BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH92236
)
Plaintiff )
) Citation No: B0163-016-92
ZIMBRICK LOGGING INC. )
)
Defendant ) OPINION AND ORDER
Pursuant to notice, a hearing in the above matter was scheduled
to begin on March 15, 1993 in Salem, Oregon before Marilyn
Nichols, Referee. The hearing was recorded by Business Support
Services. OR-OSHA was represented by and through their
attorney, Norman Kelley. Zimbrick Logging Inc. was represented
by and through their attorney, George Goodman. Prior to the
date of the hearing, a conference call was held with the parties
and it was determined that the hearing would be bifurcated, and
the procedural issues would be decided before a hearing was held
on the merits because the procedural issues could be dispositive
of the entire matter.
The following exhibits were submitted and received into the
record in this matter: Exhibits 1 - 33, and A. Some of the
exhibits were depositions that had deposition exhibits appended
to them. Only specific pages of exhibits 16, 21, 25, and 26
were submitted into this record.
ISSUES
The employer has raised several preliminary issues as a basis
for his motion to dismiss with prejudice the complete citation
that is the basis of this hearing. They are:
1) The employer contends that OR-OSHA has no jurisdiction to
regulate safety related activities on federal land; therefore,
because this employer was engaged in logging on National Forest
land, jurisdiction lies with federal OSHA.
2) The employer contends that the citation is defective in
that it does not state facts upon which the second and third
item of the citation are based pursuant to ORS 654.071(2)(b).
Additionally, if the motion is denied, the employer contends
that Items 1-2 and 1-3 are for the same action and Item 1-3
should be dismissed because the violation should be under the
rules relating to the specific occupation rather than the
general administrative rules.
3) The employer contends that OR-OSHA lacks authority to issue
the citation because the inspection which led to the citation
was improper and illegal in that:
a) OR-OSHA did not follow the statutory requirements of ORS
654.067 and 654.071.
b) OR-OSHA did not follow the mandatory administrative rule:
OAR 437-01-080(1).
c) OR-OSHA did not comply with the mandatory requirements as
set out in the Field Compliance Manual.
d) OR-OSHA did not review Division 40 & 80 rules pursuant to
ORS 183.545.
4) The employer contends that the Referee should award an
attorney fee and exemplary damages based on OR-OSHA's egregious
conduct in this matter. The employer cites OAR 438-85-800 and
438-85-805(12) as authority to make these awards.
FINDINGS OF FACT
The employer in this matter is a contract logger who was
involved in logging in the National Forest on a site called the
Crazy Pollard Sale. Sometime in late November 1991, a Forest
Service employee called the office of OR-OSHA to report that he
had seen the employees of this employer riding the rigging on
the job site. This report was handled as an anonymous tip.
The tip was given to Diane Mekkers, a supervisor, who relayed
it to Bruce Brown, a safety compliance officer (SCO), and
instructed him to check out the information to see if the
violation was occurring. No complaint file was set up at that
time.
Mr. Brown went to the job site on three separate days, staying
off that portion of the land that was part of the sale, but did
position himself where the workers could be observed. On the
third day, he also saw the workers riding the rigging. The next
day, he returned to the work site and did an opening conference
with Kirk Olsen, the representative of the employer that was on
the job site. Mr. Olsen was one of the employees Mr. Brown had
seen riding the rigging the night before.
After the opening conference, Mr. Brown did an inspection by
taking statements from the other workers at the job site. No
representative of the employees was selected to accompany Mr.
Brown on this inspection. The employees denied having ridden
the rigging. Only one employee indicated that he had seen other
employees ride the rigging while working for this employer.
Because of the inconsistency between what Mr. Brown saw and the
employees' statements, it was determined that additional
statements should be taken under oath. The employer had
knowledge that these statements were to be taken prior to the
actual date of the questioning. The inspection process was
closed in April 1992 and a citation was issued on April 15, 1992
listing three items with a total penalty of $30,000. The
violations were listed as willful.
