalty under the agreement, vacated by the judge); and citation 3, item 10(a) (vacated under the agreement, affirmed with no penalty by the judge).

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Following the issuance of the judge's decision, CONALCO filed with the Commission a petition for discretionary review taking exception to the judge's affirmance of the four subitems, to his rejection of CONALCO's three contentions in opposition to those charges, and to the judge's denial of CONALCO's motion to enforce the oral settlement agreement. In response to this petition, review was directed by Commissioner Cottine on the following issues:

1.   Whether the Administrative Law Judge erred in concluding that the settlement agreement negotiated, but not signed, by the Respondent and Complainant in this case is not effective.

2.  

3.   If the Administrative Law Judge erred in concluding that the alleged hazardous conditions cited in Repeat Citation No. 2, items 10(j), (k), (l) and (m), are not covered by a settlement [*4]   agreement previously entered into by the Respondent and Complainant, whether these items should be vacated.

4.   Whether the Administrative Law Judge erred in concluding that the Respondent's employees were exposed to the hazard of ingoing nip points on the slitters and cold mill.

5.   Whether the Administrative Law Judge applied the appropriate burden of proof in concluding that the Respondent failed to establish that the guarding of the nip points on the slitters is infeasible.

6.   What effect, if any, do the objections raised in the Authorized Employee Representative's letter dated December 19, 1977, have on issues 1, 2 and 3 above.

For the reasons stated herein, we modify the judge's order to specify that the violations described in subitems 10(j), (k), (l) and (m) of citation 2 are affirmed as other than serious violations of the Act, and we affirm the judge's decision and order as thus modified.

I.

At all times pertinent to the issues on review, CONALCO maintained a manufacturing facility in Hannibal, Ohio, where it was engaged in the fabrication of aluminum sheet and plate.   As part of this process, CONALCO used four machines identified as the 36 inch slitter, the 48 inch [*5]   slitter, the 72 inch slitter, and the single stand cold mill. The function of a slitter, which is a machine containing rotary knives, is to cut aluminum sheets into strips. The width of these strips varies according to the size of the slitter. For example, the 36 inch slitter can be used to cut a single 36 inch wide strip into three strips each twelve inches wide.   The cold mill, which is a housing containing mechanical rolls, performs a milling function whereby the thickness of the sheet metal is reduced through compression between the rolls.

The four machines at issue are similar in terms of their configuration, their operation, and the hazards they present.   Thus, aluminum sheeting is fed into each machine from a payoff mandrel. n3 Once the machine has performed its operation, the sheeting moves onto a rewind mandrel, where it is rolled into a coil. n4 When the coil is completed, it is mechanically removed from the rewind mandrel by a coil buggy and a coil upender. n5 The process then begins anew.

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n3 A mandrel is a spindle or axle used to secure or support material that is being machined or milled.   At the beginning of the process, the sheeting is in a roll wrapped around the payoff mandrel.

n4 The rewind mandrel is also referred to as the take-up mandrel or the winding reel.   These terms are synonymous.

n5 The removal process on the 72 inch slitter is depicted in the Respondent's Exhibits 23-26.   From these exhibits and the testimony describing them, it is apparent that the coil buggy consists of parallel, movable rails that are raised up beneath the coil on the rewind mandrel. The coil buggy then transports the coil horizontally onto a rod extending from the coil upender, which is also referred to as the coil downender.   Once the coil has been transferred onto the upender, that machine moves it from the horizontal position into a vertical position some distance from the rewind mandrel.

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With respect to ezch machine, the payoff mandrel and the rewind mandrel are located on opposite sides of and away from the machine housing. Accordingly, on both the entry and the exit sides, aluminum sheeting moves through open space above the floor for a lateral distance of approximately ten feet between the housing and the mandrels. This moving aluminum sheeting is referred to as the "moving stock".   At the point where the moving stock contacts the rewind mandrel or sheeting already coiled around the rewind mandrel, an ingoing nip point is created. n6 It is undisputed that a person who comes into contact with the moving stock can suffer two types of injury.   He can either be cut or bruised by the edge of the moving stock or carried by the moving stock into the ingoing nip point on the rewind mandrel. However, the latter hazard, i.e., the danger of being caught in an ingoing nip point, generally arises only if an employee contacts the moving stock as it nears the rewind mandrel.

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n6 On the rewind mandrels of each of the slitters there are two ingoing nip points.   These rewind mandrels have a bar identified as an overarm separator resting on top of the coil at the point where the moving stock enters the coil. Accordingly, there is a nip point above the moving stock where it contacts the overarm separator and also below the moving stock where it contacts the coil.

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Each of the machines in question is customarily operated by an operator and two or three helpers.   The operator usually works from a platform where the primary controls are located.   The helpers, however, perform various functions that require them to move around the machine area.   It is undisputed that at least one of the job functions of some of the helpers requires them to stand close to the stock that is moving between the housing and the rewind mandrel. Gene Werner, CONALCO's general foreman for finishing, testified that an essential part of the slitting operation is observation of the surface of the moving stock after it has been slit to insure that there are no defects in the stock. He apparently agreed with the testimony of Ernest Kocker, a slitter helper, that this quality control function included touching the surface of the moving stock to check for burrs.   The testimony is conflicting, however, as to whether the helpers were required to work in proximity to the rewind mandrel. n7 In addition, there is undisputed testimony that management personnel performed work, e.g., inspections,   [*8]   near the moving stock and that other employees not involved in operation of the machines used the area around the moving stock and the rewind mandrel as a route of travel.

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n7 Werner and Ralph Skeen, CONALCO's general foreman for cold rolling, both testified that there was no reason for a helper to be near an ingoing nip point.   Nevertheless, Kocher testified that he was "quite often" in the area of the rewind mandrel. He also testified that he would lean over the rewind mandrel while manually separating the strips by means of a board with a buff cloth.   David Brown, who also worked as a slitter helper, testified that he had to work near the nip point of the rewind mandrel when slack developed in some but not all of the strips. On those occasions, he would manually hold the strips up with a broom handle in a manner whereby only approximately one foot of the broom handle was left uncovered by the moving stock. Kocher also testified that slitter helpers used broom handles to hold up sagging strips.

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The record evidence [*9]   as to whether the ingoing nip points could be guarded is conflicting.   The Secretary offered opinion testimony that the hazard could be eliminated by installing either a barrier guard or a presence-sensing device.   In particular, a witness for the Secretary described a method of barrier guarding used by Waycinden Manufacturing Co. at a plant in Illinois. n8 Waycinden guarded its slitter, which it used to slit steel, by installing a device that is essentially a chain link fence on the front and one end of its slitter. The slitter's controls are located outside of and adjacent to the fence and three access gates are installed in the fence.   The fence is clectronically interlocked with the controls so that the machine will not operate if any of the gates are opened.

