BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92197

	Plaintiff			)

					)

					)  Citation No: P976204092

	Defendant			)

WILLAMETTE INDUSTRIES INC		)  OPINION AND ORDER



Pursuant to notice, hearing was held and closed January 20, 1993
in Salem, Oregon before Kasia Quillinan, Referee. The Plaintiff,
Oregon Occupational Safety and Health Division (OROSHA), was
represented by Norm Kelly, Assistant Attorney General. The
Defendant, Willamette Industries Wimer Logging Co., was
represented by Burton Harris, Safety Director for the employer.



                         ISSUES



The employer appeals citation number P976204092, item 1-2,
issued March 5, 1992. The plaintiff, OR OSHA, contends that a
violation occurred pursuant to OAR 437-06-045(3), in that three
men working on the rigging crew were not wearing colored hard
hats.



The plaintiff has withdrawn item 1-1 of that citation and the
associated penalty.



                       FINDINGS OF FACT



The facts in this case are not in dispute.  Willamette
Industries/Wimer Logging Co., was engaged in logging operations
on the date of the Safety Compliance Officer's inspection,
February 14, 1992.



Three members of a four person rigging crew were wearing silver
colored aluminum hard hats. One member of the crew was wearing a
white or yellow painted hard hat.



The rigging crew at the time of the inspection was working
entirely in the brush and was not working on or near the landing
or near any moving equipment.  The rigging crew controlled the
movement of the logging lines in this area.



The employer was already in the process of painting all hard
hats, at the time of the citation.



                       APPLICABLE LAW



OAR 437-06-045(3) states as follows: "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."



                          OPINION



One of the basic tenets of statutory construction and
interpretation is that the meaning of a more general clause is
modified by the terms of the more specific one. The purpose
behind this doctrine of ejusdem generis is to reconcile an
incompatibility between the specific and the general, so that
all words and parts of the statute or administrative rule can be
construed together and given effect and no words will be
superfluous. In the case of specific words or clauses modifying
or restricting more general terms, clearly the specific clauses
must have some meaning and application, otherwise the general
clauses or words would be used in an unrestricted sense, thus
rendering the specific terms unnecessary.



The first segment of OAR 437-06-045(3) defines which employees
are subject to this rule, namely all those exposed to moving
equipment of one sort or another and to falling timber or logs;
consequently anything which could move unexpectedly or
unpredictably.



The second segment defines what the employees must do, that is,
wear hard hats or upper body cover of "a high visibility, which
contrasts with the background colors." "High visibility" is a
general nonspecific term which is further defined as meaning a
color "which contrasts with the background." Since the rule does
not specify one particular color, any color which contrasts with
the background 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 in this proceeding.
Thus if the background color was predominantly yellow as around
some equipment, yellow hard hats would not meet the "high
visibility" standard, where as perhaps white or pink or silver
would.



The Administrative Rule does not specify that the hard hat must
be visible under all environmental conditions. That would
clearly be an impossibility. The rule does specify a single
condition and a single environmental factor where hard hats of
high visibility are required, specifically around moving
equipment so as to "enable equipment operators to readily see
them."



Inasmuch as the Administrative Rule is clearly qualified twice,
first by describing the categories of persons subject to this
rule largely in terms of moving equipment, and second by
limiting its application to situations where the worker is
exposed to moving equipment, I find that the rule is not
applicable in this particular situation. Moreover, had the rule
intended to prescribe a specific r for all situations it could
easily have done so.



Here the workers were in the brush. The silver hard hats are
clearly visible and contrast with the background colors. None of
the workers were in the proximity of or exposed to the hazard of
moving equipment.



I therefore conclude that this citation should be dismissed.



                          ORDER



IT IS HEREBY ORDERED that:



1) Citation number P976204092, item 1-1 was withdrawn and is
hereby dismissed.



2) Citation number P976204092, item 1-2 be dismissed.



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
183.4$2.



	Entered at Salem, Oregon FEB. 1, 1993  



				WORKERS' COMPENSATION BOARD

				By Kasia Quillinan, Referee