D & J Manufacturing Inc.

Plain-English summary

D & J Manufacturing makes custom printed advertising specialties and
novelties in Toledo, Ohio, using inks, solvents, adhesives, and pigments.
OSHA had cited the company in 1992 for hazard-communication failures, and
those citations became final. A February 1993 follow-up inspection found the
same problems again, so OSHA issued repeat citations. Administrative Law
Judge Paul L. Brady affirmed all four repeat items: no written hazard
communication program, no material safety data sheets for the hazardous
chemicals in use, no employee training on those chemicals, and no on-site
copy of the employee medical-records-access rule. The owner claimed the
program and data sheets were in a cabinet and that the front-office employee
who guided the inspection lacked authority, but the judge credited testimony
that she was in charge and that workers had never seen a program or received
training. Penalties were assessed on each item, roughly $2,000 apiece for
the three hazard-communication items and $160 for the records-access item.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1200(e)(1) (written hazcom program); 29 C.F.R. § 1910.1200(g)(1) (material safety data sheets); 29 C.F.R. § 1910.1200(h) (employee training); 29 C.F.R. § 1910.20(g)(2) (on-site copy of the records-access rule).
• Outcome: Affirmed. All four items upheld as repeat violations with penalties assessed (approximately $2,000 for each of the three hazcom items and $160 for the records item, as listed in the order).
• Key point: Repeating hazard-communication failures already cited and made final supports repeat-violation classification, and an owner cannot defeat the citation by blaming the employee who hosted the inspection.

Full text (OSHRC public release)

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UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.Wa - 9th Floor
Washington, DC 200364419

Ptme
coM(202)606-6100
mWO-l@J

           SECRETARY OF LABOR
                       Complainant,
                 v.                                                                 OSHRC DOCKET
                                                                                    NO. 93-1001
           D & J MANUFACI’URING, INC.
                        Respondent.


                                    NOTICE OF DOCKETING
                              OF ADMINISTRATIVE LAW JUDGE’S DECISION
                The Administrative Law Judge’s Report in the above referenced case was
           docketed with the Commission on April 21, 1994. The decision of the Judge
           will become a final order of the Commission on May 23, 1994 unless a
           Commission member directs review of the decision on or before that date. ANY
           PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
           COMMISSION MUST FILE5A PETITION FOR DISCRETIONARY REVIEW.
           Any such etition should be received by the Executive Secre      on or before
           May 11, 1F94 in order to rmit sufficient time for its review.Te e
           Commission Rule 91, 29 F .F.R. 2200.91.
              All further pleadings or communications regarding this case shall be
           addressed to:
                                           Executive Secretary
                                           Occupational Safety and Health
                                            Review Commission
                                           1120 20th St. N.W., Suite 980
                                           Washington, D.C. 200363419
           Petitioning parties shall also mail a copy to:
                                           Daniel J. Mick, Esq.
                                           Counsel for Re ‘onal Trial Liti ation
                                           Of&e of the So%l citor, U.S. DOc
                                           Room S4004
                                           200 Constitution Avenue, N.W.
                                           Washington, D.C. 20210
          If a Direction for Review is issued by the Commission, then the Counsel for
          Regional Trial Litigation will represent the Departme of Labor. Any party
           l            _ l                                                         .   .   L   -   *.

          nawng questions about review ngnts may contact the L’omrmssion’sl%ecUnve
           e
                -   -
                              *q   .:,-.    & 4 00.-’            -


          -secretary or ciLII(zoz) t)(
                                                              FOR THE COMMISSION

                                                              &ipgb&,#P@
         Date: April 21, 1994                                 Ray H. Darling, Jr.
                                                              Executive Secretary

DOCKET NO. 934001
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re 'onalTrial Liti ation
Office of the So$ l
citor, U.S. DO5
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

John H. Searas
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
Federal Office Build&, k&m 881
1240East Ninth Street
Cleveland, OH 44199

Danny Assir
John Assir
D & J Manufacturing&c.
4758 An ola Road
Toledo, 6 H 43615

Paul L Brady
Administrative Law Jud e
Occupational Safety an d Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309 3119

00106116718:05
 uWED STAlES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E., SUITE 240
ATLANTA. GEORGIA 30309-3 If9

                                                                                                       FAX

PHONE.
COM (404) 347-0113
COM (404) 37-4197
FTS(404) 347-0113
ns (404) 347-4197

SECRETARY OF LABOR,

                          Complainant,

                          v.                                           OSHRC Docket No. 934001
                   I

D & J MANUFACI’URING, INC.,

                          Respondent.

