BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-92247

	Plaintiff 			)

					)

					)  Citation No: H5588-044-92

W. C. FORESTRY				)

					)

	Defendant			)  OPINION AND ORDER



	Hearing convened on October 13, 1993.  Oregon OSHA was
represented by Ms. Armonica Gilford.  W. C. Forestry, the
employer, was represented by Mr. Andrew Ositis.  Business
Support Services, Salem, Oregon, recorded the proceeding. 
Exhibits 1 to 9 were received in evidence.  The record closed
October 13, 1993.



                         ISSUE



	The propriety, or validity, of Citation No. H5588-044-92, Items
1-1 to 1-6 and Items 2-7 to 2-9.  



                         FINDINGS OF FACT



	Gregory Snegirev does business as W. C. Forestry.  He is a
forestry labor contractor.  On March 25, 1992, W. C. Forestry
was involved in a mulching operation, which required putting
pieces of cardboard around small trees.  The job site was
approximately 14 miles southwest of Winston, Oregon.  The
employees of W. C. Forestry were paid an hourly rate. 
Transportation to and from the job site was not provided by W.
C. Forestry.  The crews were hired from three locations which
were Salem, Oregon, Woodburn, Oregon and out of the State of
California.  Housing was not provided to the employees.  Mr.
Snegirev did give the employees "advances" for food, gas and
lodging, which was offset from the employee's earnings.



	Mr. Haviland is an Oregon OSHA inspector working out of the
Roseburg office.  On March 25, 1992, Mr. Haviland made an
inspection of the work site.  Following the inspection, Citation
No. H5588-044-92 issued, April 24, 1992, citing W. C. Forestry
for multiple violations of the Oregon Occupational Safety &
Health Laws.



	Item 1-1 cited W. C. Forestry for violation of OAR 437-6-110. 
A 1977 Chevy van and a 1980 Chevy van used to transport workers
to and from the job site had improper seating arrangements and
no seat belts for use of the passengers.  The violation was
classified as a serious violation.  A $2,500 penalty was
assessed (Ex. 1, p. 3).  



	Item 1-2 cited W. C. Forestry for violation of OAR 437-6-015
for failure to have a formal written safety and health program
for the tree planting, mulching and thinning operations of W. C.
Forestry.  No such program was in fact in place on March 25,
1992.  The violation was classified as a serious violation.  A
$1,000 penalty was assessed (Ex. 1, p. 3).



	Item 1-3 cited W. C. Forestry for violation of OAR 437-57-159. 
The 1977 Chevy van used to transport workers to and from the job
site, was apparently driven by an unlicensed driver who had a
suspended driver's license.  The violation was classified as
serious.  An $800 penalty was assessed (Ex. 1, p. 4).



	Item 1-4 cited W. C. Forestry for violation of OAR
437-6-050(15)(b)(A).  The work site was not within 30 minutes
travel time to a physician or ambulance with emergency medical
technicians.  The employer had not implemented or developed an
emergency medical plan for the mulching crews.  First aid
trained persons, first aid supplies and two-way radios were not
available at the job site 100 percent of the time.  The
violation was classified as serious.  A $150 penalty was
assessed (Ex. 1, p. 4).



	Item 1-5 cited W. C. Forestry for violation of OAR
437-6-050(5).  The township, range and section numbers to all
work sites of more than one day duration were not posted at both
the worksite and the communication device to give direction for
assistance in case of an emergency.  Two supervisors and one of
five employees were not trained in first aid.  The violation was
classified as serious.  A $150 penalty assessment was made (Ex.
1, p. 4).



	Item 1-6 cited W. C. Forestry for violation of OAR 437-57-146. 
The vehicles used for transportation of workers, the 1977 Chevy
van, the 1980 Chevy van and the 1988 Chevy pickup, were not
equipped with a suitable first aid kit or the first aid kit
provided was not located so as to be readily available and/or
had not been inspected and/or maintained.  The violation was
classified as serious.  A $450 penalty assessment was made (Ex.
1, p. 5).



	Item 2-7 cited W. C. Forestry for violation of OAR
437-50-040(1).  The employees were observed wearing low cut
athletic shoes, or tennis shoes, while mulching trees.  Mr.
Haviland felt that this type of footwear did not provide ankle
support to prevent injury when the workers were working on rough
terrain or were exposed to conditions at the work site which
could cause foot injuries.  The violation was classified as a
general violation.  A $300 penalty was assessed (Ex. 1, p. 5).  



	Item 2-8 cited W. C. Forestry for violation of OAR 437-57-146. 
The vehicles used for transportation of workers to and from the
job site, the 1977 Chevy van, the 1980 Chevy van and the 1988
Chevy pickup, were not equipped with a suitable first aid kit or
the first aid kit provided was not located so as to be readily
available and/or had not been inspected and/or maintained.  The
vehicles also failed to have fire extinguishers.  The violation
was classified as general.  A $225 penalty was assessed (Ex. 1,
p. 5).  



