THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No SH91060

	Plaintiff			)  Citation No S580800591

	 	vs			) 


	Defendant			)  OPINION AND ORDER

	This contested case under Oregon Safe Employment Act came on
pursuant to notice for hearing in The Dalles Oregon on July 11
1991 before James P Leahy Referee Armonica M Gilford represented
the Attorney General's office on behalf of plaintiff (OROSHA).
Melvin H Picking represented himself as the real property owner
and orchard rentor Jeannette Conn was the court recorder


	Defendant is charged with 20 violations of the Oregon
Occupational Safety and Health Code By one page handwritten
letter received by OROSHA on February 19 1991 Melvin H Picking
disclaimed any involvement in the migrant laborer living
quarters which were the subject of the citation He referred to
items through I of the citation (Ex 12)

	The Appeals Section of OROSHA treated this letter as an appeal
and transferred the case to Hearings by letter dated March 29,
1991. Notice for this hearing was mailed on April 19 1991


	Mr. Picking was sent listed Exhibits 1 through 8 by June 18,
1991 OROSHA cover letter   Exhibits 1 through 8 were admitted at
the hearing along with Exhibits 9, 10 and 11 the Notice of
Rights and Procedures for Contested Cases under the Oregon Safe
Employment Act pursuant to ORS 183.413 which was read to
claimant at the commencement of the hearing a sketch made at the
hearing and a 6 page May 10 1989 lease respectively. Exhibits 12
and 13 were admitted on June 24 1990, upon receipt They are a 6
page December 31 1982 lease and a cover letter with six pages of
23 check Photographs representing payment to migrant laborers by
Richard D Marsh and Sharon L Marsh Exhibit 14 is the Board
administration August 17, 189 policy letter on interpreters


	Mr Mr. and Mrs M H Picking attended the hearing they live at
4665 Chamberlin Drive a rural area outside of Odell south of
Hood River Oregon in the Hood River Valley in Hood River county
Until about 1981 they were actively engaged in fruit growing
among other things in the valley There is no evidence that they
do not own the acreage south of their residence extending some
undetermined distance varying from 500 feet to one quarter of a
mile to the first cross street to the south which is Summit

	There are three cabins located close together on this lot
inhabited by season migrant workers

	When Mr and Mrs Picking were actively farming the cabins were
kept in better condition than the evidence reveals they were at
the time of this inspection October 12 199O after the harvest
Two orchard leases reveal that the Pickings have leased this
portion of their farm land to Richard and Sharon Marsh The
Pickings had no rights in the real property other than those
agreed upon in the leases (Exs 11, 12) and nonpertinent to this
citation The leases require the tenant (lessee) to keep the real
and personal property in good order

	About the middle of October 1990 Karen Golik an OROSHA safety
and compliance officer with over 13 years' experience in that
field was sent to the Hood River area to inspect migrant ]labor
camps She was there one week She noticed the three cabins at the
intersection of Summit and Chamberlin and inquired as to
ownership from roofers across the street. She was directed to
the Gehrig residence the occupant of which residence eventually
pointed to Mr Picking across Chamberlin street who was operating
a tractor with noisy equipment Mr Picking did not cooperate with
the safety compliance officer to her satisfaction Feeling she
had been denied entry she returned to her quarters and summoned
her senior from Salem who is Tomas Schwabe He speaks both
English and Spanish They were allowed entry There was no work
going on The season was over Mr Schwabe talked with four of six
Mexican migrant laborers in Spanish From them he learned that
they did not know safety procedures or emergency procedures if
one was hurt From them he also learned that wages were good and
payment was prompt When asked who paid, they pointed toward Mr
Picking who was otherwise occupied with his farm work a number
of feet away apparently out of ear shot. There is no evidence
that Mr Picking could understand Spanish The inspection was
completed (Exs 2 ,4) Photographs were taken (Ex 5) A violation
work sheet was prepared back in the office (Ex 3) The citation
amounting to $2025 was prepared and mailed to the Pickings Mr
Picking signed a certified receipt therefor on about February 5
1991 (Ex 11O)

	The Board has a policy concerning interpreters to ensure
accuracy that could not be followed (Ex 14 ) The witnesses were
not produced

	On February 25 199] OROSHA in Salem received a copy of the
aforementioned lease (Ex 11) which included the three cabins it
was not later included in the exhibit packet prepared by OROSHA
the lease was considered by Mr Schwabe of OROSHA at least He
admitted receiving it one month after the citation and four
months after the inspection He did not pursue the matter because
in his opinion through the migrants' hearsay he had identified
the employer It was OROSHA's policy to stop at that point There
is evidence that Mr Schwabe did talk to Richard D Marsh the
lessee who was noncommittal about the lease there is unexplained
evidence that some unidentified party from OROSHA telephoned Mr
Marsh or Mrs Marsh before this hearing took place OROSHA in any
event knew of the Pickings' defense

	Since 1982 migrant pickers working on the pertinent premises
have been dealt with and paid by others than Mr and Mrs Picking
(Ex 11-13)

	The leases did not become part of the Board file until after
this hearing commenced Since 1982 Mr and Mrs Picking have not
paid migrant workers for anything (Exs 11-13)   Since 1982 Mr
and Mrs Picking have only not had custody or control of the
three cabins described in the citation, or during times
pertinent to, this citation but also contracted for their
eventual return in good repair at the termination of the leases


	According to OAR 437-147-003(5) (Ex 61) the rules applicable to
the three cabins in question on the Picking real property apply
to housing which is given to rented, or leased to or otherwise
provided to employees for use while employed and provided either
by the employer a representative of the employer or a camp
operator .

	There is no believable proof in this case who provided the
pertinent housing whether it be an employer a representative of
the employer or a camp operator The referee cannot guess or
speculate that the Marsh's or the Bashen's did There is no proof
that the Pickings fall into this category

	The citation should have been withdrawn when OROSHA was
provided with the Pickings' current lease (Ex 11) to the present
lessor of the premises

	In the alternative, OROSHA acted on untranslated, unacceptable
hearsay. Formerly, the Hearings Division used to allow the use
of interpreters simply agreed upon by the parties. Now it keeps
an approved list, not only for payment purposes, but also
"...Because we want to have more control of contractor quality,
we will no longer accept interpreters who are not already on
contract with us." (The Board's Administrator's August 17, 1989
letter). (Ex. 14.)

	This may be beside the point at hearing time, because OROSHA
did not produce the Mexican migrant workers. (OAR
438-85-825)(4).  But, Mr. Schwabe accepted the information he
received from the migrant workers who speak only Spanish. Mr.
Schwabe only claimed to be "bilingual". I will not rely on the
accuracy of his interpretation of the migrant's hearsay
statements. The information he received from the migrants is not
that which reasonably prudent persons commonly rely on in the
conduct of their serious affairs.  OAR 438-85-840(1).

	For one or more of the above reasons, since the citation was
not withdrawn, it is dismissed.


	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 AUG. O 8 1991 


				B y James P. Leahy Referee