BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			   )  Docket No: SH92097

		 Plaintiff,		   )  CITATION NO. H558800792

					   )

			vs.		   )

SUNRISE ENTERPRISES OF ROSEBURG, Defendant )  OPINION  AND  ORDER



Pursuant to Notice, the above entitled matter was heard in
Eugene, Oregon on August 25, 1992. Plaintiff was represented by
Assistant Attorney General Norman Kelley. The employer/defendant
was represented by attorney Adam Stamper. The proceedings were
recorded by Paula Cottrell-Shirey of Court Works.



The hearing record closed with completion of unrecorded oral
argument on August 27, 1992.



                         ISSUES



1. The employer/defendant contests that portion of citation
number H558800792 that alleged that the employer had failed to
comply with the requirements of OAR 437-40-030(1) by failing to
ensure that workers were properly instructed and supervised in
the safe operation of machinery, tools, equipment, processes or
practices which the employees were authorized to use and apply
(Item 1-1 of the citation). Plaintiff alleges that the defendant
violated OAR 437-40-030(1) by:



(a) Failing to properly instruct all supervisors, at their
initial assignment as to the safe operation and procedures
involved utilizing machinery under the supervisors' authority;



(b) Failing to ensure that supervisors were aware of provisions
of the lockout procedure which required operation of controls
after initial lockout to ensure all energy sources were isolated;



(c) Failing to issue locks to machinery operators and failing to
ensure that those locks were utilized to lockout power sources
to equipment when saw blades were changed or other maintenance
was performed; and (d) Failing to follow formal policies
regarding periodic inspections outlined in the Lockout/Tagout
Program.



2. Defendant appeals from that portion of citation number
H558800792 alleging the defendant had violated OAR 437-02-140 by
failing to conduct an annual or more frequent inspection of the
energy control procedure to ensure that the procedure was
followed (Item 1-3 of the citation).



                        FINDINGS OF FACT



The defendant is a business engaged in the manufacture of a
variety of small wood products. The employer maintains a
manufacturing facility in Roseburg, Oregon. The work force of
the employer is comprised of physically and mentally
disadvantaged individuals with a wide variety of physical and
mental abilities.



Workers at the employer's manufacturing facility operate a
variety of manufacturing equipment for cutting, shaping, and
assembling small wood products. Operation of those machines
without proper instruction regarding the operation and
maintenance of the machines is hazardous. Performing maintenance
on the machinery without locking out the power source is
hazardous because another individual could restore power to the
equipment and start operation of the equipment while maintenance
is underway.



In December 1990 the employer adopted a formal Lockout/Tagout
procedure to ensure that the energy source for equipment would
be turned off during servicing or maintenance. The
Lockout/Tagout policy designated six supervisory personnel who
were responsible for locking or tagging out the power supply to
equipment prior to repair or maintenance. Those six supervisory
personnel, including Alice Whitlatch, received specialized
training in the Lockout/Tagout procedure. In addition, the
Lockout/Tagout procedure was included as part of the employee
handbook given to all employees.



Although the Lockout/Tagout procedure was formerly adopted in
December 1990, maintenance of machinery, including the changing
of saw blades and unjamming clogged equipment was often
performed by employees without locking/tagging out the power
source to the equipment.



On October 15, 1991, Oregon OSHA Safety Compliance Officer Scott
Haviland conducted an inspection of the employer's premises.
That inspection resulted from a complaint filed by Alice
Whitlatch that had been made to OROSHA regarding safety
procedures at the work place.



While in the employer's manufacturing facility, Mr. Haviland
observed an employee begin to change a saw blade without locking
or tagging out the equipment. When Mr. Haviland questioned the
employee, the employee was unaware of the Lockout/Tagout
procedure. Mr. Haviland also spoke to another employee who
indicated that he frequently changed saw blades without locking
or tagging out the equipment. That employee was not one of the
supervisory personnel designated to lockout or tagout equipment
and had not been issued a lock or tag.



Mr. Haviland also observed an employee using a pry bar to unclog
the infeed in a piece of machinery while the machine was running.



During Mr. Haviland's inspection of the work place, he spoke
with supervisors Alice Whitlatch and Dennis Reed. Both of those
supervisors had been transferred to the saw mill/Christmas tree
stand department in August or September of 1991. Both of those
employees were engaged in disputes with the employer over a
variety of issues, including pay rate, work assignments, and job
performance ratings. At the time Whitlatch and Reed were
transferred to the saw mill/Christmas tree stand area, the
production manager, Mark Frakes, explained the safe operation of
equipment those individuals were assigned to supervise. That
explanation included discussion of the Lockout/Tagout procedure.



During Mr. Haviland's inspection on October 15, 1991, he learned
that the employer had not conducted a formal training review of
the Lockout/Tagout procedure since it was adopted in December
1990. Mr. Haviland reminded the employer that such reviews were
required to be performed annually or more frequently. Such a
review was then scheduled and conducted by Mr. Haviland at the
employer's work place on November 13, 1991.



