BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH92101

 	Plaintiff			)  Citation No. H1069-049-92

					)

	vs.				)

					)

ALLEN & GIBBONS LOGGING, INC. Defendant )  OPINION AND ORDER



	A hearing was convened in Eugene, Oregon before Referee Black
on May 13, 1993.  The employer/defendant, Allen & Gibbons
Logging, Inc., participated through its Safety Director,
Frederich Vedder.  OR-OSHA was represented by its attorney,
Armonica Gilford, an Assistant Attorney General with the Oregon
Department of Justice.  The proceedings were recorded by Debbie
Bartholomew for Business Support Services.



                         ISSUES



	The employer has appealed a citation issued February 11, 1992,
with respect to an inspection undertaken January 21, 1992.  The
issues presented are:



	1.  Did the employer violate 0AR 437-06-045(3) with respect to
high-visibility hard hats?



	2.  Did the employer violate OAR 437-06-210(2) in connection
with required eye protection?



                        FINDINGS OF FACT



	Tom Hoffman, an OR-OSHA Compliance Officer, visited one of the
Allen & Gibbons Logging firm's cutting crews working in the
coast range out of Reedsport on January 21, 1992.



	Generally, the operation was well conducted.  The crew was cat
logging, that is, using a Caterpillar D7 to tow logs to the
landing, rather than yarding them because the yarding equipment
was inoperable.  The layout was satisfactory in terms of
arrangements for the actual towing of the logs, visibility and
communication devices, appropriate cables and warnings, and
safety equipment.  Safety devices were in place, including a cat
driver who was using his seat belt.



	It was approaching lunch time when the inspector arrived and
the crew went ahead with its lunch break on schedule.  This
allowed Mr. Hoffman an opportunity to talk with crew members
somewhat at leisure.  A group picture was taken.  (See Exhibit
5, page 1).  The inspection resulted in a citation based on the
silver hard hat worn by Mr. Montieth, the second worker from the
left in Exhibit 5-1.  A second citation resulted from the
inspector's discussion with crew members about the manner in
which a cable had been cut earlier in the day.



	Montieth ordinarily worked as a rigging slinger when the yarder
was in operation.  On January 21, he had been working in the
brush as a choker setter.  He was wearing a silver hard hat and
a hickory (blue and off-white pinstripe) shirt.  Other crew
members wore painted hard hats, one orange, one green, and one
blue.  (See Exhibit 5-1).  It was a gray day.  In the photo, the
silver hat worn by Mr. Montieth tends to blend in with the white
alder tree trunks in the background, but is more reflective of
sky shine than the other hats appearing in the photograph. 
Montieth's silver hard hat, compared to the orange hat, however,
it is not as visible.  I am not sure that the photograph
background is representative of conditions in the actual cutting
and landing terrain.  The employer supplied a series of
photographs of a worker wearing a silver hard hat in grass,
brush, slash, and scrub timber.  These pictures generally
document conditions in the open which involve shades of dark
green, grey, and brown.  The silver hat shows up well against
the darker forest background at distances approaching 100 yards. 



	The Compliance Officer also learned that earlier in the
morning, two workers had cut a cable using a standard
cable-cutting device which resembles a huge wire grounding clamp
which is struck with a small sledge hammer.  Flying metal
fragments are an inherent byproduct of using this equipment and
it is well known that eye protection is required. 
Unfortunately, the job ordinarily requires two people so that
one can stand on the cable and hold it in position while the
other cuts it.  On the day in question, the individual who cut
the cable was wearing prescription safety glasses.  Additional
safety goggles were available at the work site, but apparently
several hundred feet away at the time.  No one went to get them.
As the second worker involved told the Compliance Officer, he
had simply stood on the cable and averted his face as the
coworker cut it.  (See Exhibit 3-2).