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n8 We hereafter refer to this type of barrier guarding as the "Waycinden guard".   The record does not indicate whether it has a trade name or an accepted name within the industry.

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The Respondent countered the Secretary's showing with opinion testimony that [*10]   the guarding suggested by the Secretary could not be used on its machines. CONALCO's witnesses testified that the Waycinden guard could not be used on its machines because (1) it would preclude performance of the essential task of observing the moving stock to insure its quality and (2) there is not sufficient space to install the guarding, particularly in view of the presence and operation of the coil buggy and the coil upender.   CONALCO's witnesses further testified that a presence-sensing device could not be installed because it would create one of two problems.   If an emergency stop device were installed, aluminum sheeting would have to be scrapped due to damage caused by activation of the device.   Alternatively, if a controlled stop device were used, it would have to be set back so far from the machine that it would be "impractical." n9

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n9 Although CONALCO's witness did not explain his impracticality contention, we note that a controlled stop presence-sensing device located some distance from the machine would, like the Waycinden guard, preclude close observation of the moving stock for defects.

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The Respondent also introduced evidence that it had made "engineering efforts", i.e., studies, to determine how to guard the machines. However, it was unable, according to its witness, to devise a method that "was satisfactory to do the job and not, in itself, be a hazard." CONALCO did not develop any prototype guard and did not contact any outside engineering firm for assistance.

II

In July 1975, the Occupational Safety and Health Administration ("OSHA") conducted an inspection of CONALCO's Hannibal, Ohio workplace.   As a result of that inspection, the Secretary issued to CONALCO a citation alleging noncompliance with the standard at 29 C.F.R. §   1910.212(a)(1).   See note 1 supra. The violation was described as follows:

Failure to provide machine guarding to protect the operator and other employees in the area from hazards such as those created by point of operation, ingoing nip points, rotating parts, and flying chips and sparks: (a) on the moving stock between the payoff mandrill and the rolls also between the rolls and rewind mandrill, on the 48" slitter and the 36" slitter and the [*12]   72" slitter in the finishing dept.   (b) on the pacemaker lathe in the machine shop.

  That contest was resolved by Commission approval of a settlement agreement signed by the Secretary and CONALCO on December 6, 1975.   In paragraph III of that settlement agreement, the Secretary amended his complaint "by deleting and vacating . . . in its entirety" the allegation that CONALCO violated the Act by failing to comply with section 1910.212(a)(1).   In paragraph IV of the agreement, CONALCO agreed "to provide floor markings and/or appropriate warning signs to alert employees of the presence of the moving stock in and around the areas of the slitters." In accordance with that agreement, CONALCO thereafter posted on and around the slitters signs printed "CAUTION MOVING STRIP."

The proceeding now on review was initiated by an inspection conducted by OSHA compliance officer Maglicic of CONALCO's Hannibal, Ohio workplace during the period from January 24 through February 1, 1977.   As a result of this inspection, the Secretary issued three citations to CONALCO.   Item 10 of citation 2 alleged a repeated [*13]   violation of the Act in that CONALCO failed to comply with section 1910.212(a)(1).   Subitems 10(j), (k), (l) and (m) alleged the following instances of noncompliance with this standard:

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

j) Cold Mill, single stand mill, the ingoing nip point was not guarded where the strip wraps around the winding reel.

k) Finishing department 48 inch slitter, the ingoing nip point was not guarded where the strip wraps around the winding reel.

l) Finishing department 72 inch slitter, the ingoing nip point was not guarded where the strip wraps around the winding reel.

m) Findishing department 36 inch slitter, the ingoing nip point was not guarded where the strip wraps around the winding reel.

The Secretary proposed that a single penalty encompassing all thirteen instances of the alleged violation, i.e., item 10 in its entirety, be assessed in the amount of $900.

On April 4, 1977, CONALCO filed a notice of contest directed to several citation items and subitems, including subitems 10(j), (k), (l) and (m) of citation 2.   In a letter dated May 6, 1977, Local 5760 [*14]   of the United Steelworkers of America ("the Union") elected party status in this case as the authorized employee representative at CONALCO's workplace.   After a complaint and answer were filed, the Secretary and CONALCO began settlement negotiations.

At a meeting on June 23, 1977, William Curphey, staff attorney for the Secretary, and Robert Doty, attorney for CONALCO, agreed upon a disposition of several contested citation items, including subitems 10(j), (k), (l) and (m).       Nevertheless, because the attorneys could not agree on the disposition of other contested items, negotiations continued.

On October 26, 1977, Curphey responded to a prehearing order issued by Judge Chodes by informing the judge that   [*15]   "the parties" had "tentatively reached" an agreement settling all of the contested issues in this case. n10 Curphey thereafter informed representatives of OSHA and of the Union of some of the terms of the agreement reached between himself and Doty.   Both compliance officer Maglicic, in a memorandum to his supervisor, Area Director Scmitt, and the Union representatives, in a meeting with Currphey, stated their opposition to the proposed disposition of subitems 10(j), (k), (l) and (m).     Nevertheless, Curphey maintained his view that the citation subitems were barred as a matter of law because of the prior settlement agreement.

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n10 This letter to Judge Chodes, like all of Curphey's correspondence in this case, was signed by Curphey for W.S. Kloepfer, Associate Regional Solicitor.   According to Curphey, all of this correspondence was reviewed and initialled (on an office work file copy) by Kloepfer before being mailed.   Kloepfer was Curphey's supervisor and, so far as the record indicates, the person with the ultimate authority to approve or disapprove the settlement agreement in question on behalf of the Secretary.

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On or about November 29, 1977, Curphey met initially with representatives of both OSHA and CONALCO and later the same day separately with just the OSHA representatives.   According to Curphey, he left these meetings with a final agreement between the Secretary and CONALCO settling all of the contested issues in this case and also with approval and authorization from Area Director Schmitt to enter into the settlement agreement. In Curphey's view, the only steps that remained at this time were the formalities of putting the agreement in writing and filing it.   Associate Regional Solicitor Kloepfer's approval would be automatically given, according to Curphey, because Kloepfer had an established policy of approving any settlement agreement that had been agreed to by Area Director Schmitt.