               ULTIMATE FINDINGS OF FACT



The employer did not see that workers were properly instructed
and supervised in the safe operation of machinery, tools, and
equipment which they were authorized to use and maintain.



The employer conducted a periodic inspection of the energy
control procedure within one Year of the date the Procedure was
adopted.



               CONCLUSIONS OF LAW AND REASONING



Item l-1



OAR 437-40-030(1) requires that an employer ensure that workers
are properly instructed and supervised in the safe operation of
any machinery, tools, equipment, process or practices which they
are authorized to use or apply. Plaintiff alleges that defendant
violated that rule in several particulars set forth in
paragraphs (a) through (d) of citation Item 1-1.



To sustain its burden, plaintiff need not establish each and
every particular. The evidence does not preponderate in support
of the allegations set forth in paragraphs (a), (b), and (d).
However, paragraph (c) alleges that clients (employees)
routinely change saw blades without locking out the equipment
and that operators of the Christmas tree stand machine and band
saw were not issued locks and properly supervised to ensure that
they were used. Plaintiff has established that violation by a
preponderance of the evidence.



While Alice Whitlatch and Dennis Reed were involved in disputes
with the employer that provided them with a strong motive for
biased testimony, another witness, James Hilderbrand, offered
credible testimony which indicated that the Lockout/Tagout
procedure was routinely violated. His testimony indicated that
the procedure was adhered to only sporadically (60 to 70 percent
of the time), depending on whether a particular machine operator
had been issued a lock and key.



Mr. Hilderbrand's testimony that the Lockout/Tagout procedure
was routinely ignored was supported by the credible testimony of
the Safety Compliance Officer indicating that violations of the
policy (changing saw blades and unjamming equipment without
locking out the power source) occurred in his presence during
his inspection in October 1991. His testimony further indicated
that when machine operators were questioned regarding the
Lockout/Tagout procedure, they were unaware of the specifics of
the procedure.



The observations of the Safety Compliance Officer during his
inspection, when coupled with the testimony of Mr. Haviland,
leads to the inescapable conclusion that, while the employer had
an excellent Lockout/Tagout procedure on paper, the procedure
was not enforced by supervisory personnel on a daily basis on
the production line. Failure to enforce the procedure was a
failure to properly supervise employees in the safe operation of
machinery and equipment. Reinforcement of the Lockout/Tagout
procedure through constant enforcement of the procedure by
supervisory personnel, was critical in this particular work
place because of the limited mental capacity of many of the
workers. For the formal procedure to be effective, strict
enforcement of the procedure was required by supervisory
personnel. Anything less, in this particular situation,
constituted a failure to properly instruct and supervise
employees in the safe operation of machinery.



As plaintiff has met its burden of establishing by a
preponderance of the evidence that the employer failed to
properly instruct and supervise workers in the safe operation of
machinery and equipment, Item 1-1 of the citation shall be
sustained.



Item 1-3



OAR 437-02-140 [29 CFR 1910.147(c)(6)(i)] requires that an
employer conduct an annual or more frequent inspection of the
energy control procedure to ensure that the procedure is
followed.



In Item 1-3 of the citation, plaintiff alleges that the employer
failed to conduct annual or more frequent reviews. Plaintiff
alleges that, given the limited mental capacity of many of the
workers at the plant, reviews at intervals of less than one year
were required.



Given the special nature of the employer's work force, reviews
of the Lockout/Tagout procedure more frequently than one time
per year is highly advisable. However, the rule cannot
reasonably be read to require reviews on a more frequent than
annual basis. The employer adopted the Lockout/Tagout procedure
in December 1990. The Safety Compliance Offer conducted a review
of the procedure for the employer in November 1991. The
employer, therefore, complied with the requirements of OAR
437-02-140 and 29 CFR 1910.147(c)(6)(i). Item 1-3 of the
citation shall, therefore, be set aside.



At hearing defendant specifically indicated that it was not
contesting the amount of the penalties assessed for alleged
violations. Defendant further indicated that it was not
contesting Item 1-2 of the citation. Therefore, neither
appropriateness of the penalty assessed for Item 11 nor the
merits of Item 1-2 are addressed by this Order.



                         ORDER



IT IS HEREBY ORDERED that Item 1-1 of citation number H558800792
is affirmed. The employer/defendant shall pay the penalty
assessed for that violation.



IT IS FURTHER ORDERED that Item 13 of citation number H558800792
is set aside



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. Failure to mail such a request for review within the
time allowed will result in LOSS OF RIGHT TO APPEAL FROM THIS
ORDER.



	ENTERED at Eugene, Oregon 09 NOV.1992 



				WORKERS' COMPENSATION BOARD

				By Robert J Gruber

				Referee