BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91010

					)             SH90175

	Plaintiff			)  Citation Nos. M607708590

					)                M607710190

THE MEAD CORPORATION, Defendant		)  OPINION AND ORDER



Pursuant to notice, a hearing was held in the above matters on
November 12, 13, 14, and 15, 1991, in Salem, Oregon, before
Referee Donna Garaventa. The plaintiff, Oregon Occupational
Safety & Health Division (hereinafter Or OSHA), was represented
by Norm Kelley, Assistant Attorney General. The defendant, The
Mead Corporation, was represented by Joseph D. Robertson. The
proceedings were recorded by Marlene Cromwell of Business
Support Services. The record was closed on July 14, 1992,
following receipt of written closing arguments.



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 654.295 and 654.991.



This was a long and complicated case. The hearing took almost
four days to complete, resulting in a record of approximately
2,000 pages of transcript and documentary evidence. Both parties
were exceptionally well-prepared and well-organized and their
clear and thorough closing arguments were particularly helpful.



Prior to convening the hearing, the parties and the referee made
an on-site inspection of the facilities located at 2800 Pringle
Street, Salem, Oregon, the site involved in the two citations in
this case. The intended purpose of the inspection was to
familiarize the referee generally with the facilities involved
in the citations.



                         EXHIBITS



Under Citation No. M607708590, Exhibits 1 through 32 and 5A were
received into evidence. Under Citation No. M607710190, Exhibits
1 through 9 were received into evidence.



                          ISSUES



Under Citation No. M607708590, defendant contests Items 1-1,
1-2, 1-3, 1-5, 1-6, 1-7, 1-9, 2-11, 2-12, 3-13, 3-15, 3-17,
3-18, and 3-19. Defendant concedes that the violations in Items
314 and 316 occurred and that the proposed penalties are
reasonable. Defendant concedes that the violations described in
Items 1-8 and 1-10 occurred, but contends that they should be
combined to constitute one violation and one penalty. At
hearing, Plaintiff withdrew Items 1-4 and 2-12.



Defendant challenges Item 1-1 of Citation No. M607710190,
alleging that the violation did not occur, that the
classification of serious is incorrect, and that the proposed
penalty is excessive.



                       FINDINGS OF FACT



On March 17, 1990, Lorelei Bickell, an employee of The Mead
Corporation, a paper products plant, sustained an injury to her
right hand when she engaged in an unsafe practice. Specifically,
she placed her finger between a stack of paper and the ram, the
point of operation on the Wills 1 machine, to straighten a sheet
of paper. While her hand was in that position, her partner
jogged the machine, resulting in the amputation of the top of
the third finger of Bickell's right hand.



Don Giesbrecht, Bickell's partner, took Bickell to the
supervisor's office. Giesbrecht left claimant in the office and
returned to his work station. Smith, the supervisor, saw
claimant in the office and immediately prepared to take her to
the hospital emergency room. Bickell told Smith that she was not
in much pain. Smith, utilizing his training, declined to have
the wound unwrapped to look at it. Aware of recent contract
negotiations between the union and the company to change medical
facility providers, Bickell asked whether she should be taken to
the West Salem Medical Clinic rather than Salem Hospital. Smith
inquired and was told to take Bickell to the hospital emergency
room. The two left for the hospital.



When Giesbrecht arrived back at his work station, he discovered
the tip of Bickell's finger and immediately returned with it to
the supervisor's office. However, Smith and Bickell had already
left for the hospital.



At the hospital emergency room, Bickell's finger was examined
and she was directed to Dr. Carter's office, a short walk from
the hospital, where she was treated.



On April 10, 1990, in accordance with a new company policy to
tighten safety in the plant, Bickell was given a written
reprimand for engaging in an unsafe practice. Angry at receiving
the reprimand, Bickell threatened to make trouble for the
company if the reprimand was not withdrawn. The company refused
to withdraw the written reprimand.