Items 1-2 and 1-3 do not contain a plain statement of the facts
upon which the citation is based. The only fact listed,
specifically to this employer, is the name of the employer. The
citation does, however, cite the specific rules that have been
violated. Division 80 rules which pertain to logging were last
amended in 1985, prior to the issuance of this citation.
Division 40 rules were last amended March 1, 1991 and prior to
that in June 1990.
CONCLUSIONS OF LAW AND OPINION
Jurisdiction
The employer contends that OR-OSHA does not have jurisdiction
to issue the citation in this matter because the alleged
violations occurred on National Forest land (federal land) over
which federal OSHA has jurisdiction. I disagree.
ORS 272.040 relates to legislation consenting to the
acquisition of state land by the federal government for National
Forests. This legislation was originally adopted in 1935 and
amended in 1967. OR Laws 1935 Ch 268.
ORS 272.040(2) states in part:
The State of Oregon retains a concurrent
jurisdiction with the United States in and over lands so
acquired:
(a) So that civil processes in all cases, and such criminal
processes as may issue under the authority of this state against
any person charged with the commission of any crime without or
within such jurisdiction, may be executed thereon in like manner
as if this consent had not been granted.
This is also consistent with 16 USCA, Section 480 wherein the
states retain criminal and civil jurisdiction in federal forest
lands. The language of that section has been basically the same
since it was adopted as Section 12 in 1911.
The employer cited Labor and Industries v. Dirt and Aggregate,
Inc., 120 Wn2d 49, 53 (1992), as support for its position that
OR-OSHA does not have jurisdiction in this matter. I do not
find that case to be persuasive in this matter because of the
basic difference in the jurisdiction that was ceded back to the
federal government.
Mt. Ranier National Park was established by an Act of Congress
in 1899. In 1901, the Washington Legislature ceded exclusive
jurisdiction over all park lands to the federal government.
When exclusive jurisdiction has been given to the federal
government, state regulation of activities within the federal
enclave may resume only with the express permission of Congress.
In the instant matter, the Oregon Legislature retained
concurrent jurisdiction over the national forest lands, which
was consistent with the federal law.
Where concurrent jurisdiction is retained, the state is not
prohibited from regulating activities within such lands unless
there has been a federal pre-emption of such regulation. If it
could be argued that the adoption of federal OSHA has pre-empted
the area of worker safety, that pre-emption was negated when the
federal government approved Oregon's state plan. See OSHA
Section 18(b) P.L. 91-596. Also, because the state occupational
health and state standards are almost identical to the federal
standards, it cannot be argued that there is a conflict in the
laws which would give the federal regulations supremacy over the
state regulations.
Consequently, the state has retained concurrent jurisdiction
over national forest lands and OR-OSHA was within its authority
to issue the citation in this matter on the basis of
jurisdiction.
Defective citation
The employer contends that those portions of the citation that
are identified as Items 1-2 and 1-3 are defective and thus
should be dismissed because there is no statement of facts
pursuant to ORS 654.071(2)(b).
Item 1-2 states that OAR 437-80-015(1) is the standard
violated, but only gives a description of the rule and lists the
name of the employer. Item 1-3 similarly states that OAR
437-40-030(1) was the standard violated without stating facts
particular to this employer. Each item is listed as a willful
violation and each carries a $10,000 penalty.
ORS 654.071(2) requires a citation to contain:
(a) the date and place of the alleged violation,
(b) a plain statement of the facts upon which the citation is
based,
(c) a reference to the law, regulation, rule, standard or order
relied upon,
(d) the amount, if any, of the proposed civil penalty, and
(e) the time, if any, fixed for the correction of the alleged
violation.
The applicable rule regarding the contents of the citation and
this statute is found in OAR 437-01-205 which also requires a
factual description of the nature and location of the violation.
The employer contends that the citation does not contain a
plain statement of facts upon which Items 1-2 and 1-3 are based
and as such it had no notice or knowledge of how the violation
occurred. The plaintiff, OR-OSHA, argued that the description
of the violation was sufficient to give the employer notice
regarding these specific items. The plaintiff further argues
that there is a similar requirement in ORS 183.415(2)(d)and that
the Court's holdings on that statute should be instructive to
the Referee.
