BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91285

	Plaintiff			)  Citation No: H558809390

					)

	Defendant			)

D R  JOHNSON LUMBER COMPANY		)  OPINION AND ORDER



Hearing convened in Roseburg, Oregon on January 30, 1992.
Plaintiff, Oregon Occupational Safety and Health Administration
(OR OSHA), was represented by Assistant Attorney General Kevin
Shuba. Defendant employer, DR Johnson Lumber Company, was
represented by attorney Don Leach. Business Support Services
recorded the proceedings.



The record was left open for the parties to submit stipulated
testimony of Nellie Baker and Karen Turnbow. Following receipt
of that stipulation closing argument was heard in an unrecorded
telephone conference on March 23, 1992. The parties waived
recording of closing argument. The record closed on March 23,
1992.



                           ISSUES



The first issue to be resolved is defendant's prehearing motion
to dismiss. Referee Mongrain issued a preliminary ruling on this
motion before the hearing; however, at the parties' request I
will discuss and decide this issue in this order.



At hearing, defendant raised additional arguments why the
citation should be dismissed. Those arguments will also be
addressed herein.



Defendant also moved to vacate all penalties on procedural
grounds.



Finally, defendant challenges OR OSHA's citation of July 19,
1990. Defendant challenges all items (1-1, 1-2, 1-3, 1-4, 1-5,
2-6, 2-7, and 2-8). Defendant contends that it committed none of
the alleged violations. Further it contends that even if it did
commit the violations, the penalties are excessive. (The only
items with penalties assessed are items 1-1, 1-2, 1-3, 1-4, and
1-5.)



                            FINDINGS OF FACT



                      GENERAL FINDINGS OF FACT



On June 28, 1990, defendant was logging at a site known as the
Snowball Sale about 25 miles south of Glide, Oregon. On that
day, Scott Haviland, a Senior Safety Compliance Officer (SCO)
for OR OSHA inspected defendant's logging operation.



The SCO conducted that inspection as part of his assigned duty
which at that time was inspecting logging operations in Douglas
County. As a general practice and in this case, the SCO
determines from information available at US Forest Service
offices where logging is being done in his region. He generally
conducts area inspections, that is inspecting various logging
operations in a discrete geographic area. The reason inspections
are conducted in this manner rather than scheduled as are fixed
places of employment is that logging is a mobile industry.
Logging is a hazardous industry.



During the inspection, the SCO observed several apparent safety
violations. He took field notes about the violations and, after
referring to various administrative regulations, filled out an
inspection supplement which listed each violation the SCO
believed occurred. The SCO sometimes consults agency program
directives which explain how OR OSHA interprets some of its
rules. The SCO did not consult any such directives in this case.
The SCO has learned in meetings about the agency's
interpretation of certain rules such as the rules concerning
rating probability and severity. OR OSHA also has a technical
services section which gives written interpretations of rules as
they apply to specific situations. None of these interpretations
was used by the SCO in this case.



Each alleged violation was rated by the SCO according to
probability of an accident and potential severity of an
accident. The citation was issued from OR OSHA's central office
in Salem on July 19, 1990. The citation is directly based on the
SCO's inspection supplement. In the case of each violation
alleged in this citation, the penalty is based on the SCO's
determination of probability and severity.



Defendant has a lost work day incidence rate which is lower than
the industry average.



Defendant appealed the violation on July 25, 1990. OR OSHA
referred the appeal of the citation to the Hearings Division on
October 5, 1990; however, the Hearings Division has no record of
receiving this referral until July 25, 1991. On November 18,
1991, the Hearings Division issued a Notice of Hearing setting
the hearing for January 30, 1992, the date it actually took
place.



FINDINGS OF FACT: ITEM 1-1



Defendant was using a Madill 071 yarder in a running skyline
logging operation. The Madill yarder was anchored by three
guylines. All three guylines showed obvious damage in the form
of kinks, broken crown wires, crushing, and rust.



Four employees per day are exposed to this hazard. There is a
high probability of an accident being caused by this hazard.
Should such an accident occur, it could result in death.



FINDINGS OF FACT: ITEM 1-2



A Bucyrus Erie line shovel was in operation at the site. The
right side of the gantry had been broken and welded back on. The
seams of the weld were incompletely welded. The pendant line was
causing the right side of the gantry to twist.



