Capra Industries, Inc.

Plain-English summary

Capra Industries manufactured jewelry and music boxes and was cited after OSHA inspected its workplace. The citations addressed an unguarded pulley, an ungrounded receptacle, hazard communication deficiencies, and failure to post an OSHA notice. After review was directed, the parties reached a full settlement in which the Secretary withdrew the machine guarding, electrical, and hazard communication citations. Capra represented that the cited conditions had been abated and agreed to develop a written hazard communication program, provide English hazard information, and seek safety data sheets for hazardous chemicals. The Commission incorporated the agreement and issued it as the final order.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.219(d)(1); 29 C.F.R. § 1910.304(f)(4); 29 C.F.R. § 1910.1200(e)(1); 29 C.F.R. § 1910.1200(f)(9); 29 C.F.R. § 1910.1200(g)(1); 29 C.F.R. § 1903.2(a)(1)
• Outcome: The Commission approved the settlement, which withdrew the machine guarding, electrical, and hazard communication citations.
• Key point: The settlement required continued abatement and a written program for communicating chemical hazards to employees.

Full text (OSHRC public release)

Docket No. 89-0331_89-0334

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 entered by Chairman Edwin
G. Foulke, Jr. on May 4, 1990. The parties have now filed a Stipulation and Settlement
Agreement.

Having reviewed the record, and based upon the representations appearing in the
Stipulation and Settlement Agreement, we conclude that there case raises no matters
warranting further review by the commission. The terms of the Stipulation and Settlement
Agreement do not appear to be contrary to the occupational Safety and Health Act and are
in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into
this 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

Chairman

Donald G. Wiseman

Commissioner

Dated: June 5, 1991

SECRETARY OF LABOR,

Complainant,

v.

Capra Industries, Inc.,

Respondent.

OSHRC Docket Nos. 89-0331 & 89-0334

STIPULATION AND SETTLEMENT AGREEMENT

I

The parties have reached agreement on a full and complete settlement and disposition of
the issues in this proceeding which are currently pending before the Commission.

II

It is hereby stipulated and agreed by between the
Complainant, Secretary of Labor, and the Respondent, Capra Industries, Inc. that:

1. Respondent represents that all of the alleged violations for which it was cited have
   been 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 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 respondent on January 5, 1989.

3. Respondent represents that it shall immediately develop a written hazard communication
   program for its workplace which describes how it will transmit to employees information
   concerning hazardous chemicals used in its manufacturing processes through the use of
   labels and other forms of warning, material safety data sheets and employee information
   and training. Respondent may elect to model its written hazard communication program after
   the sample program given to Mr. Pasquale Capra by the OSHA representative during the
   inspection. Respondent represents that when using paints whose labels are written in
   Italian, it will continue to provide its employees with the hazard information of
   comparable paints whose labels are written in English, and/or translate the label's hazard
   information into English as part of its employee training program. Capra Industries also
   represents that it will seek to obtain material safety data sheets for all hazardous
   chemicals used in its manufacturing processes including, but not limited to, data sheets
   for 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 in
   connection with any stage of this proceeding.

5. None of the foregoing agreements, statements, stipulations or actions taken by
   respondent shall be deemed an admission by respondent of the allegations contained in the
   citations or the complaint herein. The agreements, statements, stipulations, and actions
   herein are made solely for the purpose of settling this matter economically and amicably
   and they shall not be used for any other purpose, except for subsequent proceedings and
   matters brought by the Secretary of Labor directly under the provisions of the
   Occupational Safety and Health Act of 1970.

6. Respondent states that there are no authorized employee representatives of affected
   employees.

7. The parties agree that this Stipulation and Settlement Agreement is effective upon
   execution.

8. Respondent certifies that a copy of this Stipulation and Settlement Agreement was
   posted at its workplace on the 18 day of April, 1991, in accordance with Commission Rules
   7 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 for

Occupational Safety and Health

DANIEL J. MICK

Counsel for Regional

Trial Litigation

PASQUALE CAAPRA

President

Capra Industries, Inc

ORLANDO J. PANNOCCHIA

Attorney for the

Secretary of Labor

SECRETARY 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 ORDER

BRADY, Judge: This consolidated proceeding is brought pursuant to section 10 of the
Occupational Safety and Health Act of 1970 ("Act") to contest three citations
and proposed penalties issued by the Secretary of Labor ("Secretary") pursuant
to section 9(a) of the Act.

