BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH90023

					)  CITATION NO:  H1069000990

	Plaintiff			)

PACIFIC PAINT CONTRACTING COMPANY	)

	Defendant			)  OPINION AND ORDER



	Pursuant to notice, a hearing was convened in the above
captioned case on June 6, 1990, in Coos Bay, Oregon, before
Referee Spangler. The plaintiff, Oregon Occupational Safety &
Health Division ("OR OSHA"), was represented by Mr. Jeff
Jaraczeski, a Law Student, appearing under Rule 9 of Rules For
Admission of Attorney. Neither the defendant, Pacific Paint
Contracting Company ("Pacific Paint"), nor its attorney, if any,
appeared. Business Support Services recorded the hearing.



                         PRELIMINARY MATTERS



	No affected employees elected to appear as parties pursuant to
OAR 438-85-411.



	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to 654.295 and 654.991.



	OR OSHA submitted Exhibits 1 through 6. Exhibits 1 through 4
were admitted into evidence. Inasmuch as Exhibits 5 and 6, were
copies of Oregon Administrative Rules, Chapter 437, Division 1
and 3, they were received into the record as argument.



                             ISSUE



	Whether defendant violated OAR 437-03-001 as found in the
November 14, 1989, citation.



                        FINDINGS OF FACT



	On October 30, 1989, Tom Hoffman, a Senior Safety Compliance
Officer for OR OSHA, conducted an inspection at the Tioga Motel
building ("building") in Coos Bay, Oregon. A large two-point
scaffold was attached to the front of the building,
approximately 20 feet above the sidewalk. The sidewalk was
adjacent to a highway.



	Two employees of Pacific Paint were painting, while suspended
by the scaffold. Although lifelines running vertically down the
face of the building were visible, the two employees were not
wearing their safety life belts and were, therefore, detached
from their lifelines.



	Given that the two employees were not wearing their safety life
belts, there was a possibility of death in the event that either
employee fell off the scaffold.



	Before the end of Hoffman's inspection, the employer corrected
the situation and the two employees put on their safety life
belts.



	In addition, employees of Pacific Paint were using a 120 Volt
airless paint sprayer. The sprayer did not have a ground prong.
There was a hazard of electric shock to employees using the
sprayer.



	As a result of the inspection, Citation No. H106900990 issued
on November 14, 1989, citing two violations of OAR 437-03-001. A
penalty of $800 was assessed for Item No. 1-1. No penalty was
assessed for alleged violation of Item No. 2-2.



                      CONCLUSIONS OF LAW



Item No. 1-1



	Item No. 1-1 describes the alleged violation of OAR 437-03-001
(i.e., 29 CFR 1926.451(i)(8)) as failing to protect either of
the two employees on the scaffold with safety life belts
attached to a lifeline. This was classified as a "serious"
violation. Hoffman testified that the "serious" classification,
was due to the potential for a death if one of the employees
fell from the scaffold.



	OAR 437-03-001 requires that workers on a two-point scaffold:



	"shall be protected by an approved safety life belt attached to
a lifeline. The lifeline shall be securely attached to
substantial members of the structure (not scaffold), or to
securely rigged lines, which will safely suspend the employee in
case of a fall."



	Here, the two employees observed by Hoffman were working from a
two-point scaffold. They were approximately 20 feet from ground
level. Neither employee was wearing his safety life belt
attached to the lifelines.



	Accordingly, I conclude that OAR 437-03-001 was violated and
that Item 1-1 in the citation was appropriate.



	Turning to the $800 penalty, OAR 437-01-145 sets penalties for
violations of the Code. That rule requires the assessment of a
penalty for any serious violation. Subsection (2)(a) allows for
a penalty reduction of 20 percent, when the employer corrects
the violation before the end of the inspection.



	In this case, the violation in Item 1-1 was considered to be a
serious violation with the possibility of death, but with a low
probability of occurrence. Based on the penalty schedule
provided in OAR 437-01-145, the penalty for the violation in
Item 1-1 is $1,000. That being reduced 20 percent for having
corrected the violation before the end of the inspection.



	Accordingly, I conclude that the assessed penalty of $800 was
appropriate.



Item No. 2-2



	Item No. 2-2 describes the alleged violation of OAR 437-03-001
(i.e., 29 CFR 1926.404(f)(6)) as failing to keep a permanent and
continuous path to the ground from circuits, equipment, and
enclosures.



	Employees of Pacific Paint were using a 120 Volt airless paint
sprayer. It had no ground prong. Exs. 32 & 43. Given the lack of
a ground prong, there was a hazard of electric shock to
employees using the sprayer.



	Accordingly, I conclude that OAR 437-03-001 was violated and
that Item 2-2 in the Citation was appropriate.



                              ORDER



	NOW, THEREFORE, IT IS HEREBY ORDERED:



1. Item No. 1-1 in Citation No. H106900990 is affirmed. The
proposed penalty of $800 for violation of OAR 437-03-001 (29 CFR
1926.451(i)(8)) is affirmed.



2. Item No. 2-2 in Citation No. H1069009909 is affirmed.



	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 Salem, Oregon, on Jul. O 2 1990 



				WORKERS' COMPENSATION BOARD

				By Kirk Spangler

				Referee