BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
     Health Division			)  Docket No:  SH-95018

					)

	Plaintiff,			)

					)

	vs.				)  Citation No:  G6017-050-94

					)

PARKROSE MACHINE			)

					)

	Defendant.			)     OPINION AND ORDER



	Hearing was held in Portland, Oregon, on November 1, 1995. 
OR-OSHA  was represented by Rochelle A. Nedeau, Assistant
Attorney General.  Stanley R. Thompson, the sole proprietor of
Parkrose Machine represented the defendant.  Exhibits 1-11 were
received in evidence.  The case was closed on November 7, 1995,
after receipt of exhibits 12 and 13, copies of the relevant
standards.



ISSUES:



	Defendant appeals all five items of Citation No. G6017-050-94,
including the penalties.



FINDINGS OF FACT:



	The defendant is a machine and metal fabrication shop with four
employees, including the owner.  Dianna Kay Gray, a Safety
Compliance Officer with Or-OSHA first went to Parkrose Machine
on March 8, 1994, to conduct a safety inspection that was
generated by an anonymous complaint.  As a result of the
inspection,  a 20 item Citation  No. G6017-029-94 was issued on
March 28, 1994, for various violations observed by the
compliance officer.  Some of the items were corrected at the
time of the inspection but the defendant was allowed additional
time or until April 4, 1994,  to correct the following items:



1. Item 1-7 involving the failure to guard the unused portions of a saw blade in violation of OAR 437-02-240, a serious violation with a $180.00 fine. 2. Item 1-8 involving the failure to guard belts and pulleys on the "jet" drill press, in violation of OAR 437-02-240, a serious violation with a $300.00 fine. 3. Item 1-9 involving the failure to use a guard on the Bosch #1353 portable right angle head grinder with abrasive wheel in violation OAR 437-2-242 (7) (a), a serious violation with a $300.00 fine. 4. Item 1-10 involving the employer's failure to establish a energy control procedure and employee training for employees performing any servicing or maintenance on a machine or equipment where the unexpected energizing, start up or release of stored energy could occur and cause injury, in violation of OAR 437-02-320, a serious violation with a $180.00 fine. 5. Item 2-14 involving the employer's failure to develop or implement a written Hazard Communication Program in violation of OAR 437-02-360, a general violation with no fine.
In addition, defendant was cited as violating OAR 437-02-040 in not locking a door in the back of the lower shop area during business hours, a general violation with no penalty, but not corrected at the time of the inspection. At the conclusion of the inspection, the compliance officer gave Mr. Thompson, who assisted in setting the correction times, a letter of correction action to prepare and send to her when the various items were corrected. The compliance officer told Mr. Thompson that if the items were not corrected by the correction date, penalties would accrue daily. The defendant did not appeal Citation No. G6017-029-94, issued on March 28, 1994. When the compliance officer did not get the letter of correction as requested, she made another visit to the Parkrose Machine on June 2, 1994. At the beginning of the inspection, the compliance officer told Mr. Thompson that the purpose of the inspection was to verify compliance with the previously cited violations. He said that he had not had time to do the paper work and gave the compliance officer permission to check the shop. Several employees were working at the time. As a result of her inspection, the compliance officer found items from the March citation that had not been corrected by the April 4, 1994, correction date and were not corrected at the time of her June 1994 visit. She issued a new citation No, G6017-050-94, the citation involved in this case, for the non-correction of the following items:
1. Item 1-7 the horizontal metal cutting band saw was not guarded on the unused portions of the saw blade, in violation of OAR 437-02-240, with an additional penalty of $3600.00. 2. Item 1-8 the belts and pulleys were unguarded on the "Jet" drill press, in violation of OAR 437-02-240, with an additional penalty of $6,000.00. 3. Item 1-9 the safety guard was not used on the Bosch #1353 portable right angle head grinder with abrasive wheel for grinding metal surfaces, in violation of OAR 437-2-242 (7) (a), with an additional penalty of $6,000.00 4. Item 2-14 the employer had not developed or implemented a written Hazard Communications Program, in violation of OAR 437-02-360, with an additional penalty of $500.00.
In addition, the compliance officer noted that the employer had not posted the March 1994, citation in violation of OAR 437-1-275 (2) (b) and she cited the employer for that violation as a mandatory violation with a $200.00 penalty. In her closing conference, she asked Mr. Thompson if had a copy of the March citation and he said he had it at home. The compliance officer notified the defendant about the items that had not been corrected and again told him that penalties would be accruing daily until compliance. She placed a failure to correct notice on the wall. The compliance officer visited the site again ten days later on June 13, 1994, as she had not heard from Mr. Thompson. Three items were still not corrected, so she posted a second notice of a failure to correct on Items 1-7, 1-8 and 1-9. Mr. Thompson said that he had no time to make the corrections. The compliance officer helped Mr. Thompson prepare a written Hazard Program so that he would be in compliance with Item 2-14. She returned to her office and spoke to her supervisor, who called Mr. Thompson. Mr. Thompson said that he would correct the items. On June 15, 1994, the compliance officer had still not heard from Mr. Thompson so she started an injunction procedure. Within a few hours, Mr. Thompson called and said that he had corrected the items. She removed the notices of non-correction and left. The injunction procedures were halted and the safety supervisor decided to issue citation #G6017-050-94 and figured the penalties in accordance with OAR 437-01-135 through 203. OPINION: Parkrose Machine was an Oregon employer subject to the OR-OSHA standards. 1. Item 1-1, violation of OAR 437-1-275 (2) (b), completed time of inspection, $200 penalty. OR-OSHA alleges that the employer did not post citation #G6017-0f29-94 for three days or until the violations were corrected, whichever occurred last. The standard provides that a copy of any citation received by the employer shall be posted for three days or until the violation is corrected, whichever occurs last in order to inform the affected employees of safety problems in their work place. According to compliance officer Gray, a number of the items in Citation # G6017-029-94 were not corrected when she revisited Parkrose Machine on June 2, 1994. The shop was open and employees were working there on June 2, 1994. The compliance officer did not see that Citation # G6017-029-94 was posted. She asked Mr. Thompson, if he had received a copy of the citation and he responded that it was at home. OR-OSHA has to assess a civil penalty of no more than $1000 for failure to post a citation. The amount of $200 was determined in the usual manner by her supervisor. Mr. Thompson offered no explanation or argument on this violation. This violation is sustained. 