On December 5, 1977, Curphey wrote Judge Chodes, see note 10 supra, and advised him that the "case is settled." The judge accordingly issued a notice postponing the hearing that previously had been scheduled for December 9.   The hearing was "postponed without date pending disposition of a settlement agreement between [*17]   the Complainant and Respondent." In response to this notice, Union representative Gary Harman wrote letters to the judge, compliance officer Maglicic, Area Director Schmitt, and Regional Solicitor Herman Grant, who was in a position of authority over both Kloepfer and Curphey.   Each of these letters was dated December 19, 1977, and each contained essentially the same statements, including contention that the Union had been excluded from the settlement process, a complaint as to Curphey's handling of the case, and an expression of concern over the hazards assertedly created by the ingoing nip points.   Both Schmitt and Grant responded to Harman by indicating that the settlement agreement was not yet final.   In addition, Grant instructed Curphey to meet with Harman.   According to Curphey, this meeting was to be solely a public relations effort and Grant's instruction had no effect on the finality of the agreement between the Secretary and CONALCO.

On January 20, 1978, Curphey terminated his employment with the Secretary.   He left without either putting the agreement of the Secretary and CONALCO in writing or meeting with Harman.   Benjamin Chinni, another staff attorney under Associate [*18]   Regional Solicitor Kloepfer, thereafter became the Secretary's trial attorney.   On February 21, 1978, Chinni wrote Judge Chodes that the letter "dated December 5, 1977, to the effect that the case had been settled was premature." Chinni further stated that "[i]t is the Secretary's view that a settlement had not been finally consumated between parties."

In response to this letter, Judge Chodes rescheduled a hearing in the case while CONALCO filed a motion for enforcement of the settlement agreement with an attached affidavit executed by Curphey.   CONALCO alleged that "the Complainant is improperly attempting to repudiate the settlement agreement between the parties." It moved for an order (a) enforcing the agreement between the Secretary and CONALCO or (b) requiring the Secretary and CONALCO to "put the aforesaid agreement in the form of a stipulation", file it with the judge, and serve it on the Union.   The Secretary in turn moved to strike CONALCO's motion.   The Secretary argued that no final agreement had been reached between the Secretary and CONALCO or, alternatively, that Curphey had exceeded his authority by entering into an agreement.   Affidavits in support of these allegations [*19]   were executed by staff attorney Chinni and by Associate Regional Solicitor Kloepfer and were attached to the Secretary's motion.

At the beginning of the scheduled hearing, CONALCO renewed its motion to enforce the alleged settlement agreement. Curphey testified on behalf of CONALCO to the effect that a duly authorized settlement of the case had been agreed upon between the Secretary and CONALCO but that he had not completed the formalities of reducing the agreement to writing and filing it with the judge before leaving the Secretary's employment.   At the close of Curphey's testimony, CONALCO rested its case in support of its motion and the Secretary offered to introduce the testimony of two witnesses in rebuttal.   However, the judge declared that he was ready to rule upon the motion and, in a ruling from the bench, he denied it.   He stated two grounds for this denial: (1) that Curphey had not obtained the necessary approval for the settlement agreement (specifically Area Director Schmitt's approval), and (2) that the purposes of the Act would not be furthered by approving the settlement agreement in view of the controversy surrounding its resolution of some of the contested items.   [*20]   n11 The hearing then proceeded, with the parties introducing evidence on several contested items, including the four subitems at issue on review.

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n11 In an earlier ruling at the close of CONALCO's direct examination of Curphey, Judge Chodes implicitly rejected the Secretary's contention that CONALCO had failed to establish the existence of a settlement agreement between the Secretary and CONALCO.

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  Accordingly, it continued, these subitems should be vacated because (1) this agreement is binding, (2) the Secretary had failed to prove exposure to a hazard, and (3) the abatement methods suggested by the Secretary would not be feasible for its operations.   [*21]   In addition, CONALCO contended that subitem 10(j) should be vacated because the Secretary had failed to prove exposure to a hazard and because the abatement methods suggested by the Secretary would not be feasible.

III

In his decision and order, Judge Chodes reaffirmed his ruling from the bench denying CONALCO's motion to enforce the settlement agreement. He stated that the motion was denied on the grounds that (1) Curphey did not have authority to settle the case without the "concurrence" of Schmitt and Kloepfer, (2) the agreement was not reduced to writing and signed by the parties, and (3) approval of the agreement would not serve the purposes of the Act in light of the Union's objections.   In addition, the judge cited Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC and Marshall, 579 F.2d 378 (6th Cir. 1978), for the proposition that an oral settlement agreement entered into by government counsel is not binding on the agency when the counsel acts beyond the scope of his authority.

In reference to subitems 10(j), (k), (l) and (m) of citation 2, the judge initially considered CONALCO's argument on the effect of the earlier settlement agreement in SOHRC Docket [*22]   No. 14785.   He noted differences in the language, set forth supra, of the two citations issued to CONALCO alleging noncompliance with section 1910.212(a)(1).   He also cited the opinion testimony of compliance officer Maglicic that the 1975 citation was directed to the hazard created by the moving stock while the citation now on review was directed to the separate hazard created by the ingoing nip points.   Finally, the judge stated his own view that paragraph IV, supra, of the earlier settlement agreement was directed to the moving stock hazard rather than the ingoing nip point hazard at issue in this case.   Accordingly, Judge Chodes rejected CONALCO's defense on the ground that the two citations were directed to different hazards.

Turning to the merits of the alleged violation, the judge initially set forth an accurate and complete summary of the record evidence, including the evidence presented by all parties on the disputed employee exposure and feasibility of guarding issues.   He expressly noted the conflict on the exposure issue between the testimony of Kocher and Brown and the testimony of Werner and Skeen and then concluded "that a preponderance of the evidence establishes [*23]   that there are working conditions under which employees are exposed to the hazard contemplated by the standard." Alternatively, he concluded that employees in any event had access to the ingoing nip points and thus exposure had been established under the rule set forth in Gilles & Cotting, Inc., 76 OSHARC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).   Furthermore, because the Secretary had established that the nip points were not guarded and that CONALCO's employees were exposed or had access to this hazardous condition, Judge Chodes held that the Secretary had made a prima facie showing of noncompliance with section 1910.212(a)(1).

The judge then turned to CONALCO's contention that guarding of the nip points would be infeasible, if not impossible.   Citing Ace Sheeting & Repair Co. v. OSHRC and Marshall, 555 F.2d 439 (5th Cir. 1977), he concluded that the burden of proof on the issue rested with CONALCO and that its burden was "to demonstrate that the remedy contained in the standard is infeasible under the particular circumstances." As he had done with respect to the exposure issue, the judge expressly noted the conflict in the evidence on the guarding [*24]   issue.   Nevertheless, he did not resolve this conflict but instead rejected CONALCO's defense on the ground that CONALCO, in its consideration of possible guarding methods, had relied on the expertise of its own staff and had not sought assistance from outside engineering firms with specialized expertise in dealing with the types of problems it encountered.

