BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No:  SH92011

					)              SH92010

					)              SH92009

					)              SH92008

					)

					)  CITATION NO:  C963302491

					)                C963302291

					)                C963302191

					)                C963302391

					)

CRYSTAL SPRINGS PACKING Defendant	)  OPINION AND ORDER



Hearing was held in Medford, Oregon on May 4, 1992 before Philip
A. Mongrain, Referee. Oregon Occupational Safety and Health
Division was represented by Attorney General Armonica Gilford.
Crystal Springs Packing Company was represented by Attorney
Daniel Thorndike. The hearing was reported by Business Support
Services and closed following its conclusion



                          ISSUES



Whether the employer violated standards as alleged by two
citations issued on October 23, 1991 and two citations issued on
October 24, 1991.



                        FINDINGS OF FACT



WCB Case NO. SH92008 Citation No. C963302291



Senior Industrial Hygienist Garnet Cooke inspected the Black Oak
Labor Camp of Cyrstal Springs Packing Company, Inc., on
September 10, 1991 (Garnet Cooke's testimony; Exhibits 1(page
3), 2). During the course of inspecting a mobile home resident
structure she observed a two inch diameter hole in the wall of
the shower/tub enclosure, which connected to the closet of the
adjoining room and had allowed some water to collect on the
closet floor (Garnet Cook's testimony; Exhibits 3, 5). Ms. Cooke
did not, however, notice any significant growth of mold or
fungus (Garnet Cooke's testimony). Ms.Cooke also obtained two
water samples from the kitchen sink, which were positive for the
presence of coliform bacteria (Exhibits 3, 4 (page 11)).



The hole in the shower/tub enclosure was not present at the time
of the preoccupancy inspection conducted no more than one month
before September 10, 1991 (Juan Gonzalez' testimony). A water
sample from the Black Oak Camp had tested negative on August 2,
1991 (Dwayne Culbertson's testimony), the same as all previous
tests of camp water before September 10, 1991 (Dwayne
Culbertson's testimony; Exhibit B). The camp water was untreated
(Garnet Cooke's testimony).



On October 23, 1991 a citation was issued charging the employer
with violation of OAR 437-025 (4) in that the walls and
partitions of shower rooms were not smooth and impervious to
moisture due to a hole in the wall connecting to the adjoining
closet (Exhibit 1, page 3). The citation also charged violation
of OAR 437-147-020 (1) in that the domestic water at the labor
camp did not conform to purity standards because water samples
were positive for coliform bacteria (Exhibit 1, page 3). Ms.
Cooke classified both violations as "general" violations with a
low probability of an injury of moderate severity, and assessed
a penalty of $75 for each violation (Garnet Cooke's testimony;
Exhibits 1 (page 3), 3).



WCB Case No. SH92009 Citation No. C9633-021-91 



Ms. Cooke inspected the 401 Orchard Farm Labor camp of Crystal
Springs Packing Company on September 9, 1991 (Exhibits 1 (page
3), 2). She observed a severe infestation of cockroaches in one
of the units (Garnet Cooke's testimony; Exhibits 1 (page 3), 3,
5 (pages 1, 3)). She also observed a screen door that did not
shut and a space in a window screen that allowed flies to enter
(Garnet Cooke's testimony; Exhibits 1 (page 3), 3, 5 (page 2)).
She also observed a bathroom floor that she described as
"waterlogged and caving in", and she observed a significant
amount of ceiling and wall mold and fungus (Garnet Cooke's
testimony; Exhibits 1 (page 4), 3, 5 (page 2)).



The residents of the camp are responsible for daily upkeep and
maintenance of the housing, and although he testified he
conducted regular inspections the housing manager for Crystal
Springs, Juan Gonzalez, had not received any complaints about
cockroaches and was unaware the problem had not been remedied
after a foreman mentioned it prior to opening of the camp (Juan
Gonzalez' testimony). Mr. Gonzalez is generally responsible for
seeing to it that camp living quarters are maintained but others
are responsible for actual repairs (Juan Gonzalez' testimony,
Dwayne Culbertson's testimony). The screen door had been
installed before the residence was occupied, but Mr. Gonzalez
was unaware of the defective screen (Juan Gonzalez' testimony).
Mr. Gonzalez was not aware of the condition of the bathroom
floor and wall (Juan Gonzalez' testimony).