	Item 2-9 cited W. C. Forestry for violation of OAR
437-1-705(1).  A log of all recordable occupational injuries and
illnesses (OSHA Form No. 200 or equivalent) was not maintained
at the establishment, and W. C. Forestry employed over ten
workers annually.  The violation was classified as a mandatory
violation.  A penalty was assessed in the amount of $100 (Ex. 1,
p. 6).  Mr. Snegirev maintained no such log on March 25, 1992,
the date of the inspection.  He was unaware that such a log was
required to be maintained.  



	The workers apparently resided at a motel located in Roseburg,
Oregon.  The motel was of the workers own choosing.  W.  C.
Forestry did not dictate where the employees or workers would
reside.



	The workers travelled to and from the job site in the 1977
Chevy van, the 1980 Chevy van and the 1988 Chevy pickup. 
Gregory Snegirev, dba W. C. Forestry, did not own these vehicles
and had no legal interest in the vehicles.  



                  CONCLUSIONS OF LAW AND OPINION



Credibility



	Mr. Haviland, based on demeanor, is a credible witness.



	Mr. Snegirev, based on demeanor, is a credible witness.



The Motor Vehicle Related Citations



	Item 1-1, Item 1-3, Item 1-6 and Item 2-8 of Citation No.
H5588-044-92, including the penalty assessments in the total
amount of $3,975, should be vacated and set aside.  These
violations, for the most part, pertain to the maintenance and
operation of vehicles, which although used to transport workers
to and from the job site, were vehicles over which Mr. Snegirev,
dba W. C. Forestry, had no ownership or legal interest in the
particular vehicles.  W. C. Forestry did not provide
transportation or housing to the employees.  W. C. Forestry
under the "contract of hire" with the workers, required the
workers to report to the work site to begin the workday.  I fail
to see how the employer could be required to comply with Oregon
OSHA laws in relationship to vehicles over which the employer
had no legal interest and, accordingly, no legal right to
dictate the maintenance, equipment or use of the respective
vehicles.  The employer's request to vacate Item 1-1, Item 1-3,
Item 1-6 and Item 2-8, including the respective penalty
assessments, is allowed.  



The Non-motor Vehicle Related Citations



	Item 1-2, Item 1-4, Item 1-5, Item 2-7 and Item 2-9 of Citation
No. H5588-044-92, including the respective penalty assessments,
should be approved.  First, there was in fact no formal written
health and safety program for the tree planting, mulching and
thinning operations of W. C. Forestry.  Item 1-2 shall stand. 
Second, the employer did not implement or develop an emergency
medical plan for the mulching crews.  First aid trained persons,
first aid supplies and two-way radios were not available at the
job site 100 percent of the time.  At most, Mr. Bashan, the BLM
agent, admittedly was on the job site only "80 percent of the
time" (Ex. 3, p. 6), and names of hospitals and ambulances were
not posted on the job site (Ex. , p. 7).  Item 1-4 shall stand,
as shall Item 1-5.  Third, six employees were observed wearing
low cut athletic shoes, or tennis shoes, while mulching trees. 
Concedingly, the footwear was not defective.  OAR 437-50-040(1)
appears to be designed to require workers to wear sufficiently
stable footwear when they are exposed to conditions which would
cause foot injuries.  The terrain, as documented by the
photographs in evidence, appears to be somewhat uneven and
rough.  The type footwear certainly does not provide ankle
support sufficient to prevent injury when working on this type
terrain (Ex. 5).  Item 2-7 shall stand.  Last, there is no
dispute that on March 25, 1992, the date of the inspection, W.
C. Forestry did not provide a log of all recordable occupational
injuries and illnesses, OSHA Form No. 200 or the equivalent. 
The employer did not know such records were to be provided.  The
employer referred Mr. Haviland to Liberty Northwest Insurance
Corporation for such information.  The information, if in
existence, was not provided Mr. Haviland.  Item 2-9 shall stand.
 The employer's request to set aside and vacate Item 1-2, Item
1-4, Item 1-5, Item 2-7 and Item 2-9 of Citation H5588-044-92,
including the respective penalty assessments, is denied.



                          ORDERS



	NOW, THEREFORE, IT IS HEREBY ORDERED Item 1-1, Item 1-3, Item
1-6 and Item 2-8 of Citation No. H5588-044-92, including the
respective penalty assessments, are vacated, set aside and held
for naught.



	IT IS FURTHER ORDERED Item 1-2, Item 1-4, Item 1-5, Item 2-7
and Item 2-9 of Citation No. H5588-044-92, including the
respective penalty assessments, are approved.



	IT IS FURTHER ORDERED all other relief requested by the
parties, if any, is denied.



	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, on December 14, 1993 



				WORKERS' COMPENSATION BOARD

				By T. Lavere Johnson

				Referee