“SECRETARY OF LABOR,Complainant,v.Capra Industries, Inc.,Respondent.OSHRC Docket Nos. 89-0331 & 89-0334_ORDER_This matter is before the commission on a Direction for Review enteredby Chairman Edwin G. Foulke, Jr. on May 4, 1990. The parties have nowfiled a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that there caseraises no matters warranting further review by the commission. The termsof the Stipulation and Settlement Agreement do not appear to be contraryto the occupational Safety and Health Act and are in compliance with theCommission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order. This is the final order of the Commission inthis case. See 29 U.S.C. {secs} (c), 660 (a) and (b).Edwin G. Foulke, JrChairmanDonald G. WisemanCommissionerDated: June 5, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.Capra Industries, Inc.,Respondent.OSHRC Docket Nos. 89-0331 & 89-0334*STIPULATION AND SETTLEMENT AGREEMENT *IThe parties have reached agreement on a full and complete settlement anddisposition of the issues in this proceeding which are currently pendingbefore the Commission.IIIt is hereby stipulated and agreed by between the Complainant, Secretaryof Labor, and the Respondent, Capra Industries, Inc. that:1. Respondent represents that all of the alleged violations for which itwas cited have been abated and shall remain abated.2. The Secretary hereby withdraws her citation for alleged violations of29 C.F.R. 1910.219(d)(1) and 1010.304(f)(4)(OSHRC Docket No. 89-334) andher citation for alleged violations of 29 C.F.R. {secs} 1910.1200(e)(1),1200(f)(9) and 1200(g)(1) (OSHRC Docket No. 89-331) issued to respondenton January 5, 1989.3. Respondent represents that it shall immediately develop a writtenhazard communication program for its workplace which describes how itwill transmit to employees information concerning hazardous chemicalsused in its manufacturing processes through the use of labels and otherforms of warning, material safety data sheets and employee informationand training. Respondent may elect to model its written hazardcommunication program after the sample program given to Mr. PasqualeCapra by the OSHA representative during the inspection. Respondentrepresents that when using paints whose labels are written in Italian,it will continue to provide its employees with the hazard information ofcomparable paints whose labels are written in English, and\/or translatethe label’s hazard information into English as part of its employeetraining program. Capra Industries also represents that it will seek toobtain material safety data sheets for all hazardous chemicals used inits manufacturing processes including, but not limited to, data sheetsfor Italian made paints, particle board and any hardwoods or veneers.4. Each party agrees to bear its own fees and other expenses incurred bysuch party in connection with any stage of this proceeding.5. None of the foregoing agreements, statements, stipulations or actionstaken by respondent shall be deemed an admission by respondent of theallegations contained in the citations or the complaint herein. Theagreements, statements, stipulations, and actions herein are made solelyfor the purpose of settling this matter economically and amicably andthey shall not be used for any other purpose, except for subsequentproceedings and matters brought by the Secretary of Labor directly underthe provisions of the Occupational Safety and Health Act of 1970.6. Respondent states that there are no authorized employeerepresentatives of affected employees.7. The parties agree that this Stipulation and Settlement Agreement iseffective upon execution.8. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at its workplace on the 18 day of April, 1991, inaccordance with Commission Rules 7 and 100 and remained posted for aperiod of ten days.FOR RESPONDENT: FOR COMPLAINANT:ROBERT P. DAVISSolicitor of LaborCYNTHlA L. ATTWOODAssociate Solicitor forOccupational Safety and HealthDANIEL J. MICKCounsel for RegionalTrial LitigationPASQUALE CAAPRAPresidentCapra Industries, IncORLANDO J. PANNOCCHIAAttorney for theSecretary of LaborSECRETARY OF LABOR,Complainant,v.CAPRAA INDUSTRIES, INC.,Respondent.OSHRC Docket Nos. 89-0331 and 89-0334 (Consolidated)APPEARANCES:Maureen Cafferkey, Esquire, office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainant.Pasquale Capra pro se, Capra Industries, Inc., Wickliff, Ohio, on behalfof respondent._DECISION AND ORDER_BRADY, Judge: This consolidated proceeding is brought pursuant tosection 10 of the Occupational Safety and Health Act of 1970 (\”Act\”) tocontest three citations and proposed penalties issued by the Secretaryof Labor (\”Secretary\”) pursuant to section 9(a) of the Act.The facts are not in dispute that on December 15, 1938, a n inspectionof Capra Industries, Inc., (\”Capra\”), was commenced by the Secretary.Since one of the inspectors was pregnant, it was decided that she notcontinue the inspection and risk exposure to certain chemicals used inCapra’s manufacture o jewelry and music boxes.The case file, which contained some material safety data sheets obtainedfrom Capra, was assigned to industrial Hygienist Marc Snitzer and SafetyCompliance Officer Rene Ritz, who returned to the workplace December21,1988._ALLEGED VIOLATION OF 29 C.F.R. {SEC} 