A citation was issued on October 23, 1991 charging the employer
with a violation of OAR 43-147-040 (1) in that sleeping places
in the camp were not maintained in a safe and sanitary condition
due to the presence of a large number of adult and juvenile
cockroaches (Exhibit 1, page 3). The citation also charged the
employer with a violation of OAR 437-147-040 (5) in that screens
in good repair were not provided when flies were present, as
evidenced by the presence of flies and holes in the screen
(Exhibit 1, page 3). Finally, the employer was charged with
violation of OAR 437-147-025 (2) in that floors and walls of the
bathroom were not of a readily cleanable finish and impervious
to moisture, as evidenced by a waterlogged and caved in floor
and mold and fungus on the walls and ceiling (Exhibit 1, page
4). Ms. Cooke classified alleged violations 1 and 3 as general
violations with a low probability of a moderately severe injury,
and assessed a $75 penalty for each violation (Garnet Cooke's
testimony; Exhibits 1 (page 3), 3). Alleged violation 2 was
classified by Ms. Cooke as a general violation with an extremely
low probability of a low severity injury, and no fine was
assessed (Garnet Cooke's testimony; Exhibits 1 (page 3), 3).



WCB Case No. SH92010 Citation No. C9633-023-91  



Ms. Cooke inspected the Budge Orchard Camp, 594 Stage Road, of
Crystal Springs Packing Company on September 10, 1991 (Exhibits
1 (page 3), 2). She obtained water samples that were positive
for high levels of coliform and fecal coliform (Garnet Cooke's
testimony: Exhibits 1 (page 3), 3). She smelled the odor of gas
in one of the units and determined that the pilot light in the
stove was not working (Garnet Cooke's testimony; Exhibits 1
(page 3), 3). She concluded that there was no first aid person
or first aid kit in proximity to the camp occupants; that the
401 "crew boss" was the first aid person and he lived across
town (Garnet Cooke's testimony Exhibits 1 (page 4), 3). Finally,
she determined that there was no table or chairs in the kitchen
facility of one of the units (Garnet Cooke's testimony; Exhibits
1 (page 4), 3).



The source of water for the Budge Orchard Camp is a well that is
treated with ultraviolet and charcoal filtration, the best
system available, with chlorine occasionally added (Garnet
Cooke's testimony, Juan Gonzalez' testimony, Dwayne Culbertson's
testimony). The filter is replaced once each month (Juan
Gonzalez' testimony). Although the water at the Budge camp had
tested bad on earlier occasions the water had tested negative in
early August at the time of the preoccupation inspection by
Oregon OSHA (Dwayne Culbertson's testimony; Exhibit A, page 1).
Following the inspection in September Crystal Springs was
notified of the positive test, which was a surprise to the
employer (Dwayne Culbertson's testimony). The water at the Budge
camp is tested once per year just before camp opening, which is
all that is required for camps not open all year (Dwayne
Culbertson's testimony). The employer was not aware of any
installation problem relative to the stove with a defective
pilot light, although residents usually complain about the smell
of gas (Juan Gonzalez' testimony). The gas was immediately shut
off and repairs were made (Juan Gonzalez' testimony). As far as
first aid there is usually a "crew leader" in a camp across the
road from the Budge camp, about 200 yards away, although that is
a different person than the "401" crew boss whose name was
posted as the first aid person (Garnet Cooke's testimony, Dwayne
Culbertson's testimony). The unit without a table and chairs in
the kitchen had been provided with those items, but unit
residents often move these items from one unit to another and
the missing furniture was in fact found in another unit (Juan
Gonzalez' testimony).



A citation was issued on October 24, 1991 charging the employer
with violation of OAR 437-147-020(1) in that the domestic labor
camp water did not conform to OAR purity standards, as evidenced
by the positive tests for coliform and fecal coliform bacteria
(Exhibit 1, page 3). The citation also alleged a violation of
OAR 437-147-040(4)(d) in that gas appliances were not installed
in accordance with NFPA standards, as evidenced by strong gas
odors when control knobs were turned off (Exhibit 1, page 3).
Also alleged was a violation of OAR 437-147-060 in that minimum
first aid and medical services were not provided, as
demonstrated by the lack of proximity of a qualified first aid
person or a first aid kit (Exhibit 1, page 4). Finally, the
employer was charged with violation of OAR 437-147-050(3), (4)
in that an adequate number of tables and chairs were not
provided for the kitchen, as demonstrated by the absence of a
table and chairs in one of the living units (Exhibit 1, page 4).
Ms. Cooke classified the first two violations as serious with a
low probability of a severe injury, and a $150.00 fine was
assessed for each violation (Garnet Cooke's testimony: Exhibits
1 (page 3), 3). The last two violations were classified as
general, with a low probability of a moderate severity injury in
the case of the first aid violation and a low probability of an
injury of low severity in the case of the table and chairs
violation (Garnet Cooke's testimony: Exhibit 3). A $150.00 fine
was assessed for the first two violations, a $75.00 fine for the
third, and no fine for the fourth (Exhibits 1 (pages 3, 4), 3).



