THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92394

	Plaintiff,			)  Citation No. H1788-246-92

		vs.			)



	Defendant			)  OPINION AND ORDER

	A hearing was held on August 26, 1993, in Portland, Oregon. 
Oregon Occupational Safety and Health Division (OR-OSHA) was
represented by Thomas W. Cowan.  John D. Arnold appeared as the
authorized representative of defendant.


	Defendant challenges citation H1788-046-92 issued on September
10, 1992.

                      FINDINGS OF FACT

	In April and May 1992, defendant was doing a sewer project in
Island City - LaGrande, Oregon.  On April 17, 1992, OR-OSHA
red-tagged a trench shield.

	On May 13, 1992, Rick Peterson and Ron Mitchell were working on
the Island City sewer job.  Peterson was defendant's foreman. 
Mitchell owns a truck and did the hauling to and from the
excavation work using his truck.  When not hauling and driving
his truck, Mitchell did labor work on the sewer project.  He did
such things as laying pipe and assisting in hooking water lines.
 Mitchell said it was uncommon for him to spend four hours a day
doing trench and sewer pipe work, but two hours a day was not
uncommon.  Mitchell was paid $200 a day, which included use of
his truck.

	Cochrane worked for defendant until the end of April 1992 and
said Mitchell referred to himself as the superintendent.  Arnold
also referred to Mitchell as superintendent.

	Mitchell did not have a written contract with defendant. 
Defendant did not deduct taxes from money paid Mitchell. 
Mitchell did not assume financial responsibility for his work
and did not advertise that he worked in trenches and did sewer
laboring work.  Defendant could terminate Mitchell at any time
without liability.

	Arnold told Cochrane and other employees that Mitchell was an
independent contractor and could be in an unshorn ditch.  Arnold
told Peterson that if a ditch was questionable, Mitchell was to
go in.

	Peterson operated the excavation equipment.  On May 13, 1992,
he placed the tagged trench shield into the ditch.  By this
time, the writing on the tag had faded and could not be read. 
The ditch was 7 feet 7 inches deep, 30 inches wide at the top
and 26 at the bottom and approximately twelve feet long.  There
was a piece of hydraulic shoring at one end, but no other
shoring within eight feet.  Mitchell went into the trench to
work on some pipe.  He used a stepladder that was bowed and had
a bent rung.  

	Mitchell told the safety compliance officer (SCO)for OR-OSHA
that he knew the trench shield had been red tagged and that he
was there when it happened.  Mitchell also told the SCO that he
was an independent contractor and not under OSHA.  Cochrane was
working when the shield was red tagged and said everyone was
aware of it, including Mitchell and Peterson.

                    OPINION AND CONCLUSION

                      Citation Item 1-1

	OR-OSHA charged a violation of OAR 437-03-001-29 CFR
1926.652(a)(1).  This rule requires additional hydraulic shoring
in a trench the size of the one here.  There was another piece
of shoring at the job site, but it didn't work.  

	The thrust of the defense to this and the other charged
violations is that Mitchell was the person exposed and he was an
independent contractor, not an employee.

	Under the Oregon Safe Employment Act, an employee includes any
individual who is provided with workers' compensation coverage
as a subject worker pursuant to ORS Chapter 656, whether by
operation of law or election.  ORS 654.005(4).  If defendant
contends that Mitchell was an independent contractor and
therefore not subject to workers compensation, Mitchell must
meet all the requirements of ORS 670.600.  ORS 657.027(7); ORS
656.005(29).  Mitchell does come within, at least, the following
provisions of ORS 670.600:  Sections (1), (3), (4), (5) and )8).
 Defendant has not shown that Mitchell was an independent

	Mitchell worked on a project for defendant for a remuneration. 
Mitchell did not hold himself out to be in the business of doing
labor work on sewer projects.  He did such work at least 2 hours
and probably more per day and did it subject to and under the
direction and control of defendant.  OR-OSHA has established by
a preponderance of evidence that Mitchell was an employee of
defendant for ORS Chapter 654 purposes.

	The hydraulic shoring was not spaced in compliance with the
cited rule: every four or eight feet depending on the soil
condition.  Defendant's employees were exposed to the danger of
working in a trench without sufficient shoring in violation of
the cited rule.  

	Defendant did not specifically challenge the penalty.  I find,
as stated by the SCO, that the probability of injury was high
and the severity in case of an accident was death.  The penalty
was properly computed in compliance with OAR 437-01-135 to 203.  

Citation Item 2-2

	Defendant is charged with a willful violation of OAR

437-01-096(3)(b) which provides: 

"Any place of employment, machine, device, apparatus or equipment on which a Red Warning Notice has been posted shall not be operated or used by any person until: (b) The Red Warning Notice has been removed by the Division; . . .".
The trench shield was tagged on April 17, 1992, pursuant to ORS 654.082. Mitchell and Peterson knew it was red tagged. This was sufficient to put defendant on notice that the equipment was tagged and could not be used until the tag was removed by authorization of the director. Cochrane was a credible witness and his testimony plus that of the SCO establishes employer knowledge of the red tag. Although the writing on the tag had faded, the tag had not been removed. Both Mitchell and Peterson were aware it had not been removed when the shield was placed in the trench. Mitchell then went down in the trench. Using this equipment when it was red tagged was a violation of OAR 437-01-096(3)(b). Defendant intentionally and knowingly placed the trench shield in the trench and worked in the trench with the shield in place in intentional and knowing violation of the prohibition. This was a willful violation and the assessed penalty is reasonable under OAR 437-01-175. Citation Item 3-3 Defendant is charged with a violation of OAR 437-03-001 29 CFR 1926.1053(b)(16) which provides in substance that ladders with structural defects and broken or missing rungs or other faulty or defective components shall be withdrawn from service until repaired. The ladder that was placed in the trench and used by Mitchell was faulty and defective with respect to the rungs and sides. It should have been withdrawn from service instead of being used. Defendant violated the cited rule. OR-OSHA charged a general violation and assessed a penalty of $240. At the hearing, OR-OSHA acknowledged the penalty was miscalculated and that it should be $150. ORDER IT IS HEREBY ORDERED that the penalty for item 3-3 of citation H1788-046-92 is reduced to $150. IT IS FURTHER ORDERED that in all other respects, citation H1788-046-92 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 State Court Administrator, Record Section, 1163 State Street, 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 Portland, Oregon on September 24, 1993 WORKERS' COMPENSATION BOARD By ALBERT L. MENASHE Referee