THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91191

	 Plaintiff			)

	vs.				)  CITATION NO. W465703491



Pursuant to notice, a hearing was convened in Eugene, Oregon, on
November 22, 1991, before Referee Black. The proceedings were
recorded by Debbie Bartholomew for Business Support Services.
The Oregon Occupational Safety and Health Division was
represented by Armonica Gilford, an Assistant Attorney General
with the Oregon Department of Justice. Ben Otjen, Plant Manager
was present on behalf of the employer.


Did the employer file a timely request for hearing with respect
to citation No. W465703491?

                         FINDINGS OF FACT

The citation in question was served July 25, 1991, by certified
mail and received by the employer on July 26, 1991. The
twentieth day following receipt of the Citation was August 15,
1991. On August 14, 1991, the employer mailed a Request for
Hearing to the Occupational Health and Safety Division at a
Salem address. The envelope was postmarked August 14, 1991. It
was received by mail in the Business Services section of the
Division on August 16, transported to the Fiscal section, and
stamped received on the same date. (See Ex. 5).


The employer's Request for Hearing was not filed within 20 days
after receipt of the citation as required by ORS 656.078(1) &


For this case to go forward to the merits of the employer's
appeal of the Citation,a timely Request for Hearing must have
been perfected. ORS 654.078. The statute requires that the
request be filed "within 20 days after receipt of the citation."
Administrative Rule, OAR 437-01-015(28) defines "filed" within
the meaning of ORS 654.078 as the receipt any office OROSHA or
the Hearings Division.

The referee declined initially to dismiss this case because it
was not clear from the documentation before him whether the
employer was actually late. Testimony of the Division's witness,
Ms. Baker, indicates that the receipt stamp appearing on the
request for hearing of August 16, 1991, does represent the
actual date of receipt of the document by OROSHA. The
presumption cited by the referee in the interim order of
November 8 is insufficient to salvage a timely receipt date of
the employer when set alongside this testimony.

The employer argues that the same rules as apply to the filing
of Federal income tax returns should apply here. That is a
perfectly reasonable argument, but one that is rebutted by cases
in the materials supplied by OROSHA. See In Re Wagner's Estate,
182 Or 340 (1947); Neet v. Compensation Department, 244 Or 331
(1966). The employer does not argue that the Administrative Rule
defining "filing" is an inappropriate construction of the 20 day
statutory requirement.

There are very limited circumstances in which the question of
"good cause" for a late request for hearing may be pursued
pursuant to subsection (4) of ORS 656.078, and are not involved
here. Accordingly, the request for hearing is late and the
employer has not, in essence, met the statutory requirements for
admission to the hearing process.


THEREFORE, the employer's request for hearing filed August 16,
1991, with respect to citation W465703491, 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 Eugene, Oregon JAN 17 1992 


				BY Bruce K. Black