BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No SH-92165
)
Plaintiff )
)
) Citation No: L6260-021-92
)
DAREN RICHARD OSTLIE )
)
Defendant ) OPINION AND ORDER
Pursuant to notice, a hearing convened February 15, 1994 in
Portland, Oregon, before Referee Michael V. Johnson and was
recorded by Sandy Madden of Harris Reporting Service.
Plaintiff, Oregon Occupational Safety & Health Division
(OR-OSHA) was represented by Assistant Attorney General Kevin
Shuba. Defendant, Daren Richard Ostlie, was represented by
Attorney George Goodman.
ISSUES
Citation No. L6260-021-92
(Ex. 1)
Whether the entire citation should be dismissed as invalid
because it arose out of an improper inspection. If the citation
is valid, whether the employer engaged in one or more unsafe
activities on or about January 16, 1991.
The parties expressly agreed that the sole issue in this
session of the hearing would be the employer's Motion to
Dismiss, and that only if the Referee denied said motion would a
continued hearing on the merits be subsequently scheduled.
EXHIBITS
At the outset of the hearing, exhibits 1-3, 5-11 were admitted
into evidence, but at the conclusion of the hearing the
employer's attorney moved to exclude Exhibits 2 through 6, which
request was ultimately granted on the theory that those exhibits
flowed from an incorrect inspection and, therefore, could not be
used as evidence. During the hearing Ex. 12, 13 and A (the
Forest Service contract) were admitted into evidence. Not
admitted was Ex. B, a "contract daily diary", which, of course,
continues in the record for purposes of appeal.
FINDINGS OF FACT
Employer Daren Richard Ostlie was awarded a contract by the
U.S. Department of Agriculture Forest Service ("U.S. Forest
Service") to blast the tops of live conifer trees located solely
within the Mt. Hood National Forest on public lands owned by the
United States. The purpose of this contracted service was to
create wildlife habitat. The employer's performance of this
contract was overseen by the U.S. Forest Service contracting
officer's representative. The contract specified certain safety
obligations of the employer. The U.S. Forest Service had the
right to inspect employer's work and camp-site at any time and
did so.
Daren Ostlie hired his younger brother, Jason Ostlie, to work
as an employee. During operations on December 16, 1991, Jason
Ostlie was accidentally injured due to a premature detonation of
dynamite he had prepared in a tree located within the Mt. Hood
National Forest. The employer was the first one on the scene
and immediately used a cellular telephone to send for an
ambulance. An ambulance from Estacada, Oregon, responded and
stabilized employee Jason Ostlie. A "life flight" was then
called for and soon the employee was flown to Emanuel Hospital
in Portland, Oregon. By that time U.S. Forest personnel were on
the scene so the employer asked one Forest Service employee to
"secure" the dynamite and other blasting materials, which was
promptly done. The employer left the premises by private
vehicle and traveled to the hospital.
The Oregon Occupational Safety and Health Division ("OR-OSHA")
was notified of the accident on December 17, 1991 and OR-OSHA
Safety Compliance Officer ("SCO") Bruce Lawson arrived at the
Estacada Ranger Station at 2:30 p.m. that afternoon. Guy Price,
Contract Office Representative for the U.S. Forest Service, and
William Cortain, Head Blaster for the Mt. Hood National Forest,
U.S. Forest Service were present. Neither Daren Ostlie, nor
anyone employed by Daren Ostlie, was present at the Ranger
Station. The U.S. Forest Service knew the injured worker had
been flown for emergency medical care at the Emanuel Hospital in
Portland. The Forest service also knew the employer's address
and phone number and had frequently communicated with him during
the course of the contract, and knew the employer was probably
at his brothers side in the hospital. No one made any effort to
locate the employer.