Three days later, Bickell filed a safety complaint with Or OSHA.
That complaint prompted an inspection on April 19, 1990, by John
Murphy, then a senior safety compliance officer with Or OSHA. At
the time the complaint was filed, Murphy was unaware of
Bickell's reprimand. Or OSHA is cautious in reacting to
complaints of disgruntled employees, as it has found the
majority of such complaints to be unfounded. However, in this
case, the fact that an injury had occurred suggested to Murphy
that the complaint had merit.



The inspection was converted to a general inspection and further
inspection was done on the following day. The alleged violations
in Citation No. M607708590, issued on July 23, 1990, resulted
from that inspection.



Bickell's complaint regarding the written reprimand was
successfully resolved under the union grievance procedure.



Sometime after the Bickell complaint, employee Marvin Swenson
received a written reprimand from the company for allegedly
engaging in an intentional unsafe act. Specifically, Mr. Swenson
had intentionally placed his hand in the Wills 2 machine to
cause injury. Swenson filed a complaint with Or OSHA for alleged
safety violations. However, the allegations in his complaint to
Or OSHA were subsequently dismissed as without merit.
Nevertheless, an inspection resulting from that complaint
occurred on May 18, 1990, resulting in Citation No. 607710190,
issued July 2, 1990.



The first aid station at The Mead Corporation is located in the
supervisor's office. The first aid cabinet is fully stocked and
all employees know of its existence and availability in case of
injury.



The Mead Corporation has a safety committee charged with
addressing safety concerns of employees on the job. Employees
are encouraged to report problems, and inspections are conducted
monthly to identify problems. The Mead Corporation also has a
standing committee made up of elected and appointed employees
who represent the union on matters involving the welfare of the
employees. Prior to the Bickell incident, no employee had ever
reported a problem with machine guards to either the safety
committee or the standing committee.



               CONCLUSIONS AND OPINION



Or OSHA has the burden of proving, by a preponderance of the
evidence, that the alleged violations occurred and that the
proposed penalties are reasonable.



The investigations involved in this case included inspection of
a large operation with specialized equipment. Murphy, the Or
OSHA investigator, did not understand the intricate mechanics
involved in the structure and operation of each machine.
Consequently, in determining whether the equipment and its
operation were safe, he was forced to rely on the statements of
company personnel who were familiar with the machines.
Motivation of the sources is critical in determining the weight
to be given their representations.



The safety complaints precipitating each investigation in this
case were lodged by active union members. However, all Mead
employees are members of the union, and union affiliation was
not a motivating factor in the filing of the safety complaints.
At most, union affiliation and participation was a vehicle
Bickell and Swenson used in their campaigns against the
management because of their anger over being cited for allegedly
violating the company's safety policy.



In this case, Murphy relied heavily on the representations of
Lorelei Bickell and Don Giesbrecht. At the time of the
inspection, however, he was unaware of their bitterness toward
the employer and their motivation for initiating the complaint.
This unquestioned reliance on their statements caused Murphy to
cut his investigation of several alleged violations short.
Consequently, I find that several of the alleged violations were
based on incomplete and inaccurate information.



Several employees and management personnel testified at hearing.
The following discussion of each allegation, and the conclusions
are based on an evaluation of all of the documentary and
testamentary evidence presented at hearing.



Item 1-1



OAR 437-02-240, 29 CFR 1910.212(a)(3)(ii) requires guarding of
the point of operation of machines whose operation exposes an
employee to injury in such a way that the operator is prevented
from having any part of his or her body in the danger zone
during the operating cycle.



At the time of the injury, there was no metal guard on the Wills
1 machine to prevent a worker from placing a hand in the machine
at the point of operation where an injury could occur. A
removable guard was placed on the machine on the day following
the injury.



Estoppel 1



Defendant initially argues that Or OSHA is estopped from
asserting a violation of this machine because it did not cite
the company in two prior inspections of the plant.



Estoppel is a valid defense in cases in which there is a false
representation made with knowledge of the facts of which the
other party was ignorant, which was made with the intention that
it should be acted on by the other party, and the other party
was, in fact, induced to act on the false representation.
Bennett v. City of Salem, 192 Or 531 (1951). Silence can be the
basis for a claim of estoppel if there is a legal duty to speak.
Coos county v. State of Oreqon, 303 Or 173, 189 (1987).



