BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92093

	Plaintiff			)  Citation No: M730500592

					)

NORDIC ENTERPRISES LTD. Defendant	)  OPINION AND ORDER



Hearing convened and closed on September 11, 1992, in Salem,
Oregon. Plaintiff, Oregon Occupational Safety and Health
Administration (OR OSHA), was represented by Assistant Attorney
General Kevin Shuba. The employer, Nordic Enterprises Ltd., was
represented by its CEO, Norman O. Dversdal. Business Support
Services recorded the proceedings.



                           ISSUES



The employer contests OR OSHA's citation number M730500592
issued on December 11, 1992. The employer contests items 1-3 and
1-4. It contends that it did not commit the alleged violations
and, in the alternative, that if it did commit the violations,
the penalties are excessive.



                      FINDINGS OF FACT



OR OSHA issued a citation to the employer on April 4, 1992 for
numerous violations. Among those violations were items 13 and
14. Item 13 cited the employer for violation of 29 CFR
1910.219(c)(4)(i), failure to guard shafts on two snap machines
with shaft ends which were not smooth. Item 14 cited the
employer for violation of 29 CFR 1910.212(b), failure to
securely anchor the two snap machines to prevent walking or
moving. That citation is final as a matter of law.



On October 22, 1992, Safety Compliance Officers (SCOs) Linda
Matthias and Jerry Mothersbaugh conducted a routine follow-up
inspection of the employer's premises. Matthias had performed
the inspection which resulted in the April citation. Follow-up
inspections are performed in approximately 10 percent of all
cases. One reason this employer was chosen for a follow-up
inspection is that the employer had not returned a card
indicating that it had corrected the violations in the April
citation.



When the two SCOs conducted the follow-up inspection, they found
that the employer had corrected all violations listed in the
April citation with the exception of items 1-3 and 1-4. When the
follow-up inspection took place, both snap machines were in
operable condition and plugged in. The shaft end on neither was
covered. Neither  machine was anchored.



At the time of the original inspection the plugs had been
removed from both snap machines, thus rendering them inoperable
and correcting the violations at that time. Shortly thereafter,
the employer packed the two machines into crates and prepared to
return them to the company from which they are leased. However,
the employer had a one year lease on both machines and was not
in a hurry to return them.



On September 19, 1992, the employer received a purchase order
for 1,800 down vests. These vests required the use of the two
snap machines. The employer's mechanic uncrated the machines at
the direction of a supervisor, reconnected the plugs and plugged
in the machines. The machines were rendered operable
approximately five days before the October 22, 1992 inspection.



Mr. Dversdal was unaware of the status of the two machines. He
told the SCOs at the time of the inspection that they had been
uncrated for some time and had been used to snap about 1,000
vests. He learned later that the machines had only recently been
rendered operable and had not been used since the uncrating. Mr.
Dversdal's office is in the same large room as the two machines.
He knew or should have known that they were operable and that
the two violations had not been corrected.



                CONCLUSIONS OF LAW AND OPINION



There is no real question whether the employer failed to correct
the two violations alleged in the follow-up citation. It did.
The real question is the appropriate penalty.



OAR 437-01-155 states:



"(1) A citation shall be issued for an employer's nonabatement
of a violation.

"(2) Penalties of not more than $2,500 per day for failure to
correct a violation:

"(a) May be assessed for each working day, or part of a day,
that the violation results in continued exposure after the
ordered correction date;

"(b) Shall be determined by considering the probability and
severity of the original violation, the efforts of the employer
to correct the violation, and factors which delayed the employer
in correcting the violation; and

"(c) If failure to correct the violation results from the
employer's lack of diligence, the penalty shall not be less than
$50 for each day during which the violation remains uncorrected."



SCO Matthias testified that the penalty listed in the citation
is incorrect. She testified that OR OSHA calculates penalties
for nonabatement by counting the number of days from the date of
the required correction date to the date of the follow-up
inspection. The original penalty for each violation is then
multiplied by the number of days during which the penalty is
nonabated, up to a maximum of ten days. Under this formula the
$210 for each unabated violation should have been multiplied by
a maximum of ten to arrive at a penalty of $2,100 for each
violation and a total penalty of $4,200.



I am unable to find the formula testified to by Matthias in the
administrative rules. It is apparently an internal agency
practice used to implement OAR 437-01-155(2). Inasmuch as it is
not contained in a rule, I conclude that I am bound by the rule,
rather than this practice, in assessing a penalty.



I have made my findings of fact based on the testimony of all
witnesses. Based on their demeanor, I find all three of them
credible.



I have no written information in this record concerning the
probability or severity of the two original violations. However,
the SCO testified to a low probability of a serious accident.
The employer did immediately correct the violations by removing
the plugs from both machines and storing them in packing crates.
It was only five days before the inspection that the machines
were returned to operable condition and therefore exposed
workers to the same hazards. The machines were not actually used
by workers after being returned to service. I find that the
employer made some effort to correct the hazards, but allowing
the machines to return to service showed a lack of diligence.



Based on all the factors listed in OAR 437-01-155, I conclude
that a proper penalty is S50 for each of the five days in which
the employer was out of compliance for each violation on each
machine. In other words, the two hazards on each machine ($100)
are multiplied by the number of machines (2) which are then
multiplied by the number of days in which employees were exposed
to the hazards (5) for a total of $1,000.



                          ORDER



Citation number M730500592 dated December 11, 1991 is modified.
The employer is assessed a penalty of $500 for item 13 and $500
for item 14. The citation is affirmed in all other respects

.

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 SEPT. 1 6 1992 



				WORKERS' COMPENSATION BOARD

				Raymond W. Myers

				Referee