BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
      Health Division			)  Docket No: SH-91058

	Plaintiff, 			)  CITATION NO. H1069-163-90

					) 

		v.			)

					) 

DON WHITAKER LOGGING, INC.		)  OPINION AND ORDER

	Defendant			)  ON REMAND



                        INTRODUCTION



	Hearing was held in Medford, Oregon on October 14-18, 1992, 
Plaintiff, OROSHA, was at all times represented by Assistant
Attorney General Armonica Gilford.  The defendant, Don Whitaker
Logging, Inc. was represented by Attorney George Goodman.  At
the conclusion of claimant's case in chief, I allowed
defendant's motion to dismiss, predicated on a finding that the
safety compliance officer, Mr. Hoffman, is not a reliable
witness; that he conducted an investigation prior to commencing
an opening conference, and thereby tainted the results of the
investigation mandating dismissal of the citation in toto
(Opinion and Order July 16, 1992).



	On appeal, the Court of Appeals reversed and remanded, holding
that the SCO was not required to conduct an opening conference
prior to commencing an off premises investigation.  Oregon Occ.
Safety & Health Division  Div. v. Don Whitaker Logging, Inc., 
124 Or App 246 (1993).



	On remand, the employer filed yet another motion to dismiss,
raising issues not raised on appeal.  I treat the motion, coming
after plaintiff has rested its case, as the equivalent of a
motion for a direct verdict (see reply argument, pg. 5).



                         FINDINGS



	On August 23, 1990, three of defendant's employees were
seriously injured when they were hit by a swinging log.  Hook
tender Stottler chose the turn.  Three logs were choked; at
least one maple was gut hooked (transcript A-95, 97).



	Rigging slinger Cooper in essence testified he blew the bug the
signal go ahead without making sure they were in the clear (see
transcript B-185, 197, 199, 201).  That was his responsibility
to check.  "I was preoccupied with tearing down the yarder which
we were going to do in about five minutes (transcript B-216). 
The hook tender was the one who should have blown the go ahead
whistle (transcript C-10).  It was an unknowing, unthinking act
(transcript C-11).



	Rigging slinger Cooper was an experienced, properly trained
safe rigging slinger (transcript B-99).  Given the position of
Cooper, Stottler and Ladd, the choker setter, it was inevitable
that they would have been hit if the whistle was blown at that
time (transcript B-18).



                         OPINION



                   ITEM 1-1 OAR 437-40-030 (1)



	This section provides:



"The employer shall see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process or practice which they authorized to use or apply. . ." (Ex. 7, pg. 4).
Plaintiff alleges that defendant failed to supervise its employees, as evidenced by the fact that the three employees were standing too close to the turn, in the bight, on a log that moved with the turn. And two trees were gut hooked and two choker setters were not facing the rigging when the turn broke out (Ex. 1-3). OAR 437-80-015, found in the Logging Code is entitled "Training and Supervision." It requires employer to develop and maintain a formal accident prevention program and specifies in detail the methods to accomplish the same (Ex. 8-3). OAR 437-80-030 (2), also in the Logging Code, provides: "Any situation or condition not specifically covered herein shall be subject to other applicable provisions of the Oregon Administrative Rules, Chapter 437, Oregon Occupational Safety and Health Code/" (Ex. 8, pg. 2). In other words, if it is not covered by the Logging Code, then reference can be made to the General Code, including Division 40 quoted above. A basic tenant of Administrative Law is that an agency is required to follow its own rules. APD v Asana, 110 Or App 103 (1991). Here, plaintiff is cited under the General Code when the same subject matter is covered under the Logging Code. Its rules says it may not do so, so Citation No. 1-1 must be dismissed. ITEM 1-2B OAR 437-80-330 (6) That section provides:
"If possible, a choker shall be placed, near, but not closer than two (2) feet from the ends of logs. A choker may be placed in the middle of the log (gut shot)" only if it will provide greater control when the turn is landed." (Ex. 8, pg. 81).
SCO Hoffman testified that he did not ask, and did not know, if it was possible to choke the logs on the ends (transcript A-162). He did not ask anyone on the scene if they had gut hooked for purposes of control (transcript A-165). The way the rule is written, plaintiff must prove (1) that it was possible to hook the logs on the ends; and (2) that if they were gut hooked, it was not for purposes of control. There is a failure of proof as to Citation 1-B). ITEM 1-2A and 1-2C, OAR 437-80-330 (7) and (10) Those sections read, respectively:
"(7) Employees shall be in clear of logs, root wads, chunks, rolling material and rigging before the go-ahead signal is given and shall stay in the clear until all rigging movement has stopped. "(10) Standing on or near logs, root wads or other objects which may be moved by the log turn is prohibited."
Specifically, plaintiff alleges, and I find, that the three employees were obviously not in the clear, because they were hit by a moving log. At the conclusion of plaintiff's case, the preponderance of evidence indicates that the log upon which they were standing, separate from the one that hit them, also moved with turn (see transcript B-201). Plaintiff bears the burden of proving employer knowledge of the violation or that the employer knew or with reasonable diligence should have known of the violation.. APD v. Roseburg Lumber, 106 Or App 69 (1991). Up to the time Mr. Cooper blew the bug, there was no violation: there was nothing to be in the clear of; the log was not moving (see Hoffman transcript A-158; B-11, 18). Mr. Cooper "spaced out" that they were in the bight; when they blew the bug, he was thinking about tearing down the yarder (transcript B-215-216). Since Mr. Cooper had no real knowledge that he was about to do "unknowing and unthinking act,", is there any knowledge that can be imputed to the employer? Plaintiff argues, in essence, for strict liability:
"[L]iability should be imposed on Defendant regardless whether Defendant had safety rules and Cooper understood these rules. In his supervisory capacity, Cooper's negligent act was proof that Defendant's enforcement of such safety rules was inadequate" (plaintiff's argument, pg. 11).
Stated in such a way, plaintiff would never have to prove knowledge- if an accident occurs, it is evidence that the employer should have known a violation was going to occur. See Pennsylvania Power & Light v. OSHA Commission, 737 F. 2D 350, (3rd Cir. 1984). This is not a case of a rogue supervisor taking it upon himself to violate safety rules to accomplish an end. That would be an appropriate case to impute the supervisor's knowledge to the employer, because the impetus must be safety, not production at any cost. Mr. Cooper was a well trained, safe supervisor. He did not think about what he was doing; he blew the bug and three people were injured. The only knowledge that can imputed to the employer is that, based on his past proven performance, Mr. Cooper would perform his duties in a non-negligent manner. The plaintiff has failed to prove employer knowledge with regard to these two citations. CITATIONS 1-3 and 1-4 OAR 437-80-160 (3) and OAR 437-80-330 (9) OAR 437-80-160 (3) provides:
"Running lines shall be arranged so that employees will not be required to work in the bight. When this is not possible, employees shall move out of the bight of lines before the final signal to move the turn or they shall get in a position where they will be protected by standing timber of sufficient size that will insure them safety."
OAR 437-80-330 (9) provides:
"Employees in the vicinity of a turn being broken out shall watch the turn, remain on their feet and shall not turn their backs to the turn until it is well into the clear."
Both of these rules are positional: there is a violation if, at the time the turn moves, they are in the bight and/or not facing the turn. As above, that State must prove knowledge of the employer. As above, the unthinking and knowing act of Mr. Cooper cannot be imputed to the employer. There is a failure of proof. ITEM 1-5 OAR 437-80-015 (1) (c) That section provides:
"Each employer shall develop, implement and maintain a formal accident prevention program. The accident prevention program shall include: (1) supervisor practices that require: (c) if the new employee is experienced, the employer or supervisor shall review the basic training with the new employee and the employee shall be required to visually demonstrate competence to the supervisors to accomplish the work and safe job practices before working without supervision."
There is no proof that Mr. Ladd worked without supervision. The citation shall be dismissed. ITEM 1-6 OAR 437-80-015 (3) OAR 437-80-015 provides:
"Each employer shall develop, implement and maintain a formal accident prevention program. The accident prevention program shall include: (3) a monthly safety meeting program for all employees. The meeting shall directly involve all employees each month and may be conducted individually, in separate crew meetings or in larger groups. Meeting minutes and attendance shall be documented and be made available to employees upon request."
Specifically, plaintiff alleges that "A monthly safety meeting had not been conducted on this side. Interviews indicate a safety meeting has not been conducted for two months." (Ex. 1, pg. 5). Exhibits 19 and 20, documenting scheduled safety meetings for July 11 and August 2, respectively, were admitted into evidence during plaintiff's case. While the citation indicates the interviews reflected that meetings had not been held, the rule sets forth the method by which compliance can be proven: by minutes. Those minutes are in evidence. Plaintiff has failed to prove a violation. ITEM 1-7 OAR 437-80-050 (15) That section provides: "All employees shall be knowledgeable concerning the first aid and emergency medical plans." The parties agree that the violation is reclassiffied to a general violation, as amended the citation shall stand; the penalty is reduced to zero. ITEMS 1-3 through 1-7 These items are grouped under the heading "The following alleged violation(s) are not related to the accident investigation." (Ex. 1-5). Employer moves to dismiss the citation on the ground that they were the result of a warrantless search in violation of the 4th amendment. Specifically, employer alleges that the safety compliance officer had the consent of employer to investigate the accident; he did not have the consent to inquire further. Employer argues that since it is unconstitutional to search without a warrant, APD. v. Hogan, 37 Or App 251 (1978), it follows that "Any inspection that is done at the consent of the employer cannot exceed the scope of the employer's consent." (Motion , pg. 7) . Assuming the correctness of the legal argument, on this record, I cannot determine the extent of the employer's consent. The motion to dismiss is denied. ORDER IT IS HEREBY ORDERED THAT: (1) Employer's motion to dismiss with regards to Items1-1, 1-2A, B, C, and 1-3 through 1-6 is allowed. (2) Item 1-7 is approved. The penalty is zero. 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 Medford, Oregon on August 18, 1995 Workers' Compensation Board Stephen D. Brown Administrative Law Judge