Finally, having, determined that CONALCO was in violation of the Act, Judge Chodes turned to the proper classification of the violation and the assessment of a penalty.   He concluded that a penalty of $100 was appropriate in light of the criteria of section 17(j) of the Act, 29 U.S.C. §   666(i).   However, because the proposed penalty was less than $1000, he concluded in effect that it was unnecessary to determine the proper classification of the violation. n12

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n12 The Commission has authority under the Act to assess a penalty of $1000 or less for any violation classified as other than serious, serious, repeated or willful.   Section 17(c) of the Act, 29 U.S.C. §   666(c), provides that an employer "may" be assessed a penalty of up to $1000 for an other than serious violation. Section 17(b) of the Act, 29 U.S.C. §   666(b), provides that an employer "shall" be assessed a penalty of up to $1000 for a serious violation, which is deemed to exist "if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methords, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation." Section 17(k) of the Act, 29 U.S.C. §   666(j).   If a violation is willful or repeated, the Commission "may" assess a penalty of up to $10,000 under section 17(a) of the Act, 29 U.S.C. §   666(a).

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IV

A.

On review, CONALCO argues that the judge erred in denying its motion to enforce the settlement agreement assertedly entered into by the Secretary and CONALCO in the case now before us.   It takes issue with the judge's finding that Curphey had not been authorized to enter into a settlement agreement and also with the judge's reliance on Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC and Marshall, supra. In response, it avers that Courphey's testimony that CONALCO and the Secretary had in fact reached an agreement and that Curphey had authority to enter into the agreement was not rebutted.   CONALCO argues that the instant case is distinguishable from Empire Detroit Steel because here there is written evidence of the agreement in the form of correspondence between Curphey and Doty and also because here there is unrebutted testimony by the Secretary's counsel that there was an agreement.   Alternatively, it argues that the Secretary should be bound by the agreement under the "apparent authority" doctrine of the law of agency.

The Secretary responds that the judge   [*26]   "was clearly correct in holding that no settlement agreement existed between the Secretary and respondent." n13 He argues that Curphey failed to obtain the "necessary consent" of Area Director Schmitt and the "approval" of Associate Regional Solicitor Kloepfer before accepting the settlement agreement and that Curphey's actions were therefore beyond his authority and "void".   Accordingly, the Secretary asserts, Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC and Marshall, supra, is "directly on point" and "dispositive".

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n13 Contrary to the Secretary's contention, we conclude that Judge Chodes implicitly held that CONALCO had established the existence of a settlement agreement between itself and the Secretary.   See note 11 supra.

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  It notes that it   [*27]   has been cited twice for noncompliance with the same standard with respect to the same three slitters and that the earlier citation referred to "ingoing nip points", which concededly is the subject of the citation on review.   It argues that, because it "has fully complied with the terms of the settlement agreement" that resolved its contest of the earlier citation, "the Secretary [also] should be bound thereby." Subitem 10(j) of the citation or review should be vacated as well, it continues, because the hazard on the cold mill should be "abated" in the same manner that governs the hazard on the slitters. Furthermore, it argues, because "the prior complaint specifically identified ingoing nip points, the settlement of that citation must bar a new citation on the same point." CONALCO refutes the asserted distinction between the moving stock hazard and the hazard created by the ingoing nip points on the ground that this distinction is contrary to logic and the record evidence.   It responds that the moving stock is an "integral part" of the ingoing nip point.

The Secretary counters CONALCO's arguments by contending in effect that the judge correctly decided the issue for the reasons   [*28]   he stated.   The Secretary adds his assertion that the reference to ingoing nip points in the earlier citation was part of the "description of the standard involved" and not part of the "description of the violation."

C.

CONALCO additionally takes exception to the judge's conclusion that its employees were exposed to a hazard created by the ingoing nip points on its slitters and its cold mill. It argues that the record, including the testimony relied upon by the judge, establishes only exposure to the moving stock and not exposure to the ingoing nip points.   In addition, CONALCO emphasizes, "there is absolutely no suggestion anywhere that the terms of the abatement program outlied in the prior settlement agreement have not been adhered to and effective at all times." Thus, it argues, the record demonstrates that there have been no accidents or injuries involving employee contact with ingoing nip points on the slitters or the cold mill.

The Secretary urges us to conclude that the judge's finding of employee exposure or access to the hazardous conditions is supported by a preponderance of the evidence.   The Secretary further notes that, under Commission precedent, "work rules   [*29]   alone are not a legally sufficient substitute for required machine guarding." He thereby implicitly argues that CONALCO's contention that it has abated the hazard by complying with the terms of the 1975 settlement agreement should be rejected for that reason.

D.

Finally, CONALCO asserts that the judge erred in concluding that it failed to prove that guarding of the ingoing nip points is "infeasible." Initially, it argues that "the Secretary has the burden of proving the existence and feasibility of a method of abatement" because the cited standard, section 1910.212(a)(1), does not specify a particular method of abating the hazard. Accordingly, it continues, the cited standard is comparable to section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1), and the allocation of the burden of proof on feasibility should be governed by the principles set forth in National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), that is, the burden should be on the Secretary.   Alternatively, it contends that, if it has the burden of proof, it has sustained that burden.   It support of its position, CONALCO points to testimony of its witnesses establishing, in its view, that "neither [*30]   the barrier guards used at the Waycinden Company nor presence-sensing devices would be effective in Respondent's aluminum operation" and further "that there is no feasible means of guarding." In addition, it asserts in effect that there is no basis for the judge's imposition of a requirement that "industry expertise and outside expert assistance . . . be exhausted to maintain the defense of infeasibility", particularly in light of the fact that "Respondent's engineering department tried without success to develop a feasible means of guarding."

In response, the Secretary initially contends that the judge correctly imposed on the Respondent the burden of proving that guarding "is infeasible under the particular circumstances at issue".   Alternatively, he argues that the employer must establish the affirmative defense of impossibility of compliance.   In either event, he concludes, CONALCO failed to sustain its burden of proof.   Indeed, the Secretary implicitly asserts that he established the feasibility of the guarding methods suggested by his witnesses and that CONALCO showed at most that these methods would be expensive or inconvenient.   The Secretary also implicitly endorses the   [*31]   judge's rationale by stating that experimentation with prototype guards and consultation with outside firms are "efforts suggested by" Commission precedent.

