“Docket No. 89-0331_89-0334 SECRETARY OF LABOR,Complainant,v.Capra Industries, Inc.,Respondent.OSHRC Docket Nos. 89-0331 & 89-0334ORDER This matter is before the commission on a Direction for Review entered by Chairman EdwinG. Foulke, Jr. on May 4, 1990. The parties have now filed a Stipulation and SettlementAgreement.Having reviewed the record, and based upon the representations appearing in theStipulation and Settlement Agreement, we conclude that there case raises no matterswarranting further review by the commission. The terms of the Stipulation and SettlementAgreement do not appear to be contrary to the occupational Safety and Health Act and arein compliance with the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement intothis order. This is the final order of the Commission in this case. See 29 U.S.C. {secs}(c), 660 (a) and (b).Edwin G. Foulke, Jr ChairmanDonald G. WisemanCommissionerDated: June 5, 1991SECRETARY OF LABOR,Complainant,v.Capra Industries, Inc.,Respondent.OSHRC Docket Nos. 89-0331 & 89-0334STIPULATION AND SETTLEMENT AGREEMENT IThe parties have reached agreement on a full and complete settlement and disposition ofthe issues in this proceeding which are currently pending before the Commission.IIIt is hereby stipulated and agreed by between theComplainant, Secretary of Labor, and the Respondent, Capra Industries, Inc. that:1. Respondent represents that all of the alleged violations for which it was cited havebeen abated and shall remain abated.2. The Secretary hereby withdraws her citation for alleged violations of 29 C.F.R.1910.219(d)(1) and 1010.304(f)(4)(OSHRC Docket No. 89-334) and her citation for allegedviolations of 29 C.F.R. {secs} 1910.1200(e)(1), 1200(f)(9) and 1200(g)(1) (OSHRC DocketNo. 89-331) issued to respondent on January 5, 1989.3. Respondent represents that it shall immediately develop a written hazard communicationprogram for its workplace which describes how it will transmit to employees informationconcerning hazardous chemicals used in its manufacturing processes through the use oflabels and other forms of warning, material safety data sheets and employee informationand training. Respondent may elect to model its written hazard communication program afterthe sample program given to Mr. Pasquale Capra by the OSHA representative during theinspection. Respondent represents that when using paints whose labels are written inItalian, it will continue to provide its employees with the hazard information ofcomparable paints whose labels are written in English, and\/or translate the label’s hazardinformation into English as part of its employee training program. Capra Industries alsorepresents that it will seek to obtain material safety data sheets for all hazardouschemicals used in its 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 by such party inconnection with any stage of this proceeding.5. None of the foregoing agreements, statements, stipulations or actions taken byrespondent shall be deemed an admission by respondent of the allegations contained in thecitations or the complaint herein. The agreements, statements, stipulations, and actionsherein are made solely for the purpose of settling this matter economically and amicablyand they shall not be used for any other purpose, except for subsequent proceedings andmatters brought by the Secretary of Labor directly under the provisions of theOccupational Safety and Health Act of 1970.6. Respondent states that there are no authorized employee representatives of affectedemployees.7. The parties agree that this Stipulation and Settlement Agreement is effective uponexecution.8. Respondent certifies that a copy of this Stipulation and Settlement Agreement wasposted at its workplace on the 18 day of April, 1991, in accordance with Commission Rules7 and 100 and remained posted for a period of ten days.FOR RESPONDENT: FOR COMPLAINANT: ROBERT P. DAVIS Solicitor of Labor CYNTHlA L. ATTWOOD Associate Solicitor forOccupational Safety and Health DANIEL J. MICKCounsel for Regional Trial LitigationPASQUALE CAAPRAPresidentCapra Industries, IncORLANDO J. PANNOCCHIAAttorney for the Secretary 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 of Labor, Cleveland,Ohio, on behalf of complainant.Pasquale Capra pro se, Capra Industries, Inc., Wickliff, Ohio, on behalf of respondent.DECISION AND ORDERBRADY, Judge: This consolidated proceeding is brought pursuant to section 10 of theOccupational Safety and Health Act of 1970 (\”Act\”) to contest three citationsand proposed penalties issued by the Secretary of Labor (\”Secretary\”) pursuantto section 9(a) of the Act.The facts are not in dispute that on December 15, 1938, a n inspection of CapraIndustries, Inc., (\”Capra\”), was commenced by the Secretary. Since one of theinspectors was pregnant, it was decided that she not continue the inspection and riskexposure to certain chemicals used in Capra’s manufacture o jewelry