               CONCLUSIONS OF LAW AND REASONING



Visibility of Hard Hat



	OAR 437-06-045(3) provides in part:



"All employees exposed to the hazard of moving lines, falling timber, logs, vehicles or other moving equipment or materials including stationary rotating equipment shall wear colored hard hats or upper body cover of a high-visibility color, which contrasts with the back ground color(s), to enable equipment operators to readily see them."
This provision appears in Division 6, the "Forest Activities" Division, promulgated by OSHA as Division 6, OAR Ch. 437, January 1, 1992. A fair effort at research has not brought any cases to the Referee's attention that construe this provision. Indeed, the Referee has been unable to determine the parent provision in the Code of Federal Regulations (29 CFR ss1900 et seq) from which the administrative rule text has been derived.
Earlier in 1993, Referee Quillinan of the Hearings Division, in SH-92197, set aside a citation where rigging crew workers were wearing silver hard hats on a logging operation, she wrote:
"'High visibility' is a general non-specific term which is further defined as meaning a color 'which contrasts with the back-ground.' Since the rule does not specify one particular color, any color which contrasts to the back-ground would meet the criteria for 'high visibility.' It may be that some other color besides the silver in question here is 'more' visible, but that is not the issue ***". Opinion and Order in SH-92197 (February 1, 1993).
I have a similar reaction here. Clearly, it is appropriate to try to construe a provision so that every word is given effect; both the text and the context of the provision are important. ORS 174.010; Boone v. Wright, 314 Or 135, 138 (1992). Reviewing the photograph taken of the crew on January 21, 1992, none of the other hats worn by crew members except the orange one would appear to comport with the highly visible requirement. Indeed, on the basis of the photograph (which may however be different from what the eye would actually see out in the woods), the two painted (blue and fluorescent green) hats do not stand out as well as the silver one. I cannot, therefore, see the justice in citing the silver hat under these circumstances. Finally, the employer's photographs of a worker wearing a silver hat in what are probably more typical choker-setting conditions (see Exhibit 11, particularly photographs 4, 5, and 6), show that the silver hat is indeed "highly visible" in these conditions. It is not, however, optimal. A visitor to any retail store which sells items such as golf hats, bathing suits, and running clothes, will quickly discover a number of articles in hot pink, hot lavender, fluorescent yellow and orange shades, all of which seem superior to any color encountered in this case. If OSHA wants workers wearing these colors, it is going to have to provide more specific directives within the relevant administrative rules.
Eye Protection While Cutting Cables OAR 437-06-210 is a rule addressing a number of issues concerning the use of cable or wire rope. Section 2 specifically provides that eye protection shall be used when cutting lines. There is a fact issue here that the Referee resolves in OR-OSHA's favor. Initial discussion, as reported by the Compliance Offer and constituting an admission by the employer, was to the effect that the second worker had simply averted his head and was unaware of any eye protection on the work site:
"I asked Dennis if he wore eye protection and he said no. He said he has not seen any eye protection. Dennis said he just turned his head during cutting. Dennis held the line while Tim swung the hammer ***". (Exhibit 3-2).
Actually, there is no great deal of difference between this and a later statement by the worker offered at hearing by the employer (Exhibit 10) in which a more positive, back-to-the-hazard procedure is described. Either way, simply positioning the face so that it cannot be injured at the moment of cutting is not sufficient compliance with the rule. Things happen--workers forget that they are on task and are supposed to be looking away; the wire cutter cuts the cable before the coworker is ready; it becomes necessary to assist by holding the cable or the clamp in a closer proximity to the hazard. Citation for this offense on this record is sustainable.
The actual amount of penalty assessed in these cases was reduced according to the general provisions governing assessment of penalties appearing at OAR 437-01-135, 437-01-140, 437-01-145, and the attached probability/severity schedule. I do not hear the employer to challenge this aspect of the exercise. ORDER THEREFORE, IT IS ORDERED that: 1. Item 1-1 under the Citation issued February 11, 1992, pertaining to a high-visibility hard hat, is set aside. 2. The $75.00 penalty assessed for violation of OAR 437-06-210(2) concerning eye protection in Item 1-2 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. 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 SEP 15, 1993 WORKERS' COMPENSATION BOARD By Bruce K. Black Referee