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