V

In denying CONALCO's motion to enforce the settlement agreement assertedly entered into by the Secretary and CONALCO in this case, Judge Chodes set forth alternative grounds for his ruling.   In our view, the threshold issue to be resolved in reviewing that ruling is whether the judge erred in denying CONALCO's motion on the ground that the agreement was not reduced to writing and signed by the parties.   Thus, we must first determine whether oral settlement agreements in general are binding and enforceable in Commission proceedings before any need arises to decide the issues raised concerning this particular oral settlement agreement. n14

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n14 For the purposes of this discussion, we assume without deciding that an agreement settling the case was orally reached between the Secretary, who was represented by trial attorney Curphey, and CONALCO.   We further assume without deciding that Curphey was authorized to enter into this agreement on behalf of the Secretary.

CONALCO accurately observes that Curphey gave unrebutted testimony that a settlement agreement was reached and that he had the authority to enter into this agreement.   However, the reason Curphey's testimony was not rebutted is that the judge's ruling from the bench at the close of CONALCO's presentation precluded the Secretary from introducing his rebuttal evidence.   Under these circumstances, we can enter no findings on these disputed factual issues.

  [*32]  

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We note initially that the submission and consideration of settlement agreements in Commission proceedings are matters governed by the Commission's Rules of Procedure.   Specifically, Rule 100, 29 C.F.R. §   2200.100, provides as follows:

§   2200.100 Settlement.

(a) Policy. Settlement is permitted at any stage of the proceedings . . . .   A settlement proposal shall be approved when it is consistent with the provisions and objectives of the Act.

(b) Requirements. Every settlement proposal submitted to the Judge or Commission shall include, where applicable, the following:

(1) A motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement;

(2) A statement that payment of the penalty has been tendered or a statement of a promise to pay; and

(3) A statement that the cited condition has been abated or a statement of the dated by which abatement will be accomplished.

(c) Filding; service and notice. When a settlement proposal is filed with the Judge or Commission, it shall also be served upon represented and unrepresented [*33]   affected employees in the manner prescribed for notices of contest in §   2200.7.   Proof of service shall accompany the settlement proposal. A settlement proposal shall not be approved until at least 10 days following service of the settlement proposal on affected employees.

Rule 100 as presently written is a recent revision of a rule included within the Commission's original Rules of Procedure, which were promulgated at 37 Fed. Reg. 20,238 (1972). Although the revised rule was issued on December 5, 1979, n15 its substantive provisions and procedural requirements are not new but rather were operative at the time CONALCO filed its motion to enforce the settlement agreement at issue in this case. n16 Accordingly, we made the following observation in our recent decision in Weldship Corp., 80 OSAHRC    , 8 BAN OSHC 2044, 2045, 1980 CCH OSHD P24,750 at p. 30,480 (No. 77-3769, 1980):

. . . [w]e have consistently held that for a settlement agreement to receive favorable consideration, (1) the agreement must reflect, among other things, that abatement has been completed or the date by which it will be completed [footnote omitted], and (2) proof that the proposed settlement agreement [*34]   has been served upon represented and unrepresented affected employees must accompany the settlement proposal. [citations omitted].

(emphasis added).

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n15 44 Fed. Reg. 70,106 at 70,112 (1979).

n16 Specifically, Rule 100(b) essentially codified criteria initially set forth in Dawson Brothers-Mechanical Contractors, 72 OSHAHRC 5/B8, 1 BAN OSHC 1024, 1971-73 CCH OSHD P15,039 (No. 12, 1972).   The Commission has described those criteria as "prerequisites that must be satisfied before approval of a negotiated settlement will be considered." Globe Industries, Inc., 79 OSAHRC 28/G11, 7 BNA OSHC 1312, 1979 CCH OSHD P23,512 (No. 78-3605, 1979).   Similarly, Rule 100(c) sets forth service and notice requirements that the Commission had previously held were contained within the predecessor to the current rule.   See Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979) (proposed settlement agreement must be served upon represented and unrepresented affected employees regardless of whether they elect party status).   Cf., Kaiser Aluminum & Chemical Corp., 78 OSAHRC 103/A2, 6 BNA OSHC 2172, 1978 CCH OSHD P23,200 (No. 76-2293, 1978), appeal dismissed, No. 79-7047 (9th Cir. Feb. 7, 1980) (affected employees who elect party status are entitled to "a reasonable opportunity to review and comment upon" proposed settlements "before they reach fruition").   Adequate certification of empliance with these service and notice requirements is also a prerequisite to Commission consideration of a settlement agreement. E.g., Anaconda Co., Wire & Cable Division, 80 OSAHRC    , 9 BNA OSHC    , 1980 CCH OSHD P24,917 (No. 79-5549, 1980).

  [*35]  

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Rule 100 does not expressly require that a settlement agreement be reduced to writing and signed by the parties.   Nor have we expressly held in our prior decisions that a settlement agreement will not be considered by the Commission unless it is first reduced to writing and signed by the parties.   Nevertheless, such a holding is strongly implied both in the terms of Rule 100(c) and in our previous decisions interpreting the current and earlier versions of that rule.

By its terms, Rule 100(c), as now written as well as in the earlier Version of that rule, requires that a proposed settlement agreement be served upon represented and unrepresented affected employees in the manner prescribed for notices of contest in Commission Rule 7, 29 C.F.R. §   2200.7.   Accordingly, service upon represented employees must be by first class mail or personal delivery to the authorized employee representative, while service upon unrepresented employees must be by posting.   See Rules 7(c), (f) and (g).   Moreover, under the terms of Rule 100(c), proof of service must be filed along with the settlement proposal.