1910.219 (D)(1)_This regulation, which pertains to guarding of pulleys, requires in partthat:Pulleys, any parts of which are seven (7) 11 feet or less from the flooror working platform shall be guarded . . . .it is alleged in the citation that, in the shipping and packing area, apulley and belts were exposed on an unguarded four-horsepower aircompressor.Ms. Ritz testified that she observed the pulley in the V-belt on thecompressor was not guarded. The pulley, 15–20 feet from the office, wasless than seven feet from the floor in an area where employees performloading and shipping duties. Since the compressor started automatically,there was a greater hazard of laceration, fracture of a finger Dramputation (Ex. C-1; Tr. 58-60, 70, 86).Mr. Pasquale Capra, who represented Capra, agreed the guard was off butcontended no employees had reason to go near the compressor (Tr. 144).The evidence establishes the violation as alleged.A determination of an appropriate penalty must now be made. TheCommission, in all contested cases, has the authority to assess civilpenalties for violations of the Act. Section 17(j) of the Act provides:The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations.The determination of what constitutes an appropriate penalty is withinthe discretion of the Review Commission. Long Manufacturing Co. v.OSHRC, 554 F.2d 902 (8th cir. 1977); Western Waterproofing Co. v.Marshall, 576 F.d 139 (8th Cir. 1978). The gravity of the offense is theprincipal factor to be considered. Nacirema Operating Co., 72 OSAHRC1\/b10, 1BNA OSHC 1001, 1971-73 CCH OSHD (p) 15032 ( No. 4, 1971). TheCommission stated in Secretary v. National Realty and Construction Co.,72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD (p) 15,188 (No. 85,1971), that the elements to be considered in determining the gravityare: (1) the number of employees exposed to the risk of injury; (2) theduration of exposure; (3) the precautions taken against injury, if any;and (4) the degree of probability of occurrence of injury.Upon full consideration of the factors for determining penalties and thefacts of this case, case, the proposed penalty in the sum of $160 00 isdeemed appropriate for the violation._ALLEGED VIOLATION OF 29 C.F.R. {SEC} 1910.304 (f)(4)_This regulation, which applies to electrical wiring design andprotection, requires that: \”the grounding path to ground from circuits,equipment, and enclosures shall be permanent and continuous.\” Theviolation is violation is described in the citation as an ungroundedduplex 120-volt receptacle over the veneer table.Ms. Ritz testified that her testing device revealed that a drop cordconnected to the receptacle in the manufacturing area was not grounded.She observed the cord being used for an electrical heater to warm waterin a soaking process. The hazard of electrical shock could cause seriousinjury or death (Exs. C-3, C-4; Tr. 56-57, 62). Mr. Capra admitted useof the heater and did not deny the receptacle was not grounded but onlyquestioned whether testing devices \”ever go bad\” (Tr. 78, 144).The wiring was corrected by the following day (Tr. 81).The evidence establishes the violation as alleged; and, upon consideringthe factors for determining penalties, the proposed penalty of $200.00is deemed appropriate._ALLEGED VIOLATION OF 29 C.F.R. {SEC) 1910.1200(e) (1)_The stated purpose of 29 C.F.R. {sec} 1910.1200 is to ensure that thehazards of all chemicals produced or imported are evaluated, and thatinformation concerning their hazards is transmitted to employers andemployees. This transmittal of information is to be accomplished bymeans of comprehensive hazard communication programs, which are toinclude container labeling and other forms of warning, material safetydata sheets and employee training.The cited regulation at 29 C.F.R. {sec} 1910.1200(e)(1) states inpertinent part:Employers shall develop, implement, and maintain at the workplace, awritten hazard communication program for their workplaces . . . .Mr. Snitzer testified that Mr. Capra admitted he did not have a writtenhazard communication program (Tr. 90). A former employee, RandallCoumos, testified Capra did not have such a program during the one yearand three months he worked there (Tr. 16, 20). Mr. Coumos stated thatmost of his time was spent spraying jewelry boxes with polyester andlacquer mixed with a catalyze (Tr. 17, 29-30). He also sawed mahogany, ahardwood, compressed particle board, and different types of veneer (Tr.17, 22, 42, 44). Coumos experienced the effects of the chemicals in hiseyes and breathed the hardwood sawdust (Tr. 37, 44- 45).Mr. Snitzer explained that the dust could possibly cause cancer and thepaints presented an explosion hazard, as well as irritation of the eyes(Tr. 92, 93).Mr. Capra explained that the material data sheets (Ex. C-5) and hispersonnel manual (Ex. R-1) constituted a written hazard communicationprogram (Tr. 163-164). It was pointed out by Mr. Snitzer, however, thatthe documents did not satisfy the requirements for such a program (Tr. 187).Clearly, the documents in question do not fulfill the requirements of aprogram showing employee training and communicating warning of hazardscontemplated by the regulations. The regulation has, therefore, beenviolated as alleged and the proposed penalty