BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92203

	Plaintiff			)  Citation No. D711002292

					)

MEALUE EXCAVATING Defendant		)  OPINION AND ORDER



A hearing in the above captioned case was held in Salem, Oregon
on January 27, 1993 before the undersigned referee. The court
reporting service was Business Support Services. The Oregon
Occupational Safety and Health Division of the Department of
Insurance and Finance (OROSHA) was represented by its attorney,
Norm Kelley. The employer, Mealue Excavating, Inc., was
represented by Glenn Starks.



This is a contested case under the Oregon Safe Employment Act.
The employer has appealed Citation No. D7110-022-92 issued by
OROSHA on March 26, 1992, which cited the employer for allegedly
violating OAR 437-56-095(1), a safety standard adopted by the
Department of Insurance and Finance pursuant to the Oregon Safe
Employment Act (ORS Chapter 654). At the hearing the parties
agreed that the only issue is whether a violation of said
standard occurred.



Following the hearing the record was kept open to allow OROSHA
the opportunity to submit a written statement of legal
authorities pertinent to the issue in the case, and to allow the
employer an opportunity to submit a response. On March 3, 1993
counsel for OROSHA submitted a letter with attached legal
authorities. On March 22, 1993 I sent a letter to the employer's
representative, Mr. Starks, advising that I had not yet received
a response to the March 3 submission from OROSHA's counsel. Mr.
Starks was advised that if nothing was received from him within
two weeks from the date of my letter it would be assumed that
the employer had no further argument to submit and the record
would be closed. No response was received from the employer.
Accordingly, the record was closed on April 5, 1993.



                         FINDINGS OF FACT



Mealue Excavating, Inc. (hereinafter, Mealue), is an excavation
contractor based in the Salem area. On March 3, 1992 Mealue was
engaged in an excavation project in Corvallis; the project
involved the removal of underground fuel tanks. On that date
Mealue's employee, Dan Moore, was operating a backhoe/scoop
tractor, backfilling the site of the excavation.



On March 3, 1992 Arthur Duhon, a safety compliance officer with
OROSHA, arrived at the above-referenced work site for the
purpose of performing a safety inspection. At that time he
observed Mealue's employee, Dan Moore, operating a backhoe/scoop
tractor.



On the date of Duhon's inspection the backhoe being operated by
Mealue's employee had no functioning audible warning device.



On the date of Duhon's inspection three employees of a utility
company were performing their work duties in the vicinity of
Mealue's backhoe operation. At one point during the course of
performing their work duties the utility company employees were
approximately 10 feet from the backhoe. They were standing with
their backs to the backhoe and looking up at a utility pole they
were going to service.



On March 3, 1992 the utility company workers who were performing
their duties in the vicinity of Mealue's backhoe operation were
exposed to the hazard created by Mealue: the absence of a
functioning audible warning device on the backhoe vehicle.



                  OPINION AND CONCLUSIONS



The only item in the citation in this case, item 1-1, alleges a
violation by Mealue of OAR 437-56-095(1). That safety standard
provides as follows:



"All vehicles shall be equipped with an audible warning device
which can be clearly heard above the surrounding noise in the
vicinity of the vehicle"



The sole issue herein is whether Mealue was in violation of the
safety standard on the date of the inspection. At the hearing
the parties stipulated that the alarm horn on the backhoe was
not functioning on the date of the inspection. Mealue's defense
at the hearing was that no employees were exposed to the hazard
created by the non-functioning alarm horn. The evidence in the
record shows that the only employee of Mealue who was on the
premises that day was the backhoe operator, Dan Moore. He could
not have been exposed to the hazard since he was the one
operating the backhoe. However, the evidence shows that there
were other workers in the area who were potentially exposed to
the hazard. Said workers were employees of a utility company who
were performing some type of service work on a utility pole. At
the hearing Mealue took the position that there was no violation
of the safety standard in question because no employees of
Mealue were exposed to the hazard. Further, the employer took
the position that even if employee exposure sufficient to
constitute a violation of the standard includes non-Mealue
employees, the utility workers in question were not actually
exposed to any hazard.



Mealue has cited no Oregon cases that are directly on point with
regard to the employee exposure question. However, federal case
law involving safety matters establishes that a violation of a
safety standard exists even where the only workers exposed to
the hazard are employed by another employer. See Secretary of
Labor v. Flint Engineering and Construction Co., OSHRC, Docket
No. 902873, December 21, 1992. Oregon law regarding safety
matters must be at least as effective as the federal safety law 
that is, Oregon's safety law cannot be less stringent than
federal law. See 1 Employment Safety and Health Guide (CCH),
Section 506 (1993). I conclude that Mealue was in violation of
the safety standard involved herein if its noncompliance with
the standard exposed another employer's workers to the hazard.
The remaining question is whether there was such exposure.



The evidence establishes that on March 3, 1992 three utility
company employees were in the vicinity of Mealue's backhoe
operation in the course of performing their duties involving the
servicing of a utility pole. Arthur Duhon, the OROSHA safety
compliance officer who inspected Mealue's work site on March 3,
1992, credibly testified that the utility workers were
approximately 10 feet away from the backhoe at one point in time
 he advised that they were standing with their backs to the
backhoe and they were looking up at a power pole. Based upon
Duhon's credible testimony, I find that the utility workers were
exposed to a hazard created by Mealue  a backhoe vehicle
operating without an audible warning device.



Based upon the evidence presented and the applicable law, and
for the foregoing reasons, I conclude that Mealue was in
violation of OAR 437-56-095(1) on March 3, 1992. Thus, the
citation must be affirmed with regard to the occurrence of a
violation on the date of the inspection. The citation provided
that the violation was in the "general" class. No issue was
raised with regard to that portion of the citation, or with
regard to the correction date set forth in the citation: April
9, 1992. As for the penalty amount set forth in the citation 
$60  the parties agreed at the hearing that if the violation was
established, the penalty amount should be $30 rather than $60
and, further, that said $30 penalty amount should be suspended
per the applicable administrative rules.



                         ORDER



IT IS THEREFORE ORDERED that Citation No. D7110-022-92 issued by
OROSHA on March 26, 1992 is, per the parties' stipulation at the
hearing, amended with regard to the penalty amount. The penalty
amount shall be $30 rather than $60 and, further, the $30
penalty amount shall be suspended per the applicable
administrative rules. IT IS FURTHER ORDERED that the citation,
as amended with regard to the penalty amount, 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.



	ENTERED at Salem, Oregon MAY 2 8  1993 



				WORKERS' COMPENSATION BOARD

				By John P. McCullough

				Referee