BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH89241

		Plaintiff		)

					)  Citation No:S838304189

XL TIMBER, INC.,			)

		Defendant 		)  OPINION AND ORDER



	This case was tried in five sessions, December 19, 1989,
February 8, 1990, February 9, 1990, March 5, 1990, and March 6,
1990, in Salem, Oregon, before Referee Bruce D. Holtan. The
plaintiff, oregon Occupational Safety and Health Division (OR
OSHA), was represented by assistant attorney general Norman
Kelley. The defendant, XL Timber, Inc., was represented by
attorney Lloyd Helikson in the first session, and by attorney
George Goodman, during the remainder of the case. Bert Wright,
XL Timber's personnel and safety director, was present as the
employer representative throughout the proceedings. Business
Support Services recorded the entire proceedin~s.



                            ISSUES



	OR OSHA issued Citation No. S838304189 on June 21, 1989, as a
result of an investigation of a fatal accident which occurred
April 12, 1989. The Citation alleged that the employer had
violated oregon Administrative Rule 437-80-105(1), described as
follows:



"Danger trees within reach of landings, haul roads, rigging or work areas were not felled before regular work operations began, and/or work was not arranged so that employees were constantly in the clear. (a) workmen were working in close proximity to numerous unstable larger trees located in the buffer strip at 'he back of the unit, resulting in the fatal injury of one of the workmen."
The Citation classified the alleged violation as a "serious repeat violation." This is because it involved a fatality [OAR 437-01-140(1)(c) and (d)], and because the employer had been cited for a violation of the same Oregon Administrative Rule on September 1, 1988. (Ex. 23.) The Citation fixed the penalty at $5,000, based on a severity rating of "serious," a probability rating of "high," and the allegation that it was a "repeat" violation. OAR 437-01-145(5) and OAR 437-01-160. The employer contends that no such violation occurred. If a violation is found to have occurred, the employer contends that the penalty is excessive. OR OSHA has the burden of proving by a preponderance of the credible evidence that the violation noted in the Citation occurred. FINDINGS OF FACT In early April 1989, an experienced crew of workmen began logging a unit of timber for XL Timber, Inc., about 15 miles north of Detroit, Oregon. Jim Miley, assistant logging superintendent, was in charge of the operation. Steven Benham, hook tender, was the supervisor of a six-man rigging crew. Mr. Benham was a reliable, experienced, and safety conscious employee. on April 12, 1989, the crew held a "tailgate" safety meeting before starting its eighth day of work. The topic of danger trees, including snags, was discussed. At approximately 9:30 a.m., Benham and Bob Richey, the rigging slinger, were on the west side of the skyline, when the yarder encountered a "hang-up" while attempting to "break out a turn." The other four members of the rigging crew were on the east side of the skyline setting chokers. Richey had control of a communication device, called a "bug," and gave the "go-ahead" signal to the yarder. The increased pressure to the skidding line pulled the skyline to the West where it struck a live hemlock tree, approximately 106 feet high. The hemlock was partially uprooted and began leaning toward the West. Tom Miley was operating the yarder. He was not in a position to see the "hang-up" because the road and landing blocked his view. Richey went up to the turn and unhooked two chokers to lighten the load on the skyline. Then, Benham and Richey retreated to an old "windfall" about 40 feet into the buffer zone and a little over 100 feet from the base of the live hemlock. The windfall was in a pocket of unstable snags. Benham and Richey knew of the leaning hemlock and should have known of the presence of the snags around them Benham took control of the "bug" from Richey and gave the final go-ahead signal to the yarder, intending to fall the live hemlock with the skyline while breaking out the turn. The skyline struck the hemlock and pulled it over. The hemlock struck a snag, breaking the snag into at least three pieces. Benham and Richey jumped off the windfall in an attempt to avoid a large piece of the snag. Unfortunately, a piece of the snag struck Benham on the head. He died shortly thereafter. Richey was not injured. The accident was caused by an isolated incident of poor judgment in giving the final go-ahead signal. Benham and Richey felt protected by a large, live tree between them and the hemlock. They were not. The employer's safety program was normally adequate to prevent such accidents. OPINION OR OSHA must first establish by a preponderance of evidence that the alleged violation occurred. This is accomplished by producing evidence that all the elements of the violation, as stated in the specific safety code section, were present. These elements will be addressed separately. First, there were numerous "danger trees" present in the area of logging operations. A "danger tree" is defined as:
"A standing live or dead tree, including snags, with evidence of deterioration or physical damage to the root system, trunk, or stem. The degree and direction of the lean is also an important fact when determining if a tree is dangerous." OAR 437-80-005(14).
