THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No. SH91040

		Plaintiff		) 

		vs			)  Citation No.  C401601091


	Pursuant to notice a hearing convened May 30, 1991 in Salem,
Oregon before Referee Michael V. Johnson and was reported by
Business Support Services. Plaintiff, Oregon Occupational Safety
& Health Division (OROSHA), was represented by Assistant
Attorney General Armonica M. Gilford. The defendant/employer
Mocon Corporation did not appear, neither by designated
representative, corporate officer, nor by attorney. The record
closed at the conclusion of the hearing. No affected parties
elected to appear as parties.

	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001, 2654295 and 654.991 and ORS 656.451, occasionally
referred to as The Act.


Correctness of Citation No. C401601091

Item 1-1

	Whether the employer violated various provisions of OAR
437-03-001, in the use of a trench shield in that (1) no
manufacturer's tabulated data was available at the job site,
and/or (2) said shield system had not been designed from
tabulated data approved by a registered professional engineer,
and/or (3) said shield system had not been evaluated and
approved by a registered professional engineer.

	If the defendant violated any of the above, whether a penalty
of $75.00 was reasonable and correct.

Item 1-2

	Whether the employer violated OAR 437-03-001 29 CFR
1926201(a)(4) in that flagmen were not wearing regular orange
garments while flagging traffic at a construction site. If so,
whether a penalty of $500.00 was correct.

                        FINDINGS OF FACT

(1) The defendant is a corporation doing business within the
State of Oregon, and maintains its principal office in said
state. The defendant has a good safety record, with no serious
accidents within the past year.

(2) The defendant on November 1, 1990, was involved in a
construction project in the Beaverton-Hillsdale area near
Portland, Oregon. On said date the employer/defendant excavated
and then back filled one trench, and then it became necessary
for the defendant to move the backhoe from that site to another
site approximately a mile away. The first trench was adjacent to
a busy four-lane highway (two-lanes of traffic in both
directions), and when the employer brought in a "low boy"
trailer to transport the backhoe, said trailer was parked so as
to obstruct the outside lane of traffic. In the course of
loading the backhoe onto the low boy trailer, an employee of the
defendant stepped onto the highway to "flag" traffic and route
oncoming traffic around the low boy, . Though said "flagger" had
a bright orange sign to use in flagging traffic, he was dressed
in dark clothing. Though the weather was clear, the flagger was
not clearly visible to oncoming traffic because he tended to
visually blend in with the trees and other vegetation along the
roadside and.

	Traffic on the roadway was moderately heavy, and the
automobiles were moving at approximately 40 miles per hour.
Because of the flagger's position on the roadway, there was a
possibility/probability that he would be struck by an oncoming
motor vehicle. Because the volume of traffic was less than it
would have been at rush hour, the probability that an accident
would have occurred was low. If the flagger had been struck by
an automobile, it was likely that the injury would result in
death to the flagger.

	Senior Safety Officer, Norma Cross, advised the employer of the
potential hazard, and the hazardous condition was remedied
before Ms. Cross left the premises.

	On the same date, while the first trench was being excavated,
the defendant employer had used a metal device designed to be
installed in a trench to protect employees from a cave-in. On
the premises the defendant did not have any specific information
about the shield's construction, or the type of stresses it was
designed to withstand. Specifically, the employer did not have
available the following: (1) manufacturer's tabulated data
setting forth all specifications; (2) recommendations and
limitations issued or made by the manufacturer; (3) tabulated
data prepared and approved by a registered professional engineer
identifying the parameters that effect the selection of the
protective system; (4) identification of the limits of use of
the data or other explanatory information necessary to aid the
employer in making a correct selection of the protective system;
or (5) a copy of a design prepared in written form by a
registered professional engineer indicating the types, sizes,
and configurations of the materials to be used in the protective
system. The employer was planning to use the same trench shield
when the second trench was excavated, but was advised by Senior
Safety Officer, Norma Cross, of the hazard and said employer
then desisted from using the shield.

	As a result of the failure to have on-site information
specifying the limits of the trench shield, the employer did not
actually know whether the use of the shield earlier that day,
and the anticipated use of the shield later that day, provided
adequate cave-in protection to any employees who entered either
trench. Therefore, there was a danger that the shield would fail
to protect workers. The shield appeared to be in good physical
condition and the soil in which the trench was being dug was
relatively stable, therefore there was a low probability that an
injury would occur. In the event the injury did occur, it was
reasonably predictable that serious physical harm would come to
the injured worker.

                     ULTIMATE FINDINGS OF FACT

On November 1, 1990, the employer allowed a worker to "flag"
traffic while not wearing adequate safety clothing. On said
date, the employer also used a trench shield but did not have
necessary information on-site to allow the employer to know
whether the shield adequately protected workers who might be
inside the trench.

Applicable Law

Item 1-1


	Designs of support shield systems and other protective systems
shall be selected and constructed by the employer or his
designee and shall be in accordance with specific engineering
requirements. Regardless of whether the shield is constructed by
the employer or by a manufacturer, written specifications for
each trench shield, and limitations of each trench shield must
be maintained at the job site.

	The defendant did not have on-site specifications relating to
the trench shield he used and intended to use. As a result, the
defendant did not know whether the use of said shield protected
workers from injury stemming from an earth slide or cave-in.
There was a low probability that a cave-in would have occurred
and, further, that a worker would be injured in the event of a
cave-in, but in the event injury did occur, it was reasonably
predictable that the accident would result in serious physical
harm to any employee. The penalty schedule of OAR 437-01-145
yielded an appropriate penalty of $1,000.00. The violation was
remedied instantly, which allowed the employer a 20 percent
reduction in penalty. The employer had no such accidents during
the preceding year, which entitled the employer to an additional
30 percent deduction, therefore the appropriate penalty was

Item 1-2

	"Flaggers shall be provided with and shall wear a red or orange
warning garment while flagging." OAR 437-03-001 29 CFR

	The defendant's employee who was working as a flagger was not
wearing red or orange garments, or any other visual warning
which in any other way provided sufficient protection for the
worker. There was a low probability that the flagger would be
struck by an automobile but if an injury occurred it was
reasonably predictable that death would occur. The penalty was
properly computed by application of 437-01-145(Table 1 penalty
schedule), for a $1,000.00 penalty. The defendant was entitled
to a 20 percent reduction in penalty because the condition was
corrected immediately and the defendant was entitled to a 30
percent reduction because there had been no injuries the
preceding year. The assessed penalty of $75.00 was correct.


	NOW, THEREFORE, IT IS HEREBY ORDERED that Citation optional
report #C401601091 is AFFIRMED IN ITS ENTIRETY.

	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 Salem, Oregon, JUNE 19 1991 


				By Micheal V. Johnson, Referee