WCB Case No. SH92011 Citation No. C963302491



On October 24, 1991 Ms. Cooke inspected the Crystal Springs
labor camp at 1840 South Stage Road (Exhibits 1 (page 3), 2).
She observed the walls and partitions of a shower to be warped
inward allowing water to run into the wall and flooring (Garnet
Cooke's testimony; Exhibits 3, 5). She observed a bathroom floor
to be warped and sagging to the step (Garnet Cooke's testimony;
Exhibit 5). She also observed a cracked wall plug cover (Garnet
Cooke's testimony; Exhibits 3, 5).



The housing manager for Crystal Springs Packing Company is in
general charge of seeing to it that living quarters are
maintained and kept up, while others are responsible for actual
repairs (Juan Gonzalez' testimony, Dwayne Culbertson's
testimony). The housing manager, Juan Gonzalez, was aware of the
warping in the walls and floor and repairs were due to be made
during the winter (Juan Gonzalez' testimony). Mr. Gonzalez does
not inspect for cracked plug covers and was not aware of the one
in question (Juan Gonzalez' testimony).



A citation was issued on October 24, 1991 alleging a violation
of OAR 437-147-025(4) in that walls and partitions of shower
rooms were not smooth and impervious to water, as evidenced by
the warping of the shower walls so water could run into the wall
and flooring (Exhibits 1 (page 3), 3). A violation of OAR
437-147-025(2) was also charged in that floors and walls were
not readily cleanable and impervious to moisture, as evidenced
by the warped and sagging floor exhibit 1 (page 3), 3). Finally,
a violation of OAR 437-147-015(4) was charged in that all
electrical wiring and fixtures did not comply with the
electrical code, in that a plug cover was cracked (Exhibits 1
(page 4), 3). All violations were classified as general, with a
low probability of a moderately severe injury from the first two
violations and a low probability of a low severity injury from
the cracked plug violation (Garnet Cooke's testimony; Exhibit
3). Fines of $75.00 were assessed for the first two alleged
violations and no fine was assessed for the third violation
(Exhibit 1 (pages 3, 4)).



                 ULTIMATE FINDINGS OF FACT



The employer had no knowledge or no reason to have knowledge of
the violations alleged in Citation No. C963302291.



The employer had knowledge or reason to know of cockroach
infection in the Orchard Farm labor camp.



The employer had knowledge or reason to know of a defective
screen door in the Orchard Farm labor camp.



The employer had knowledge or reason to know of a bathroom floor
in the Orchard Farm labor camp that was not impervious to
moisture.



The employer had no knowledge or reason to know of impure water
in the Budge Orchard labor camp.



The employer had no knowledge or reason to know of a faulty
stove installation in the Budge Orchard labor camp.



The employer did not provide a first aid kit and first aid
person in proximity to the Budge Orchard labor camp.



The employer did not have knowledge or reason to know of the
absence of a table and chairs in one of the units of the Budge
Orchard labor camp.



The employer had knowledge of a bathroom wall and floor in the
1840 South Stage labor camp that was not impervious to moisture.



The employer did not provide all electrical fixtures in the 1840
South Stage labor camp that were in compliance with the Oregon
Electrical Code.



                         OPINION



WCB Case No._SH92008



oregon OSHA has the burden of proving a claimed violation,
including that the employer had knowledge or reasonably could be
charged with knowledge of the violation. OAR 438-85-820; Skirvin
v. Accident Prevention Division, 32 Or App 109 (1978).



There is a singular lack of proof that the employer had any such
knowledge or constructive knowledge of either of the violations
alleged in Citation C963302291.   Mr. Gonzalez' unrebutted
testimony establishes that the hole in the shower partition was
not present when the preoccupation inspection was done a month
earlier. Ms. Cooke noted no significant amount of mold or fungus
on the floor in the adjoining closet. It is every bit as likely
as not that the hole in the shower partition occurred subsequent
to the last regular unit inspection by Mr. Gonzalez, or perhaps
even the morning of Ms. Cooke's inspection. In neither case
would the employer have knowledge of the defect or reason to
know, and therefore could not be charged with a violation based
thereon.



