BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &   

  Health Division			)  Docket No: SH92201

					)  Citation No H178802692

LUISI TRUCK LINES INC.			)

					)

Defendant.				)  OPINION AND ORDER



Hearing convened before Referee Mills in Pendleton, Oregon on
January 26, 1993. OR OSHA was represented by its certified law
student, Eric Stoop. The employer Luisi Truck Lines, was
represented by its attorney, Gary Luisi. Business Support
Services recorded the proceedings. Exhibits 1 through 12 and 11A
were received into evidence at the time of the hearing. The
record was closed on January 29, 1993 when a supplemental
exhibit, No. 11B, was received from the employer.



                       ISSUES



The employer contests the citation dated March 17, 1992 which,
as corrected, fined the employer the sum of $3900 for failure to
abate a previously issued citation.



                       FINDINGS OF FACT



OR OSHA safety officers inspected Luisi Truck Lines Inc., on May
22, 1991. Bill Luisi is the president and chief operating
manager of the corporation. A brother also works in the
corporation as a dispatcher. The business provides trucking
services in the agricultural area.



The inspection in May of 1991 revealed a number of safety
violations. A citation was issued on June 2S, 1991 which listed
14 different violations and assessed a total penalty of $695.
Correction of the violations was required at various times. Some
were completed at the time of the inspection, some corrections
were required immediately upon receipt of the citation, and
others were required to be corrected at a subsequent time,
either on July 9, July 16, or July 23, 1991. (Exs. 54 to 57).



The employer did correct several of the cited violations. It
also appealed the citation. In the meantime, the employer, on
July 12, 1991, asked for a general extension of 90 days to 
Correct the remainder of the citations because it was its busy
season. (Ex. 11A). That general request for an extension was
deferred and additional information was requested by OROSHA.
(Ex. 11B). The information was provided by letter dated July 26,
1991. In the employer's letter of that date it was indicated
that the employer planned to have all citations taken care of by
October 15, 1991. (Ex. 123).



There was a short delay of about a month. It is not clear from
the record what occurred in terms of communication between the
employer and OROSHA during that month. However, on August 20,
1991 the employer was granted an extension limited to a citation
dealing with PVC air lines. The extension was good through
October 21, 1991.



At this same time, the employer's appeal of the original
citation was negotiated. A settlement was reached on August 27,
1991 which set the date of the stipulation as the starting date
for correction of the violations set forth in the original
citation. Depending on whether the time set in the original
citation for correction was to run from the date of the
inspection or the date of the citation, the employer therefore
had another 30 to 60 days to complete the corrections.



By the end of October 1991 the time for correction under either
the original extension or the stipulation had run. The employer
had not corrected all of the violations. At that time the
employer ran into difficulties because of health problems in the
Luisi family. Mr. Luisi's mother became ill and passed away. In
addition, Bill Luisi's niece developed brain cancer. His brother
therefore was not available to perform his usual duties in the
business and additional duties fell on Mr. Bill Luisi. With the
press of business and the health problems the citations that had
not yet been corrected were not corrected.



Senior safety compliance officer Chuck Herberger and safety
compliance officer Steve Lankford performed a routine follow-up
inspection to determine compliance with the prior citation on
December 30, 1991. Six of the originally cited violations had
not been corrected. A Failure to Abate Citation was subsequently
issued on March 17, 1992 which, as corrected, set forth
penalties for failure to abate in the sum of $3900. The basis
for the correction is reflected in the citation, Exhibit 1, at
page 3. Item 12 which sets forth a fine of $1050 should have
read $850 by virtue of the settlement of the previously issued
citation, which reduced the originally assessed fine $105 to $85
on Item 1-2.



The Failure to Abate citation concerned the following violations:



Item 1-1. Employees were not provided information and training
on hazardous chemicals at the time of the follow-up inspection
December of 1991. Bill Luisi indicated that he had the
information on his desk for this requirement but had not been
able to follow up on it.



Item 1-2. The employer was required to purchase a tire cage for
inflating tires. The employer's normal supplier for tires and
tire-related equipment was Les Schwab. A new tire cage was
ordered on July 9, 1991 following the original citation. For
some reason the cage took a long time to get and was still on
back order by the time of the follow-up inspection. Les Schwab
did finally receive the cage and it was provided to the employer
following the follow-up inspection. While this violation was not
abated, the employer did use due diligence to try to comply with
the requirement.



Item 2-5. The employer was not holding safety committee meetings
at the time of the original inspection. One safety committee
meeting was held following the original inspection, but no
follow-up meetings were held. In addition, no records were kept
as required regarding the safety meetings.



Item 2-6. The employer was required to implement a written
hazard communication program. Again, the employer had this
information available but had not yet implemented the program.



Item 2-7. The employer was required to have material safety data
sheets (MSDSs) for all of its hazardous chemicals. By the time
of the reinspection the employer had some but not all of the
MSDSs.



Item 2-11. PVC pipe cannot be used for air lines. The employer
had PVC  air lines at the time of the original inspection and
those air lines had not been removed by the time of the
follow-up inspection.



The above failures to abate were both observed and discovered by
Mr. Herberger and Mr. Lankford at the time of the reinspection
on December 30, 1991. They followed up on January 6, 1992 at
which time the violations had been abated. Mr. Luisi testified
that it took him only two days to take care of the violations.



