Accident Prevention Div. v. Roseburg Forest Products, SH-89107

• Decision Date: 20 February 1991
• Docket Number: SH-89107
• Citation: 106 Or.App. 69,806 P.2d 172
• Parties: ACCIDENT PREVENTION DIVISION, Respondent, v. ROSEBURG FOREST PRODUCTS, Petitioner. ; CA A62768.
• Court: Oregon Court of Appeals

Page 172

806 P.2d 172

106 Or.App. 69

ACCIDENT PREVENTION DIVISION, Respondent, v. ROSEBURG FOREST PRODUCTS, Petitioner.

SH-89107; CA A62768.

Court of Appeals of Oregon.

Argued and Submitted Oct. 8, 1990.

Decided Feb. 20, 1991.

Kimberly D. Wallan, Medford, argued the cause for petitioner. With her on the brief was Cowling & Heysell, Medford.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Employer seeks review of an order under the Oregon Safe Employment Act, ORS 654.001 to ORS 654.295; ORS 654.991, that affirmed a citation issued to it for violation of OAR 437-40-030(1). We affirm.

The citation arose from the on the job death of Purcell at employer's complex in Dillard. In January, 1989, labor unions struck employer. Supervisory personnel, including Purcell, were assigned to fill in for striking workers. Purcell and two other supervisors, Horner and Dwight, worked together loading lumber on a forklift. On the afternoon of February 2, while Purcell was setting blocks, a load of lumber toppled from the forklift, crushing him.

The referee found that Purcell, Horner and Dwight had experience in the work that they were performing and were familiar with company safety procedures. She also found that Purcell had previously trained and supervised forklift drivers and block setters, had provided safety instruction and had made certain that safety procedures were followed. He knew that a block setter should never get between a moving vehicle and a load and that a forklift load is not to be set down until the driver can see the block setter. The referee found that those were company policies and also the general practices in the industry.

The referee found that, during the strike, the three men worked by "consensus" and that, on two occasions before the fatal accident, Purcell had moved toward the forklift before it had stopped. On one of those occasions, Horner had warned Purcell that that was unsafe.

OAR 437-40-030(1) 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 are authorized to use or apply. This rule shall not be construed to require a supervisor on every part of an operation nor to prohibit workers from working alone."

The referee held:

"The decedent was not properly supervised because of the labor dispute. No one was in charge, among the three skilled and experienced workers. For most purposes, they did not need a supervisor, because they all knew what to do and how to do it. However, a supervisor who is on the site frequently provides a different perspective, a sort of third-party view of the situation. In this case, a supervisor would most likely have noticed that Mr. Purcell was rushing the loads and trying too hard, and disciplined him effectively. His co-workers and fellow managers simply were not in a position to both supervise and keep working. The company did not designate anyone to be the supervisor of the team, with responsibility for safety, and the consensus approach was inadequate.

" * * * I conclude that this was at least the third such dangerous incident, and that there may well have been more which were not officially noted or reported. This is the sort of pattern which a supervisor would be expected to notice and stop. I believe that, absent the strike, this is what Roseburg Lumber's supervisors do."

Our review is only for errors of law. ORS 183.482(8)(a). Employer contends that the referee's order is inconsistent with the rule quoted above, because it essentially imposes a requirement that a supervisor be present at all times on every part of an operation. Although the rule does not...