BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92362

					)  Citation No H558809892

	Plaintiff,			)

	vs.				)

HAWKEYE CONST. INC. Defendant		)  OPINION AND ORDER



A hearing was held on February 12, 1993 in Portland, Oregon.
Norman F. Kelley represented plaintiff. William G. Arthur
appeared as the representative for defendant.



                         ISSUE



Defendant challenges all aspects of Citation No. H558809892.



                     FINDINGS OF FACT



On September 11, l992 defendant, Hawkeye Construction Inc., was
working on electrical power lines about six miles east of
Roseburg. The company does work on power lines and substations.



On that day one of the employees (the foreman) was hoisted on
the hook of a crane by his lineman's belt to work on the power
lines. He was working approximately 30 feet from the ground.



The crane was on a 15-ton Manitex truck. See Exhibit 5. The
truck had a cab that carried passengers. The flat bed portion of
the truck had storage areas that contained nuts, bolts,
crossarms and other equipment and tools. Defendant used the
truck for its power line work, including setting poles.



The operator of the Manitex truck did not have a valid crane
operator's card.



The truck was parked on a 10-degree grade. No blocks or chocks
were used to prevent movement.



               OPINION AND CONCLUSION



Defendant is cited for violating three standards.

OAR 437-89-335(5) provides that:



"No hoisting, lowering, swinging or  traveling shall be done
while anyone is on the load or hook."



Defendant does not contest that the worker was hoisted on the
crane in violation of the standard, but raises arguments
concerning employee and labor responsibility that are best
directed to the legislature and congress. The work where the
worker was attached to the hook of the crane about 30 feet in
the air constituted a violation of the cited standard.



In assessing the penalty, plaintiff determined the probability
of an accident that could result in an injury to be high, (OAR
437-01-135(2), and the severity based on the degree of injury
reasonably predictable to be death, (OAR 437-01-140).



Considering the nature of the work where the employee was
hanging from the crane with a belt using his hands to do the
work and an unprotected 30-foot fall possibility, the
probability and severity findings are supported. The penalty
assessed for the violation is in accord with the facts and rule.

OAR 437-03-081(5) provides:



"In addition to the basic training and experience required by
OAR 437-03-081(2), all employees engaged in construction work
who operate cranes of 5 ton capacity or greater shall have
additional training and experience as set forth in Appendices
OR-A through ORE of this Subdivision, and shall possess a valid
crane operator's card issued by a training provider or employer.



(a) OAR 437-03-081(5) does not apply to hoists, wreckers, line
trucks, cranes used by railroads on railroad right-of-ways, or
to cranes while used for handling logs.



NOTE: The term "line truck" means a truck used to transport
workers, tools, and material, and is sometimes equipped with a
boom and auxiliary equipment for setting poles, digging holes,
and elevating material or personnel."



The controversy centers on whether the Manitex truck comes under
the exception to the requirement to an operator have a valid
crane operator's card. The note in the rule that defines a line
truck was patterned after CFR 1926.960(q) which defines electric
line trucks:



"Electric line trucks. The term means a truck used to transport
men, tools, and material, and to serve as a traveling workshop
for electric power line construction and maintenance work. It is
sometimes equipped with a boom and auxiliary equipment for
setting poles, digging holes, and elevating  material or men."



The truck in question was used to transport workers, carry tools
and materials and was equipped with a boom and auxiliary
equipment for setting poles. Defendant used the truck for power
line work



The state official responsible for writing OAR 437-03-081(5)
testified the truck met the definition of "line truck" set out
in the rule, although it is not the type of truck he envisioned
when drafting the exception. He had in mind the type of truck
shown in Exhibit 10 with a bucket and bins. He described the
Manitex truck as a crane.   



Defendant's safety director testified that his company
considered and used the Manitex as a line truck for power line
work. He said they have other types of trucks not used in line
work, and the operators of those trucks have valid cards.



The safety administrator for Pacific Power Co. testified they
have several vehicles like the truck in question and consider
them line trucks. He classified the Manitex truck as a line
truck for the work being done.



The safety coordinator for Portland General Electric also
described the Manitex truck as a line truck. Both these safety
directors were involved in the rulemaking process for this rule.



The Manitex truck meets the express definition of line truck set
out in OAR 437-03-081(5)(a). It was used for the purposes for
which the line truck exemption was granted, power line and pole
setting work. A segment of the power line industry reasonably
interprets and applies the exemption to trucks such as the one
used on September 11, 1992 by defendant.



I conclude defendant did not violate OAR 437-03-081(5) because
the Manitex truck on the job was a line truck and under OAR
437-03-081(5)(a) the operator was not required to have a valid
crane operator's card.



III



OAR 437-56-010(22) requires that the wheels of vehicles parked
on an incline be blocked or chocked.



It is undisputed the Manitex truck was parked on an incline and
the wheels were not blocked or chocked. Violation of the rule is
established.



The probability of an accident was low, but the severity of an
injury should something have happened would probably be a
serious injury considering the size of the vehicle. The amount
of the penalty is sustained.



IT IS HEREBY ORDERED that:



l. Items 1-1 and 1-3 and the associated penalties in Citation
H558809892 are affirmed. The total penalty is $1,355.



2. Item 1-2 and the associated penalty in Citation H558809892 is
set aside.



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 March 4, 1993



				WORKERS COMPENSATION BOARD

				By ALBERT L MENASHE

				Referee