OR-OSHA contends that under that statute, the employer would
have to show that it was prejudiced by the lack of particularity
in the pleadings before those portions of the citation could be
dismissed and the employer has not shown that prejudice. The
plaintiff additionally argues that the employer knew or had an
opportunity to find out by pre-hearing discussions what the
facts were and the failure of the SCO to fully state them is not
fatal to the citation.
The rules of practice and procedure for contested OR-OSHA cases
are found in Chapter 438, Division 85 of the Workers'
Compensation Board rules. A citation is considered to be the
complaint and can be amended as a matter of right at any time
prior to the Notice of Hearing being issued. OAR 438-85-526(1).
After that, a pleading may be amended by motion to the Referee
showing good cause. OAR 438-85-536.
No amendment was made to the citation in this matter prior to
the issuance of the Notice of Hearing and no motion has been
received from the plaintiff in this matter to subsequently amend
the citation. At the preliminary hearing the attorney did
indicate that he may, at a later time, wish to conform the
pleadings to the facts.
OAR 437-80-015, which contains the rules that relate to
logging, requires the employer to develop, implement, and
maintain a formal accident prevention program. OAR 437-40-030
requires the employer to see that workers are properly
instructed and supervised in the safe operation of machinery,
etc.
I agree with the employer that Items 1-2 and 1-3 do not contain
a plain statement of the facts regarding the violation as
required by the statute and to a lesser extent by the applicable
rule. I, however, disagree with the employer that such a
deficiency does result in a fatal flaw which should result in
the dismissal of the citation.
Because there is very little in the way of case law in OR-OSHA
cases, cases that have been decided under ORS 183.415 may prove
to be instructive, if not binding. There does appear to be a
conflict between the rules adopted by the Board for the conduct
of the hearings and the rules adopted by the Director which
specifically adopts the Attorney General's Model Rules of
Procedure pursuant to ORS 183.341. See OAR 438-85-006(3) and
OAR 437-01-001. If there is a conflict in the rules, I am
compelled to use the rules adopted by the Board based on ORS
656.726(2) and (4). *The statutes allow the agency to adopt its
own rules or adopt the uniform rules, the Board has adopted its
own rules to be used in contested safety case hearings.
In Administrative law proceedings, the objective of the
pleadings is fair notice. 1 Davis, Administrative Law, 523
Section 8.04. Professor Davis goes on to state that the key to
pleading in the administrative process is nothing more than the
opportunity to prepare. Pleading is only one of the many ways
of providing opportunity to prepare. Deficiencies in a pleading
may be cured by informal communication, by formal amendment, by
a bill of particulars, by a pre-hearing conference, or by ample
continuances at the hearing.
OR-OSHA argued that several cases decided under Chapter 183 did
apply to this case. In The Grog House v. OLCC, 12 Or App 426
(1973), the petitioner had been denied a renewal of his license
to dispense liquor. He appealed and the denial was upheld. On
his appeal to the Court of Appeals, the petitioner contended
that his motion to make more definite and certain which had been
denied was a denial of his due process rights. ORS 183.415(2).
In this matter, the petitioner had been given time, after the
OLCC presented its case, to prepare his defense. The Court
held, that because claimant was given an opportunity to prepare
a defense, its due process rights were not denied.
A similar result was held in Campbell v. Board of Medical
Examiners, 16 Or App 381 (1974). In that matter the petitioner
had been denied reinstatement of his license to practice
medicine. He alleged denial of due process in that the notice
did not spell out in sufficient detail all conduct which was the
basis of the Board's denial. The Court found that the
petitioner had detailed advance knowledge and was fully aware of
the specific facts and charges which formed the basis of the
action taken in order to enable him to prepare his defense. See
also Klein v. Real Est. Comm. Holbrook, 19 Or App 646 (1974).
Failure on the part of the petitioner to show prejudice due to
absence of specifics in the notice pursuant to ORS 183.415(2) is
a deciding factor in finding that there has not been a denial of
due process. See Turnquist v. Employment Division, 72 Or App
105 (1985); Stadler v. Bd. of Medical Examiners, 37 Or App 853
(1978).