The implication [*36]   in these provisions that a proposed settlement agreement must be in writing is strengthened by prior Commission decisions interpreting these provisions.   We held in Brockway Glass Co., 78 OSAHRC 93/D5, 6 BNA OSHC 2089, 1978 CCH OSHD P23,143 (No. 77-3817-P, 1978), that the Secretary and the employer had failed to comply with Rule 100(c) because they had not served copies of the executed settlement agreement upon the authorized employee representative until after it had been approved by the judge.   We stated that Rule 100(c) requires the parties to give notice to affected employees of the proposed settlement agreement before it is submitted to the judge for approval.   In Reynolds Metals Co., 79 OSAHRC 4/A2, 7 BNA OSHC 1042, 1979 CCH OSHD P23,295 (No. 78-2485, 1979), we emphasized that, under Rule 100(c), proposed settlement agreements must be served upon represented and unrepresented affected employees regardless of whether they have elected party status.   In footnote 5 of that decision, we further stated that, under Commission Rule 7(d), 29 C.F.R. §   2200.7, which is made applicable by the terms of Rule 100(c), "a written statement indicating the date and manner of service [must]   [*37]   be filed with the agreement." 7 BNA OSHC at 1044 n.5, 1979 CCH OSHD at p. 28,179 n.5. More recently, we have held that Rule 100(c) makes no distinction between settlement agreements arrived at during a hearing and at other times; the rule requires all settlements to be served on affected employees. Snider Industries, Inc., 80 OSAHRC    , 8 BNA OSHC 2046, 1980 CCH OSHD P24,749 (No. 78-452, 1980).   In that case, we vacated a judge's order approving a settlement agreement orally entered at a hearing.   In order to effectuate the service requirements of Rule 100(c), we instructed the parties on remand to reduce their settlement agreement to writing. n17

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n17 In cases, such as the case now before us, where affected employees are represented by an authorized employee representative that has elected party status, the Commission's prior decisions have given even stronger indications that a settlement agreement must be reduced to writing and signed by the other parties.   Indeed, in American Cyanamid Co., 80 OSAHRC    , 8 BNA OSHC 1346, 1349, 1980 CCH OSHD P24,424 at p. 29,791 (No. 77-3752, 1980), petitions filed, Nos. 80-1942 and 80-1943 (3rd Cir. June 26, 1980), the Commission held that "an authorized employee representative that has elected party status must be served with a copy of the fully executed settlement agreement when it is filed with the judge . . . [and be given] 10 days, 13 days if service is by mail, to analyze the agreement and make comments, if any, to the judge."

  [*38]  

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In sum, we have previously held or stated by rule that (1) all affected employees must be given notice of all proposed settlement agreements before they are submitted to a judge for approval, (2) notice must be given by mailing, personally delivering or posting the fully executed agreement, and (3) the settlement agreement cannot be approved by the judge unless adequate certification has been filed to establish compliance with these notice and service requirements and the employees have been given an opportunity to review and comment on or object to the settlement proposal. We therefore conclude that a written settlement agreement is necessary in order to effectuate the service and notice requirements of Commission Rule 100(c).   For this reason, we now hold that a settlement agreement between the Secretary and an employer must be reduced to writing and signed by those parties and that the Commission will not consider any settlement agreement that is not submitted in this form.   Accordingly, we further conclude, with specific reference to the case now before us, that Judge Chodes was correct in rejecting [*39]   CONALCO's motion to enforce the oral settlement agreement on the ground that the agreement was not reduced to writing and signed by the parties.   We therefore reject CONALCO's exceptions to the judge's ruling. n18

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n18 We are aware that oral settlement agreements are generally deemed to be binding and enforceable but note the recognized exception to this rule where settlement agreements are required by statute or court rule to be in writing.   15A Am Jur 2d, COMPROMISE AND SETTLEMENT, §   10; 15A C.J.S. Compromise & Settlement §   17.   See Bruce Realty Co. of Florida v. Berger, 327 F.Supp. 507 (S.D.N.Y. 1971). Our conclusion that settlement agreements are required under the Commission's Rules of Procedure to be in writing and signed by the parties places Commission proceedings within the exception to the general rule.

In view of our holding, we need not reach the other issues raised by the parties concerning the oral settlement agreement.

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VI

On review, CONALCO renews its contention that the issuance of citation [*40]    

We do not agree with the judge's reasoning.   [*41]   Initially, we note that the ingoing nip point hazard is specifically included in the language of the 1975 citation.   Thus, the citation alleged, in pertinent part, that CONALCO failed "to provide machine guarding to protect the operator and other employees in the area from hazards . . . created by . . . ingoing nip points . . . on the moving stock . . . between the rolls and rewind mandrill, on the 48" slitter and the 36" slitter and the 72" slitter in the finishing dept." Because the ingoing nip points in question are physically located "on the moving stock . . . between the rolls and rewind mandrill," the hazard created by them was part of the alleged violation described in the 1975 citation.

Indeed, even in the absence of the express reference to ingoing nip points, CONALCO would have been required by the 1975 citation to eliminate the hazard created by the ingoing nip points.   The citation alleged that the area between the slitter housing and the rewind mandrel, along the moving stock, was not in compliance with section 1910.212(a)(1).   The area described included the ingoing nip points formed where the moving stock entered onto the rewind mandrel. Accordingly, because the   [*42]   cited standard by its terms requires guarding to protect employees against the hazard created by ingoing nip points, the citation's abatement requirement imposed on CONALCO the duty to eliminate that hazard. Stated conversely, CONALCO could not have come into compliance with the standard at the location described in the citation without eliminating the hazard created by the ingoing nip points.   Indeed, as noted by CONALCO, elimination of the moving stock hazard would necessarily have resulted in elimination of the ingoing nip point hazard. Thus, if guarding had been implemented that prevented an employee from contacting the moving stock at any point between the payoff and rewind mandrels, that same guarding would have prevented an employee from being caught in the ingoing nip points.

In sum, we conclude that the distinction drawn by the judge and endorsed by the Secretary is artifical. n19 As stated by CONALCO in its brief on review:

It is without question that if the stock passing through the machine is not moving, there is no nip point to present a hazard. The nip point or pinch point is created, as is amply borne out by Mr. Maglicic's testimony, where the moving stock meets [*43]   the mandrel . . . .   [T]he moving stock is an integral part of the nip point.

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n19 We agree with the judge that the moving stock also created a separate hazard of cuts and bruises to employees who contacted the edge of the moving stock. Nevertheless, the issue in our view is whether the 1975 citation included both hazards within its scope.   We conclude that the terms of the citation are broad enough to cover both hazards.

We further note that, in our resolution of this issue, we give little weight to the opinion testimony of the compliance officer.   There is no indication in the record that the compliance officer was involved in any way with the issuance or settlement of the 1975 citation and there is no direct evidence of the Secretary's intent regarding that citation.   The compliance officer's opinion as to the meaning of the citation was apparently based primarily on his reading of the document.