APPEARANCES:

         Maureen CafEerkey,Esquire                                     Mr. Danny El4ssir
           Of&x of the Solicitor                                       Mr. John El-Assir
           U. S. Department of Labor                                     D&JManufaauring,Inc
           Cleveland,Ohio                                                Toledo, Oh&
                For Complainant                                                For Respondent ptroSC

Before: Administrative Law Judge Paul L Brady

         This proceeding is brought pursuant to section 10 of the Occupational safety and

Health Act of 1970 (Act) to contest a citation issued by the Secretary of Labor (Secretary)
pursuant to section 9(a) of the Act.
There is no dispute that respondent, D & J Manufacturing (D & J), is a manufacturer
of custom print advertising specialties and novelties. On August 5, 1992, it was issued
citations alleging violations of 29 C.F.R. 0 1910.1200(e)(l), 0 1910.20(g)(l), 6 1910.1200(h),
and 5 1910.20(g)(2). The citations were subsequently affirmed as final orders of the
Occupational safety and Health Review &nmission (&nmission).
A,n inspection on February 12, 1993, resulted in the issuance of the citation which is
the subject of this proceeding.

                  Alleged Reseat Violation of 5 1910.12OO(e~


   The standard requires in pertinent part that:
   Employers shall develop, implement, and maintain at the workplace, a written
   hazard communication program for their workplaces . .  l   l




   The citation alleges that D & J had not developed or maintained such a program at

the workplace.
Ms. Laura Ulcqnski, industrial hygienist, conductedthe inspections which gave rise
to issuanceof citationsto D & J in both instances. She conducted the follow-upinspection
with Ms. Debbie DeHaven, who was working in the front office, and-the closing cotierence
w held with Danny El-A&r, one of the owners of D Bt J (Tr. 2425,36).
Testimony shows that Ms. DeHaven could not provide the inspector with a written
hazard cwnmunication program (Tr. 38). El-A& did not know about such a program and
could not find one. Ms. Ulczynski explained that a programwas required by this employer
because of the work that invoked use of hazardouschemicals. The same chemicalsand
process were used in the workplace during her prior inspection (Tr. 39-40).
Ms. DeHaven testified that she did not know what a written hazard communication
program was (Tr. 108). Mr. J. B. Groins, who had worked as a cutter, and later in charge
of cutting and assisting other workers, had never heard of a written hazard cwmunication
program prior to the inspection herein (Tr. 141, 148). He did not knowwhat types of
chemicals were used in the workplace, but knew they produced strong odors. He was aware
of employee complaints, and was told by an employee who was pregnant, that her doctor
recommended she leave the job. To his knowledge, nothing was done about the employee
complaints (Tr. 142-143, 147-M).
 Danny El-A&r testified that D & J had a written program at the time of the
inspection. He stated it was located in a cabinet next to the one checked during the
inspection (Tr. 282, 285). Danny El-Assir also stated Debbie DeHaven was without
author@ to conduct the walk-around inspection. He stated she should have contacted
employee J. B. Groins for that purpose as he was also more knowledgeable (Tr. 284).
It is noted that Groins believed DeHaven was in charge at the time (Tr. 156). &,
if he had the authority, as suggested by El-A&, he knew nothing about the required hazard
communication program.
The evidence establishes the
\ repeat violation as alleged.

                      Alleged ReDeat Violation of 5 1910.12W


       The standard requires in pertinent part:
       Employers shall have a material safety data sheet for each hazardous chemical
       which they use.

       The citation alleges:
       The company did not maintain material safety data sheets for inks, solvents,
       adhesives, and Glo-Lux pigment used in their establishment.