The Court has further held that if the petitioner has an
opportunity to continue the matter to cure the surprise when the
notice lacks specificity, petitioner is not denied due process
and the matter should not be set aside. Campbell v. Bd. of
Medical Examiners, Supra.; George's Gold Coin v. OLCC, 24 Or App
457 (1976).
I find the reasoning of the Court in the above cases to be
instructive. Based on a Due Process argument, I do not find
that the citation, the pleading in this matter, should be
dismissed.
Based on the rules of procedure contained in Chapter 438,
Division 85, I do not find a basis for a dismissal of any
portion of the citation. It may have made a difference if the
matter had gone to hearing on the merits; however, that has not
happened and the right to amend in the future is not prohibited.
Instead, I find that in the alternative, the employer's motion
should be considered a motion to make more definite and certain
so that when, and if, the hearing on the merits is held in this
matter, the employer will be adequately informed as to the basis
of the violation and can be prepared to defend against those
items it contends are improperly pleaded.
Because I have indicated that those portions of the citation
that are identified as Items 1-2 and 1-3 should not be
dismissed, the alternative issue must be addressed. The
employer contends that according to ORS 654.025(3)(c), there can
be an assessment of only one penalty when the "state of facts"
constitute a violation of more than one rule or regulation.
The employer argues that Division 80 is a vertical code and if
there is a rule contained in that Division for a specific
subject, like training and supervision, OR-OSHA should not go
outside that Division and cite for the same violation in another
division.
It would appear that OR-OSHA contends that the employer did not
maintain adequate training and supervision over its employees.
I agree with the employer that both Items 1-2 and 1-3 are based
on the alleged failure of the employer to provide this training
and supervision. According to statute, only one penalty can be
assessed for this alleged violation. Therefore, one of the
items cannot be pursued. Logically, the alleged violation from
the specific code as opposed to the general code should remain.
Consequently, Item 1-3 will be dismissed as duplicitous of Item
1-2.
Improper Inspection
The employer contends that OR-OSHA lacks authority to cite the
employer because the inspection was improper and illegal in that:
a) OR-OSHA did not follow the statutory
requirements of ORS 654.067 and 654.071.
b) OR-OSHA did not follow the mandatory administrative rule:
OAR 437-01-080(1).
c) OR-OSHA did not comply with the mandatory requirements as set
out in the Field Compliance Manual.
d) OR-OSHA did not review Divisions 40 and 80 rules pursuant to
ORS 183.545.
The employer contends that the inspection began when the SCO
was first assigned to go to the area of the logging site and
view the work in progress to see if the basis of the complaint
could be established. The SCO did go to the area and watched
the work in progress on November 26 and 27th, and on December 2,
before beginning, what has been described as the official
inspection, on December 3, 1991.
ORS 654.067 relates to inspections which the Director, or his
authorized representative (SCO), is entitled to do after the
presentation of credentials to the owner. Because credentials
were not presented in this matter until December 3, 1993, after
the SCO had observed the workers riding the rigging, the
employer contends that the citation based on what was seen on
December 2, 1993 was illegal.
The rule, specifically OAR 437-01-080, allows for an inspection
without an opening conference, in which the credentials are
presented, if the employer or employer representative is absent
or declines to participate. The rule further states that no
inspection will be made if neither the employer, employer
representative, nor employees are present at the place of
employment, except when executing an inspection warrant or when
posting a Red Warning. At the time of the off-site
viewing,there was both an employer representative and employees
on site. The SCO testified that he was not executing an
inspection warrant nor was he posting a Red Warning.
The employer contends that the rules and the Field Compliance
Manual required OR-OSHA to handle this matter in a different
manner. The employer argues that this failure to follow the
outlined procedure was so gross as to require that the citation
be dismissed.
OR-OSHA received a referral from a Forest Service employee
regarding the alleged violation. The violation, if true, would
be an imminent danger because it could result in death or
serious physical injury to the employee. OAR 437-01-015(36).
