BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91154

		PLAINTIFF		)  CITATION NO D477506391

					)

NW SHAKE TILE INC DEFENDANT		)  ORDER ON RECONSIDERATION



Hearing was held in this matter on September 26, 1991.  On
October 28, 1991, an Opinion and Order issued, dismissing
Citation No. D477506391. which alleged a violation of OAR
437-03-040(1) and imposed a penalty of $1,200.



On December 27, 1991, the plaintiff filed a document which was
interpreted to be a request for reconsideration of the October
28, 1991 Opinion and Order (Exhibit A) On that day, I issued an
order abating the Opinion and Order and allowed the defendant 10
days within which to respond to the reconsideration request
(Exhibit B).



On December 31, 1991, the defendant filed a motion to vacate the
stay and an objection to the request for reconsideration.



On January 3, 1992, I participated in a conference call with
Norm Kelley, counsel for the plaintiff, and Chapin Milbank,
counsel for the defendant.  During discussions, Mr. Milbank
argued that the motion for reconsideration did not set out the
alleged error, omission, or misconstruction of a statute or rule
upon which reconsideration should be based as is required under
OAR 438-85-870(2).  It was also observed that OR OSHA did not
cmoply with OAR 438-85-545(1) by including with the motion proof
of service.



Mr. Kelley was allowed the oportunity to provide a certificate
of mailing and to file a brief in support of reconsideration.



In its brief, filed January 13, 1992, OR OSHA supplied a
certificate of mailing (Exhibit C), and noted that timely
receipt had been conceded by the defendant.  This, OR OSHA
argued, demonstrated that the omission of a certificate of
service was harmless error and that, therefore, the motion to
vacate the abatement should be denied.  I so find and hold.



Also attached to its January 13, 1992 brief, OR OSHA submitted
documents related to a 1983 citation involving the same company.
 Those documents, submitted by OR OSHA as Exhibits 5, 6, and 7,
are renumbered Exhibits 12, 13, and 14 respectively and are
hereby received.  They demonstrate that different law and
different facts than those in the present case applied in 1983
and that the disposition of that case does not affect the
decision in this one.



Finally, OR OSHA submitted evidence discovered after the hearing
and decision in this case which it claims contradicts the
testimony of teh employer at hearing.  It urges admission of the
proffered evidence and reconsideration in light of it.



In its January 22, 1992 reply, the defendant objected to the
admission of the newly discovered evidence, arguing that OR OSHA
made no showing why, in the exercise of due diligence, it could
not have made the discovery of the proffered evidence before the
hearing and offered it timely.



A review of my notes taken at hearing and of a transcript of
those portions of the hearing which I found to address  the
question of leaving the record open, shows that the record was
left open for the sole purpose of Mr. Kelley's locating and
providing documents relating to the 1983 citation.  See attached
poriton of transcript, identified as Exhibit D.



Although the evidence offered is perhaps relevant, I found
noting in the transcript of hearing to indicate that OR OSHA
would be allowed to search for and offer additional impeachment
evidence.  Further, OR OSHA has not shown why, in the exercise
of due diligence, the evidence could not have been discovered
and offered timely.



I decline to broaden the scope of rebuttal evidence beyond what
was agreed upon at  hearing.  Specifically, I will not admit the
documents pertaining to the 1987 and 1989 incidents.  That
evidence, however, submitted as Exhibits 3 and 4, is identified
as Exhibits 15 and 16, and will constitute plaintiff's offer of
proof should this matter be apealed.



                          ORDER



On reconsideration, I adhere to and republish my October 28,
1991 Opinion and Order with the above comments.



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 ourt 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 on FEB 14, 1992 



				WORKERS COMPENSATION BOARD

				DONNA GARAVENTA, Referee