       Ulczynski testified that D & J could not provide any material dety data sheets

, (MSDS) for the chemicals used in the workplace (Tr. 40). She had asked DeHaven, Joe
Douglas, a silk screener, and Danny El&sir at the closing conference rr. 41). Ulcqmski
found that materials used in the workplace contained hazardous chemicals including zinc
oxide, isophorone, and petroleum distillate (E&s. C-6, C-7, C-9, C-10, C-12; Tr. 29-35).
DeHaven testified that the MSDSs could not be found (Tr. 108-109).
Danny EUssir testified that the MSDSs were kept in the same cabinet with the
written programs as noted above (Tr. 278,282). He also points out that J. B. Groins should
have been asked to locate the MSDSs (Tr. 272). But Groins testified DeHaven was in
charge of the workplace.
The evidence sufficiently establishes the violation as alleged.

                                              3

Alleged Rexat Violation of 6 1910.1200(h)

   The standard requires as follows:
   Employers shall provide employees with information and training on
   hazardous chemicals in their work area at the time of their initial assignment,
   and whenever a new hazard is introduced into their work area.

   The citation alleges D & J employees did not receive training upon their initial

assignment with the company relating to hazardous chemicals used in the workplace.
Ulcqnski testified that qmployees were not provided with information and training
on hazardous chemicals that they worked with. She stated Joe Douglas, who worked with
the hazardous chemicals, said he had no training on the hazards associated with their use
(Tr. 42).
DeHaven testified she had received no training concerning the chemicals used in the
workplace. She was aware of complaints by employees of having eye and throat irritations
from the chemicals. Also, neighboring companies complained about employees having
reactions to fumes from chemicals used at D & J (Tr. 110-111).
J. B. Groins, who worked about 5 to 10 feet from where the chemicals were used,
stated he was not trained on hazards regarding their use (Tr. 142,184).
Mr. Hussan Alsayed testified that Joe Douglas was trained on the silk screening
process but was not sure about the hazards associated with use of the chemicals (Tr.
238-239). Similar testimony was provided by Mr. John EMssir (Tr. 294-295).
The evidence clearly establishes a repeat violation.

                   Alleged ReDeat Violation of S 1910.20@‘)(2\


   The standard, which pertains to employee information, states in pertinent part that:
   Each emplayer shall keep a copy of this section and its appendices, and make
   copies readily available, upon request, to employees.

   It is alleged in the citation that D & J did not keep a copy of 8 1910.20(g)(2) and its

appendices at the workplace and make it available to employees.

                                          4

Ulczynski stated that neither DeHaven nor Danny El-Ask could provide a copy of
the regulation. Ulczynski explained that D & J was required to have the regulations on site
to albuv employees access to medical and exposure records. During the initial inspection
in July 1992, she provided John El-A&r a copy of the regulations. He was told they should
keep a copy at the workplace and make it available to emplqees (Tr. 16,43-45).
Danny El-As& stated that three copies of the regulations were at the worksite. One
was in the secretary’s desk, one was by the shipping door, and one was hanging on the wall
or in the cabinet. Again, El-As& asserts that DeHaven should have asked J. B. Groins
about these documents (Tr. 272). Groins testified that he had no knowledge of the
regulations prior to the inspection of February 12,1993 (Tr. 152).
The evidence establishes the violation as alleged.

                               Penaltv Determination


   Section 17(j) of the Act authorized the Commission to assessappropriatepenalties

after giving “due consideration” to the size of the business of the emplayerbeingcharged,
the gravity of the violation, the good faith of the employer, and the historyof previous
violations. Under section 17(a), a civil penalty may be asses& of not more than $10,000
for repeat violations
Upon consideration of the foregoing factors, appropriate penalties have been
determined for the violations in this case.

                           FINDINGS OF FAm AND
                            CONCLUSIONS OF LAW


   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Federal Rules of Civil Procedure 52(a).
 Based on the foregoing decision, it is ORDERED:
The citation is hereby afiirmed and the following penalties are assessed:
Standard Penakv Assessed
29 C.F.R. 6 1910.12OO(e)(
1) s~ooo*oo
29 C.F.R. 0 1910.1200(g)(l) 2pOOO.00
29 C.F.R. 8 1910.1200(h) 2&loo.00
29 C.F.R. 9 1910.20(g)(2) 160.00

                                    Is/ Paul L Bradv
                              PAUL L BRADY
                              Judge

Date: April 12,1994
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