SCO Lawson presented his "credentials" and conducted an
"opening conference" with those individuals who were present at
the ranger station. At approximately 3:00 p.m. that same day
SCO Lawson went to the accident site before attempting contact
with, or presenting credentials to, the employer. Guy Price and
William Cortain accompanied SCO Lawson to the site. SCO Lawson
first arrived at the accident site at approximately 3:30 p.m.
Neither Daren Ostlie nor anyone employed by Daren Ostlie was at
the accident site at that time. SCO Lawson took photographs and
interviewed Price and Cortain. The artifacts of the accident
and the accident site were not disturbed. SCO Lawson, Price and
Cortain left the accident site around 4:00 p.m. as night was
falling. They returned to the Estacada Ranger Station. SCO
Lawson then inquired about the best way to contact the employer,
Daren Ostlie. Price contacted Daren Ostlie, and arranged a
meeting at the Estacada Ranger Station for the next day,
(December 18, 1991) at 1:00 p.m. SCO Lawson then left to return
to Salem.
On the morning of December 18, 1991, SCO Lawson, together with
fellow SCO Fritz Schukar, returned to the Estacada Ranger
Station, reviewed the U.S. Forest Service contract folder, and
then returned to the accident site to take measurements. SCOs
Lawson and Schukar were again accompanied to the site by Price
and Cortain. No representative of the employer had been invited
to go to the site with SCO Lawson. No representative of the
employer was present. On this second visit to the site, the
wires and other evidence which related to the blast were moved
from their positions, thereby obscuring whatever might have been
the original condition of those wires and items.
Returning to the Estacada Ranger Station at 1:00 p.m. on
December 18, 1991, SCOs Lawson and Schukar met with Daren Ostlie
for the first time. They presented their credentials, conducted
an opening conference, and interviewed Daren Ostlie.
Following the investigation by SCOs Lawson and Schukar, OR-OSHA
issued a citation to the employer for seven violations of the
Oregon Safe Employment Act for alleged activities of the
employer arising out of the employer's performance of the
employer's contract with the U.S. Forest Service. Employer's
activities that gave rise to the citation took place solely on
public lands of the United States within the Mt. Hood National
Forest. These federal lands were located within the boundaries
of the state of Oregon. The employer has appealed the citation.
OPINION
APPLICABLE LAW
OR-OSHA, like any other agency, is "a creature of statute whose
authority extends as far as the statutes extend and no further."
Ochoco Construction v. Department of Land Conservation and
Development, 56 Or App 36, 641 P2d 49, 53 (1982). The
provisions of the agency's enabling statute are protection
against arbitrary or inadequately informed government conduct.
Dika v. Department of Insurance and Finance, 312 Or 106, 109,
817 P2d 287, 288 (1991).
ORS 654.067 provides:
"In order to carry out the purposes of ORS 654.001
to 654.295 and 654.750 to 654.780, the director, upon presenting
appropriate credentials to the owner, employer or agent in
charge, is authorized: (a) to enter without delay and at
reasonable times any place of employment and (b) to inspect and
investigate during regular working hours ***any such place of
employment***. ***(4)A representative of the employer ... shall
be given the opportunity to accompany the director during the
inspection of any place of employment for the purpose of aiding
such inspection." ORS 654.067(4) (emphasis added).
ORS 654.071(1) provides:
If the director or an authorized representative of
the director has reason to believe, after inspection or
investigation of a place of employment, that an employer has
violated any State occupational safety or health law,
regulation, standard rule or order, the director or the
authorized representative shall with reasonable promptness issue
to such employer a citation, and notice of proposed civil
penalty, if any to be assessed under this chapter and affix a
reasonable time for correction of the alleged violation."
(emphasis added).
OR-OSHA is not only bound by its enabling legislation, but is
also equally bound by applicable Administrative Rules APD v.