I do not find that the factors necessary for a finding of
estoppel have been established. Although its failure to cite for
an unsafe practice during the two prior inspections might be
construed to be a false representation, I do not find that the
representation was made with knowledge of the facts and that Or
OSHA intended to have The Mead Corporation act on the
misrepresentation. At most, the state could be found to be
negligent for not citing the company earlier, if a violation
did, in fact, occur. Negligent acts of an officer of the state
are not grounds for a finding of estoppel. Rohde v. SIAC, 108 Or
426, 433439 (1923).



Murphy's observation of the machine on the date of the
inspection was superficial, as demonstrated by his testimony at
hearing. His citation was based on the representations of
Lorelei Bickell and Don Giesbrecht, who told Murphy that the
machine was unsafe.



Lee Hopson, a former inspector in industry for Or OSHA and a
safety consultant, has been at the plant on at least four
occasions and observed the Wills 1 machine. Hopson described the
point of operation on that machine as recessed inside the
machine and approximately ten feet from the employee's work
station. This testimony was not rebutted. For those reasons,
Hopson believed that a citation for failure to provide a guard
at the point of operation was improper.



I conclude that Hopson's testimony establishes that the point of
operation was located such that the operator was not in the
danger zone during the operating cycle. The injury occurred
during a jog cycle of the machine when the worker was away from
her work station. I conclude, therefore, that the violation
alleged in Item 11 in Citation No. M607710190 has not been
established.



Item 1-2



OAR 437-127-030 requires the employer to establish an emergency
medical plan to ensure the rapid provision of medical care to
employees with major illnesses and injuries. Here, the company
was cited because the emergency medical plan was alleged to be
ineffective due to the confusion of where immediate medical care
was to be administered.



In determining that there was an unwarranted delay of 5 to 20
minutes in obtaining medical services, Murphy relied on the
representations of Lorelei Bickell and Don Giesbrecht. His
understanding of the circumstances and his conclusion, however,
were not verified by Bickell or by Giesbrecht at hearing.



Bickell admitted that it could have been five minutes before
they left. Giesbrecht testified, contrary to Murphy's
understanding, that he did not remain in the office after he
accompanied Bickell there. Thus, he had no idea how long it took
for Smith and Bickell to leave for the hospital, except that the
pair had left for the hospital by the time Giesbrecht went back
to his work station and returned to the supervisor's office.
Murphy never interviewed Smith to determine his estimation of
the time between the injury and the time he left to take Bickell
to the hospital.



When Smith first saw Bickell following the injury, Bickell
reported that she had cut her finger and that she did not have
much discomfort. Smith prepared to take Bickell immediately to
the Salem Hospital, which was his understanding of the medical
plan under the company policy. However, Bickell inquired as to
whether she should instead be taken to West Salem Medical
Clinic, and, judging Bickell to be in no apparent acute
distress, Smith checked on her inquiry. Bickell was at the
hospital within 30 minutes of the injury, as required under OAR
437-127-030.



Following an initial evaluation in the emergency room, Bickell
was allowed by hospital personnel to walk to the doctor's office
for treatment. This concerned Murphy and was a factor in his
citing for this violation. However, both the treating physician
and a representative from the West Salem Medical Clinic, agreed
that the procedure was appropriate under the circumstances.



I find that, under the circumstances of this case, the plan in
effect rapidly provided the needed medical care as required by
the administrative rule. I conclude, therefore, that Or OSHA has
not established the violation as alleged.



Item 1-3



OAR 437-02-240, 29 CFR 1910.219(f)(3) requires all sprocket
wheels and chains to be enclosed unless they are more than seven
feet above the floor or platform. Murphy cited The Mead
Corporation for a violation of this rule, alleging that there
were two unguarded chain wheel drives on the RA2 envelope
machine.



Again, defendant argues that the estoppel defense should apply
to this situation. As before, I do not find that Or OSHA has
knowingly misrepresented any fact to The Mead Corporation with
the intention of inducing The Mead Corporation to act to its
detriment. Thus, I do not find that the defense of estoppel can
be successfully asserted here.