of $300.00 is deemedappropriate._ALLEGED VIOLATION OF 29 C.F.R. {sec} 1910.1200(f)(9)_This regulation states as follows:The employer shall ensure that labels or other forms of warning arelegible, in English, and prominently displayed on the container, orreadily available in the work area throughout each work shift. Employershaving employees who speak other languages may add the information intheir language to the material presented, as long as the information ispresented in English as well.Mr. Coumos testified that labels on the containers for polyester,accelerator and catalyzer were written in Italian, which he did notunderstand (Tr. 20-21). Mr. Snitzer noticed a spray paint containerlabel printed in Italian, which was used by Coumos (Tr. 93-94).Mr. Capra did not refute the evidence of the violation. Mr. Capraadmitted the labels were written in Italian. He stated that, although hewanted his employees to be aware of the hazards involved, he did notwant them to know the exact contents (Tr. 194, 195).The standard, obviously intended to ensure employee knowledge of thehazards involved in their use, has been violated. In light of thepotential injuries of the chemicals, the proposed penalty is appropriate._ALLEGED VIOLATION OF 29 C.F.R. {sec} 1910.1200(g)(1) :_The regulation requires that:Chemical manufacturers and importers shall obtain or develop a materialsafety data sheet for each hazardous chemical they produce or import.Employers shall have a material safety data sheet for each hazardouschemical which they use.Mr. Snitzer testified that respondent did not have material safety datasheets for the paint manufactured in Italy, wood particle board andhardwood (mahogany) (Tr. 94-95). Mr. Coumos also had never seen materialsafety data sheets or knew that exposure to mahogany dust could becarcinogenic (Tr. 21-23, 44-45).Respondent violated the standard as alleged and the proposed penalty isdeemed appropriate._ALLEGED VIOLATION OF 29 C.F.R. {SEC}1903.2 (a) (1)_This regulation requires in part that:Each employer shall post and keep posted a notice or notices, to befurnished by the Occupational Safety and Health Administration, U. S.Department of Labor, informing employees of the protections andobligations provided for in the Act . . . .Ms. Ritz testified that, during the course of the inspection,she did notobserve an OSHA poster. This included viewing the bulletin board (Tr.67, 176) .Mr. Capra maintained the poster had been taped on the wall near theemployee timecards; and, that during the inspection, he was not askedabout the poster (Tr. 169, 177). Mrs. Lena Capra, the. owner’s wife,testified that the OSHA notice was posted on the wall by the timeclockat the time the inspection occurred.Since there is some question regarding discussion of the poster duringthe inspection and its precise location, the matter must be resolved infavor of respondent. Therefore, a violation has not been sufficientlyestablished.FINDINGS OF FACT1. Capra Industries, Inc., at all times mentioned herein, was engaged inthe manufacture of jewelry and music boxes.2. Commencing December 15, 1988, authorized representatives of theSecretary conducted an inspection at the manufacturing facility. As aresult, three citations were issued with notice of proposed penalty.3. The inspection revealed that a four-horsepower air compressor wasunguarded, exposing employees to injury from pulleys and belts.4. A 120-volt duplex receptacle used in the manufacturing process wasnot grounded.5. Respondent did not have material safety data sheets for hazardouschemicals used in the workplace.6. Respondent had not developed or implemented a written hazardcommunications program for chemicals used in its plant including paint,wood dust and solvents.7. Labels on paint containers were printed in Italian and not in English.8. Respondent had posted an OSHA notice to inform employees of theprotections and obligations under the Act._CONCLUSIONS OF LAW_1. Capra Industries, Inc., at all times pertinent hereto, was anemployer engaged in a business affecting commerce within the meaning ofsection 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter hereinpursuant to section 10 (c) of the Act.2. Respondent is, and at all times pertinent hereto, required to complywith the safety and health regulations promulgated by the Secretarypursuant to section 6(a) of the Act.3. Respondent was in violation of 29 C.F.R. {sec} 1910.219(d)(1) inDocket No. 89- 331.4. Respondent was in violation of 29 C.F.R.{sec} 1910.304 (f) (4) inDocket No. 89- 331.5. Respondent was in violation of 29 C.F.R. {sec}1910.1200(e)(1) inDocket No. 89- 334.6. Respondent was in violation o f 29 C.F.R. {sec} 1910.1200(f)(9) inDocket No. 89- 334.7. Respondent was in violation o f 29 C.F.R. {sec} 1910.1200(g)(1) inDocket No. 89- 334.8. Respondent was not in violation of 29 C.F.R. {sec} 1903.2(a)(1) inDocket No. 89- 334._ORDER_Based upon the foregoing findings of fact and conclusions of law, it isORDERED:1. Citation No. 1 in Docket No. 99-331 is affirmed and a penalty in theamount of $360.00 is hereby assessed.2. Citation No. 1 in Docket No. 89-334 is affirmed and a penalty in theamount of $300.00 is hereby assessed.3. Citation No. 2 in Docket No. 89-334 is vacated.Dated this 28th day of March, 1990.PAUL L. BRADYJudge”