Fines were computed under OAR 436-01-155. The fines were based
on the original penalty assessments. The Administrative Rule
allows for a penalty of up to $2500 per day. By informal rule
OROSHA cuts off the fine after ten days.



Accordingly, for example, with respect to Item 1-1, the original
fine was $105. Ten days at $105 is $1050, which was the fine
assessed for that failure to abate. The other citations were
based upon the same process.



               CONCLUSIONS AND OPINION



OROSHA has the burden of proving the abatement violations as
cited and the reasonableness of the penalties. With the
exception of one penalty which I will discuss below, OROSHA has
met its burden of proof.



There really is no dispute about the appropriateness of the
abatement violations. The employer was cited in June by a
citation ultimately issued in July. Those citations became final
following the settlement agreement reached by the parties in
August. The citation required correction of the noted
violations. By the time of the reinspection in December of 1991,
the corrections had not occurred on the six items noted in the
abatement citation. At the time of the reinspection, Mr. Bill
Luisi basically admitted that the violations had not been
abated. The fact of the violations is established.



The employer raises several arguments suggesting that either the
abatement violations should be disregarded or at least the
penalties adjusted. First, I understood Mr. Luisi to testify
that he was not aware that he could be fined for failing to
abate. I have reviewed the citations and I believe it is true
that they do not warn an employer that failure to correct may
lead to additional penalties. However, that is not necessary. An
employer is required to comply with safety rules and is subject
to penalty for failing to do so. No warning is required.



The employer gave me a great deal of information and argument as
to what extensions were granted, and the effect of the
stipulation, with regard to when the abatement was required. I
have considered that evidence in a light most favorable to the
employer. One theory is that the employer requested a general
extension and was granted an extension to October 21, 1991.
Pursuant to the employer's own request for extension, that
should have been enough time as the employer indicated it hoped
to take care of all the citations by October 15. The other
theory is that, if it is assumed that the correction times in
the original citation ran from the date of the inspection rather
than the date of the citation, the employer had as long as two
months to comply. If the settlement is interpreted to extend the
correction for an additional two months from the date of the
settlement, the employer would have had until October 27 to
correct.



Again, assuming the evidence in a light most favorable to the
employer, the employer at best would have had until the end of
October to correct the citations. Obviously they were not
corrected by that date.



The employer suggests that the press of business and illness in
the family was responsible for the failure to correct. Neither
the press of business or family illness provides a legal
justification for the failure to abate. At best, the employer
could have sought an additional extension based upon those
mitigating circumstances. It did not choose to do so, even
though the employer obviously was aware of its ability to
request an extension since it had done so before.



I do not, therefore, find any justification for the employer's
failure to abate the violations in a timely fashion.



The employer also offers the above arguments in mitigation of
the penalties. However, the penalties were correctly determined,
with one exception, under OAR 437-01-155. Penalties may be
assessed up to $2500 per day for failure to correct. Here, the
penalties were within that range and were based upon the
original citations' penalties. The penalties could have been
much higher as the failure to abate had gone on for some time.
However, by internal rule OROSHA cuts off the penalties after
ten days.



The bottom line is that once the employer was reinspected and
became aware of the penalties that could be assessed for its
failure to abate, the employer was able to correct the
violations in a matter of two days. There is no reason why this
could not have been done in a timely fashion. If the violations
had been corrected by October 15 as the employer originally
suggested it could do in its original request for extension, no
penalties would have ever been assessed.



Under OAR 437-01-155 the penalty for failure to correct is $50
at a minimum if the failure to correct is due to a lack of
diligence on the part of the employer. If there is a lack of
diligence OROSHA may fine from $50 to the maximum of $2500 per
day. I think it is clear that there was a lack of diligence on
the part of the employer to abate the violations. That is not
true with respect to only one of the violations.



When cited for the failure to have a tire cage, the employer
almost immediately went to its regular supplier and ordered a
cage. For some reason the cage was on back order for some time.
Ultimately, the cage came in. I do not find that the employer
lacked diligence with respect to that violation. The employer
went to its regular supplier of that type of equipment. It was
not the employer's fault that the item was on back order. Safety
officer Lankford agreed that this failure to abate was not the
employer's fault. While it is true that the employer could have
followed up with a different supplier, I do not believe that
that was essential to a finding of due diligence. The employer
had ordered the item from a reputable supplier and was not
unreasonable in relying upon that supplier to come through with
the item.



I therefore find that the penalty for the tire cage is not
reasonable and delete that penalty.



                         ORDER



IT IS HEREBY ORDERED AS FOLLOWS:



l. Citation No. H178802692 issued on March 17, 1992 following a
December 30, 1991 inspection is approved in part. The violations
for Items 11, 25, 26, 27, and 211 and the penalties assessed for
those violations are approved.



2. The violation for Item 1-2 is approved; however, the penalty
of $850 is deleted.



NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition to the State Court Administrator, Record
Section, 1163 State Street, 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 Portland, Oregon on MAR 1, 1993 



				WORKERS' COMPENSATION BOARD

				By MARK MARK MILLS

				Referee