Four employees were exposed to this hazard daily. This hazard
creates a moderate probability of an accident. If such an
accident occurred, it could cause death.



FINDINGS OF FACT: ITEM 1-3



When the SCO began his inspection, the rigging slinger's hard
hat was flattened on top. Later the SCO noted that it had been
hammered out to give it a more rounded shape. The hard hats of
the rigging slinger, the hooktender and the chasers all showed
obvious structural damage.



Three workers were exposed to this hazard daily. There were
overhead hazards in the area daily. This hazard creates a
moderate probability of a serious accident.



FINDINGS OF FACT: ITEM 1-4



A D7 cat which is equipped with rollover protective structures
had no seatbelts. One employee per week is exposed to this
hazard. This hazard creates a low probability of a serious
injury.



FINDINGS OF FACT: ITEM 1-5



A Chevrolet fuel truck on the site had a severely shattered
windshield which obstructed the view of the driver. One employee
per month is exposed to this hazard.



This hazard creates a low probability of a serious injury.



FINDINGS OF FACT: ITEM 2-6



The Bucyrus Erie line shovel had no boom stop. The boom is only
rarely raised to a height where it might cause the boom to go
over. One employee per day is exposed to this hazard. This
hazard creates a low probability of a moderate injury.



FINDINGS OF FACT: ITEM 2-7



A Skookum tail block had no line guard. Without a line guard,
the tail block could flip over and damage the line, thus causing
heavy wear on the line. Five workers are exposed to this hazard
daily. The lack of a line guard creates a medium probability of
a moderate injury.



FINDINGS OF FACT: ITEM 2-8



There was no nonskid material on the inclined access to the
drums on the left side of the Madill 071 yarder. Because of the
nature of their work, employees wear caulk soled boots.
Approximately one employee per week is exposed to the hazard of
slipping. This hazard creates a medium probability of a moderate
injury.



                CONCLUSIONS OF LAW AND OPINION



MOTIONS TO DISMISS



Defendant's first motion to dismiss was made in writing on
January 3, 1992. Plaintiff responded in writing on January 10,
1992. Referee Mongrain, by letter of January 13, 1992 denied
defendant's motion. At the opening of hearing, I agreed with
Referee Mongrain's ruling and indicated that I would discuss the
motion in my Opinion and Order.



The essence of defendant's motion is that plaintiff and the
Hearings Division violated administrative rules, thus
occasioning a significant delay in the hearing. Defendant
apparently contends that the citation should be dismissed.



OAR 438-85-305 requires plaintiff to immediately refer a
contested citation to the Hearings Division if the case has not
been settled within 45 days of the appeal of the citation.
Defendant appealed the citation on July 25, 1990. Plaintiff did
not refer the case to the Hearings Division until October 5,
1990, more than 45 days after the appeal.



The Hearings Division did not acknowledge receipt of the case
until July 25, 1991. I am unable to determine what happened to
the referral in the interim.



OAR 438-85-306 requires the Hearings Division to schedule a
hearing to be held within 90 days of the referral from OR OSHA.
The Hearings Division sent out a notice of hearing on November
18, 1991. The hearing was scheduled and actually conducted on
January 30, 1992. The hearing was more than 90 days after the
referral, actually over a year after the referral. The hearing
was also more than 90 days after the Hearings Division's receipt
of the referral



There is no doubt that the hearing was significantly delayed by
both plaintiff's and the Hearings Division's failure to follow
the administrative rules. It was further delayed by the
mysterious gap between the time the referral was made and the
time the Hearings Division received it.



Defendant's argument why this delay merits dismissal is:



"Neither the Oregon Safe Employment Act as set forth in ORS
Chapter 654 nor the ends of justice will be served by allowing
this matter to proceed. In substance, the only possible result
in this prosecution under the statutes and rules is that if the
state prevails, the employer will become the whipping boy for a
Director and agency that has no prescribed penalties for
failure."



Defendant cites no authority which would merit dismissal of the
citation for undue delay. The only authority I can find which
arguably supports dismissal is Article I Section 10 of the
Oregon Constitution.