The envelope machine contains two chain drives located less than
seven feet above the floor in which there are no dedicated
guards over the in-going nip points. The nip points are recessed
within the machine, are partially guarded by the equipment
itself, and are not at the machine operator's working area or
zone. However, complete enclosure is not accomplished and I find
that that is technically required by the rule. Thus, I conclude
that Or OSHA  established a violation.



Murphy assessed the probability of an injury occurring as a
result of the violation as high, because people walking by could
get their clothing caught in the machine and maintenance people
who work on the machine could suffer an injury. He estimates
that serious physical harm could result from an injury. Thus,
under the penalty schedule in Table I of OAR 437-01-145, a
penalty of $1,200 was proposed.



Based on the location of the chain drives, the fact that the nip
points are partially guarded, and on the absence of a history of
accidents resulting from this condition, I find the probability
of an injury occurring as a result of this violation to be low.
After an explanation of the operation of the machine, I
determine the severity of potential injury to be moderate as
defined in OAR 437-01-140(1) (b).  Under the penalty schedule in
Table I of OAR 437-01-140, and the formula explained by Murphy
at hearing, the penalty is $60.



Item 1-4



This item involved an alleged violation of the administrative
rule requiring employees to lock out a machine before servicing
the equipment. The alleged violation involved the Wills 2
machine. Or OSHA withdrew this citation and the associated
penalty because there was no hazard to a worker servicing the
machine without it being locked out.



Item 1-5



OAR 437-40-050(1) requires each employer to investigate all lost
time injuries to determine the means that should be taken to
prevent recurrence and to take the corrective measure indicated
or advised.



Murphy relied on statements by employees that no investigations
had taken place. He did not ask management if they had indeed
conducted such investigations, however. Paul Montagne, the plant
operations manager, is the person in the best position to know
if investigations had been conducted. He testified credibly that
he investigates every timeloss accident.



Regarding corrective measures, a study of cumulative trauma
disorders in the workplace is being conducted by the parent
company. The results of that study will be applied to the entire
company. In addition, contrary to Murphy's understanding, the
Salem plant of The Mead Corporation does have a safety policy
dealing with carpal tunnel syndrome. Under that policy, all
workers have been shown films discussing the causes and
prevention of the condition. In addition, The Mead Corporation
contacted various physicians and medical facilities to enlist an
expert to educate the employees about the disorder, its causes,
its correction, and its prevention. Finally, an ergonomics study
was performed at the Salem plant, following which the majority
of its recommendations were implemented. Job rotation, the
suggested preventative measure which had not yet been employed
at the time of hearing, was resisted by the union and was being
addressed in contract negotiations between the union and the
management. Murphy did not discuss the situation with the plant
manager and was not aware of these measures.



I find the evidence to establish that the company has
investigated timeloss injuries and has made commendable efforts
to investigate conditions in the workplace which could cause
cumulative trauma disorders. The company has implemented
procedures to alleviate those claims in the future. The citation
for that violation was unwarranted.



Item 1-6



OAR 437-40-030(2)(d) requires the employer to take all
reasonable means to require employees not to remove, displace,
damage, destroy, or carry off any guard provided for use in any
employment or place of employment while such use is required by
applicable safety and health rules. Item 16 alleges a violation
of this rule, charging that an employee removed a guard and
defeated the safety cut off switch on the shrink wrap machine.



ORS 654.020(1) prohibits any person from removing, displacing,
damaging, destroying, or carrying off any safety device or
safeguard furnished and provided for use in any employment or
place of employment, or interfering in any way with the use
thereof. ORS 654.020(2) requires the assessment of a civil
penalty if an employee is injured as a result of a violation of
that provision. ORS 654.020(3) exempts from the imposition of a
civil penalty, however, injuries sustained as a result of repair
or maintenance work necessitating removal or the rendering
inoperative of a safety device or safeguard.



In this case, the testimony of Burleigh, who was the adjuster
and not the operator of the machine as Murphy mistakenly
thought, establishes that Murphy misunderstood Burleigh's
explanation concerning the operation of the machine, the various
safety devices utilized, and the facts surrounding the
depressing of the guard on the shrink wrap machine.