and music boxes.The case file, which contained some material safety data sheets obtained from Capra, wasassigned to industrial Hygienist Marc Snitzer and Safety Compliance Officer Rene Ritz, whoreturned to the workplace December 21,1988.ALLEGED VIOLATION OF 29 C.F.R. {SEC} 1910.219 (D)(1)This regulation, which pertains to guarding of pulleys, requires in part that:Pulleys, any parts of which are seven (7) 11 feet or less from the floor or workingplatform shall be guarded . . . .it is alleged in the citation that, in the shipping and packing area, a pulley and beltswere exposed on an unguarded four-horsepower air compressor.Ms. Ritz testified that she observed the pulley in the V-belt on the compressor was notguarded. The pulley, 15–20 feet from the office, was less than seven feet from the floorin an area where employees perform loading and shipping duties. Since the compressorstarted 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 but contended noemployees had reason to go near the compressor (Tr. 144). The evidence establishes theviolation as alleged.A determination of an appropriate penalty must now be made. The Commission, in allcontested cases, has the authority to assess civil penalties for violations of the Act.Section 17(j) of the Act provides:The Commission shall have authority to assess all civil penalties provided in thissection, giving due consideration to the appropriateness of the penalty with respect tothe size of the business of the employer being charged, the gravity of the violation, thegood faith of the employer, and the history of previous violations.The determination of what constitutes an appropriate penalty is within the discretion ofthe 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 theoffense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1\/b10,1BNA OSHC 1001, 1971-73 CCH OSHD (p) 15032 ( No. 4, 1971). The Commission stated inSecretary 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 indetermining the gravity are: (1) the number of employees exposed to the risk of injury;(2) the duration 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 the facts of thiscase, case, the proposed penalty in the sum of $160 00 is deemed appropriate for theviolation.ALLEGED VIOLATION OF 29 C.F.R. {SEC} 1910.304 (f)(4)This regulation, which applies to electrical wiring design and protection, requires that:\”the grounding path to ground from circuits, equipment, and enclosures shall bepermanent and continuous.\” The violation is violation is described in the citation asan ungrounded duplex 120-volt receptacle over the veneer table.Ms. Ritz testified that her testing device revealed that a drop cord connected to thereceptacle in the manufacturing area was not grounded. She observed the cord being usedfor an electrical heater to warm water in a soaking process. The hazard of electricalshock could cause serious injury or death (Exs. C-3, C-4; Tr. 56-57, 62). Mr. Capraadmitted use of 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 considering the factors fordetermining penalties, the proposed penalty of $200.00 is 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 the hazards of allchemicals produced or imported are evaluated, and that information concerning theirhazards is\u00a0 transmitted to employers and employees. This transmittal of informationis to be accomplished by means of comprehensive hazard communication programs, which areto include container labeling and other forms of warning, material safety data sheets andemployee training.The cited regulation at 29 C.F.R. {sec} 1910.1200(e)(1) states in pertinent part:Employers shall develop, implement, and maintain at the workplace, a written hazardcommunication program for their workplaces . . . .Mr. Snitzer testified that Mr. Capra admitted he did not have a written hazardcommunication program (Tr. 90). A former employee, Randall Coumos, testified Capra did nothave such a program during the one year and three months he worked there (Tr. 16, 20). Mr.Coumos stated that most of his time was spent spraying jewelry boxes with polyester andlacquer mixed with a catalyze (Tr. 17, 29-30). He also sawed mahogany, a hardwood,compressed particle board, and different types of veneer (Tr. 17, 22, 42, 44). Coumosexperienced the effects of the chemicals in his eyes and breathed the hardwood sawdust(Tr. 37, 44- 45).Mr. Snitzer explained that the dust could possibly cause cancer and the paints presentedan explosion hazard, as well as irritation of the eyes (Tr. 92, 93).Mr. Capra explained that the material data sheets (Ex. C-5) and his personnel manual (Ex.R-1) constituted a written hazard communication program (Tr. 163-164). It was pointed outby Mr. Snitzer, however, that the documents did not satisfy the requirements for such aprogram (Tr. 187).Clearly, the documents in question do not fulfill the requirements of a program showingemployee training and communicating warning of hazards contemplated by the regulations.The regulation has, therefore, been violated as alleged and the proposed penalty of$300.00 is deemed appropriate.