BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No. SH90173

					)

	Plaintiff 			)  Citation No. K216900690

					)

PRECISION BODY AND PAINT		) 

	Defendant			)  OPINION AND ORDER



	This contested case came on under the Oregon Safe Employment
Act pursuant to notice in Portland, Oregon on December 27, 1990
before James P. Leahy, Referee.



	Plaintiff was represented by J. Kevin Schuba, an attorney
General certified third-year Willamette University law student.
Precision Body and Paint was represented by William H. Murr,
attorney at Law. The court recorder was Kurt Gumm.



OSHA'S EXIBITS



	Exhibits 1 through 11 were admitted per OSHA's undated index.  



	PRECISION BODY AND PAINT'S EXHIBITS (D)



	Exhibits 1 through 11 were admitted per Precision Body's
undated exhibit list.



APPLICABLE EXTENSION APPLICATION FORM



(PL Ex. 6-2)



EXTENSION OF CORRECTION DATE



1  You may apply for an extension of the date for correcting a
violation.



2  A request for extension of correction date must be sent in
writing to the Department of Insurance and Finance, Oregon
Occupational Safety & Health Division, Labor & Industries Bldg.,
Salem, Oregon 97310 or received by an OR-OSHA field office.



3  The request for extension must include:



a) Your name and address.



b) The location of the place of employment.



c) The citation report number.



d) The number of the violation for which the extension is sought.



e)  The reason for the request.



f)  Facts showing that you have made an effort to correct the
violation by the date set for correction, but were unable to do
so because of factors beyond your control.



g)  All available interim steps being taken to safeguard
employees against the cited hazard during the requested extended
correction period.



h)  The date by which you propose to complete the correction.



i)  A statement that a copy of the request for extension has
been posted as required by OAR 437-1-275(2)(d) and (h) or for at
least 10 days, whichever is longer; and, if appropriate, served
on the authorized representative of affected employees; and
certification of the date upon which the posting or service was
made.



4  Your request must be postmarked or received by the Department
no later than the correction date of the violation for which the
extension is sought.



                  ISSUE (Reasonableness of Extension Denial)



1. On June 19, 1990 plaintiff date stamped in defendant's June
15, 1990 request for an additional extension to September 1 to
comply with plastic compressed air piping changes required by
Item 2-5 of Citation K21900690 dated January 29, 1990.



2.  By July 9, 1990 letter plaintiff denied the request because
the extension request was 14 days late.



3.  Defendant had already been granted an extension of some five
months.  That extension expired about June 1, 1990 but plaintiff
had taken no action such as reinspection for compliance within
the first extension's time limit.



4.  Defendant by July 20, 1990 letter requested a hearing on
plaintiff's July 9, 1990 denial of defendant's second extension
request.  The primary issue is unreasonableness of the denial. 
The secondary issue is unreasonableness in the inspection
scheduling.  Plaintiff did not object or clarify.



5.  Plaintiff acquiesced in this request for hearing by its
August 7, 1990 letter transferring the matter to hearing. 
Jurisdiction was accepted by hearings because of OAR
438-85-102(2).



FILING APPEALS



438-85-106  WHO MAY APPEAL WHAT

"(1) A person to whom a citation, notice of penalty or
correction order is issued may file an appeal to deny the
alleged violation, contest the amount of the penalty, or contest
the reasonableness of the correction order.



"(2) A person who does not contest the reasonableness of the
time as originally set by a correction order, but appeals to APD
for an extension of time, may file an appeal to contest APD's
denial of the time extension.



"(3) An affected employee may file an appeal to contest the
reasonableness of the time allowed by a correction order or to
contest a subsequent APD order which modifies that time.



"(4)  An adversely affected person, including an affected
employee, may file an appeal to contest APD's proposed grant,
denial, modification or revocation of a variance."