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Nevertheless, although we agree with CONALCO that the ingoing nip point hazard at issue in this case was included within [*44]   the alleged violation described in the 1975 citation, we do not agree with CONALCO's argument that the settlement agreement resolving its contest of that citation established a binding and mutually agreed-upon program for abating the cited hazard. CONALCO's argument focuses on paragraph IV of the settlement agreement and ignores the effect of paragraph III of that same agreement.   In paragraph III, the Secretary amended his complaint "by deleting and vacating . . . in its entirety" the allegation that CONALCO violated the Act by failing to comply with section 1910.212(a)(1).     Instead, the effect was to render the 1975 citation a nullity and to restore the parties to the same position as if the citation had never been issued.   See Stripe-A-Zone, Inc., 80 OSAHRC    , 9 BNA OSHC    , 1980 CCH OSHD P24,912 (No. 79-2380, 1980).   [*45]   In particular, approval of the settlement agreement left the Secretary free to issue a new citation alleging noncompliance with section 1910.212(a)(1) with respect to the three slitters. Id.

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n20 Commission Rule 100(b)(1), 29 C.F.R. §   2200.100(b)(1), states that "[e]very settlement proposal submitted . . . shall include, where applicable . . . [a] motion to amend or withdraw a citation, notification of proposed penalty, notice of contest, or petition for modification of abatement." Although paragraph III was not written as a motion to withdraw a citation, it had this same effect under the Commission's long-standing policy of reviewing the terms of settlement agreements.   See part V of this opinion supra.

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VII

Judge Chodes found, based on the preponderance of the evidence, that there were "working conditions under which employees are exposed to the hazard   [*46]   contemplated by the standard." In the alternative, the judge found that the employees "certainly had 'access' to the nip points so as to come within the rule expressed in Gilles & Cotting, Inc., supra." Based on these findings and his additional finding that the ingoing nip points were not guarded, he concluded that the Secretary had established his prima facie case by showing that CONALCO failed to comply with section 1910.212(a)(1).   Having reviewed the record in light of the arguments of the parties, we conclude that the judge correctly decided these issues for the reasons he stated.   Accordingly, we adopt the findings and conclusions of the judge.   See Adrian Construction Co., 79 OSAHRC 16/A2, 7 BNA OSHC 1172, 1979 CCH OSHD P23,389 (No. 15414, 1979); Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

Specifically, we reject CONALCO's contention that the Secretary failed to meet his burden of establishing that CONALCO's employees were exposed to a hazard within the meaning of section 1910.212(a)(1).   CONALCO initially asserts that the Secretary established only exposure to the moving stock and not to the ingoing nip points.   [*47]   However, we read the judge's decision as finding that employees were exposed and had access to the hazard created by the ingoing nip points and we have adopted those findings.   The judge considered the evidence introduced by all three parties on this issue and his findings are supported by a preponderance of the evidence.   See Armor Elevator Co., 73 OSAHRC 54/A2, 1 BNA OSHC 1409, 1973-74 CCH OSHD P16,958 (No. 425 & 426, 1973).

  These arguments are not persuasive.     In addition, we conclude, on the basis of our finding of employee exposure to the hazards created by the unguarded ingoing nip points, that the measures taken by CONALCO [*48]   following the earlier settlement agreement did not actually eliminate the hazards at issue.   Finally, we agree with the Secretary that warning signs and instructions to employees to avoid the hazards are not as a matter of law an adequate substitute for the physical guarding required by the standard.   See Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978) ("Hughes Brothers") and the cases cited in that decision.   As for the evidence indicating an absence of injuries caused by unguarded ingoing nip points, we adhere to the Commission's consistent holdings that evidence of this type does not preclude a finding of employee exposure to a hazard when the presence of a hazard is established by the objective facts concerning the configuration and operation of a machine. E.g., A.E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1097, 1977-78 CCH OSHD P21,573 at p. 25,886 (No. 12501, 1977), aff'd, 576 F.2d 948 (1st Cir. 1978). Here we have concluded that the record establishes that the ingoing nip points on CONALCO's machines created a hazard to its employees.

We also reject CONALCO's contention that the Secretary [*49]   has the burden of proving, as part of his prima facie case, that guarding of the cited machines is feasible.   In A.E. Burgess Leather Co., supra, the Commission reversed a judge's decision that vacated a citation for noncompliance with section 1910.212(a)(1) on the ground, among others, that the Secretary failed to meet his burden of proving that the hazard was "preventable." The Commission held that the judge had erred in placing this burden on the Secretary.   It stated that the Secretary's prima facie case was established by proving noncompliance with the terms of the standard and that the employer could then defend by showing that compliance was impossible.   5 BNA OSHC at 1097, 1977-78 CCH OSHD at p. 25,886.

CONALCO asserts, however, that section 1910.212(a)(1) should be analogized to section 5(a)(1) of the Act because section 1910.212(a)(1) is written in broad terms and that cases defining the Secretary's burden under section 5(a)(1) should therefore be applied in this context.   In Hughes Brothers, the Commission rejected a similar attempt to analogize the point of operation machine guarding standard, 29 C.F.R. §   1910.212(a)(3)(ii), with section 5(a)(1) of the Act.   [*50]   6 BNA OSHC at 1834-35, 1978 CCH OSHD at pp. 27,718-19. The Commission concluded that section 1910.212(a)(3)(ii) states the hazard to be protected against and the performance required with sufficient clarity that the vagueness concerns underlying the allocation of burdens under section 5(a)(1) are not present.   In Hughes Brothers, the Commission also stated that section 1910.212 should be read as a whole and that its sections, including specifically their performance criteria, are to be construed in pari materia. 6 BNA OSHC at 1833, 1978 CCH OSHD at p. 27,717. We conclude that section 1910.212(a)(1), like section 1910.212(a)(3)(ii), states the hazards to be protected against and the performance required with sufficient clarity, particularly when read in the context of section 1910.212 as a whole, to render application of a section 5(a)(1) analysis inappropriate.   See Marion Power Shovel Co., 80 OSAHRC    , 8 BNA OSHC 2244, 1980 CCH OSHD P24,915 (No. 76-4114, 1980).   Accordingly, extending the holding and reasoning of Hughes Brothers, we reject CONALCO's contention that section 1910.212(a)(1) should be analogized to section 5(a)(1) of the Act.

In Hughes   [*51]    Brothers, the Commission further stated that the proper inquiry under section 1910.212(a)(3)(ii) is one of "impossibility" rather than "feasibility" or "infeasibility".   6 BNA OSHC at 1835, 1978 CCH OSHD at p. 27,719. In footnote 10 of that decision, the Commission specifically noted that it differed with the opinion of the United States Court of Appeals for the Fifth Circuit in Ace Sheeting & Repair Co. v. OSHRC and Marshall, supra, in that regard.   Id. In the case now before us, Judge Chodes expressly followed Ace Sheeting & Repair Co. Accordingly, while we affirm the judge to the extent he placed the burden of proof on CONALCO, we set aside his conclusion that CONALCO's burden was to show that guarding was "infeasible." The proper inquiry under section 1910.212(a)(1) is also one of "impossibility" rather than "feasibility" or "infeasibility".   See Marion Power Shovel Co., supra; A.E. Burgess Leather Co., supra.