As explained by Burleigh, the guard was depressed only while the
machine was being adjusted. This was required because, in
adjusting the machine, both hands were otherwise occupied.



Burleigh's testimony was corroborated by that of Paul Montagne,
the plant manager, and by Dorothy Tyler, an employee who has
operated the shrink wrap machine. Tyler testified that she has
never operated nor has she seen anyone operate the shrink wrap
machine with the vision guard up during production.



Defendant also claims that, even with this guard up, it was
impossible to get the burns Murphy claims because there were two
other guards in place to prevent it. Murphy was not aware that a
metal guard surrounds the wire.



I interpret the cited statutory provisions to excuse the
depression of the safety device during adjustment of the machine.



I find that the machine was not operated in a production mode
with the guard up, but only while the machine was being
adjusted. Further, I do not find, in light of the other guards
in place, that Or OSHA has established that the referenced guard
was required by the safety and health rules to prevent injury. I
conclude, therefore, that the violation did not occur as alleged.



Item 1-7



This citation involves oil on the floor around the stitcher
machine in violation of OAR 437-40-065(3), which requires that
slipping hazards be removed immediately or suitable means be
used to control the hazard.



Murphy was under the impression that the oil on the floor was a
constant problem and that no corrective action had been taken.
During his inspection, Murphy did not talk to anyone from the
maintenance department to find out if any corrective action had
been taken. Rather, he based his opinion that it had not on an
interview with an unidentified employee. Dorothy Tyler, an
employee who has worked on the machine, testified contrary to
the facts Murphy understood. Based on her testimony and on that
of the maintenance person, the problem was always corrected
immediately when reported. After several months and constant
pressure from management to correct the recurrent problem, the
failed plastic line was replaced by a copper line, and the
problem did not return.



I find that the employer made sufficient efforts to remove the
hazard when it occurred and provided suitable means to correct
it. Thus, no violation of OAR 437-40-065(3) occurred.



Items 1-8 and 1-10



OAR 437-02-368(1) requires that asbestos which has become
damaged or deteriorated be repaired, enclosed, encapsulated, or
removed in accordance with the applicable administrative rules.
OAR 437-153-010(2) requires pipes which use asbestos as
insulation be labeled in accordance with the rules.



Defendant concedes that both rules were violated, but requests
that the two violations be consolidated and only one penalty
imposed. Or OSHA argues that there are two separate rules, one
which requires removal of asbestos and another which requires
labeling of the remaining pipes which contain asbestos.



The Mead Corporation did have an asbestos removal company remove
the majority of the asbestos in the plant. Some asbestos was
allowed to remain, however, and Murphy observed pipes with
exposed asbestos. The exposed asbestos violated OAR
437-02-368(1). The pipes which contained the exposed asbestos
were not labeled and the asbestos was not identified. That
violates OAR 437-153-010(2).



I find that two separate violations have been established, which
requires the imposition of separate penalties under the rules. I
further find that Murphy's assessment of a low probability of
serious physical harm was appropriate, resulting in a penalty of
$150 for each violation.



Item 1-9



OAR 437-02-368(2) and CFR 1926.58, Appendix G requires the
employer to establish an asbestos maintenance program to survey
what asbestos is on the premises and to maintain it properly.



The Mead Corporation engaged a company to survey the premises
and to remove the major asbestos deposits. Not all asbestos was
removed, however, and The Mead Corporation did not present
evidence of a program in place which was directed at maintaining
the remaining asbestos properly. Based on the evidence
presented, I do not find that such a program exists, and I
conclude that the rule was violated as alleged. I further find
that the proposed penalty of $150 for a low probability of
serious physical harm was appropriate.



Item 2-11



OAR 437-40-030(2)(1) requires employers to see that workers are
properly instructed and supervised in the safe operation of any
machinery, tools, equipment, process, or practice which they are
authorized to use or apply. Or OSHA alleges that plant
supervisors knowingly allowed and even encouraged employees to
remove guards and operate the machines without the required
guards in place in violation of OAR 437-40-030(1). The
allegations made by certain employees formed the basis for the
"willful" violation and the imposition of a $5,000 penalty under
OAR 437-01-175.



