BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92160

	PLAINTIFF			)  CIT NO P679502192

					)

G & G ELECTRIC/PLUMB			)

	DEFENDANT			)  OPINION AND ORDER



	Hearing was held in Medford, Oregon on January 8, 1993 before
Philip A. Mongrain, Referee.  Oregon Occupational Safety &
Health Division was represented by Assistant Attorney General
Norman F. Kelley.  G & G Electric and Plumbing Distributers,
Inc. was represented by Attorney Nelson D. Atkin, II.  The
hearing was reported by Marguita Mitchell of Business Support
Services and was closed at its conclusion.



                          ISSUE



	Whether the employer violated safety standards as alleged by a
citation issued on January 8, 1992.



                      FINDINGS OF FACT



	Safety Compliance Officer Jeff Pfeiffer inspected the
employer's premises on December 9, 1991 (Jeff Pfeiffer's
testimony; Exhibits 1 (page 3), 2, 4).  During the course of the
inspection he determined that the employer had not developed any
written hazard communication program setting forth hazard
identification and procedures related thereto as required by OAR
437-155-015(1)  (Jeff Pfeiffer's testimony; Exhibits 1 (page 3),
2, 3).  The employer did not in fact develop and maintain any
single document setting forth the required items, although it
maintained Material Safety Data Sheets in a readily accessible
central location of which the employees were advised and which
described hazard potentials, it conducted regular safety
meetings for all employees and maintained a safety bulletin
board and safety bulletin book readily accessible to employees
and which employees were asked and encouraged to review, it
conducted regular safety meetings at which hazards were
discussed, and it maintained proper labeling of hazardous
materials (Curt Jaffe's testimony, Christopher Defty's
testimony, Anthony Atkin's testimony, Tammy Woods' testimony,
Exhibits 8, 18). Following preparation of Mr. Pfeiffer's
findings, including a determination that a general violation had
occurred and represented a low probability of a moderately
severe physical injury in the form of eye or skin irritation, a
$75.00 fine was assessed (Jeff Pfeiffer's testimony; Exhibits 1
(page 3), 3).



	Mr. Pfeiffer also determined that the employer had not provided
information and training on hazardous chemicals in employee work
areas as required by OAR 437-155-030 (Jeff Pfeiffer's testimony:
Exhibits 1 (page 4), 3). The employer provided information and
training as set forth above, first day training in the form of
reading safety bulletins, an explanation of Material Safety Data
Sheets maintained by the company and their location, and the
location of the first aid kit (Christopher Defty's testimony,
Anthony Atkin's testimony, Tammy Woods' testimony). At least
three employees had no knowledge of Division 155 rules of hazard
communication (testimony of Defty, Atkin and Woods). Following
preparation of Mr. Pfeiffer's findings the employer was cited
for a general violation with no assessed penalty (Exhibits 1
(page 4), 3).



                    ULTIMATE FINDINGS OF FACT



	(1) The employer did not develop and maintain an appropriate
written hazard communication program.



	(2) The employer did not provide employees with all required
information and training.



                         OPINION



	OAR 437-155-015(1) provides:



 
(1) Employers shall develop, implement, and maintain at the workplace, a written hazard communication program for their workplaces which at least describes how the criteria specified in OAR 437-155-020 through 437-155-030 of this division for labels and other forms of warning, Material Safety Data Sheets, and employe information and training will be met, and which also includes the following: (a) A list of the hazardous chemicals known to be present using an identity that is referenced on the appropriate Material Safety Data Sheet (the list may be compiled for the workplace as a whole or for individual work areas); and, (b) The methods the employer will use to inform employes of the hazards of non-routine tasks (for example, the cleaning of reactor vessels), and the hazards associated with chemicals contained in pipes in their work areas."
My interpretation of OAR 437-155-015 is that the employer must maintain somewhere one writing, whether single page or multiple pages, that sets forth all the above noted information, in other words something at least similar to the example found in the example document published by the Department of Insurance and Finance relative to hazardous communication rules (Exhibit 19 (pages 33-35)). The employer is clearly conscientious and safety-minded but the information required by OAR 437-155-015 is available from a number of different sources, such as Material Safety Data Sheets, safety bulletins, and safety meetings, rather than one source. That be and probably is sufficient for conscientious and diligent employees, but the standard appears to aimed at insuring inclusion of less diligent and conscientious employees who might require more "hand holding" in the sense of one easy source to which reference can be made for the purpose of obtaining the required information. In a sense it is "nit-picking", and because of that I am sympathetic to the position of an employer that is clearly doing a good job and probably often feels great frustration with what may be perceived to be an unreasonable bureaucracy. On the other hand, as Mr. Kelley rightly points out, it is the job of Oregon OSHA to nit-pick, and in the interest of safety to err, if there be error, on the side of safety. Therefore, I conclude that the violation charged by item 1-1A has been proved. OAR 437-01-135, 140, and 145 set forth the criteria for determining penalties. Considering those factors I am unable to conclude that Mr. Pfeiffer was in error in concluding that the above violation represents a low probability of the occurrence to an employee of a moderately severe injury, which calls for a penalty of $75.00 . OAR 437-155-030 provides in pertinent part:
Employers shall provide employes with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area. (1) Information. Employes shall be informed of: (a) The requirements of this division: (b) Any operations in their work area where hazardous chemicals are present: and, (c) The location and availability of the written hazard communication program, including the required list of hazardous chemicals, and Material Safety Data Sheets required by this division. (2) Training. Employee training shall include at least: (a) Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.): (b) The physical and health hazards of the chemicals in the work area. (c) The measures employes can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employes from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to used: and (d) The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the Material Safety Data Sheet, and how employes can obtain and use the appropriate hazard information."
Again, although the employer's safety efforts are laudable and appear to satisfy most of the probable intent of this standard, in fact it appears that contrary to requirements of the standard employees were not informed of the Division 155 requirements pertaining to hazard communication and were not, of course, informed of the location of the written hazard communication program since none existed. Again, although somewhat "nit-picking", the standard has in fact been violated. CONCLUSION OF LAW The alleged violations in Citation No. P679502192 have been proved. ORDER IT IS HEREBY ORDERED THAT with regard to Citation No. P679502192 all violations and the proposed penalties are approved. NOTICE TO ALL PARTIES: If you are dissatisfied with this order, you may, not later than sixty (60) days after the mailing date on this Order, request a review by the Court of Appeals, Third Floor, Justice Building, Salem, Or 97310, pursuant to ORS 183.480, 482. A 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. Failure to mail such a request for review within sixty (60) days after the mailing date of this Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER. Entered at Medford, Oregon on this day January 29, 1993 WORKERS' COMPENSATION BOARD Philip A. Mongrain, Referee