The facts are not in dispute that on December 15, 1938, a n inspection of Capra
Industries, Inc., ("Capra"), was commenced by the Secretary. Since one of the
inspectors was pregnant, it was decided that she not continue the inspection and risk
exposure 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, was
assigned to industrial Hygienist Marc Snitzer and Safety Compliance Officer Rene Ritz, who
returned 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 working
platform shall be guarded . . . .

it is alleged in the citation that, in the shipping and packing area, a pulley and belts
were exposed on an unguarded four-horsepower air compressor.

Ms. Ritz testified that she observed the pulley in the V-belt on the compressor was not
guarded. The pulley, 15--20 feet from the office, was less than seven feet from the floor
in an area where employees perform loading and shipping duties. Since the compressor
started automatically, there was a greater hazard of laceration, fracture of a finger Dr
amputation (Ex. C-1; Tr. 58-60, 70, 86).

Mr. Pasquale Capra, who represented Capra, agreed the guard was off but contended 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. The Commission, in all
contested 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 this
section, giving due consideration to the appropriateness of the penalty with respect to
the size of the business of the employer being charged, the gravity of the violation, the
good faith of the employer, and the history of previous violations.

The determination of what constitutes an appropriate penalty is within the 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 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 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 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 this
case, case, the proposed penalty in the sum of $160 00 is deemed appropriate for the
violation.

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 be
permanent and continuous." The violation is violation is described in the citation as
an ungrounded duplex 120-volt receptacle over the veneer table.

Ms. Ritz testified that her testing device revealed that a drop cord connected to the
receptacle in the manufacturing area was not grounded. She observed the cord being used
for an electrical heater to warm water in a soaking process. The hazard of electrical
shock could cause serious injury or death (Exs. C-3, C-4; Tr. 56-57, 62). Mr. Capra
admitted use of the heater and did not deny the receptacle was not grounded but only
questioned 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 for
determining 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 all
chemicals produced or imported are evaluated, and that information concerning their
hazards is  transmitted to employers and employees. This transmittal of information
is to be accomplished by means of comprehensive hazard communication programs, which are
to include container labeling and other forms of warning, material safety data sheets and
employee 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 hazard
communication program for their workplaces . . . .

Mr. Snitzer testified that Mr. Capra admitted he did not have a written hazard
communication program (Tr. 90). A former employee, Randall Coumos, testified Capra did not
have 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 and
lacquer 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). Coumos
experienced 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 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 his personnel manual (Ex.
R-1) constituted a written hazard communication program (Tr. 163-164). It was pointed out
by Mr. Snitzer, however, that the documents did not satisfy the requirements for such a
program (Tr. 187).

Clearly, the documents in question do not fulfill the requirements of a program showing
employee 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 area
throughout each work shift. Employers having employees who speak other languages may add
the information in their language to the material presented, as long as the information is
presented in English as well.

Mr. Coumos testified that labels on the containers for polyester, accelerator and
catalyzer were written in Italian, which he did not understand (Tr. 20-21). Mr. Snitzer
noticed 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 were
written in Italian. He stated that, although he wanted his employees to be aware of the
hazards 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 in
their use, has been violated. In light of the potential 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 material safety data sheet
for each hazardous chemical they produce or import. Employers shall have a material safety
data sheet for each hazardous chemical which they use.

Mr. Snitzer testified that respondent did not have material safety data sheets for the
paint 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 mahogany
dust could be carcinogenic (Tr. 21-23, 44-45).

Respondent violated the standard as alleged and the proposed penalty is deemed
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 be furnished by the
Occupational Safety and Health Administration, U. S. Department of Labor, informing
employees 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 OSHA
poster. 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 by
the timeclock at the time the inspection occurred.

Since there is some question regarding discussion of the poster during the inspection and
its precise location, the matter must be resolved in favor of respondent. Therefore, a
violation has not been sufficiently established.

FINDINGS OF FACT

1. Capra Industries, Inc., at all times mentioned herein, was engaged in the manufacture
   of jewelry and music boxes.

2. Commencing December 15, 1988, authorized representatives of the Secretary conducted an
   inspection at the manufacturing facility. As a result, three citations were issued with
   notice of proposed penalty.

3. The inspection revealed that a four-horsepower air compressor was unguarded, exposing
   employees 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 the
   workplace.

6. Respondent had not developed or implemented a written hazard communications 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 the protections and
   obligations under the Act.

CONCLUSIONS OF LAW

1. Capra Industries, Inc., at all times pertinent hereto, was an employer engaged in a
   business affecting commerce within the meaning of section 3(5) of the Occupational Safety
   and Health Act of 1970, and the Commission has jurisdiction of the parties and subject
   matter herein pursuant to section 10 (c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with the safety
   and 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 $360.00
   is hereby assessed.

2. Citation No. 1 in Docket No. 89-334 is affirmed and a penalty in the amount 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. BRADY

Judge