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 are legible, in English,and prominently displayed on the container, or readily available in the work areathroughout each work shift. Employers having employees who speak other languages may addthe information in their 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 andcatalyzer were written in Italian, which he did not understand (Tr. 20-21). Mr. Snitzernoticed a spray paint container label printed in Italian, which was used by Coumos (Tr.93-94).Mr. Capra did not refute the evidence of the violation. Mr. Capra admitted the labels werewritten in Italian. He stated that, although he wanted his employees to be aware of thehazards involved, he did not want them to know the exact contents (Tr. 194, 195).The standard, obviously intended to ensure employee knowledge of the hazards involved intheir use, has been violated. In light of the potential injuries of the chemicals, theproposed 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 material safety data sheetfor each hazardous chemical they produce or import. Employers shall have a material safetydata sheet for each hazardous chemical which they use.Mr. Snitzer testified that respondent did not have material safety data sheets for thepaint manufactured in Italy, wood particle board and hardwood (mahogany) (Tr. 94-95). Mr.Coumos also had never seen material safety data sheets or knew that exposure to mahoganydust could be carcinogenic (Tr. 21-23, 44-45).Respondent violated the standard as alleged and the proposed penalty is deemedappropriate.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 be furnished by theOccupational Safety and Health Administration, U. S. Department of Labor, informingemployees of the protections and obligations provided for in the Act . . . .Ms. Ritz testified that, during the course of the inspection,she did not observe an OSHAposter. This included viewing the bulletin board (Tr. 67, 176) .Mr. Capra maintained the poster had been taped on the wall near the employee timecards;and, that during the inspection, he was not asked about the poster (Tr. 169, 177). Mrs.Lena Capra, the. owner’s wife, testified that the OSHA notice was posted on the wall bythe timeclock at the time the inspection occurred.Since there is some question regarding discussion of the poster during the inspection andits precise location, the matter must be resolved in favor of respondent. Therefore, aviolation has not been sufficiently established.FINDINGS OF FACT1. Capra Industries, Inc., at all times mentioned herein, was engaged in the manufactureof jewelry and music boxes.2. Commencing December 15, 1988, authorized representatives of the Secretary conducted aninspection at the manufacturing facility. As a result, three citations were issued withnotice of proposed penalty. 3. The inspection revealed that a four-horsepower air compressor was unguarded, exposingemployees to injury from pulleys and belts. 4. A 120-volt duplex receptacle used in the manufacturing process was not grounded.5. Respondent did not have material safety data sheets for hazardous chemicals used in theworkplace.6. Respondent had not developed or implemented a written hazard communications program forchemicals 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 the protections andobligations under the Act.CONCLUSIONS OF LAW1. Capra Industries, Inc., at all times pertinent hereto, was an employer engaged in abusiness affecting commerce within the meaning of section 3(5) of the Occupational Safetyand Health Act of 1970, and the Commission has jurisdiction of the parties and subjectmatter herein pursuant to section 10 (c) of the Act.2. Respondent is, and at all times pertinent hereto, required to comply with the safetyand health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.3. Respondent was in violation of 29 C.F.R. {sec} 1910.219(d)(1) in Docket No. 89- 331.4. Respondent was in violation of 29 C.F.R.{sec} 1910.304 (f) (4) in Docket No. 89- 331.5. Respondent was in violation of 29 C.F.R. {sec}1910.1200(e)(1) in Docket No. 89- 334.6. Respondent was in violation o f 29 C.F.R. {sec} 1910.1200(f)(9) in Docket No. 89- 334.7. Respondent was in violation o f 29 C.F.R. {sec} 1910.1200(g)(1) in Docket No. 89- 334.8. Respondent was not in violation of 29 C.F.R. {sec} 1903.2(a)(1) in Docket No. 89- 334.ORDER Based upon the foregoing findings of fact and conclusions of law, it is ORDERED:1. Citation No. 1 in Docket No. 99-331 is affirmed and a penalty in the amount of $360.00is hereby assessed.2. Citation No. 1 in Docket No. 89-334 is affirmed and a penalty in the amount of $300.00is hereby assessed.3. Citation No. 2 in Docket No. 89-334 is vacated. Dated this 28th day of March, 1990.PAUL L. BRADY Judge”