BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91065

		Plaintiff		)  CITATION NO. E478700191

OR GROCERY STORES, Defendant		)  OPINION AND ORDER



	Pursuant to notice, the above matter came before Referee Black
in Eugene, Oregon, on June 21, 1991. Plaintiff was represented
by its attorney, Norman Kelley, an Assistant Attorney General
with the Oregon Department of Justice. Greg Abel, Director of
Loss Prevention, appeared on behalf of the defendant employer.
The proceedings were reported by Paula Cotrell Shirey. The
record closed at hearing.



                          ISSUE



	Is the employer subject to a $750 penalty for violation of OAR
437-67-215(1)?



                    FINDINGS OF FACT



	The employer has appealed a citation issued October 26, 1990,
imposing a $750 penalty for violation of OAR 437-67-215(1).



	On October 4, 1990, an OSHA compliance officer at the agency's
Eugene office received a telephone call from an individual
identifying himself as the parent of a young adult employed at
the employer's headquarters store on Willamette Street in
Eugene. The individual further related that his daughter had
been electrically shocked the night before by equipment in the
meat department and, although not seriously injured, had been
taken to a local emergency room as a precaution.



	The compliance officer promptly visited the store. She was
accompanied into the meat department by the store owner, Mr.
LeRoux; the store manager; and Mr. Abel, who was present at
hearing.



	The appliance in question, an older model Hobart meat slicer,
was located on a stainless steel counter in a clean and
well-kept area. The floor of the room was damp from being washed
down the previous night. The appliance was plugged into an
ordinary receptacle adjacent to it on the wall by means of a
standard, heavy duty cord. The slicer is a steel, box-like
object perhaps 18 or 20 inches square and not quite so high. The
facing portion is sloped away from the user, and there is an
area where a sliding device that holds the food being sliced
passes across a blade.



	The unit's cord exits from the unit on the side at the rear.
The cord did not have a proper bushing or other protective
device on it as it passed through the side of the unit, and this
fact was evident to visual inspection. There was no evident
damage to the cord and no bare wires visible to inspection from
a few feet away. However, just inside the steel shell of the
unit the cord was frayed and the wires separated. When the cord
was disturbed at the plug, it shorted. When, in the presence of
the compliance officer, the store owner reached to unplug the
machine, he received a substantial shock, sparks flew out and
smoke rose in the air.



	The Hobart slicer was immediately taken out of service and
repairs ordered. Store management was heretofore unaware of the
condition of the machine and of its propensity to short out.
There had been no employee complaints.



	The compliance officer deemed citation of the employer under
these circumstances to be mandatory. The potential for injury
due to the conditions observed was rated moderate, based on a
worn cord and a damp floor. The severity of an accident, should
one occur, was deemed to be severe to fatal, even though only
110 volt current was involved. A $750 penalty was assessed based
on the agency's resolution matrix where, based on a medium
probability of occurrence and a potentially fatal result, a
$1,500 penalty was indicated. The employer was required to pay
half the matrix amount because the hazard was fixed immediately
and because the employer had an impeccable safety record with no
injuries over thousands of worker hours. A 20%, and then an
additional 30%, reduction was effected as a result.



	The employer had been relying on a service contract for the
maintenance of this and other equipment in the meat department.
It conducted no additional investigation or examination of the
equipment from time to time. It does maintain a policy that
encourages employee concern about safety and encourages
employees to report safety problems immediately upon discovery.



                     FINDING OF ULTIMATE FACT



	The employer's Hobart meat slicer was not free from a
recognized hazard likely to cause death or serious harm when
inspected on October 4, 1990.



                  CONCLUSION OF LAW AND REASONING



	The employer resists this citation and penalty based on lack of
knowledge of the hazard, its excellent safety record, and store
policies requiring workers to report dangerous conditions upon
discovery.



	This case involves the application of a general provision
within the electrical code. The rule is entitled: "Examination,
Installation, and Use of Equipment." 437-67-215(1) states:



	"Examination. Electrical equipment shall be free from
recognized hazards that are likely to cause death or serious
physical harm to employees."



	The rule continues: "Safety of equipment shall be determined
using the following considerations" and lists a series of items
including the mechanical strength and durability of equipment,
its insulation, its potential to heat while in use and other
factors including listing and labeling equipment as may be
appropriate. (OAR 437-67-215(1)(a) through (g) & (2); Ex. 721).



	The employer argues that what is meant by "recognized" is
unclear and that a fair construction of this provision is that
the defect must be a recognizable, identifiable or visible
hazard, thus imposing something akin to a knowledge requirement
as a precondition to the levying of a sanction. OROSHA responds
that a fine is assessable on any condition that could or should
have been recognized in the exercise of reasonable diligence and
that OAR 437-67-215 merely imposes a reasonable inspection
requirement the rationality of which is manifest in cases of
this type.



	I reiterate the designation of the rule as a provision
requiring examination and inspection. I agree that there is a
duty of inspection imposed. This is not a duty to pull apart
equipment that gives no indication of problems. However, an
unprotected cord exiting through a metal encased appliance is a
"recognized hazard" and one amenable to discovery upon visual
inspection. Moreover, where the problem is such that anyone who
touches the cord receives unmistakable indications of a defect,
compliance with a requirement of ordinary care to inspect the
premises simply has not occurred. I conclude that it is
appropriate to hold the employer to a violation of this
provision. The employer should not rely on employee complaints
in this connection. There are reasons beyond the employer's
control why they may not be made in a timely fashion.



	The assessment of the penalty is largely a matter of expertise.
Deference to OROSHA's assessment of the probability and severity
factors is indicated in the absence of persuasive countervailing
evidence. To conclude that there was a moderate probability of
injury based on these conditions is generous. The referee cannot
say that a fatal injury cannot result from 110 volt electric
current. The factors used in assessing the initial penalty are
not disturbed. OSHA's application of a 20% and a 30% reduction
factor is likewise within the sound discretion of the agency to
apply as it did.



	Other matters listed in the citation of October 26, 1990, were
not the basis for any additional penalties and were not,
therefore, before the referee on review. I have not adverted to
any of those matters in my analysis of this violation and
penalty.



                            ORDER



	THEREFORE, IT IS ORDERED THAT:



	The Oregon Occupational Safety and Health Division's citation
No. E478700191 is affirmed.



	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
183.482.



	Entered at Eugene, Oregon AUG. 13 1991 



				WORKERS COMPENSATION BOARD

				By Bruce K. Black Referee