Asana, 110 Or App 103, 107, 821 P2d 432 (1991); Moore v. Oregon
State Penitentiary, Correction Division, 16 Or App 536, 537, 519
P2d 389 (1974). Administrative Rules and regulations, once
properly promulgated, have the same force and effect as statutes
enacted by the Legislature. Bronson v. Moonen, 270 Or 469, 476,
528 P2d 82, 85 (1974); Harsh Investment Corporation v. State
Housing Division, 88 Or App 151, 744 P2d 588 (1987).
OAR 437-01-065(2) requires:
"A Compliance Office, if possible, shall present
his/her credentials to an employer or employer's representative
to establish the Compliance Officer's right of
entry."
OAR 437-01-015(24) defines "employer representative as :
"An individual selected by the employer, to serve as
spokesperson, or, in the absence of a selected spokesperson, the
person in charge of the place of employment at the time of the
inspection."
OAR 437-01-075 requires that
"the Compliance Officer shall, if possible, conduct
a joint opening conference with the employer or a
representative, and a representative of the employees, if any
***"
OAR 437-01-080(3) provides:
"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 as
provided in ORS 654.216(2) or when posting a Red Warning Notice
as provided in ORS 654.082."
DECISION
The employer argues that OR-OSHA violated statutes and rules in
(1) presentation of credentials, (2) conducting the opening
conference, and (3) in the inspection. Since all alleged errors
basically arose out of the same fact pattern I do not break down
the government conduct for purposes of analysis.
The SCO presented his credentials to those U.S. Forest Service
employees at the Estacada office. The SCO failed to present
credentials at any time prior to the inspection to the employer
or an employer representative at any time prior to the
inspection. The SCO made no effort to conduct an opening
conference with the employer. OR-OSHA conducted an inspection,
without a warrant, of the work site while the employer and all
of his employees were absent. In fact, both inspections of the
employer's place of employment were completed prior to the SCOs
first meeting with an employer representative.
Exceptions
The rules, and perhaps even the statutes, grant some leeway in
the requirements regarding presenting credentials to an
employer, conducting an opening conference, and obtaining the
employer's presence during the inspection. The next question is
whether the conduct of OR-OSHA, though ostensibly not in
compliance with the law, falls under any of those slight
exceptions.
Owner
The evidence established that the Safety Compliance Officer
made no effort to contact the employer, but rather, believed
that the U.S. Forest Service was the owner of the premises per
ORS 654.067, and therefore, was a bona fide party to whom
credentials could be presented and with whom an opening
conference could be held in lieu of the actual employer or
employer representative. I disagree with that opinion. I
understand the statute to require that, regardless whether the
owner is presented with credentials, the employer or the
employer's agent in charge must be presented. I have the same
opinion regarding conducting the opening conference and the
inspection.
Person in Charge
OR-OSHA further argues that, pursuant to OAR 437-01-015(24),
the U. S. Forest Service was a correct party in the absence of
the employer since it was "...the person in charge of the place
of employment at the time of the inspection," and, therefore was
the employer representative. However, I don't feel the Forest
Service was "in charge of the place of employment". If it had
been in charge, perhaps it should have been cited for operating
an unsafe place of employment! No, actually its' role was as a
contractor who had contracted for a bona fide employer to come
onto its premises and perform certain contracted-for tasks. It
had the normal contractual remedies if Daren Ostlie failed to
perform, but was not the employer of Ostlie, nor an insurer he
would perform well and/or safely. The fact that the work was
performed on its premises did not make the U.S. Forest Service
"in charge of the place of employment" any more than a typical
landlord would be in charge of whatever business occupied a
rented business premise. The government had some jurisdiction
over the employer as an occupant of public lands as it would any
other camper or occupant, but not over the employers' status as
an employer.