The most unstable danger tree was the live hemlock that was struck by the skyline two or three times. This hemlock was partially uprooted and leaning in a generally westward direction immediately before the final go-ahead signal was given by the deceased. This fact was witnessed by Richey, Nissen, Forrester, Potter, and the deceased. (Exs. 719, 20, 23, and 29.). Other unstable danger trees were present in a pocket of snags surrounding the old windfall on which Benham and Richey were standing immediately before the hemlock was pulled over. These snags qualified as danger trees because they showed signs of deterioration. Several snags had broken tops; one snag was obviously leaning (Exs. 715 and 8); one snag was fractured in several places which resulted in an arc in its upper portion (Ex. 715); and while most snags in the immediate area had tight bark and normal color, one snag did not (Sparks' testimony). Benham and Richey were standing a distance equal to, or a little greater than, the length of the leaning hemlock from the base of the leaning hemlock (Potter's testimony). Even in the absence of snags, the deceased and Richey were in close proximity to the leaning hemlock, itself a danger tree. The snags were observed soon after the accident by safety compliance officer (SCO) Starks, field safety supervisor Larrew, and safety director Wright. SCO Starks took pictures of the snags in the area of the accident. (Ex. 8.) Several eye witnesses saw the deceased get struck by a piece of the broken snag. (Exs. 719, 20, 22, and 29.) The second element concerns whether employees were working in close proximity to the danger trees. The uncontroverted evidence shows that Benham and Richey were in close proximity. Regarding the leaning and partially uprooted live hemlock, Benham and Richey were standing a little over 100 feet from its base. (Potter's testimony.) Regarding the snags, the windfall was in the midst of several unstable snags. (Exs. 7, 8, Starks' testimony, and Larrew's testimony.) (Although Benham and Richey probably believed they were sheltered from danger by a large, live tree, between them and the hemlock, this unfortunately proved not to be true.) The third element concerns whether the danger trees were in the buffer strip at the back of the unit. The evidence on this element is uncontroverted. As a consequence, the work was not arranged so that employees were "constantly in the clear." The fourth element that OR OSHA must prove, or at least make a prima facie showing of; see Skirvin v. Accident Prevention Division, 32 Or App 109 (1978)], is that the employer had knowledge of the violation.
"'Knowledge' means an awareness of the physical condition which gives rise to the.violation. It does not mean an awareness of the standards, or the probable consequences of the violation. It means either actual knowledge of the violative conditions, or constructive knowledge, the latter meaning that the employer with the exercise of due diligence would have known of the conditions." Employment Safety and Health Guide, Section 4074, "Employment Knowledge as a Violation Element," Commerce Clearing House, page 1400 (1980); see ORS 656.086(2).
The rationale for this legal position is affirmed and explained regarding "serious" violations in Brennan v. Butler Lime & Cement Co., 52 Fed 2d 1011 (7th Cir. 1975). Brennan cites the following language from Horne Plumbinq & Heating v. Occupational Safety and Health Review Commission (OSHRC), Fed 2d (5th Cir. 1976), with approval:
"The legislative history of the Act indicates an intent not to relieve the employer of the general responsibility of assuring compliance by his employees. Nothing in the Act, however, makes an employer an insurer or guarantor of employee compliance therewith at all times. The employer's duty, even that under the general duty clause, must be one which is achievable....We fail to see where in charging an employer with a...violation because of an individual, single act of an employee, of which the employer had no knowledge and which was contrary to the employer's instructions, contributes to achievement of the cooperation sought by the Congress. Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation. Under our legal system, to date at least, no man is held accountable, or subject to fine, for the totally independent act of another.... ...Not requiring the Secretary to establish that an employer knew or should have known of the existence of an employee violation would in effect make the employer strictly and absolutely liable for all violations and would render meaningless the statutory requirement for employee compliance. 29 U.S.C. 654(b).