As far as the alleged water purity violation, the evidence
establishes that the water tested negative at the time of the
preoccupation inspection a little more than a month earlier, and
the water at that camp had never been a problem. For all that is
apparent the impurity could have developed the very morning of
Ms. Cooke's inspection. Therefore, the employer did not know or
have reason to know of the impurity until advised following Ms.
Cooke's test samples. Accordingly, a violation has not been
proved.



WCB Case No. SH92009



OAR 437-147-040(1) requires the employer to provide sleeping
places in a safe and sanitary condition that excludes rodents
and insects. Here, it appears that the preoccupation inspection
revealed to the employer the presence of cockroaches and that
the housing manager believed the problem would be remedied.
Obviously, that did not occur. Additionally, the housing
manager, Mr. Gonzalez, testified that he conducted regular
inspections, which if true should have revealed to him the
extent of a cockroach infestation that clearly did not develop
in a day or two. I conclude that this violation has been proved.
I have no basis for disputing Ms. Cooke's assessment that the
violation represents a low probability of a moderately severe
injury from cockroaches crawling on food or even into people's
ears while sleeping, which requires a $75.00 penalty according
to OAR 437-011-45(5)



OAR 437-147-040(5J requires a screen on doors and windows when
flies and mosquitoes are present, and that doors and screens
shall be tight fitting and in good repair. The evidence fails to
establish that the employer was aware or should have been aware
of the defective screen, since it could have occurred since the
last regular inspection by the house manager, but the evidence
proves that the poorly fitting screen door was installed before
the camp opened and the manager's regular inspections should
have called his attention to it. Therefore, I conclude that this
alleged violation has been proved. I cannot dispute Ms. Cooke's
classification of the violation as general, with a low
probability of a low severity injury resulting from fly borne
illness, which requires no penalty pursuant to OAR 437-01-145(5).



OAR 437-147-025(2) requires the employer to provide in bathroom
facilities floors and walls of readily cleanable finish and
impervious to moisture. There is no evidence that disputes the
condition of the bathroom floor observed by Ms. Cooke and I am
persuaded that Mr. Gonzalez should at least have been aware of
its condition through his regular unit inspections. Therefore, I
conclude that a violation of this standard has been proved. I
have no basis for disputing Ms. Cooke's assessment that this
represents a low probability of a moderate severity injury in
the form of a fungus caused respiratory illness so a $75.00
penalty is required according to OAR 437-01-145(5)).



WCB Case No. SH92010



OAR 437-147-020(1)  requires  the employer  to provide domestic
water at labor camps that is of a certain purity. Oregon OSHA
has the burden of proving the violation including that the
employer had knowledge or reasonably could be charged with
knowledge of the violation.   OAR 438-85-820; Skirvln v.
Accident Provision Division, 32 Or. App. 109 (1978).  Here, the
water at the Budge Orchard camp tested negative for impurity
slightly more than a month before Ms. Cooke's inspection. The
water is treated with ultraviolet and charcoal filtration, which
is the best available system according to the unrebutted
testimony of the housing manager. Chlorine is even added
occasionally if necessary. The filter is changed once per month.
There is no evidence that disputes the testimony of the
employer's owner, Dwayne Culbertson, that with regard to camps
not open all year once per year water testing is all that is
required. Considering these factors I am not prepared to
concluded that the employer knew or had reason to know the Budge
water was impure, even though the water supply had had problems
in previous years. Therefore, this violation has not been proved.



OAR 437-147-040(4)(d) requires that the employer see to it that
all gas appliances are installed according to NFPA standards.
There is no evidence that calls into question Ms. Cooke's
testimony that a stove was emitting a strong gas odor and the
pilot light was not working. However, there is no evidence that
the installation of the stove was defective. A defective pilot
light does not prove a faulty installation and Mr. Gonzalez
testified that he had no knowledge of a defective installation.
Additionally, there is no evidence contrary to Mr. Gonzalez'
testimony that residents usually complain of gas odors, and the
lack of evidence regarding complaints could as well as not be
evidence of a defect that occurred only a short time before Ms.
Cooke's inspection. In any event, there is no evidence of a
faulty installation as alleged by the citation. Therefore, the
violation has not been proved.



