THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No. SH90085


		vs			)  Citation No.R807304490


		 Defendant		)  OPINION AND ORDER

Pursuant to notice dated July 11, 1990 this safety case cam on
regularly for hearing on September 24, 1990 in Portland, Oregon,
before James P. Leahy, Referee. The Oregon Occupational Safety &
Health Division was represented by Norman F. Kelley, assistant
attorney General. Douglas Woods appeared in person and
represented defendant. He was given a copy of the Notice of
Rights and Procedures in contested safety cases, ORS 183.413,
which he read. The court recorder was Jim Terrell.


Defendant contested only the repeat violation accusation of Item
No. 2-2 of Citation No. R807304490.


Exhibits 1 through 7, per Norman F. Kelley's index, and Exhibit
8--eight documentary pages concerning defendant's previous

                       FINDINGS OF FACT

l. This defendant has been cited in the past for violation of
fall protection requirements. One case, SH88465, was settled
without a hearing on December 15, 1988.

2. The pertinent fall protection Citation No. R807304490 issued
February 26, 1990. It alleges a repeat violation of Citation
N858206689 issued July 3, 1989 (Ex. 13). The July 3, 1989
citation was not appealed.

3. The defendant requested only an informal. conference on that
citation by 'letter filed March 14; 1990 (see pleadings).

4. This citation matter was transferred to Hearings from OSHA by
letter filed May 9, 1990 (see pleadings). Notice was dated July
11 1990 for this hearing.

5. Defendant does not dispute the fall protection allegations.
Defendant only disputes the repeat violation of Item 22, page 3,
of this citation (Ex. l3).

6. The pertinent rules include OAR 436-01-015(55)(a)(A), (b)(C)
[Ex. '7, p. 7] and OAR 437-3-040(1) {Ex. 6, p. 103].

7. The classifications of probability and death are undisputed
(Ex. 3). Calculations result in a $1000 fine.

8. The defendant violated the same provision a second time
within 36 months (Ex. '77). A double penalty of $2000 is
mandated by the rules.


The defendant's position is that the violation occurred but the
fine should be $1000, not $2000. This because the first
violation should not be counted against him. It resulted from
workers' direct disobedience of' a management procedure. This is
not disputed.

The defendant apparently thought that an informal conference
ended that $75 matter at a different job because it was the
workers' fault. Put that citation in fact was not appealed and
the defendant's inaction let it become final. The defendant
cannot disrupt the orderly procedure legally adopted, oppressive
though it may be, and successfully argue that he didn't think a
$75 fine could cause a subsequent fine to be doubled.

If the first infraction had not been due to an employee's
disobedience and the second one was due to employee's
disobedience the defendant would have a more compelling but not
necessarily persuasive argument concerning fault.


That Citation No. R807304490 is approved.

The matter is dismissed.

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

	Entered at Portland, Oregon on JAN 23,  1991 


				By James P. Leahy, Referee