CONALCO's challenges to the "feasibility" of guarding the ingoing nip points on its slitters and its cold mill involve the elements of three affirmative defenses recognized under Commission precedent, i.e., impossibility [*52]   of compliance, impossibility of performance, and greater hazard. In order to establish one of the impossibility defenses, the employer must prove that (1) compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work, and (2) alternative means of employee protection are unavailable.   M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).   In order to sustain a greater hazard defense, the employer must show that (1) compliance with the cited standard would diminish rather than enhance employee safety, (2) alternative means of protecting the employees are unavailable, and (3) a variance application under section 6(d) of the Act, 29 U.S.C. §   655(d), would be inappropriate.   H.S. Holtze Construction Co., 79 OSAHRC 82/A2, 7 BNA OSHC 1753, 1979 CCH OSHD P23,925 (No. 16059, 1979), rev'd in part on other grounds, No. 79-1957 (8th Cir. Aug. 8, 1980).

Judge Chodes concluded that CONALCO did not establish that guarding was "infeasible" because CONALCO, in its consideration of possible guarding methods, had relied solely on the expertise of its own staff [*53]   without seeking outside assistance.   CONALCO argues that this conclusion is in error because there is no basis for the judge's imposition of a requirement that outside assistance be obtained as a prerequisite to an employer's successful assertion of its defense.   It argues that there is no feasible means of guarding the cited machines.

We also reject CONALCO's challenges to the "feasibility" of guarding but for reasons different than the judge's.   CONALCO's evidence on the issue falls into two categories: (1) opinion testimony rebutting the testimony of the Secretary's witnesses that either the Waycinden guard or a presence-sensing device would be a feasible guarding method and (2) testimony concerning its efforts after the 1975 citation to devise a method for guarding the machines. All of the evidence, however, suffers from the same critical defect.   Both CONALCO's case and the Secretary's case are directed to the technological problem of guarding against exposure to the moving stock and not to the problem of guarding against the more spatially limited hazard created by the ingoing nip points.   Thus, the guarding methods suggested by the Secretary were designed to keep employees [*54]   out of the entire areas between the slitter or cold mill housing and the mandrels located on opposite sides of the housing. For example, the Waycinden guard is a chain link fence set out from and totally enclosing at least two sides of the machine, including the housing and both mandrels. CONALCO's rebuttal testimony is accordingly also directed to the problems involved in attempting to keep employees out of these relatively large areas.   Similarly, the evidence relating to CONALCO's "engineering efforts" was evidence directed to the efforts it undertook after it received the 1975 citation, a citation that required CONALCO to eliminate the hazard created by the moving stock on both sides of each slitter's housing.

In short, there is no evidence of record indicating that CONALCO has even considered possible methods of preventing employees from contacting the ingoing nip points without regard to the possibility of contacting other sections of the moving stock that are not proximate to the ingoing nip points.   Indeed, there is no apparent reason indicated in the record why a guard accomplishing that objective could not be divised.   On the contrary, it can be inferred from the record [*55]   that some type of guard could be installed around the rewind mandrel that would eliminate the ingoing nip point hazard but not preclude access to the moving stock coming out of the housing. CONALCO's principal concern over the guarding of its machines would thereby be mitigated.

We therefore conclude that CONALCO has failed to establish that compliance with the requirements of the cited standard either would be functionally impossible or would preclude performance of required work.   Moreover, CONALCO has not established that guarding of the ingoing nip points would diminish rather than enhance employee safety.   Accordingly, we hold that CONALCO has not sustained its burden of proving any of the three affirmative defenses described above. n21

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n21 In view of our disposition of CONALCO's contention, we need not reach the remaining arguments raised by the parties concerning the feasibility of the guarding methods suggested by the Secretary and the propriety of the judge's approach to the issue.

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Having rejected CONALCO's [*56]   defenses to subitems 10(j), (k), (l) and (m) of citation 2, we affirm Judge Chodes' conclusion that CONALCO violated section 5(a)(2) of the Act by failing to comply with section 1910.212(a)(1) as alleged.

VIII

Remaining before us are the questions of the proper classification of the violation at issue and the assessment of an appropriate penalty.   The judge concluded in effect that it was unnecessary to determine the classification of the violation because he had authority under the Act, see note 12 supra, to assess the penalty proposed by the Secretary regardless of the classification.   We hold that the judge erred in failing to determine the proper classification of the violation.   Leone Industries, Inc., 80 OSAHRC    , 8 BNA OSHC 2222, 1980 CCH OSHD P24,933 (No. 79-5276, 1980).

Item 10 of citation 2 alleged that the violation described therein was a repeated violation of the Act.   In support of this contention, the Secretary introduced into evidence three citations alleging noncompliance with section 1910.212(a)(1) on dates prior to the date of the violation now on review.   Nevertheless, the Secretary introduced no evidence as to the dates on which these citations became [*57]   final orders of the Commission.   Indeed, the record does not even establish that these citations are final orders of the Commission.   Accordingly, we conclude that the Secretary failed to prove that the violation on review was repeated because he did not show that the antecedent violations upon which he relied became final orders of the Commission prior to the date of the instant violation.   See Dic-Underhill, a Joint Venture, 80 OSAHRC    , 8 BNA OSHC 2223, 1980 CCH OFHD P     (No. 10798, 1980).

There is no evidence indicating that death or serious physical injury would be the likely result of employee contact with the ingoing nip points.   We therefore conclude that the parties neither expressly nor impliedly consented to trial of an alleged serious violation of the Act. n22 Fed. R. Civ. P. 15(b).   Accordingly, we affirm the violation on review as an other than serious violation within the meaning of section 17(c) of Act, 29 U.S.C. §   666(c).   Having reviewed the record in light of the criteria set forth in section 17(j) of the Act, 29 U.S.C. §   666(i), we conclude that the penalty assessed by the judge is appropriate.   We therefore affirm his assessment of a penalty in the [*58]   amount of $100 for the other than serious violation described in subitems 10(j), (k), (l) and (m) of citation 2.

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n22 The definition of a serious violation is set forth in footnote 12 supra.

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Accordingly, we modify the judge's order to specify that the violation described in those subitems is affirmed as an other than serious violation of the Act.   As thus modified, the decision and order of Judge Chodes is affirmed.

SO ORDERED.