THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH91033

	Plaintiff			)  Citation No: K150302091


	Defendant			)  OPINION AND ORDER

	Pursuant to notice, a hearing was held in the above matter on
May 22, 1991, in Salem, Oregon, before Referee Donna Garaventa.
The plaintiff, Oregon Occupational Safety & Health Division
(hereinafter OR OSHA), was represented by Norm Kelley. The
defendant, Standard Utilities Contractors, Inc., was represented
by Gregory C. Hansen. Caroline Thomas of Business Support
Services recorded the proceedings.

	No affected employees elected to appear as parties pursuant to
OAR 438-85-411.

	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to 654.29S and 654.991.


	Defendant has appealed Citation No. K150302091, issued by OR
OSHA on January 7, 1991, which alleges a violation of OAR
437-3-420(1) (Item 1-1), and imposes a penalty of $75.00. The
alleged violation occurred on Settlemier Avenue in Woodburn,
Oregon 97071, on November 30, 1990. The defendant disputes the
alleged violation and the reasonableness of the proposed penalty.

                        FINDINGS OF FACT

	On November 30, 1990, Helen Lenise Kilbourne, a Senior
Compliance Officer for OR OSHA of the Department of Insurance
and Finance, inspected the work site on Settlemier Avenue in
Woodburn, Oregon, where Standard Utilities Contractors, Inc. had
four employees engaged in its work operation. The company was
excavating for the installation of an underground utilities
vault. The speed limit on Settlemier at that location was 25
MPH. The pavement was wet, but the sun was shining and
visibility was good.

	As she was driving by the site, Ms. Kilbourne noticed the
flagger standing beside a sign which read, "Be Prepared to
Stop." A sign reading, "Flagger Ahead" was located more than 100
feet ahead of the flagger, near the point where another street
intersected Settlemier.

	Ms. Kilbourne stopped at the site and expressed her concern at
having the flagger standing so close to the warning sign. The
arrangement was changed immediately by the crew which presented
itself as professional and cooperative.

	As a result of the inspection, Citation K150302091 was issued,
imposing a penalty of $75.00.

	An accident resulting from improper placement of the signs and
the flagger could cause serious bodily harm if a flagger was
struck by a moving vehicle. Probability of an accident occurring
as result of insufficient warning of motorists was low.

                   CONCLUSIONS AND OPINION

	It is OR OSHA's burden to establish that the violation occurred
and that the proposed penalty was reasonable.

	OAR 437-03-420(1) requires that adequate and appropriate
traffic controls be provided for all operations on or adjacent
to a highway, street, or railway. The rule requires that traffic
controls conform to the Manual on Uniform Traffic Control
Devices for Streets and Highways, D6.le-1989.

	According to Section 6B-12 of the adopted manual, the function
of warning signs is to properly alert drivers of possible
dangers ahead in sufficient time to adjust their speed for the
hazard. Section 6B3 requires that signs be placed in positions
where they will convey their messages most effectively.
Placement must be accommodated to highway design and alignment
to provide the driver with adequate time for response. When
flaggers are used, the flagger stations must be adequately
protected and preceded by proper advance warning signs. Section

	OR OSHA alleges that, because the flagger was standing beside
the "Be Prepared to Stop" sign, sufficient advance warning to
motorists was not provided.

	The photograph identified and received as Exhibit 5, page 1,
shows the sign arrangement at the work site. The flagger, when
originally observed by the investigator, was standing beside the
closer sign which read, "Be Prepared to Stop." The sign which
appears in the distance preceded the second sign and the flagger
by more than 100 feet. The undisputed testimony was that, given
the speed limit applicable in the area and the weather and road
conditions existing at the time of the inspection, stopping
distance, allowing for reaction and stop time, was 60 to 70 feet.

	The law does not require that two warning signs be used at a
construction site. The first sign, "Flagger Ahead," located more
than 100 feet in the street in advance of the flagger, was
sufficient to adequately warn motorists of the flagger and the
construction project in the street ahead. The state has not
persuaded me that the second sign or the placement of the
flagger by that sign posed a danger to the flagger.

	I find that the placement of the "Flagger Ahead" sign and the
flagger more than 100 feet beyond that sign complied with the
requirements of the Manual on Uniform Traffic Control Devices. I
conclude, therefore, that OAR 437-03-420(1) was not violated and
that Item 1-1 in the citation was not proper.


K150302090 is set aside.

	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 Salem, Oregon MAY 31 1991


				By Donna Garaventa