To revive the citation...would be to subject an employer to a standard of strict liability, under the special duty clause, for deliberate employee misconduct. We do not find that result to be within the intent of congress." The evidentiary record contains persuasive evidence that Benham and Richey had actual knowledge of working in close proximity to the leaning hemlock. Specifically, Benham took control of the "bug" and gave the final signal to the yarder to pull the hemlock over with the skyline. (Exs. 719, and 23.) At this time, both men had to have known of the leaning hemlock because of the difficulty they had had in "breaking out the turn." In reaching this conclusion, I believe these men felt protected by a large tree standing slightly in front of them. They were experienced loggers. I believe they simply misjudged the danger of the situation. OR OSHA's investigation notes present no evidence of the workers' actual knowledge regarding the presence of snags in the area. SCO Starks did not ask the employees if they had such knowledge. This constitutes a significant oversight in the investigation. In fact, the employer's safety director, Mr. Wright, conducted an investigation on behalf of the employer. He found the employees were not aware of snags in the accident area. I accept this as being true. It does not, however, negate the fact that the leaning hemlock constituted a danger tree of which both Benham and Richey were aware. In addition, I conclude Benham and Richey should have known of the pocket of snags around them. All members of the rigging crew were experienced and skilled loggers. The crew had been working at the same site for eight days before the accident. Danger trees were present in the buffer zone on both sides of the skyline. The deceased, as the hook tender, had anchored the skyline in the buffer zone. In anchoring the skyline, one specifically looks for danger trees. (Potter's testimony.) All these factors should have put the entire crew, or, at least Benham and Richey, on notice of the snags. Therefore, Benham and Richey had actual knowledge, or should have known, or the physical conditions giving rise to the violation. This, however, does not end the inquiry regarding "knowledge." The issue becomes whether or not the employer is responsible for the actions of its rigging crew supervisor, when those actions violated the safety code. Specifically, is Benham's knowledge, as a supervisor, imputed to his employer? Put another way, did the employer know, or have reason to know, that the rigging crew supervisor would act in violation of its instructions to remain "constantly in the clear." In order to decide this question, several factors must be addressed. The employer's safety program is the central issue in this type of case. If the employer's safety program i8 normally adequate to prevent the type of employee misconduct in question, then it is said the employer lacked knowledge of the violation; if it is inadequate, then the employer is said to have "constructive" knowledge. Employment Safety and Health Guide, Section 4074, at 1401. I conclude the employer's safety program was adequate based on the investigation notes of SCO Starks and the testimony of the employer's safety director, Wright. First, there was no indication, at least prior to hearing, that the safety program was allegedly inadequate. As written by SCO Sparks in his investigation notes: "This firm submitted and received approval from the A.P.D. for their A.O.L. job training guide. This training guide includes all common hazards including danger trees and snags. Each employee is indoctrinated with this training material prior to his on site training. As stated elsewhere in this report, employees are subjected to ongoing training during formal and tailgate safety meetings. A topic of a safety meeting held...before the accident, addressed staying in the clear of danger trees." (Ex. 731.) Benham and Richey attended a tailgate meeting on the morning of the accident in which all employees were told to be "in the clear" at all times. (Ex. 211.) Detailed Safety Inspection Reports were filled out by assistant superintendent Jim Miley, the highest ranking employee on the site, on March 24 and April 12, 1989. (Ex. 21.) Benham, the supervisor of the rigging crew, held and documented crew safety meetings on March 4, 1988 and April 4, 1988. (Ex. 217.) SCO Starks reported that Benham was well trained and displayed a good safety attitude, a conclusion with which Wright and fellow employees agreed. (Ex. 732.) The employer's safety director first heard that the adequacy of XL Timber's safety program was being questioned during field safety supervisor Larrew's testimony at hearing. Nothing was mentioned regarding a possible safety program inadequacy or violation at the closing meeting which was held before the Citation was issued; no safety program violation was cited by OR OSHA. There is evidence of a possible safety program inadequacy, but I do not find this evidence persuasive. For example, the employer was cited for the same safety code violation about nine months before this accident. (Ex. 9.) Following that Citation, the employer's safety director visited that site with Mr. Morgan, one of XL Timber's owners. Morgan had stated that a blatant violation of company policy had occurred. The supervisor on that logging site was given a written reprimand and advised that a repeat violation would result in his immediate termination. (Ex. 731.) This "cuts both ways." It indicates a violation had occurred, which weighs against the adequacy of the company's safety program; it indicates that prompt remedial action was taken by the highest officials in the company, which weighs in favor of the company's internal safety enforcement and concern . Larrew testified that a record review showed the employer's "lost work days" were over two times the industry average from 1986 through 1988. This may or may not be significant. Without knowing