BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &

        Health Division			)  Docket No: SH91278

	Plaintiff			)  Citation No. P679505991

TRUAX CORPORATION Defendant		)  OPINION AND ORDER



A hearing in the above captioned case was held in Salem, Oregon
on February 11, 1992 before the undersigned referee. The court
reporting service was Business Support Services. The Oregon
Occupational Safety & Health Division of the Department of
Insurance and Finance (hereinafter OROSHA) was represented by
Barry Elwell, a law student certified to appear in this case
pursuant to the Oregon Supreme Court's law student appearance
rules and pursuant to the consent of his supervising attorney,
Norman Kelley, Assistant Attorney General. The employer, Truax
Corporation, was represented by its attorney, Craig Crispin.



This is a contested case under the Oregon Safe Employment Act.
The employer has appealed a citation issued by OROSHA on July
11, 1991 which cited it for allegedly violating three standards 
OAR 437-127-015(1), 437-127-020(1), and 437-40-045(2)(a) 
promulgated by the Director of the Department of Insurance and
Finance pursuant to the Director's authority under the Oregon
Safe Employment Act (ORS Chapter 654). At the hearing the
employer advised that it was challenging Items 1-1 and 1-3 in
the citation only with respect to whether a violation occurred
and that it was challenging Item 1-2 with respect to both the
occurrence of a violation and the correctness of the penalty
amount.



Following the hearing the record was kept open for the
submission by counsel of certain case decisions pertinent to the
issues in this matter, and for the receipt of a transcript of
the testimony. The last of these materials was received on
February 27, 1992 and the record was closed at that time.



                        FINDINGS OF FACT



Truax Corporation (hereinafter, the employer) is a business
which operates retail gasoline stations at approximately 50
locations in Oregon. It has about 200 employees. It is a
closelyheld corporation. The upper management is made up of John
Truax, the owner and president, and Herbert Rowley, the
vicepresident. The employer has three area supervisors, who are
responsible for the individual stations within their area. Their
duties include hiring and firinq and carrying out the policies
of the employer.



On June 19, 1991 Jeff Pfeifer, a safety compliance officer with
OROSHA, inspected the employer's station located at 1503 N.
Riverside in Medford. In the course of his inspection Pfeifer
found that the following items were not contained in the
station's first aid kit: eight 3" x 3" gauze pads, two 8" x 10"
gauze pads, one triangular bandage, one blanket or its
equivalent, and a soap and water solution or moistened
towelettes for cleaning wounds. Pfeifer also determined that the
station had no qualified first aid person available at the site
and that no safety committee had been established at the site.



Based upon the information obtained by Pfeifer during his June
19, 1991 inspection, OROSHA issued a citation to the employer on
July 11, 1991, citing it for allegedly violating three separate
standards in the Oregon Occupational Safety and Health Code: 
OAR 437-127-015(1), 437-127-020(1), and 437-40-045(2)(a).



At the time of Pfeifer's inspection on June 19, 1991 the
employer's station on N. Riverside was located about one mile
from Providence Hospital, which has an emergency room. It takes
approximately 25 minutes to drive from the station to the
hospital.



At the time of Pfeifer's June 19, 1991 inspection the employer's
station on N. Riverside in Medford did not have both management
and workers at the site, did not have control over a portion of
the employer's budget, and did not have the ability to take
action on recommendations made by a safety committee. Rather,
the station, like the employer's numerous other stations
throughout Oregon, was a satellite location for which the
employer had established a single, centralized safety committee
to represent the safety and health concerns of the Medford
station and all other stations. The safety committee was
composed of five people: Herbert Rowley, the employer's
vicepresident; Russ Sternberg, the supervisor for the area that
included the Medford station; an employee from one of the
employer's stations in Salem; an employee from one of the
employer's stations in Corvallis; and an employee from the
employer's transportation branch (which handles the gasoline
hauling for the employer). This safety committee met every 12
months. The committee did inspections of the various stations
around the state. It also investigated accidents. About once
every quarter the committee members would go out and talk to the
various employees at the different stations. The employer's
company handbook, which each employee is required to read and
sign, contains information regarding the safety committee.
Posted next to the time clock at each station operated by the
employer is the name of the safety committee with an 800
telephone number to call. If an employee calls said number
he/she is put in contact with Sternberg, the chairperson of the
committee.