2. Item 1-7, violation of OAR 437-02-240, 1-8, violation of OAR 437-02-240, 1-9, violation of OAR 437-2-242 (7) (a), and 2-14, violation of OAR 437-02-360, all with additional penalties assessed. OR-OSHA alleges that Parkrose Machine did not correct violations cited in the original Citation #G6017-029-94, all resulting in additional penalties ranging from $500 to $6000 per violation. OR-OSHA proved that violations were not corrected in the designated times. According to the testimony of the compliance officer who performed the original inspection in March 1994, that led to the issuance of Citation No. G6017-029-94, Mr. Thompson was given until April 4, 1994, to correct a number of safety violations, including items 1-7, 1-8, and 1-9. He was to complete the correction in item 2-14 immediately but did not do so at the time of inspection. Mr. Thompson assisted in setting the correction times. The compliance officer told him in her closing conference at the March 8, 1994, inspection that he was to send her a letter of correction action when the items were corrected and that penalties would be accruing daily after the correction date. Mr. Thompson did not appeal the March 1994, citation. The same compliance officer conducted the inspection on June 2, 1994, that resulted in the citation involved in this case because she did not receive Mr. Thompson's letter of corrected action. When she returned on June 2, 1994, Mr. Thompson did not seem surprised. He admitted that he had not filled out the paper work. On inspection, the saw the blade was not guarded or corrected in item 1-7, even though employees were using the saw and Mr. Thompson said that it was being used. He admitted that this item had not been corrected. In a similar manner, Mr. Thompson agreed that the belts and pulley guarding violation in item 1-8 was not corrected and said that the guards were laying around somewhere. On item 1-9, the compliance officer noticed that the guard was still not on the portable grinder and she saw employees using this machine. Mr. Thompson also said that the guards were in the shop, but argued with the necessity of correcting the item as he felt the machine unguarded would not pose a safety hazard. In regard to item 2-14, in March 1994, the compliance officer informed Mr. Thompson about the Hazardous Communication Program requirement and the necessity of having a written Hazard Communication Program. She gave him a sample program and told him to fill in the blanks. She informed him about the necessity of having employee training. On June 2, 1994, the compliance officer noted that nothing had been done. She saw that the employer was still using hazardous chemicals and Mr. Thompson and his employees said that they were using them daily. At her closing conference on June 2, 1994, the compliance officer informed Mr. Thompson about the items that were still not corrected and told him that penalties would be accruing daily, so he needed to call her to say that the violations were corrected. She posted a failure to correct notice. In response to the compliance officer's question about the non-compliance, Mr. Thompson said that OR-OSHA was ridiculous, no employees were exposed to dangers and he had no time to correct the items. He also argued that he could not use the machines with guards and seemed to think that he should be the one who decided what was safe or not, despite his having several accidents. He again tried to argue with the substance of the violations in the March 1994, citation. It is too late for him to now argue about the violations themselves because he did not appeal the March 1994, citation. The OR-OSHA standards are adopted from federal law as to what is safe or not safe in the workplace and Mr. Thompson cannot substitute his judgment on these standards. The compliance officer did not hear from Mr. Thompson in ten days following her June 2, 1994, so she visited him again on June 13, 1994, at which time, three items were still not corrected so she posted a second notice of non-correction. She assisted him with compliance with item 2-14. It was not until he was faced with an injunction that Mr. Thompson corrected all of the items by June 15, 1994. His behavior and discussions with the compliance officer show that he was aware of the violations, but chose not to comply with them. In regard to the penalties for items 1-7,1-8, 1-9 and 2-14, penalties are mandatory for failure to correct items under OAR 437-01-155, are mandatory and can go as high as $7000 a day. The various penalties imposed on Parkrose Machine were determined in accordance with the rules set forth in OAR 437-01-135 through 203. Mr. Thompson argued that the various items on the March 1994, citation should not have been classified as serious or the way they were for purposes of establishing the penalty, but he did not appeal that citation so OR-OSHA was justified in using the classifications established by the March 1994, citation in determining the penalties in the citation involved in this case. Based upon the testimony of the compliance officer, I have no basis to adjust the penalties. Given Mr. Thompson's failure to correct items on the March 1994, citation that he was told needed to be corrected, as established by the testimony of the compliance officer and the exhibits admitted at hearing, and his failure to offer any excuse for his non-correction other than his belief that the standards are burdensome and unnecessary, I find that OR-OSHA has proved that citation # G6017-050-94 was proper in its entirety. There is no evidence that OR-OSHA treated Parkrose Machine any different than any other business subject to OR-OSHA standards and it appeared from the testimony of the compliance officer that OR-OSHA did try try to help Mr. Thompson with compliance, by providing him with information on the hazardous material program and actually helping him come into compliance on that item in mid June 1994. The inspection appeared to be reasonable and professionally conducted. Mr. Thompson admitted that if he had corrected the items by April 4, 1994, as he did by June 15, 1994, he could have saved a lot of money in fines. His failure to perform the corrections because he disagreed with them and did not like OR-OSHA telling him what to do, is misplaced. ORDER: IT IS THEREFORE ORDERED that Citation G6017-050-94 is affirmed in its entirely. 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 Portland, Oregon, November 14, 1995 Workers' Compensation Board VINITA J. NEAL Administrative Law Judge