Not Impossible
I conclude that this is not a case in which it was truly
impossible to communicate with the employer and to see whether
he desired to accompany the Safety Compliance Officer during the
inspection--in fact, it probably would not have been even
particularly difficult to make such arrangements. Not only had
the U.S. Forest Service been in regular communication with the
employer and knew his current address and phone number, but the
Forest Service also knew of the whereabouts of the employer's
injured brother (employee Jason Ostlie), and should reasonably
have supposed that the employer would be available at that
location, as well. Because the SCO had ample opportunity to
discuss this matter with the U S. Forest Service before actually
embarking upon the first inspection, it probably would have been
relatively simple for the SCO to arrange to meet with the
employer before credentials were presented and, of course,
before the inspections took place. Therefore, the fact that the
inspection was conducted without the mandatory presentation of
credentials and conducting of an opening conference cannot be
excused on the grounds of impossibility.
Not emergency
This was no longer an emergency situation. The SCO testified
that they were concerned that snow might obliterate part of the
evidence at the injury site, but I do not find that to be the
sort of emergency which might possibly justify conducting an
inspection without even an effort to communicate with the
employer. Arguably, there may have been instances in history
when it was correct to proceed with a prompt and even emergency
inspection when other employees were continuing to be at risk
because of a given hazard, but this certainly was not one of
those cases. The SCO knew that any remaining dynamite and other
blasting apparatus had been "secured" and did not present a
threat to any other employees or the general public.
Results of incorrect OR-OSHA conduct
My conclusion, based upon the foregoing reasoning, is that
there was no proper presentation or opening or inspection. The
next question then is what effect, if any, does that have upon
the citation which issued. The employer argues that the
statutory use of the word "shall" is clearly mandatory, and I
agree. The employer then argues that OR-OSHA actions outside of
the scope of its rules are invalid. See Georgia-Pacific Corp.
v. Kight, (91-09579; CA A79871) (1994) (reversing the Workers'
Compensation Board's decision to grant a continuance because
such action was inconsistent with its own mandatory rules). I
agree that the conduct of OR-OSHA was incorrect and that the
government entity cannot be allowed to proceed through hearing
on the basis of the citation which was incorrectly obtained, and
also to use the evidence obtained in the faulty inspection to
carry its burden of proof in the relation to the citation.
Something must be done, the only question is what is the correct
action to be taken.
The employer presented two models of how to deal with an
invalid inspection: (1) to simply exclude all evidence garnered
as a result of an incorrect and, therefore, invalid inspection;
or (2) to outright dismiss the resultant citation. At
hearing, I initially ruled that the correct remedy was to simply
exclude all evidence, but after re-thinking that decision, I
reversed my ruling and decided that the correct remedy was to
completely invalidate, or vacate, the faulty citation. The
reasons for that change were clearly set forth at the hearing
and will not be repeated at this time. However, one reason for
an out-right vacation is that the evidence was physically
tampered with (albeit innocently) when the employer was not
there, so he has been hopelessly prejudiced from that moment
onward.
ATTORNEY FEE
Once the ruling was made at hearing to vacate the citation,
there still remained the question whether OR-OSHA should be
required to somehow compensate claimant because of the
attorney's fees claimant incurred in defending against what
turned out to be an invalid citation. The employer's attorney
cited the time and expense for which that attorney had billed
the employer in defending against the citation, particularly
focussing upon the fact that at one point it seemed that it
would be possible to conduct the procedural aspect of the
hearing strictly based upon "stipulated facts", and obviate the
necessity of any individual traveling to a hearing and yet
OR-OSHA finally would not consent to proceeding in that
particular fashion. Although it does appear that the employer's
legal costs were increased because OR-OSHA did not agree to
stipulated facts, I know of no remedy available to employer
which would assuage the expense of the attorney's fees.
Therefore, that portion of the employer's motion is denied.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED as follows:
(1) The February 7, 1992 citation, Optional Report No.
L6260-021-92 is hereby vacated.
(2) There being no pending citation, this forum has no
jurisdiction, and the matter is dismissed.
(3) OR-OSHA shall not be required to reimburse the employer
for any attorney fees incurred in defense against said citation.
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 April 4, 1994
WORKERS' COMPENSATION BOARD
Michael V. Johnson
Referee