The Oregon courts have held that, unlike the U.S. Constitutional
right to a speedy trial, Article I Section 10 guarantees that
justice shall be administered without delay in both civil and
criminal proceedings. State v. Ivory, 278 Or 499, 504 (1977).
Presumably, that right extends also to administrative
proceedings. I have been unable to find any reported Oregon
cases which discuss under what circumstances a delay in an
administrative (or civil) proceeding is sufficient to require
that the case against the defendant be dismissed. However, in
criminal cases, the Oregon appellate courts balance four factors
to determine when a criminal defendant's right to a speedy trial
has been denied:



"(1) the length of the delay, (2) whether defendant asserted his
right to a speedy trial, (3) the reasons for the delay, and (4)
prejudice to the defendant." State v. Ivory, supra at



Applying the standard adopted by the Oregon courts for finding a
denial of the speedy trial right in criminal cases (which is
presumably stricter than would be applied to civil and
administrative cases) to this case, I conclude that defendant
has not been denied its right to a speedy trial.



This hearing was delayed for well over one year. Furthermore,
there is no good explanation for this delay. Part of the delay
was apparently occasioned by the unexplained loss of the
referral; however, both OR OSHA and the Hearings Division also
violated administrative rules in making the referral and in
setting the case after the referral was made.



On the other side of the balance, however, is the fact that
there is nothing in this record to indicate that the defendant
in any way attempted to push this matter to hearing. It
apparently filed the appeal of the citation and then did
nothing. According to the stipulated testimony of Nellie Baker
and the SCO's testimony, it was the SCO's vigilance which
eventually prompted the case to be brought to hearing.
Furthermore, defendant has made no showing of prejudice.
Balancing these two factors against the length of the delay and
the lack of explanation for the delay, I conclude that defendant
has failed to establish that its rights to prompt justice under
the Oregon Constitution were abridged. The prehearing motion to
dismiss is denied.



At the close of hearing, defendant again moved to dismiss.
Defendant had two bases for this motion. The first basis is that
plaintiff violated OAR 437-01-057 in conducting the inspection.
The second basis is that plaintiff allegedly applied improperly
promulgated rules to defendant in this case.



OAR 437-01-057 provides a system by which OR OSHA is to schedule
safety inspections. In particular, OAR 437-01-057(1)(d)(A)(ii)
provides that hazardous places of employment which have nonfixed
locations are to be inspected when OR OSHA "determines the
location of a worksite."



The rule does not actually use the word "hazardous." Instead, it
refers to "the place of employment is within an industry group
which has a lost workday cases incidence rate above the national
average for all employers..." In this case, the evidence does
not specifically establish whether the lost workday cases
incidence rate for logging is higher than the national average
of all employers. However, the SCO testified that this is a
hazardous industry. I infer from that testimony that the lost
workday cases incidence rate for the logging industry is higher
than the national average for all employers.



The SCO testified that he inspected this site after he located
it using information from the US Forest Service. Because this is
a hazardous employment, I conclude that the SCO properly
conducted this inspection under the administrative rule cited
above.



The second basis for this motion to dismiss was stated by
defendant's attorney at hearing:



"[The State's primary witness, the compliance officer, testified
over and over again in many different areas with minor injury,
significant injury, various other terms that basically a policy
an unwritten policy, no loss--oral policies have been
established and are being applied within the context and the
concept of what constitutes a rule under ORS 183.310(8)....The
employer should not be allowed and I do not have the case law to
set forth that comes out of Springfield v. Meqdall (phonetic)
cases. But the State should not be allowed, nor the employer be
subject to hidden and secret law, when, in fact OSHA has
established a rule. They have an obligation and duty to go forth
with that rule and properly promulgate it. In this case
repeatedly they have not."



Apparently, defendant is contending that plaintiff has
improperly and silently promulgated rules defining imprecisely
defined statutory terms. See, Springfield Education Association
v. School Dist. 19, 290 Or 217 (1980). Of the two terms
specifically mentioned by defendant, minor injury and
significant injury, neither term is used (so far as I can
determine) in Chapter 654. These two terms are used in OAR
43701140 which explains how the agency is to determine the
severity rating when setting a penalty under ORS 654.086.
Springfield and its progeny involve statutory terms, not terms
in administrative regulations. Furthermore, ORS 654.285 creates
a conclusive presumption of validity of administrative rules
promulgated to enforce ORS Chapter 654. I am precluded from
going behind the rules.



Defendant's motion to dismiss is denied.



Finally, defendant argues that I should set aside all penalties
because plaintiff allegedly violated OAR 438-01-135(1) which
states:



"The probability of an accident which could result in an injury
or illness from a violation shall be determined by the
Compliance Officer and shall be expressed as a probability
rating."



