BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92347

	Plaintiff			)  CITATION NO. P6795-102-92

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 		v.			)

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TRUAX CORPORATION Defendant		)  OPINION AND ORDER



	This matter was submitted for a decision on stipulated facts on
June 4, 1993.  The plaintiff, Oregon Occupational Safety and
Health Division was represented by Armonica Guilford.  The
employer, Truax Corporation, was represented by Attorney Craig
Crispin.



	This is a contested case under the Oregon Safe Employment Act. 
The employer has appealed a citation issued by plaintiff on
September 10, 1992 which cited it for allegedly violating OAR
437-40-047 (5)(a) promulgated by the Director of the Department
of Insurance & Finance pursuant to the Director's authority
under the Oregon Safe Employment Act (Ch. 654).  The employer
challenges only item 1-1.



                       FINDINGS OF FACT



	The following findings were stipulated:



	(1)  Truax Corporation is an Oregon corporation engaged in
operating gas stations throughout the state of Oregon, ranging
in size from single employee locations to those employing 10 or
more. 



	(2)  Agency Inspector Jeff Pfeifer conducted an investigation
of one of employer's facilities in Medford.  He cited the
company for violating OAR 437-40-047 (5)(a).  Employer appealed,
contending that the citation is based on incorrect
interpretation of the Administrative rule and the citation was
issued in retaliation.



	(3)  Truax Corporation has implemented a safety program,
including a central Safety Committee made up of management and
employer representatives.  The company does not deliver
individual copies of Safety Committee minutes to each employee. 
Safety Committee minutes are not routinely posted, and such
minutes were not posted at the time of the inspection.



	(4)  Safety Committee minutes are provided to any employee
through a toll free 800 telephone number.  The number is
contained in the employee handbook, which they are provided and
are required to read and sign.



               ULTIMATE FINDING OF FACT



	(1)  Safety Committee minutes are available to employees.



                         OPINION



	OAR 437-40-047 (5) provides in part:  "Copies of minutes shall
be posted or made available for all employees and shall be sent
to each committee member."



	The Safety Committee brings "workers and management together in
an non-adversarial, cooperative effort to promote safety and
health in each work place." (OAR 437-40-044).



	Plaintiff argues from the above that the committee has a
"commitment to promote open lines of communication regarding
safety in the work place."  . . ."A communicative process
between the employer and employee is achieved when all employees
know about the safety committee, have access to the committee's
work, and are aware of the committee's action."  



	In short, from the committee's goal to meet and promote safety
and health, agency divines an intent to provide copies of
Committee minutes to all employees, either by posting or
individual delivery.



	There are two problems with the agency's argument.  First,
employee involvement is specified in a different section, which
does not require actual delivery in lieu of posting.  "The
committee shall establish a system to allow members to obtain
safety related suggestions, reports of hazards, or other
information directly from all persons involved in the operations
of the work place."  OAR 437-40-047 (6).  



	Second, the rule itself creates two categories of minute
recipients:  employees and safety committee members.  Only the
latter are required to be sent actual copies of the minutes.



	The agency urges an interpretation of the rule that equates
"made available" with "sent" when the terms are used in the same
sentence, not synonymously.  The agency seeks to an
interpretation of its general rule that is more specific than a
specific rule.  To do so, it must go through the rule making
process.



                 CONCLUSION OF LAW



	"Made available" is not the equivalent of the "sent" or
actually provided.



                       ORDER



	IT IS HEREBY ORDERED that the citation and notice of penalty
no. P6795-102-92 is set aside as to Item 1-1.  It is further
ordered that the citation is affirmed as to Items 1-2, 1-3 and
1-4.



	You are entitled to judicial review of this Order.  Proceedings
for review are to instituted by filing a petition in the Court
of Appeals, Supreme Building, Salem, OR  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 Medford, Oregon on June 24, 1993



				WORKERS' COMPENSATION BOARD

				Stephen D. Brown, Referee