                          FINDINGS OF FACT



	Defendant is an auto body repair entity with two shops in the
metropolitan area, out of 800+ such facilities in Oregon,
Plaintiff's health compliance officer who made this January 30,
1990 inspection had issued only three such citations in the last
three years.  One was at defendant's other local shop.  The
identical piping in that shop was not cited for violation of OAR
437-62-600.  That rule requires piping material that will safely
withstand allowable stresses determined by recognized standards
developed by the American National Standards Institute.  The
citation was issued because in plaintiff's opinion the piping
was not of adequate design and strength for the usage of
defendant, i.e, it was designed for 250 lbs./sq in. of liquid,
but not for 180 lbs./sq. in. of compressed air.



	Defendant management ordered shop personnel to cooperate fully
with plaintiff despite hectic work schedules and that defendant
was misled by plaintiff's 1988 tacit approval of the twin shops'
plastic piping system.  Defendant was reasonable even though
defendant was aware this inspection was not triggered by an
complaint or injury.



	The inspection of this defendant two times in two years (D Ex
8) was computer generated by methods unknown even to plaintiff. 
Competing shops nearby will not be inspected for years.  No
believable explanation came from plaintiff.



	Plaintiff comingled data from the other shop in its weighting
factors of this shop, thereby introducing inaccuracies into it
calculation detrimental to this shop's compliance and
subjectivity/susceptibility to inspection (PL Ex 7)



	Each and every cited violation was corrected by defendant
immediately except the plastic piping.  That was accomplished by
September 21, 1990 (D Ex.3).  An extension for this correction
was requested by defendant per instruction on the citation (D
Exs. 10, 11).  It took plaintiff nearly a month or process this
request.  It was granted only until June 1, 1990 (D Ex. 3). 
Defendant's request for extension from June 1, 1990 to September
12, 1990 was denied (D Ex. 6).  The second request omitted items
3e, f and g, at least.  The second request was not as precise as
the application form suggests, but there was no proof it has to
be.  In any event precision is not the reason for the denial.

 

	Two weeks tardiness is the reason.  No rule was offered to
support this excuse for the denial (D Ex 6).



	The request for the second extension should have been approved.



                          OPINION



	The primary issue herein is the reasonableness of the denial.
The request was only a three month extension of only one of many
items.  There was no believable support for plaintiff's two
weeks late position.  There is no believable evidence of danger
to employees, other than opinion of plaintiff.   There was no
believable expert testimony concerning the standards of the
American National Standards Institute.  The referee cannot
determine independently if the lesser air pressure used by
defendant is more dangerous than the greater liquid pressure
stamped on the  plastic pipe by its manufacturer.  Defendant
needed time to probe such problems.  That constitutes good cause
for more time to comply.



	No reasonable rule was identified that required plaintiff to
deny the extension request simply and only because it came two
weeks after the initial extension expired.  Two weeks is one
half the time it took plaintiff to answer defendant's initial
request.  Defendant sent its request as soon as it realized the
extension had expired.  No reminder or action was required of
plaintiff to prod defendant into action.  The denial was
unreasonable.



	The seconday issue of inspection scheduling was not adequately
explained by plaintiff.  The testimony reveals no reasonable
scheme or plan of inspection sequence.  That is not reasonable.



	Plaintiff has not proven its case concerning the piping.  A
fine, if any, associated therewith should be reconsidered. 
Since defendant has proven itself more reasonable than plaintiff
in this case in every aspect except omissions in the request for
a second extension that denial by plaintiff was unreasonable as
was the inspection scheduling.



                           ORDER



	The denial of the second extension was unreasonable. 



	Precision's completion of the compressed air distribution
project by September 21, 1990 was reasonable.



	NOTICE TO ALL PARTIES ANY PARTY TO THIS PROCEEDING WHO IS
DISSATISFIED WITH THIS ORDER MAY, NOT LATER THAN SIXTY (60) DAYS
AFTER THE MAILING DATE OF THIS ORDER, PETITION FOR JUDICIAL
REVIEW AS PROVIDED IN ORS 183.480.



	Entered at Portland, Oregon on MAR 12, 1991 



				WORKERS COMPENSATION BOARD

				James P. Leahy

				Referee