OAR 437-147-060 requires that first aid and medical services be
available at labor camps "in proximity" to the camp occupants,
and it is alleged that the employer did not satisfy this
obligation. The evidence establishes that a first aid person and
first aid kit were across the road, about 200 yards away.   "In
proximity"  is defined  by OAR 437-127-005(3)  as available
immediately in the event of need and not to be confused with
"readily accessible". In view of this definition I conclude that
a first aid kit and first aid person were not in proximity to
the Budge camp, and the violation has been proved.



OAR 437-147-050(3), (4) require the employer to provide in
kitchen facilities a table and chairs that will accommodate the
number of residents in a living unit. Here, one of the units
inspected by Ms. Cooke had no chairs and table. However, the
evidence establishes that the unit had a table and chairs when
the camp opened, that the residents frequently move the tables
and chairs from one unit to another, and that in fact such a
transfer occurred in this case. Who knows when the transfer
occurred? Based on the evidence it could as well have occurred
the day before or even the day of Ms. Cooke's inspection. There
is no persuasive evidence the employer was aware or should have
been aware. Therefore, the violation has not been proved.



WCB Case No. SH92011



OAR 437-147-025(4) requires the employer to provide walls and
partitions in shower rooms that are smooth and impervious to
moisture. The evidence establishes that a shower wall was warped
inward away from the tile so as to allow water to run into the
wall and flooring, and that the employer was aware of the
problem and planned to repair it in the winter. Therefore, the
employer was aware of a condition in which the shower wall was
not smooth and impervious to moisture, and the violation has
been proved. I am unable to dispute Ms. Cooke's conclusion that
this represented a low probability of a moderately severe injury
in the form of a respiratory illness, which justifies a penalty
of $75.00 according to OAR 437-01-145(5).



OAR 437-147-025(2) requires that the employer provide in bathing
facilities a floor and walls of readily cleanable finish and
impervious to moisture. The evidence establishes that the
bathroom floor was warped and sagging and that the housing
manager was aware and planned to repair it in the winter.
Therefore, I conclude the employer was aware of the floor not
being impervious to moisture and the violation has been proved.
I am unable to dispute Ms. Cooke's determination that this
represented a low probability of a moderately severe injury in
the form of a fungal infection, which justifies a $75.00 penalty
according to OAR 437-01-145(5).



As to the final alleged violation, OAR 437-147-015(14) requires
all wiring and fixtures to comply with the Oregon Electrical
Code, which a cracked fixture does not. Mr. Gonzalez indicated
he did not even inspect for cracked plug covers, so it is not
apparent the cover was in good repair even when the camp opened.
In view of the employer's failure to even inspect for and
attempt to be aware of such a defect I am going to conclude that
the existence of the defect establishes the violation. I am
unable to dispute Ms. Cooke's determination that this
represented a low probability of a low severity injury from
electric shock, which requires no penalty according to OAR
437-01-145(5).



                    CONCLUSIONS OF LAW



The alleged violations in Citation No. C963302291 have not been
proved.



All alleged violations in Citation No. C963302191 have been
proved.



Alleged violations 1-1 and 1-2 and alleged violation 2-4 in
Citation No. C963302391 have not been proved, but alleged
violation 2-3 of the citation have been proved.



All alleged violations in Citation No. C963302491 have been
proved.



                          ORDER



IT IS HEREBY ORDERED THAT:



(1)   With regard to Citation NO. C963302291 all alleged
violations are dismissed.



(2)   With regard to Citation No. C963302191 all violations and
the proposed penalties are approved.



(3) With regard to Citation No. C963302391 alleged violations
1-1, 1-2 and 2-4 are dismissed and alleged violation 2-3 and the
proposed penalty are approved.



(4)   With regard to Citation No. C963302491 all alleged
violations and proposed penalties are approved.



NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, not later than sixty (60) days after the mailing date
on this Order, request a review by the Court of Appeals, Third
Floor, Justice Building, Salem, OR 97310, pursuant to ORS
183.480, 482. A request for review shall be mailed to the Court
of Appeals at the above address with copies of such request
mailed to all other parties to this proceeding. Failure to mail
such a request for review within sixty (60) days after the
mailing date of this Order will result in LOSS OF RIGHT TO
APPEAL FROM THIS ORDER.



	Entered at Medford, Oregon on JULY 10, 1992 



				PHILIP A. MONGRAIN, REFEREE

				WORKERS' COMPENSATION BOARD