BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-92212

 					)

	 Plaintiff,			)  Citation No. G8421-045-92

		vs.			)

COLUMBIA HELICOPTERS			)

	Defendant			)  OPINION AND ORDER



	The original hearing date in this matter was December 17, 1993.
 OR-OSHA was represented by its attorney, Kevin Shuba.  The
employer was represented by its attorney, George Goodman.  The
employer representative was Burt Burkhart.  Harris Reporting
recorded the proceedings.  The hearing was limited to the
employer's motion to dismiss.  Exhibits 1 through 7, 1A, 8, 9
and 10 were received at the time of hearing.



	Following the initial hearing, the employer requested the
opportunity to reconvene to present additional testimony. 
OR-OSHA objected.  The objection was overruled and the hearing
was reconvened for additional testimony on July 27, 1994.



	A briefing schedule was then followed with the last brief
received on September 14.  OR-OSHA then sought to further
supplement its argument.  The employer objected and the
objection was sustained by letter dated October 14, 1994.  The
letter further noted that copies of all exhibits had not yet
been received.  Those exhibits were submitted.  In addition,
exhibits 8A and 9A were received.  The final exhibits were
received on November 18, 1994 and the record was closed on that
date.



                          ISSUES



	The employer requested a hearing on Citation No. G8421-045-92
which was issued on May 26, 1992.  At the time of hearing, the
employer moved to dismiss the citation based primarily on the
allegation that the Safety Compliance Office (SCO) failed to
present appropriate credentials at the time of the inspection
that led to the citation.  The evidentiary record and argument
up to the date of this Order was limited to the motion to
dismiss.



                          FINDINGS OF FACT



	Stephen Gilbert is an SCO who has worked for the State in that
capacity for approximately 25 years.  On May 17, 1992, he
initiated an inspection of a helicopter logging project that was
being operated by the employer on U.S. Forest Service land.  



	The forest service land on which the logging operation was
taking place was posted with signs prohibiting public travel. 
This was a programmed planned inspection.  It did not take place
as a result of any emergency nor was any warrant obtained.  



	SCO Gilbert acknowledges that prior to conducting an
inspection, he is required to present appropriate credentials to
the owner employer or agent in charge.  Prior to this
inspection, SCO Gilbert did not present his credentials which
are reflected in Exhibit 8.  Exhibit8 is the OR-OSHA compliance
officer identification card which SCO Gilbert carries in a black
card case along with his business cards.  The business cards are
as shown in Exhibit 9.  Exhibits 8 and 9 are copies.  All of the
witnesses who were asked if they were shown either the
credential in the card case or one of SCO Gilbert's business
cards were shown the actual credential in the case or an actual
business card, not the copies reflected in the exhibits.



	SCO Gilbert had his first contact on the site with Gary Stokes
who is the bullbuck on the job.  Mr. Stokes is not in charge of
the job site, but does have some supervisory capacity.  SCO
Gilbert did not show Mr. Stokes his credentials, but may have
given him a business card.  He introduced himself as Steve
Gilbert and indicated he wanted to check on the cutters on the
site.  He did not do a formal opening conference during which he
would explain the purpose and scope of the inspection, determine
if any union representative or designated employee would
accompany him and otherwise explain the nature and scope of the
inspection.



	SCO Gilbert proceeded to inspect the cutting operation and
noted what he felt were unsafe practices.  He was on the site
for some time and by the afternoon, Bert Burkhart, who is the
project manager, appeared and also spoke with SCO Gilbert.  Mr.
Burkhart was not shown SCO Gilbert's credential in the black
case.  He was given a business card which came from SCO
Gilbert's front shirt pocket.  



	SCO Gilbert did an additional inspection at the site on March18
and March 19, 1992 and ultimately a citation was issued, based
upon his inspection at the site, on May 6, 1992.  (Ex. 1).



                FINDINGS OF ULTIMATE FACT



	Prior to conducting his inspection, SCO Gilbert did not present
appropriate credentials to the owner, employer or agent in
charge at the employer's logging operation.



               CONCLUSIONS AND OPINION



	ORS 654.067 reads in pertinent part as follows:



"(1) In order to carry out the purposes of ORS654.001 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 places of employment; and "(b) to inspect and investigate during regular working hours and at other reasonable times ... "(3) Except in the case of an emergency, or a place of employment open to the public, if the director is denied access to any place of employment for the purpose of an inspection or investigation, such inspection or investigation shall not be conducted without an inspection warrant obtained pursuant to ORS654.202 to 654.216, or without such other authority as the Court may grant in an appropriate civil proceeding. Nothing contained herein, however, is intended to affect the validity of a constitutionally authorized inspection conducted without an inspection warrant."
The employer's position pursuant to the above-cited statute is that a proper citation is dependent upon the appropriate presentation of credentials prior to the inspection and that since, as I have found as a matter of fact, credentials were not presented, the citation issued in this case must be dismissed. OR-OSHA's position is that credentials were presented, and in the alternative, if they were not, dismissal of the citation is not legally warranted. I first explain my ultimate finding of fact, that SCO Gilbert did not present appropriate credentials. Neither the word "credentials" or "appropriate credentials" is defined in ORS Chapter 654. Those terms are also not defined in general definitions contained in Division 1 of OR-OSHA's General Administrative Rules. OAR437-01-005. The only evidence as to what an appropriate credential is comes from SCO Gilbert who indicated that his credential is the photo ID card provided by OSHA which is the card that he carries in his black card case along with his business cards. SCO Gilbert did not indicate that his business cards are appropriate credentials although he does routinely hand those out on inspections to people he does not know. Based upon his testimony and common sense, I conclude that SCO Gilbert's credential is the photo ID in his black card case. The next question is whether SCO Gilbert presented credentials. In his direct testimony, SCO Gilbert indicated that he showed his credentials to Mr. Stokes and Mr. Burkhart when he first met them on the site prior to doing an opening conference. He did not specifically recall what sort of an opening conference he gave, but his standard practice is to give one after showing credentials. Much of SCO Gilbert's testimony was based upon his beliefs of what he had done, I gather, from what it is his standard practice to do. He clearly did not have a specific present memory of much of what had occurred during the inspection. In fact, after hearing the testimony from Mr. Stokes and Mr. Burkhart, SCO Gilbert again took the stand and indicated that he had been wrong in his prior testimony as to the sequence of events because he had confused the first two days of the inspection. I do not conclude that SCO Gilbert lied or misrepresented the facts surrounding the inspection. It is clear, however, that much of his testimony as to what occurred, for example, his testimony that he knows he showed his credentials, is based upon what he feels he commonly does rather than a specific recollection of what occurred during this particular inspection. However, other credible testimony made it clear that what SCO Gilbert thinks he always does is not necessarily the case. Don Rolland is SCO Gilbert's supervisor and has been with him on a number of inspections. He acknowledged that "on very few occasions" SCO Gilbert did not present credentials. Like SCO Gilbert, Mr. Rolland also acknowledged that it was necessary to always begin an inspection with the showing of credentials. SCO Gilbert also testified that if he gave anybody a card, and Mr. Burkhart acknowledges that he got a card and Mr. Stokes indicates that he might have, that that is consistent with him having shown credentials because he always takes his card out of his black case where the credential is located. This habit testimony was effectively rebutted by witnesses from other employers who had been subject to inspections by Mr. Gilbert. They testified credibly that Mr.Gilbert routinely gave them cards from his front shirt pocket. That was the testimony of Mr. Burkhart as well. In sum, I find that SCO Gilbert's testimony that he showed credentials is not reliable and that the contrary evidence from the employer witnesses is credible. I, therefore, conclude that credentials were not shown as required by the statute. OR-OSHA makes a number of legal arguments to the effect that, even if I find that credentials were not shown, that failure should not result in a dismissal of the citation. OR-OSHA first argues that there is no statutory or administrative requirement that OR-OSHA show credentials to its designated representative of the employer. I disagree. The statute requires presentation to the owner, employer or agent in charge. The administrative rule, OAR 437-01-065 requires presentation to the employer or employer representative unless it is not possible. There is no allegation that it was not possible. OR-OSHA argues that, assuming Mr. Stokes and Burkhart were both given SCO Gilbert's business card, that satisfies the statute. As discussed above, the only evidence on this issue is from SCO Gilbert himself and he testified that his credentials were his photo ID, not his business card. OR-OSHA argues that there is no expectation of privacy on public land and that, under a line of authority at the federal level, since ORS654.067(3) does not require a warrant to enter a place of employment open to the public, the failure to present credentials should not affect the citation issued after an inspection of a place open to the public. I reject that argument for two reasons. First, it is not at all clear that, while this was U.S. Forest Service land, it was a place of employment open to the public. That term is not defined in the statute nor is it defined in OR-OSHA's administrative rules. In this case, the logging operation was taking place on federal land, but there were signs posted which indicated that the roads were closed to public access. I agree with OR-OSHA the signs do not somehow make the land private. However, they do have the effect of closing the place to public access. Thus, it is problematic at best to suggest that this was a place open to the public. Second, and more important, even if it is assumed that this inspection location was open to the public, all that that means is that if the employer had tried to deny access, it would not have been necessary to obtain an inspection warrant. The issue in this case does not concern whether a warrant was necessary under sub-section 3 of ORS654.067. The issue in this case is whether credentials were presented under ORS654.067(1). That statute does not indicate that the presentation of credentials is required only in a private place of employment. The Court of Appeals has limited the showing of credentials as a prerequisite to inspection to job sites as opposed to off site investigations. This inspection was at a job site, not off site. See Oregon Occupational Safety and Health Division v. Don Whitaker Logging, 124 Or App 246 (1983). Finally, OR-OSHA argues that even if the failure to show credentials somehow impacted the inspection, there is a difference between an inspection and an investigation and that dismissal of the citation is an inappropriate remedy. It is true that there can be an investigation beyond the inspection of the job site. However, in this case, there is no evidence that the citation was based on anything other than the inspection. The citation is based on SCO Gilbert's observations during the inspection of what he perceived to be violations of safety regulations. Thus, if there is a distinction between inspections and investigation, it is a distinction without effect in this case. The invalid inspection taints the entire citation. This was the position taken by Referee Nichols in her case dismissing a citation. OR-OSHA v. Zimbrick Logging, Inc., SH-92236. Her decision was approved without opinion by the Court of Appeals. 127 Or App 753 (1994). Finally, OR-OSHA argues that the citation should not be dismissed because the SCO was at least in substantial compliance with the statutory requirement of showing credentials. OR-OSHA relies upon the concurring opinion of Judge DeMuniz in the Whitaker Logging case cited above. The concurrence is a nonbinding precedent. Moreover, as the employer notes, a generally substantial compliance argument requires a good faith effort to comply fully with a statute and some minor error in that compliance. The facts in this case would not meet that test if it were applicable. In sum, I conclude that because the inspection was tainted by the failure to present appropriate credentials, the citation must be dismissed. I note that initially at the beginning of the hearing, the employer wished to pursue sanctions against OR-OSHA and an assessment of attorney fees. Those issues were not argued in the brief and I assume they are abandoned. In any event, I do not believe I have the authority to award either sanctions or attorney fees. ORDER IT IS HEREBY ORDERED that Citation No. G8421-045-92, issued May26, 1992 is vacated. 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 Dec 29, 1994 WORKERS' COMPENSATION BOARD JOHN MARK MILLS Referee