BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  WCB Case No. SH89222

		Plaintiff,		)  Citation No. N858204389

		v.			)

MALAR CONSTRUCTION, INC.,		)

		 Defendant		)  OPINION AND ORDER



	Pursuant to Notice, this matter came on regularly for hearing
and continued December 7, 1989, in Portland, Oregon. Harris
Reporting recorded the hearing. Plaintiff appeared through Greg
Nutt, safety compliance officer, and was represented by
Assistant Attorney General Ruth J. Thomas. Defendant appeared
through James B. Gibson, safety director, and Larry H. Smith,
President. During Mr. Nutt's direct testimony, Defendant asked
for and received a 30-day continuance to obtain legal counsel.



	On January 8, 1990, Marvin D. Bowen, attorney, advised he was
representing Defendant herein. On January 29, 1990, I wrote
counsel, seeking at least 3 dates when they and all witnesses
were available to try the continued hearing. After receipt of
dates, by Notice of February 28, 1990, this case was scheduled
for a continued hearing on March 28, 1990. A copy thereof was
mailed to Mr. Bowen on March 12, 1990. On March 21, 1990, he
telephoned the Hearings Division and said he would be reviewing
our file sometime in the next week. He did so on or about March
26, 1990.



	This matter came on regularly for continued hearing and
continued March 28, 1990, in Portland, Oregon. Harris Reporting
recorded the hearing. Mr. Nutt, Ms. Thomas, Mr. Smith and Mr.
Bowen appeared.



	By agreement of the parties, this matter came on regularly for
continued hearing and closed with recorded closing argument
March 29, 1990, in Portland, Oregon. Harris Reporting recorded
the hearing. Ms. Thomas and Mr. Bowen appeared.



                          ISSUES



	Defendant protests the Citation and Notice of Penalty issued by
Plaintiff on April 28, 1989, and requests it be set aside (Ex.
2).



	Plaintiff asks the Citation and Notice be affirmed.



                         FINDINGS OF FACT



	The proceedings were very lengthy, and there was a great deal
of testimony. Nonetheless, I find the pertinent facts are
relatively few and are ultimate; i.e. dispositive. Where there
were material disputes, I accept and adopt Mr. Nutt's testimony.



	On April 5, 1989, Defendant's employees were working at the
Barrington Heights II subdivision at Beef Bend Road in Tigard.
At that site, there was an East/West running trench that was
about 114 feet long, 3 1/2  5 feet wide, and 8 feet deep. The
sides (i.e., banks) of the trench were of unstable and soft
material at places where the trench exceeded 5 feet in depth.



	Further, the sides were not braced, sheeted, shored, sloped or
otherwise supported by means of sufficient strength to protect
Defendant's employees while working within the trench. There was
no ladder or steps for entry and exit within 25 lateral feet of
either end of the trench.



	The probability of an accident resulting in injury to or the
death of Defendant's employees was low. But had an accident
occurred, the likely result would have been death or extremely
severe physical harm.



                  CONCLUSIONS AND OPINION



	The above Facts compel concluding the OOSHD has sustained its
burden of proving by a preponderance of evidence in the record
that the challenged violations occurred and that the
classification of the violation and the penalty were properly
made and imposed. Thus, there is no basis upon which to disturb
the Citation and Penalty.



                        ORDER



	The Citation and Notice of Penalty issued April 28, 1989,
hereby is affirmed.



	NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, not later than sixty (60) days after the mailing date
on this Order, request a review by the Court of Appeals, Third
Floor, Justice Building, Salem, OR 97310. Any such request for
review shall be mailed to the Court of Appeals at the above
address with copies of such request mailed to all other parties
to this proceeding. The procedure for such judicial review is
prescribed by ORS 183.480 and ORS 183.482.   Failure to mail
such a request for review within sixty (60) days after the
mailing date of this Order will result in LOSS OF RIGHT TO
APPEAL FROM THIS ORDER.



	Entered at Portland, OR APR 17, 1990



				WORKERS' COMPENSATION BOARD

				Sidney A. Galton Referee