                 OPINION AND CONCLUSIONS



The issue with regard to Item 1-1 in the citation is whether the
employer violated OAR 437-127-015(1). This safety standard
requires that certain minimum first aid supplies be in proximity
to all employees. Based upon the credible testimony of Pfeifer,
I find that the employer's first aid kit at its N. Riverside
station in Medford did not contain, at the time of Pfeifer's
inspection, certain items required by the applicable standard:
specifically, eight 3" x 3" gauze pads, two 8" x 10" gauze pads,
one triangular bandage, one blanket or its equivalent, and a
soap and water solution or moistened towelettes for cleansing a
wound. See OAR 437-127-015(1) and (2). I find that at the time
of the inspection in June 1991 the employer was not in
compliance with the abovereferenced standard. I conclude that
OROSHA has established the violation set forth in Item 1-1 of
the citation.



Item 1-2 of the citation alleges a violation of OAR
437-127-020(1). This standard requires that a qualified first
aid person  meaning a person with evidence to show first aid
training by the Red Cross or equivalent within the past three
years (see OAR 437-127-005(1))  shall be available to any place
of employment which is not in proximity to an emergency care
service. There is no dispute that the employer did not have a
qualified first aid person available at the N. Riverside station
in Medford at the time of the inspection in June 1991. The
employer contends that, per OAR 437-127-020(1) and (4), a first
aid person was not required because an emergency care service,
Providence Hospital, was in proximity to the station. According
to OAR 437-127-005(4) an "emergency care service" includes a
hospital. Per OAR 437-127-005(3) "in proximity" means "that
which is available immediately in the event of need and is not
to be confused with readily accessible". The term "readily
accessible" means having an ambulance with qualified attendants
at the victim's side in 30 minutes or less. See OAR
437-127-005(2).



Pfeifer testified that he travels on a daily basis in the area
where Providence Hospital and the employer's station are
located. He said the hospital is about one mile from the
station. He estimated it would take 25 minutes to drive to the
hospital from the station. Sternberg testified that he, too, is
familiar with the area where the hospital and the station are
located, although he does not travel in the area as frequently
as Pfeifer. He testified that he thought it would take about
three minutes to drive from the station to the hospital during
rush hour traffic.



Based upon the testimony of Pfeifer and Sternberg, I find that
Providence Hospital (which, according to Pfeifer, has an
emergency room) is about one mile from the employer's station in
Medford and that it would take 25 minutes to drive from the
station to the hospital. The question is whether this puts the
hospital "in proximity" to the station. OAR 437-127-005(3) does
not define "in proximity" in terms of a specific distance or
number of minutes. Neither party has cited any Oregon cases
regarding the meaning and application of the term "in
proximity". The parties did cite several federal decisions which
address a similar safety rule: 29 CFR section 1910.151(b). This
federal rule uses the term "in near proximity". In Brennan v.
Occupational Safety and Health Review Commission, 505 F. 2d 869
(1974), a violation of the federal rule was upheld where the
nearest hospital was 7 minutes away from the worksite in good
weather and traffic conditions. The decision indicates that
there was an ambulance service 4 minutes away from the worksite
under optimum conditions, but the decision is not clear as to
whether the ambulance service was open during the full 24hour
operation of the workplace in question. In Clavier Corp., OSHRC
No. 627, 19721973 CCH Safety Decisions  15,800 (1973), it was
determined that a hospital 1.7 miles from the workplace was "in
near proximity". In Slyter Chair, Inc., OSHRC No. 1263, 19731974
CCH Safety Decision ~ 17,397 (1974), a hospital that was 3
minutes' drive from the workplace was determined to satisfy the
"in near proximity" requirement of 29 CFR section 1910.151(b).



The above cited federal cases are not controlling in this
matter. However, they do provide some guidance in construing and
applying the term "in proximity". I am persuaded that the
evidence in this case is closer to the situation in Clavier and
Slyter than Brennan. I find that Providence Hospital is an
emergency care service "in proximity" to the employer's N.
Riverside station in Medford. I therefore conclude that the
employer was not in violation of OAR 437-127-020 at the time of
the inspection in June 1991. Accordingly, Item 1-2 in the
citation must be set aside.



Item 13 in the citation is based upon an alleged violation of
OAR 437-40-045(2)(a). Specifically, the citation alleges that
the employer violated the standard because no safety committee
had been established at the worksite on N. Riverside in Medford
(Ex. 1, p. 4). There is no dispute that the employer did not
have a safety committee at the N. Riverside station in Medford.
However, the standard that is the basis for the alleged
violation in Item 1-3  OAR 437-40-045  does not necessarily
require a safety committee at each and every worksite for an
employer with operations at multiple locations in the state.
Subsection (7) of the standard provides that a safety committee
shall be established at each of the employer's primary places of
employment. A "primary place of employment" is described as a
location that has "both management and workers present, would
have control over a portion of a budget, and would have the
ability to take action on the majority of the recommendations
made by a safety committee." Subsection (8) of the standard
provides that a single, centralized safety committee can be set
up for an employer's various satellite locations.