At hearing, several witnesses testified to facts surrounding
this alleged violation. The testimony of the various witnesses
is conflicting. Bickell, Giesbrecht, Steve White, and Susan
Daily, upon whom Murphy and Snook relied in citing the company
for a willful violation, all testified that management either
encouraged or acquiesced in the removal of guards in order to
enhance production. Other employees, however, including Lee
Rich, Marvin Swenson, and Steve Burleigh, testified that the
company's policy was to require the use of guards and to cite
employees for failure to follow the policy. All management
personnel who testified with respect to this allegation denied
knowledge of any practice of running machines without guards and
stated that the company policy was against such practice.



In determining the credibility of the witnesses' testimony, I
find that evidence of their motives is relevant.



Bickell admitted that her anger over the reprimand for a safety
violation prompted her to contact Or OSHA in the first place.
She had warned the company that she and the union would make
trouble if the reprimand was not withdrawn. Bickell, Giesbrecht,
White, and Daily are social friends as well as active union
members. I find that they had sufficient motive to color the
facts. I found nothing in the record or about the demeanor of
Lee Rich, Marvin Swenson, and Steve Burleigh to indicate that
they had a motive to misrepresent the facts or that they were
being untruthful.



Murphy relied on the Bickell and Giesbrecht allegations and
either disregarded the statements of others or simply did not
inquire. Snook's recommendation and subsequent review of the
citation and the classification of willful is likewise not
persuasive. His recommendations were based on the same biased
and incomplete information as Murphy used.



I accept the testimony of those witnesses who, by their
demeanor, appeared credible, and who did not demonstrate a
motive to fabricate their testimony. I find that supervisors and
management personnel did consistently remind employees to put
the guards down, and that management did not encourage or
acquiesce in the practice of operating machines with guards up.



I conclude, based on all of the evidence presented, that the
violation did not occur as alleged.



Item 2-12



This item was combined with Item 2-11 and was, therefore,
withdrawn by Or OSHA as a separate item.



Item 3-13



OAR 437-67-240(1)(a) requires that the clear space in front of
the live parts of a machine be at least 30 inches. During his
investigation, Murphy observed a waste paper barrel sitting
within 30 inches of the main cut off switch of the envelope
machine. The rule was, therefore, violated.



Both parties agree that Murphy's rating the hazard probability
as moderate was excessive, as the barrel was empty and could be
moved easily. The probability of an injury occurring as a result
of this violation is low and the penalty will be reduced to $60.



Item 3-14



Defendant has conceded this item and that the proposed penalty
was reasonable.



Item 3-15



OAR 437-127-015(1) and (2) require that certain listed first aid
supplies be in proximity to all employees. Or OSHA cited the
company for having an incompletely stocked first aid cabinet in
the shipping room. This room is locked to hourly employees, and
all employees who testified regarding this issue stated that the
first aid cabinet they were to use was the large, easily
accessible and fully stocked cabinet in the supervisor's office.
No one testified that anyone knew that there was a medicine
cabinet in the locked shipping room or that they understood they
should use anything other than the one in the supervisor's
office. Murphy's allegation that someone could mistakenly go to
the unstocked cabinet in time of emergency and delay needed
first aid treatment is simply not probable under the
circumstances here. The administrative rule was clearly met by
the provision of first aid supplies prominently displayed in the
supervisor's office, in proximity to all employees.



Item 3-16



This item was conceded by the defendant.



Item 3-17



OAR 437-155-020(5) requires, with exceptions not applicable
here, the labeling of each container of hazardous chemicals with
the identity of the chemical and the appropriate hazard warnings.



Here, there was a one-gallon plastic jug filled with an
unidentified substance. The jug was labeled, but the label was
too faded to read. That violates the administrative rule.
However, because of appearance of the substance, its location,
and the experience of the employees, it was generally known that
it was lubricating oil. Therefore, the risk of injury was
properly assessed by Murphy as low and the penalty was
reasonable.



