BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH90124

	PLAINTIFF			)  CITATION NO V980101690

		VS			)

ARTINA CORPORATION			) 

	DEFENDANT			)  OPINION AND ORDER



	This contested case came on under the Oregon Safe Employment
Act, pursuant to notice, in Portland, Oregon on October 2, 1990.
It ran overtime.  It was included on December 10, 1990. 
Supplemental exhibit "0" was admitted on December 18, 1990.



	Plaintiff was represented by Thomas K. Elden, Assistant
Attorney General.  Defendant was represented by Larry Bissett,
an economist, accompanied by defendant corporation owner Klaus
Wickl.  the court recorder was sandy Madden at the first
session.  Sara Swearingen was the second session recorder.



                          EXHIBITS



	Exhibit "O" 31 pages of OSHA documents admitted December 18,
1990.  Exhibits 1-13 per September 29, 1990 exhibit index
admitted at hearing.  Exhibit 14 is a packet of some 62 pages
concerning defendant. Exhibit 16 is a 1 page document appointing
Larry Bissett to represent defendant.  Exhibit 17-1 is
defendant's November 8, 1989 letter to Department of Insurance
and Finance concerning Red Cross employee first aid.  Exhibit
17-2 is defendant's unsigned October 9,1 989 correction notice
on form 440-808 (6/89).  Exhibit 18 consists of four pages
containing 8 colored and captioned photographs of defendant.
Exhibit 19 is a 2 page document concerning gas piping systems.



                             ISSUES



	Defendant disputes the severity of the penalties and appealed
within 20 days of March 22, 1990.  Some inspection procedures
and conclusions were complained of, but no appeal was filed
within 20 days of the initial October 9, 1989 citation.



The citation were as follows:



Citation #V980103789, October 9, 1989     $945

Citation #V980101690, March 22, 1990       5435



                         FINDINGS OF FACT



	Artina Corporation was incorporated on October 14, 1986 with
its principal place of business at 1112 NW 19th Ave, Portland,
Oregon, doing domestic business in the manufacture of
collectibles with working officer president.  Klaus Wickl
attended the hearing as owner with his designated representative
Larry Bissett.



	Plaintiff Oregon Occupational Safety and Health Division of the
Department of Insurance and Finance is the entity in Oregon
charged with enforcing occupational safety and health in lieu of
a federal entity.   Pursuant to notification by a doctor
expressing concern over air contaminants, Mr. Van Raalte, an
industrial hygienist for plaintiff, visited the plant on August
13, 1989, August 21, 1989, August 31, 1989, January 30, 1990,
February 8, 1990 and March 5, 1990.  As a result of the August,
1989 visits he issued Citation No V980101678 on October 9, 1989.
It was not appealed.



	The total penalty for some 21 standards violated was $945 (Ex
5).  These were minimum fines.  Mr. Van Raalte recognized the
seriousness of these violations but he realized the company was
new. He therefore expended conscientious effort in explaining
the deficiencies to management to try to get it to effect swift
corrections for the protection of the workers' not only
concerning fire hazard but also concerning physical harm from
chemical absorption through skin and breathing of the harmful
chemicals he observed stored and being handled.  This took
multiple visits.



	The Notice of Failure to correct the Violations Cited in August
1989 issued on January 30, 1990.  It set out each citation item,
the date correction was required and the calculation of the
enhanced  penalty which again was considerably less than that
allowed by statute.



	Eventually, having exhausted his persuasiveness and finding
deficiencies still existing months later, a citation dated March
22, 1990 multiplied each violation by ten for a total of
$5435.00 (Ex 1, pp. 4-7).



	The defendant filed its appeal dated April 6, 1990 on April 12,
1990.  It disputed the severity of the penalties issued on March
22, 1990.



The violations noted and enhanced when not corrected are:

Item No. Enhanced Penalty
1-1. Standard Violated: OAR 437-02-240
29 CFR 1910.213(c)(1)(Ex, 14-13)
$1,050
1-3 Standard Violated: OAR 437-155-030
(Ex. 8-8)
$1,050
1-4B Standard Violated: OAR 437-123-120(2)(b)(B)
(Ex. 9-36)
$785
1-5A Standard Violated: OAR 437-50-015(4)
(Ex. 10-4)

$1,050
1-5B Standard Violated: OAR 437-50-025(2)
(Ex. 10-5)
2-8 Standard Violated: OAR 437-127-020(1)
(Ex. 11-3)
$500
1-3 Standard Violated: OAR 437-62-600
(Ex. 12-2)
Withdrawn
2-17 Standard Violated: OAR 437-50-025(2)
(Ex. 10-5)
$500
		         TOTAL ADDL. PENALTIES (Ex 1-7, 4)     $5,435

	$5.435 is ten times the fine initially itemized as violated
less mitigations, which reduced the initial penalty figure of
$945 (Ex. 3, 57).



