BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
   Health Division			)  Docket No: SH-91130 

	Plaintiff,			)  CITATION NO. D8459-010-91

					)

		v.			)

					)

ROSE CITY CONCRETE, Defendant.		)  OPINION AND ORDER

 

	Hearing convened and closed in this matter on August 28, 1991
in Portland, Oregon, before the undersigned referee.  The
Plaintiff, Oregon Occupational Safety and Health Division, was
represented by its attorney, Assistant Attorney General Armonica
M. Gilford.  The Defendant, Rose City Concrete Specialties,
Inc., appeared through Warren Y. Harding, its
secretary-treasurer.  The proceeding was recorded by Harris
Reporting.  Exhibits 1 through 12 were admitted into evidence.



                         ISSUES



	The defendant appeals the above-referenced citation on the
grounds that Rose City Concrete was not the subcontractor in
charge or control of the project at the time of the alleged
violations and that therefore it was inappropriate to cite the
defendant.



                    FINDINGS OF FACTS



	On October 29, 1990 Lenora DeMenge, a safety compliance officer
for plaintiff, arrived at an excavation site in Clackamas.  She
found three men at the site including a Mr. Walston, who
acknowledged he was in charge, a Mr. Harding, who indicated he
was a friend of Mr. Walston, and a laborer, Mr. Muehliheim.  Mr.
Harding is the secretary-treasurer for Rose City Concrete.



	Mr. Walston and Mr. Muehliheim indicated that they worked for
Sun Construction, the general contractor.  The two men were
picking up tools, as it was near the end of the work day.  Mr.
Harding was just walking around the site.  His clothing did not
indicate that he had done any physical labor.



	The compliance officer found two excavations about
eight-and-one-half feet deep and 18 feet square.  The two
excavations were about 21 feet apart.  Both of them had water at
the bottom.  A sump pump was operating in one of the
excavations.  A long-handled tool for smoothing  dirt, rock,
concrete, etc., was standing in the corner of one of the
excavations.  There were ladders in each of the holes.  The
walls of the excavations were vertical with some undermining. 
There were forms in the excavations for the pouring of concrete
pads, which pads were to take prefabricated concrete vaults to
be installed as part of the equipment for a car wash.  There was
crushed rock in the forms.  Excavated material had been placed
on the edges of both holes.  No one certified in first aid was
on the job.  



	Mr. Walston indicated that he was the only one who had been in
the excavations.  The compliance officer informed him that no
one was to be in the excavations without shoring or sloping of
the sides, and Mr. Walston agreed.  The three men on the site
left at that point.



	The compliance officer arrived early the next morning and
discovered that concrete had been poured into the forms in the
excavations.  She contacted her manager and he authorized the
posting of warning notices (red tags) to prevent further
activity in the excavations.  



	The compliance officer later received a call from a Mr. Gable
of Sun Construction.  He asked her to remove the red tags so
that the prefabricated vaults could be set down into the
excavations.  She indicated she would do so if only if no
employees were exposed.  Mr. Gable also indicated that Walston
and Muehliheim were not employed by Sun construction, rather by
Rose City Concrete.  



	The compliance officer plus another officer went to the site.  
The compliance officer who had "red tagged" the job was informed
by Mr. Walston that the concrete for the pads had been poured
into the forms from the sides of the excavations and no one had
been in the holes.  He said the forms and stakes had been
removed with a backhoe.  



	The officers observed the setting of the first vault.  No one
entered the excavation.  Mr. Harding was on the site when the
crane was moving the vaults into position in the excavation.  He
was not wearing a hard hat until some time after the lifting
operation began.  



	Once the safety compliance officers were persuaded that the
same procedure would be followed in installing the second vault
as had been observed with the first, the officer removed the red
tags and left.  



               FINDINGS OF ULTIMATE FACTS



	Rose City Concrete was not the subcontractor responsible for
the violations identified in the citation.