Item 3-18



OAR 437-01-705(1) requires that each recordable injury or
illness be maintained in a log and summary, using a Form No. 200
or its equivalent. Here, the initial Form 200 provided to the
inspector was not accurate regarding a timeloss accident.
Defendant argues that the payroll records, which were available
to Mr. Murphy, are an equivalent document which contains the
accurate information regarding time loss. Or OSHA does not
dispute this assertion. I find that The Mead Corporation
complied with the rule and that the citation was therefore
unwarranted.



Item 3-19



Item 319 cites the employer for a violation of OAR 327-01-715(a)
for maintaining an incomplete 801 form. Specifically, Murphy
says he cited the company for not filling out box number 50,
which indicates the date the injured worker returned to work.



The omission was de minimis, and I find the citation for that
violation to be unwarranted.



Citation No. M607710190

Item 1-1



Or OSHA cited the employer under OAR 437-02-240, 29 CFR
1910.212(a)(3)(ii), which requires that the point of operation
of machines whose operation exposes an employee to injury be
guarded. This citation resulted from a complaint filed by Marvin
Swenson following an injury to his hand and an inspection on May
18, 1990.



In sustaining the injury, Swenson committed a deliberate unsafe
act for which he, as had Bickell, received a written reprimand
from the company. As had Bickell, Swenson filed a complaint with
Or OSHA in retaliation. That complaint made three allegations.
Two of those allegations were subsequently found to be false and
were dismissed. With regard to the third allegation, Murphy
admitted that, even with a guard in place, a person could injure
himself by engaging in contortions as had Swenson to get around
the guard and into the machine. Thus, even a guard would not
prevent this type of accident in the future.



Murphy had inspected the Wills 2 machine in May, 1990, during
his general inspection. His citation for failing to lock out the
machine during maintenance following that inspection was
subsequently withdrawn. The citation involved here was issued
because an injury had occurred. Murphy testified that he would
cite even if it took a deliberate contortion in order for the
employee to sustain the injury. Such a retrospective application
does not accomplish the purpose of the Safe Employment Act to
provide a safe workplace and to prevent accidents in the future,
and I do not find that the statute or the administrative rules
contemplate such an application.



Considering the description of the machine and of the accident,
I do not find that the point of operation of this machine
exposes an employee to injury, requiring a guard under the
standard cited. Thus, I conclude that there was no violation of
the cited rule.



                         ORDER



	NOW, THEREFORE, IT IS HEREBY ORDERED:



1. Item 1-1 of Citation No. M607708590 is dismissed.



2. Item 1-2 of Citation No. M607708590 is dismissed.



3. Item 1-3 of Citation No. M607708590 is affirmed. The penalty
is reduced to $60.



4. Item 1-4 of Citation No. M607708590 is dismissed as withdrawn.



5. Item 1-5 of Citation No. M607708590 is dismissed.



6. Item 1-6 of Citation No. M607708590 is dismissed.



7. Item 1-7 of Citation No. M607708590 is dismissed.



8. Item 1-8 of Citation No. M607708590 and the proposed penalty
are affirmed.



9. Item 1-9 of Citation No. M607708590 and the proposed penalty
are affirmed.



10. Item 1-10 of Citation No. M607708590 and the proposed
penalty are affirmed.



11. Item 2-11 of Citation No. M607708590 is dismissed.



12. Item 2-12 of Citation No. M607708590 is dismissed as
withdrawn.



13. Item 3-13 of Citation No. M607708590 is modified to reflect
a hazard probability of low. The penalty is reduced to $60.



14. Item 3-14 of Citation No. M607708590 and the proposed
penalty are affirmed.



15. Item 3-15 of Citation No. M607708590 is dismissed.



16. Item 3-16 of Citation No. M607708590 and the proposed
penalty are affirmed.



17. Item 3-17 of Citation No. M607708590 is affirmed.



18. Item 3-18 of Citation No. M607708590 is dismissed.



19. Item 3-19 of Citation No. M60770859O is dismissed.



20. Item 1-1 of Citation No. M607710190 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
183.482.



	Entered at Salem, Oregon  DEC  4, 1992  



				WORKERS' COMPENSATION BOARD

				By Donna Garaventa, Referee