The employer's N. Riverside station in Medford does not fit the
description of a "primary place of employment" set forth in OAR
437-40-045(7). Based upon the credible testimony of Herbert
Rowley, the employer's vicepresident, I find that said station
is not a major economic unit, does not have management and
workers present at the site, does not have control over a
portion of the employer's budget, and does not have the ability
to take action on the majority of recommendations made by a
safety committee. Based upon Rowley's testimony, I find that
said station is more like a satellite location, one of many
owned by the employer throughout Oregon. Per OAR 437-40-045(8),
a single, centralized safety committee can be established for
such satellite locations. Based upon the credible testimony of
Rowley, I find that this is exactly what the employer had
established at the time of the inspection in June 1991. The
employer's centralized safety committee has five members:
Rowley, Sternberg, and three employee members (two from
different station locations and one from the employer's
transportation branch). Rowley testified that information about
the safety committee is contained in the company handbook, which
each employee is required to read and sign. He further testified
that next to the time clock at each station is posted the name
of the safety committee with an 800 telephone number to call. He
said the safety committee meets every 12 months, performs joint
inspections at the various stations, and investigates accidents.



Based upon the evidence presented, I conclude that'the employer
was not required by OAR 437-40-045 to have a safety committee
established at its Medford station. Rather, it was simply
required to have a centralized safety committee to represent the
safety and health concerns of all of its gas stations, including
the one in Medford. The evidence establishes that such a
centralized committee was in operation at the time of the
inspection in June 1991. I conclude that OROSHA has not
established a violation of OAR 437-40-045. Accordinqly, Item 1-3
must be set aside.



At the hearing OROSHA seemed to contend, as reflected by some of
the testimony it offered and by its counsel's comments, that
Item 1-3 in the citation was based not only on a violation of
OAR 437-40-045, but also on a violation of 437-40-046. The
latter deals with requirements regarding the formation and
membership of a safety committee. The employer contends that
OROSHA cannot rely on 437-40-046 in this proceeding because said
standard was not included in the citation as a basis for an
alleged violation of the safety code. I agree with the
employer's position. The citation in this case is based  with
regard to Item 1-3  solely on OAR 437-40-045 and the specific
alleqation that the employer had no safety committee established
at the Medford site at the time of the inspection. OROSHA did
not cite the employer for an alleged noncompliance with one or
more of the requirements of 437-40-046 with regard to a
centralized safety committee. OROSHA has cited no authority in
support of its attempt to "expand" the citation to include a
violation of an additional standard as a basis for Item 1-3. On
the contrary, ORS 654.071(2)(b) and (c) provide that a citation
shall contain "a plain statement of the facts upon which the
citation is based" and "a reference to the law, regulation,
rule, standard or order relied upon". OAR 437-01-205(1)(d)
provides that a citation shall "identify the rule or order
violated". Finally, according to the Board's Rules of Practice
and Procedure for Safety Cases, OROSHA can, before the issuance
of the notice of hearing, amend a citation to clarify the issues
in the case and the grounds for OROSHA's position. However, the
amendment may not allege a new violation  "violation" meaning
the employer's failure to comply with a safety law, rule, or
order. See OAR 438-85-526, 438-85-516(1), and 438-85-026(25).



For the foregoing reasons, I conclude that the only issue with
respect to Item 1-3 is whether the employer violated OAR
437-40-045, not whether it may have violated some other standard
in OAR Chapter 437, Division 40 which was not set forth in the
citation. As noted earlier, ' based upon the evidence presented
and the applicable law, I am not persuaded that OROSHA has
established that the employer violated OAR 437-40-045 at the
time of the inspection in June 1 9 9 1



                         ORDER



IT IS THEREFORE ORDERED that Citation and Notice of Penalty No.
P679505991 issued by OROSHA on July 11, 1991 is set aside as to
Items 1-2 and 1-3. IT IS FURTHER ORDERED that the Citation is
affirmed as to Item 11.



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 March 30, 1992 



				WORKERS' COMPENSATION BOARD

				By John P. McCullough, Referee