               CONCLUSIONS OF LAW AND OPINION



	The evidence supports the finding that each of the rules
referenced in the citation was violated.  It does not appear
that the defendant even contests that.  The defendant's position
is that it was not defendant that violated the rules in that
defendant had no control over the work site until after the
concrete vaults were placed into the excavations.  



	For the following reasons, I find that the plaintiff has not
met its burden:



	1.  I find it impossible to determine from this record for whom
Walston and Muehliheim worked.  When the safety compliance
officer arrived on the scene and asked the two men who their
employer was, they said Sun Construction, which I understand to
be the general contractor.  Mr. Harding of Rose City Concrete
was on the site.  As I understand the officer's testimony, Mr.
Harding agreed that they did work for Sun Construction.  A Mr.
Gable for Sun Construction told the officer that the two men
worked for Rose City Concrete.



	Neither Walston, nor Muehliheim, nor Gable appeared at hearing,
so I cannot base any decision concerning their credibility on
observations of their demeanor.  Gable's comment to the
compliance officer was self-serving.  That does not mean it is
not true, but I have it through hearsay rather than directly and
that makes it difficult to evaluate.  The two workmen
contradicted Gable.  Their comments also come to me through
hearsay rather than directly.  Their demeanor and veracity are
also hard to evaluate.  The only evidence that the two men were
employed by Rose City, then, is the hearsay comment of someone
who works for Sun.  It is not clear to me what Gable's position
was with Sun Construction.



	A bookkeeper for Sun Construction, more precisely someone who
is the bookkeeper/office manager for a compnay that owns part of
Sun Construction, testified that she helped with payroll for Sun
Construction and had no W-2 forms for either Walston or
Muehliheim.  Assuming that is true, I am not certain it proves
that they were employed by Rose City.  Further, on
cross-examination the witness was asked if a Mr. Rogers, the
administrator of the Sun corporation, is on the Sun payroll. 
The witness testified he is not, that he has checks issued
through a corporation of his own.  Mr. Harding testified that
Walston, who was in charge when the safety compliance officer
came to the site, had contracted with Rogers to set the tanks. 
That certainly raises the possibility that Walston (and
Muehliheim) had been paid by Rogers' corporation.



	2.  I cannot determine from the contract between Rose City and
the general contractor, Sun Construction, whether Rose City had
any responsibility for the excavation and vaults.  There is no
reference to Rose City doing any excavation or setting any
vaults.  They were to provide "all miscellaneous concrete as
required for footings, slabs, vacuum islands, sight lighting,
walls, approaches, planter footings, sign bases & all misc.
concrete" (Exhibit 4-2).  They were to begin work approximately
October 1, 1990, which, as it turns out, is two days after the
vaults were set in place.  



	3.  If I understand the compliance officer's notes correctly, a
person named Dan Nichols of Timberline Development was the
excavator for the project (Exhibit 2-1).



	4.  It was Mr. Gable of Sun Construction who arranged with the
compliance officer for removal of the red tags so that the vault
work could go forward.  There is no indication that Rose City
Concrete took any particular role in that.



	The evidence on plaintiff's side is too vague concerning the
employer of the men working on the site and concerning Rose
City's role in the project for me to conclude that Rose City was
the party responsible for the violations identified in the
citation, with one exception.  Mr. Harding of Rose City was on
the site at a time when protective head gear was required.  He
was not wearing it at all times he should have been.  I infer
from the facts that he was there representing Rose City, and I
affirm Item 2-5.      



                         ORDER



IT IS HEREBY ORDERED:



	Item 2-5 of Citation D8459-010-91 is affirmed.  The other items
of said citation are set aside in their entirety and shall be of
no effect.



	NOTICE TO ALL PARTIES:  If you are dissatisfied with this
Order, you may, not later than sixty (60) days from the mailing
date of this Order, request a review by the Court of Appeals,
State Court Administrator, Records Section, 1163 State Street,
Salem, OR 97310.  Any such 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.  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 sixty (60) days of the mailing date of this Order will
result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER.



	ENTERED at Salem, Oregon, on November 15, 1993 



				WORKERS' COMPENSATION BOARD

				Robert A. Davis

				Referee