BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92116

		Plaintiff		)  CITATION NO. E478702692

					)

		vs.			)

BENNETT MANAGEMENT COMPANY, Defendant	)  OPINION AND ORDER



Pursuant to notice the above matter was heard in Eugene, Oregon,
on September 21, 1992, before Referee Black. Plaintiff was
represented by Kevin Shuba, an Assistant Attorney General with
Oregon Department of Justice. The employer/defendant was
represented by John Gustafson, the company accountant. The
proceedings were recorded by Debbie Bartholomew for Business
Support Services.



                           ISSUE



Is the employer subject to a $200 penalty pursuant to a Citation
and Notice of Penalty issued January 30, 1992?



                    FINDINGS OF FACT



On January 6, 1992, OROSHA inspected premises at the Downtown
Eugene Athletic Club that were being extensively remodeled. The
inspection was initially as a result of questions about some
scaffolding in place on the job. Robert Bennett, dba Bennett
Management Company, is the owner and operator of the Downtown
Athletic Club. At the time in question, Bennett Management was
engaged in adding some 10,000 square feet to the facility at a
total cost in excess of $500,000. For purposes of the project,
Bennett Management was acting as the prime contractor.



Linda Evans, a compliance officer with OROSHA, spoke with
Bennett Management's on-site engineer and project coordinator.
Having noticed a portable toilet of the type used at many
construction sites within the building on the first floor, the
compliance officer asked what it was doing on the premises. She
was told by Mr. McCallen that, as a consequence of the recent
opening of a third floor restaurant, the subcontractors and
their employees no longer had access to the regular indoor
toilet facilities in the restaurant area. Formerly, the toilet
facilities available to restaurant patrons had also been
available to construction workers through an outside entrance.
The largest share of construction work was located on the third
floor. It was never intended by Bennett Management that, upon
completion and opening of the restaurant facility, restaurant
access would be lost to the construction crew. When queried a
month later by Mr. Gustafson, Mr. McCallen could not recall
precisely what he had told the safety inspector.



The employer, through Mr. Gustafson, remains unable to further
explain further what was apparently a failure of communication
rather than any intent to administer the job with inadequate
toilet facilities. The problem has long since been remedied.



                 FINDINGS OF ULTIMATE FACT



The employer did not provide flush toilet facilities to workers
on or about January 6, 1992. A $200 penalty is mandatory in
these circumstances.



               CONCLUSIONS OF LAW AND REASONING



OAR 436-03-020(1) requires that flush toilet facilities (i.e.,
facilities which are connected to regular plumbing and sewer) be
provided at a construction project with a cost of $500,000 or
more.



Facts



Based on the record made at hearing  which is the only source
from which the referee may appropriately make findings  the
facts are that the employer's project supervisor believed that
there was no flush toilet facility access. Alternate, albeit
nonstandard facilities, were present and apparently in use. From
this, one must infer that flush facilities were not available,
perhaps because of objections by someone about construction
worker use of restaurant facilities after the restaurant opened.
Further, one must presume that Mr. McCallen's understanding of
conditions on this basis must have been known to workers.
McCallen's contemporaneous admission to the OROSHA inspector
must be considered the best evidence available of what the
circumstances really were. It must prevail over the
employer-defendant's no doubt sincere but subsequent
protestation that "That's not how we intended it to work."



Penalty



The parties are no doubt familiar with the penalty schedule in
the form of a matrix appearing at OAR 437-01-145(5) and
accompanying rules which explain how probability of causation of
an accident and the evaluation of severity of potential
accidental injuries are to be worked into the assessment of the
penalty. The present violation is not of this type, but is
essentially a health regulation. OAR 437-01-203(1) addresses
penalties and establishes minimum penalties in instances where
the asserted violation has no probability and severity rating.
Subsection (6) of the rule addresses the present violation and
requires a minimum penalty of $200.



The referee, having found that the facts require the finding of
a violation, is bound to assess a $200 penalty in accordance
with this rule. The referee  and of course OROSHA  is strictly
bound by the applicable administration rules addressing
penalties and penalty reductions. APD now OROSHA) v. Asana, 110
Or App 103 (1991).



                           ORDER



THEREFORE, the Citation and Notice of Penalty issued January 30,
1992, is affirmed.



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 Eugene, Oregon Sept. 28, 1992



				WORKERS' COMPENSATION BOARD

				BY Bruce K. Black

				Referee