BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &

 Health Division			)  Docket No: SH91153

					)  CITATION NO J851902291

		PLAINTIFF		)

JOHN ARNOLD COMPANY			)

		DEFENDANT		)  OPINION AND ORDER



	Pursuant to notice, a hearing was convened and closed on
October 9, 1991, in Portland, Oregon, before the undersigned
referee.  The plaintiff, Oregon Occupational Safety and Health
Division ("OR OSHA"), was represented by Ms. Armonica Gilford. 
The defendant, John Arnold Company, did not appear.  Exhibits 1
through 9 were received in evidence.  The hearing was recorded
by Harris Reporting.



                        PRELIMINARY MATTER



	Neither the employer nor an attorney on its behalf appeared at
the hearing.  Appearing, however, was an employee of the
employer, Mr. Bill Kuel.  Kuel stated that the employer wished
him to represent it.



	The fact finder inquired of Kuel concerning the employer's
compliance with OAR 438-85-431(3).  Kuel indicated that he did
not have a writing from the employer, which designated him as
its representative.  Accordingly, the fact finder ruled that
Kuel was not an authorized representative under OAR
438-85-431(3).



                             ISSUE



Whether Citation No. J851902291 was appropriate.



                        FINDINGS OF FACT



	On April 16, 1991, Ms. Kathryn Jernstedt, as Safety Compliance
Officer, inspected the employer's work site.  The work site
consisted of two excavations, which were located at 8th Street
and Willamette Falls Drive.   The excavations were approximately
five feet and seven feet deep.  Specifically, the employer was
installing and repairing valves in a water main.



	Two employees were at the work site.  The work site extended
out into the middle Willamette Falls Drive.  The workers were
exposed to public vehicular traffic.  Neither of the workers
were wearing warning vests, reflective clothing, or other
high-visibility clothing.



	Given that the work site was not located at a main
thoroughfare, the probability of an accident was low.  If an
accident had occurred, however, it would likely have resulted in
crushed bones.



	One of the employees was the foreman.  The foreman was not
aware that he was required to inspect the excavations for
hazardous conditions.  An inspection had not taken place.  There
was a low probability of a cave-in.  If a cave-in had occurred,
it would likely have resulted in crushed bones.



	Neither of the employees in the excavations were protected from
cave-ins by a protective system.  The sides of the excavations
consisted of soil; not entirely rock.  Exs. 7-5 thru 7-7.



	When Jernstedt arrived at the work site, there was no stairway,
ladder, or other means of egress from either of the excavations.
  The probability of an accident was low.  If an accident had
occurred, it would likely have resulted in bruises and sprains
to the employees.  The employer installed adequate egress before
completion of OR OSHA's inspection.



	No employee at the work site had a valid certificate in first
aid training.  Although the foreman had a certificate, it was
expired.  The nearest hospital was approximately five miles
away.  Inasmuch as the foreman had been trained in first aid,
there was little probability that this violation would result in
an accident or pose an increased health risk if an accident had
occurred.



	The work site blocked one lane of traffic on Willamette Falls
Drive.  Although some cones were placed around edges of the
excavations, they provided little advance warning to vehicular
traffic.  They were not adequate or appropriate traffic
controls. This was a repeat violation.  Ex. 5.   Because traffic
was moving slowly, however, there was a low probability of an
accident.



                    ULTIMATE FINDINGS OF FACT



	Each of the Items provided in the Citation are supported by the
weight of evidence.  The penalty assessments are correct and
appropriate.



                       CONCLUSIONS OF LAW



Item 1-1



	29 CFR 1926.651(d) requires employees exposed to vehicular
traffic to wear warning vest or other reflectorized or
high-visibility garments.  Neither of the two employees were
wearing such garments.



	Accordingly, I conclude that 29 CFR 1926.651(d) was violated. 
The $120 penalty was correct and appropriate.



Item 1-2



29 CFR 1926.651(k)(1) requires that excavations must be inspected by a competent person. here, neither of the employees were aware that the excavations needed to inspected for hazardous conditions. Moreover, an inspection and not taken place.
Accordingly, I conclude that 29 CFR 1926.651(k)(1) was violated. The $150 penalty was correct and appropriate. Item 1-3
29 CFR 1926.652(a)(1) requires a protective system in excavations to prevent a cave-in. Here, there was no protective system and the exceptions for a lack of such a system, do not apply.
According, I conclude that 29 CFR 1926.652(a)(1) was violated. The assessment of $120 penalty was correct and appropriate. Item 3-5
29 CFR 1926.651(c)(2) requires some form of egress from excavations, which, as here, are deeper than four feet. Here, at the outset of the inspection, no such form of egress existed. Before the inspection was completed, the employer complied with the rule.
Accordingly, I conclude that 29 CFR 1926.651(c)(2) was violated. No penalty was assessed because the employer complied with the rule before the end of inspection. Item 3-6
In the absence of a reasonably accessible medical facility or a physician, 29 CFR 1926.50(c) requires an employer to provide a person certified in first-aid at the work site. Here, no employee at the work site had a valid first-aid certificate. Moreover, the nearest medical facility was five miles away and no physician was at the work site.
Accordingly, I conclude that 29 CFR 1926.50(c) was violated. No penalty was assessed, because the foreman had been trained in first-aid. Item 2-4
OAR 437-3-420(1) requires adequate and appropriate traffic controls, when workers are exposed to vehicular traffic. Here, some cones were placed around the edges of the excavations. The cones provided no advance warning to vehicular traffic and did not control traffic flow.
Accordingly, I conclude that OAR 437-3-420(1) was violated. The assessment of $300 penalty was correct and appropriate. ORDER IT IS THEREFORE ORDERED that Citation No J851902291 is upheld and approved in its entirety. NOTICE TO ALL PARTIES; You are entitled to judicial review of this Order. Proceedings for review are to be instituted y filing a petition in the Court of Appeals, State Court Administrator, Record Section, 1163 State St, 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 IRS 183.482. ENTERED at Salem, Oregon on NOV. 8 1991 WORKERS COMPENSATION BOARD KIRK L. SPANGLER