THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No. SH89239


		Plaintiff,		)  Citation No. M89090889

		vs.			)


		Defendant		)  OPINION AND ORDER


        This is a contested case under the Oregon Safe
Employment Act, ORS Chapter 654.  The matter came on for hearing
in Portland December 12, 1989.  Plaintiff, Accident Prevention
Division (APD) was represented by counsel, Ruth J. Thomas,
Assistant Attorney General. Defendant, Western Steel Inc., was
represented by its area manager, Mr. Rick D. Spruiell.  The
matter was continued for additional evidence and written
argument and the hearing was closed January 19 .

         The documentary evidence consists of .  .  . 1)  A
packet of 8 documents was submitted described and indexed by an
exhibit index. One of the documents was removed.  The remaining
7 documents were admitted into evidence as Exhibits 1 through 8;
and 2)  A copy of OAR 437-82-329 was admitted into evidence as
Exhibit 9.

                          FINDINGS OF FACTS

         In May l989 defendant employer was cited for violation
of the Oregon Safe Employment Act in that employees were not
protected from fall hazards when working on unguarded surfaces
more than 10 feet above a lower level--in violation of OAR
437-03-040(a).  The assessed penalty was $3,000, on the basis of
a repeated violation.

         Defendant employer does not resist the violation only
the amount of penalty contending it was not a repeat violation.

         In November 1988 defendant employer was cited for a
violation of OAR 437-83-329(2) in that employees were not
secured by safety belts and life lines when they were working on
unguarded surfaces more than 20 feet above water, ground, or a
lower floor or scaffolding.  That is the citation which was
served upon defendant employer.

	Subsequently, APD discovered that the wrong rule had been
cited.  In fact the correct rule was OAR 437-83-329(1). 
Although there is a corrected copy of the citation in evidence
as an exhibit (Exhibit 7, page 4) a copy of the corrected
citation was not served upon the defendant employer. Instead, by
letter of December 12, 1988 the administrator of APD, Mr. John
Pompei, sent a communication to defendant employer which was
titled "Amended Citation" (Exhibit 73). The Amended Citation
recites that the correct rule for item 11 was OAR 437-82-329(1).
 That document further recited that the amendment became a part
of and must be attached to the original citation.

	OAR 437-82-329 actually involves the electrical code rather
than the construction code. However, since the original citation
had an item number 22 which involved an equipment grounding
conductor program, defendant employer concluded the amended
citation was correct and that it involved the electrical code.
The penalty in that citation was $'75.

	Defendant/employer paid that penalty and did not appeal the
citation assuming that it was a violation of the electrical
code. In its argument of January 12, 1990 defendant employer
argues that because of the mistake it was denied the opportunity
to appeal the rule APD now contends was involved.

	In the May 1989 citation the penalty was determined to be
$1,500 in accordance with Table 1 of OAR 437-01-145.  That
amount was doubled to $3,000 on the basis of OAR 437-01-160 and

                    ULTIMATE FINDINGS OF FACTS

	The violation involved in this citation does not constitute a
repeat violation. Therefore the penalties should be reduced from
$3,000 to $1,500.


	There is no question but that APD intended to cite defendant
employer in November 1988 for a violation of OAR 437-83-329(1). 
However, the original citation did not recite the correct OAR
number. Nor, did the Amended Citation.

	The document identified as an Amended Citation specifically
provides that the amendment became a part of and must be
attached to the original citation. An actual citation with the
correct OAR number recited was not furnished to defendant
employer at least not at that time.

	It seems to me that since the state is levying penalties and
fines against employers for violations of the Safe Employment
Act that it ought to be held to a duty of reciting the correct
OAR numbers.  In other words APD ought to be required to be
specific in the OAR numbers involved in a particular safety

	From the defendant employer's viewpoint, it appears to me
entirely logical that the employer took the position it did with
regard to the November 1988 safety violation.  Particularly is
this the case when the Amended Citation advised the employer
that the violation involved an electrical code OAR number.

	When a mistake is made, it does not seem fair to me that the
party not making the mistake should be the one penalized.  APD
initiated all the paper work and is the party which made the
mistakes not just one, but two.

	The referee realizes that APD probably generates a ton of paper
work through the year.  Mistakes are bound to occur.  But, I do
not feel it appropriate for the employer to be penalized for

	Therefore, after giving consideration to all the evidence, I
conclude that the May 1989 violation ought to be considered a
first violation with a corresponding penalty of $1,500.


	That the May 1989 safety violation, Citation Number M890909889
be, and the same hereby is, classified as an original (or first)
violation.  The penalty is reduced to $1,500.

	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, pursuant to ORS
183.480J 482. 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.  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

	Entered at Portland, Oregon on MAR 16 1990 


				By H. Don Fink, Referee