When an imminent danger referral has been made to the
department, the rules indicate that an inspection shall be made
as soon as possible after notification to the department. OAR
437-01-055(1).
An inspection is defined as an official examination of a place
of employment by a Compliance Officer to determine if an
employer is in compliance with the Act. OAR 437-01-015(37).
The observing of the employer's job site prior to the day that
the credentials were presented was an official examination of a
place of employment. The purpose of the observation was to
catch the employees doing activity that would be a violation of
the safety rules. It is that observation that has resulted in
the basis for the issuance of the citation.
The rules and the statute require the SCO to present
credentials before the inspection can take place, absent certain
exceptions that are not relevant in this matter. This differs
from a drive-by inspection in that in those situations the SCO
notices some violation, and immediately confronts the employer
while generally the unsafe conduct or situation continues.
In this matter, the SCO observed the unsafe conduct on the
third day of his viewing of the logging site. He did not
immediately go onto the site and begin an opening conference,
nor did he post a Red Warning to close down the site until he
could meet with the employer the next day.
The Field Compliance Manual, which is a guide to the procedures
the SCOs are to follow, indicates that a complaint that alleges
an imminent danger, shall be inspected the same day received,
where possible, but not later than the employer's next working
day. The SCO, and his supervisor, received a referral of a
complaint of an imminent danger several days before the formal
inspection was made. See Chapter 9 A. 6. Chapter 7, on
imminent dangers, requires the immediate inspection of any
alleged imminent danger situation. Chapter 7 C. 1. When an
imminent danger inspection cannot be accomplished the day the
report is received or the employer's next working day, the SCO
is required to contact the employer immediately and attempt to
eliminate the danger. See Chapter 7 B. 1. e. and C. 2. a. and
c. 3.
The SCO in this matter, did not follow the steps outlined in
the Field Compliance Manual, which standing alone does not carry
any rights to the employer. However, the SCO also did not
follow the rules that were adopted by the agency in that the
inspection took place before the credentials were presented and
there were no relevant exceptions. The procedure followed by
the SCO in observing prior to the inspection and not inspecting
immediately after the violation occurred does not meet the
apparent intent of the statute.
Agency rules are adopted to give the general public an idea of
what to expect from the agency. The rules and especially the
Field Compliance Manual appears to provide for ways in which
this matter could have been handled differently so that the
inspection would have been properly within the rules. Failure
to follow the rules in this matter makes the observation, that
occurred prior to the formal inspection, invalid and improper.
Since the citation was based on the violation that was observed
prior to the inspection, the portions of the citation that deal
with the riding of the rigging or failure to train and supervise
as evidenced by this unsafe work practice shall be dismissed.
Because I have found that the citation should be dismissed in
its entirety, I need not address the employer's argument that
Divisions 40 and 80 rules are not valid because they were not
timely reviewed pursuant to ORS 183.545.
Attorney Fees and exemplary damages
The employer requests that the Referee award an attorney fee
and exemplary damages if the motion to dismiss is successful.
The employer argues that the conduct of OR-OSHA is so egregious
in this matter that it should have to pay for the employer's
costs to defend this matter. The employer cites OAR 438-85-800
and 438-85-805 (12) in support for its position.
The rules cited by the employer are rules adopted by the Board
for the practice and procedure of contested cases in safety
hearings. The authority of the Board does not extend to making
rules that could be used as a basis for attorney fees without
some explicit statutory authority. There is no authority under
which an award of attorney fees could be made nor under which an
award of exemplary damages could be granted.
Claimant argues that OR-OSHA should be penalized for this
matter. It argues that the actions by OR-OSHA in this matter
were particularly egregious. The employer's argument may have
some merit, but I do not have the authority to grant its
request. Therefore,
ORDER
IT IS HEREBY ORDERED that the citation that was issued in this
matter on April 15, 1992 is 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 183.482.
Entered at Salem, Oregon AUGUST 20, 1993
WORKERS' COMPENSATION BOARD
By Marilyn E. Nichols
Referee