the specifics of the causes for lost work days, I decline to give this testimony significant probative weight. For example, the lost work days could be from workers' compensation claims totally unrelated to any safety deficiencies or violations. Also, Larrew mentioned that Richey had barely escaped injury on three occasions in the past. Again, I have no way of knowing whether these situations involved any potential safety code violations. I decline to give this vague testimony probative weight. Based on the above considerations, I conclude the employer's safety program is normally adequate to prevent an occurrence of this type of accident. Consequently, I decline to impute the rigging crew supervisor's knowledge to the employer. OR OSHA has failed to meet its burden of proving actual or constructive knowledge by the employer. This is an essential element of OR OSHA's case against the employer and results in a failure of proof. Therefore, the Citation will be vacated. It might be helpful to briefly mention the employer's affirmative defense. The employer contends that the rigging crew supervisor's act of giving the final go-ahead signal constituted an isolated event of employee misconduct. The single act of an employee, made without the employer' 8 knowledge and running contrary to instructions, is not chargeable to the employer. See Brennan v. OSHRC (Alsea Lumber), 511 Fed. 2d 1139 (9th Cir. 1975). This is simply another way of approaching the issue of whether supervisory knowledge should be imputed to the employer. Employment Safety and Health Guide, Section 4074, at 1401. Essentially the same evidence, as discussed in the constructive knowledge portion of the opinion, applies in the employee misconduct affirmative defense. By "misconduct" it should be made clear that OR OSHA does not contend Benham's actions were a willful or intentional violation of the safety code. Rather, OR OSHA contends those actions were either careless or accidental. As stated by SCO Starks: "This was an isolated event and a direct violation of co. policy." (Ex. 733.) In short, it is OR OSHA's own investigation report, rather than independent evidence from the insurer, which is most persuasive in establishing the employer's affirmative defense. I am not implying that Starks in any way undermined OR OSHA's case. I am stating, however, that the facts he reported constitute a legal defense to the Citation. The employer advanced another argument which I reject. Specifically, the employer alleges that the present administration of OR OSHA has an unfair bias against any employer, especially in situations involving injury and death. The employer contends, and the testimony of SCO Starks and field safety supervisor Larrew, support a finding that OR OSHA's safety compliance officers, and others in the enforcement chain of command, are under pressure to issue citations. In finding that the present administration has stepped up OR OSHA's enforcement of safety code violations through increased pressure to issue citations, I make no judgment that such action is bad. OR OSHA is charged with minimizing injuries and death in the workplace. As long as the underlying facts and law support the issuance of a citation, increased awareness of safety considerations will permeate the workplace through stepped-up enforcement. If citations are not factually and legally proven, as is the case here, the employer has the opportunity to overturn the citation through the hearing process. While judging whether a violation occurred in this case is before me, judging OR OSHA's enforcement policy is not, unless that policy has somehow tainted the testimony of OR OSHA employees. I specifically find that SCO Starks and field safety supervisor Larrew gave credible testimony. SCO Starks' testimony, potentially against his interest as a longtime OR OSHA employee, showed integrity and courage. Having vacated the Citation on the merits, it follows that an analysis of the penalty provision of the Citation is moot. Because considerable time in the hearing was devoted to OR OSHA's directives by which the penalty was calculated, I offer dicta on the subject. OR OSHA memos, dated November 1, 1984 and December 28, 1988 (Exs. 301 & 2), are contrary to Oregon Administrative Rule 437-46-135, which directs the safety compliance officer (SCO) to make probability ratings based on a consideration of several factors. The memos invalidly attempt to take this duty away from the SCO and to eliminate the probability rating entirely, if the violation involves injury or death. I believe OAR 437-46-135 calls for a prospective probability rating rather than the elimination of a probability rating by hindsight. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED as follows: Citation No. S838304189, issued June 21, 1989, alleging a violation of OAR 437-80-105(1)(a), is vacated in its entirety. NOTICE TO ALL PARTIES: You are entitled to judicial review of this Order. Proceedings for review are to be instituted by filing a petition in the Court of Appeals, Supreme Court Building, Salem, Oregon 97310, within 60 days following the date this Order is entered and served as shown hereon. The procedure for such judicial review is prescribed by ORS 183.480 and ORS 183.482. Entered at Salem, Oregon OCT. 5 1990 WORKERS' COMPENSATION BOARD Bruce D. Holtan Referee