Defendant bases this argument on the SCO's testimony that his
notes and worksheet are submitted to a superior who reviews it
and may change the probability or severity rating. I do not
decide whether a change by the superior would violate this
regulation because in this case the SCO's probability rating was
used in every item of the citation. I conclude that this
regulation was followed.



ITEM 1-1



OAR 437-80-205(2)(a) states:



"Wire rope shall be taken out of service when any one of the
following conditions exist:



"(a) Kinking, crystallization, bird caging, or any other damage
resulting in weakening of the rope structure."



The SCO credibly testified and the photographs admitted into
evidence graphically illustrate that the wire rope in use on the
Madill 071 Yarder showed obvious kinking, crushing, bird caging
and broken crown wires. This wire should have been taken out of
service well before this inspection. Defendant violated this
regulation.



I defer to the SCO's expertise in determining the severity and
probability of this violation. His testimony on these facts was
unrebutted. The penalty assessed is appropriate under the matrix
contained in OAR 437-01-145 Table 1.



ITEM 1-2



OAR 437-80-220(15) provides:



"Operating a logging machine with defective steering, braking or
other parts or components necessary for safe operation is
prohibited."



Again, the SCO's credible testimony and the photographs
graphically demonstrate that the welds holding the gantry on the
Bucyrus Erie line shovel were broken and incomplete. This
rendered the shovel unsafe to operate. Defendant violated this
regulation.



I defer to the SCO's expertise in determining the severity and
probability of this violation. His testimony on these facts was
unrebutted. The penalty assessed is appropriate under the matrix
contained in OAR 437-01-145 Table 1.



ITEM 1-3



OAR 437-80-045(1) provides:



"Personal protective equipment shall be maintained in a safe and
effective condition or removed from service or use.



The hard hats of three of the workers were obviously in very bad
shape. The SCO credibly testified that when the ribs of hard
hats are damaged, they lack structural integrity. The hard hats
should have been removed from service. Defendant violated this
regulation.



I defer to the SCO's expertise in determining the severity and
probability of this violation. His testimony on these facts was
unrebutted. The penalty assessed is appropriate under the matrix
contained in OAR 437-01-145 Table 1.



ITEM 1-4



OAR 437-80-270(11) provides: "Seatbelts shall be provided on all
vehicles with ROPS. . . "



ROPS means roll over protection structure. The D7 cat, which had
ROPS, had no seatbelts. Defendant violated his regulation.



I defer to the SCO's expertise in determining the severity and
probability of this violation. His testimony on these facts was
unrebutted. The penalty assessed is appropriate under the matrix
contained in OAR 437-01-145 Table 1.



ITEM 1-5



OAR 437-56-030(3) provides:



"Defective or broken glass in a vehicle which impairs the vision
of the operator shall be replaced."



The windshield in the Chevrolet fuel truck was cracked. The SCO
sat in the operator's seat. He credibly testified that the
cracks obstructed vision from the operator's seat. Defendant
violated this regulation.



I defer to the SCO's expertise in determining the severity and
probability of this violation. His testimony on these facts was
unrebutted. The penalty assessed is appropriate under the matrix
contained in OAR 437-01-145 Table 1.



ITEM 2-6



OAR 437-80-220(4) provides:



"Boom type logging machines shall be provided with a boom stop
to prevent over topping the boom."



The Bucyrus Erie line shovel had no boom stop on its boom.
Defendant violated this regulation.



ITEM 2-7



OAR 437-80-195(1)(b) provides:



"Load bearing blocks shall:



"(b) Be fitted with line guards...."



The Skookum tail block is a load bearing block. It lacked a tail
guard. Defendant violated this regulation.



ITEM 2-8



OAR 437-80-045(6) provides:



"Where logging machine operators or helpers, because of the
nature of their work duties, are required to wear caulk soled
footwear, the decks and operating foot controls shall be covered
with a suitable nonslip material."



The metal area around the mainline and haul back drums did not
have suitable nonslip material. The SCO who was wearing caulk
soled boots slipped on it. Because of the nature of their work,
the operator and helper wore caulk soled boots. Defendant
violated this regulation.



                           ORDER



Defendant's motions to dismiss are denied. Defendant's motion to
set aside all penalties is denied. The Citation is upheld in its
entirety.



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 April 7, 1992



				WORKERS' COMPENSATION BOARD

				Raymond W. Myers, Referee