	Item 1-1 is a table saw guard violation.

	Item 1-3 is a hazardous chemical violation (TR 32-36). 

	Item 1-4 et al improper storage in drums and buckets (TR 39-47),

	Item 5A skin absorption protection violation (TR 47-53).

	Item 5B eye chemical splatter protection violation (TR 53-56),

	Item 28 lack of first aid personnel (TR 56)(Ex 17).

	Item 2-10 hazardous compressed air piping (TR 57-63)

	Item 2-17 eye flying protection violation (TR 64-69)



	ORS 654.031 provides whenever the director has reason to
believe, after an inspection or investigation, that any
employment or place of employment is unsafe or detrimental to
health or that the practices, means, methods, operations or
processes employed or used in connection therewith are unsafe or
detrimental to health, or do not afford adequate protection to
the life, safety and health of the employees therein, the
director shall issue such citation and order relative thereto as
may be necessary to render such employment or place of
employment safe and protect the life, safety and  health of
employees therein.  The director may in the order direct that
such additions, repairs, improvements or changes be made, and
such devices and safeguards be furnished, provided and used, as
are reasonably required to render such employment or place of
employment safe and healthful, in the manner and within the time
specified in the order.



                            CONCLUSION



	In order to mitigate the enhanced fine the defendant must prove
by a preponderance of the evidence that plaintiff violated the
applicable statute found above as facts in this case.



	Not only has defendant failed to so do, but defendant has not
overcome the persuasive testimony that plaintiff in the handling
of these unusual prolonged multiple investigation was over
solicitous in its efforts to get the defendant to protect the
safety of the workers potentially endangered by, among other
things, the indifference shown by a defendant officer who did
not testify (TR pp 17, 18, 21) (Ex 4).



	ORS 654.086(1)(d) provides that any employers who receives a
citation as provided in ORS 654.071(4), for failure to correct a
violation may be assessed a civil penalty of not more than
$2,500 for each day during which such failure  or violation
continues.



	ORS 654.071(4) provides if the director has reason to believe
that an employer has failed to correct a violation within the
period of time fixed for correction, or within the time fixed in
a subsequent order granting an extension of time to correct the
violation, the director shall consider such failure as a
separate and continuing violation and shall issue a citation and
notice of proposed civil penalty, if any, to be assessed
pursuant to ORS 654.086(1)(d).



	The production manager who testified for defendant was not
convincing.  Even if defendant could convincingly argue to some
other trier of fact that violations suspected by a doctor were
not properly investigated and proven as alleged, he did not
attempt to timely do so.  He let that opportunity slip by while
his manager was more concerned about the initial small fine than
in making timely corrections.  how expensive these might have
been or what jeopardy the future of the business was put in
thereby is no longer material, if in fact it ever was.  But even
so, plaintiff tried to initially consider at least collateral
matters such as inexperience, unsuccessfully, due to management
resistance, coupled, however, with cordiality, at least until
the enhanced fine appeared.



	On the issue of fine enhancement the plaintiff has prevailed. 
It was light handed use of the appropriate statute, rule and
calculation in this case.



                         ORDER



	The citations V980103789 and V980101690 are approved.



	NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, within thirty (30) days after the mailing date on this
Order, request a review by the Workers' Compensation Board, 480
Church St SE. Salem, OR 97310.  Any such request for review
shall be mailed to the Board at the above address with copies of
such request mailed to all other parties to this proceeding.



	When one party requests review by the Board, the other party or
parties shall have the remainder of the 30-day period and in no
case less than 10 days in which to request Board review in the
same manner.  The 10-day minimum is provided even if it extends
the time allowed to request Board review beyond 30 days. 
Failure to mail such a request for review within the time
allowed will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER.



	Entered at  Portland Oregon on Mar 20, 1991 



				WORKERS COMPENSATION BOARD

				JAMES P. LEAHY, Referee