THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH90024

					)  Citation No R807303390

		Plaintiff		)

			vs .		)


		.Defendant		)  OPINION AND ORDER 

	This contested case under the Oregon Safe Employment Act came
on pursuant to notice for hearing in Portland Oregon on July 2
1990 before James P. Leahy referee. Jeff Jaraczeski represented
the attorney General's office on behalf of plaintiff Oregon
Occupational Safety and Health Division. Defendant Stevan Brown
the owner of B & K Sheet Metal appeared in person and by Alan H.
Tuhy Attorney at Law. Helen Marchio was the court recorder.


	The case was held open for citation of safety cases which did
not arrive by July 12 1990 and the case was closed


	8y letter dated January 18  1990 B & K Sheet Metal Inc. through
its attorney Alan H. Tuhy appealed the citation for the reason
that the violation did not occur and for the additional reason
that if any employees went temporarily without fall protection
it was not within OAR 437-3-041(1).

	The citation was issued because two employees were seen walking
on the top of an 8-inch wide concrete block wall approximately
13 feet above the ground without fall protection.


	Exhibits 1 through 7 were admitted.

                          FINDINGS OF FACT

	Michael P. Riffe testified. Up until March 15, 1990 and during
times pertinent, he was an Oregon Occupational Safety and Health
Division specialist making safety inspections. His training and
qualifications were not disputed. On December 7, 1989 while
making a routine tower construction inspection accompanied by a
compliance officer in Fairview, Oregon, east of Portland, he
noticed two persons walking without fall protection on the top
of a 13-foot wall on a concrete building under construction
about 15 feet from the tower they were inspecting (Ex. 4).

	Mr. Riffe called the employees down off the building,
identified them and spoke with them. Mark Presting, who had been
with B & K for some three and one-half years, was acting lead
man or foreman on the job. He testified. There was no safety
meeting. The employees were all experienced, had hard hats and
knew what to do. Lanyards were provided. There were no specific
instructions to use fall protection. The employees were familiar
with the height, the length and the general plans of the
building which they had discussed with the owner at the B & K
office prior to going out on the job. The employees had been on
the job since 8:30 in the morning. They were called off the
building about 10:00 a.m. by Mr. Riffe who remained on the job
site until about 12:00 noon. The employees used lanyards 6 feet
long already provided on the job after they were told that they
had been issued a citation. The movement restriction caused by
the 6 foot lanyards slowed down the installation of the
materials on the roof.

	The foreman identified the figure walking on the top of the
building in Exhibit 4 as a B & K employee.

	B & K Sheet Metal, Inc., including its president and employees
violated OAR 437-3-040(1) between 8:30 and 10:00 a.m. on
December 7, 1989 at the tower erection site at 223rd and Marine
Drive, Fairview, Oregon.


	The referee believes that one or more employees of B &K walked
the 8-inch wide concrete wall 13 feet above the ground
continuously over a period of time long enough to at least
measure whether or not the building was exactly square, an
operation necessary in order to properly start the laying of the
horizontal rectangular material that B & K was installing. The
referee understands that squareness is determined by a
triangulation method, at least from the vague descriptions given
by at least two B & K witnesses of what they went through to
make the measurements. At least two sides of the building would
he involved in the measurements. This is confirmed by Exhibit 4
which shows an extension ladder against two different sides and
an employee of B & K in two different sides on the top of the
building. One very  close to the top of the extension ladder.
The other showing him some six to ten feet away from the top of
the extension ladder walking on the 8-inch wall and extending
his arms out arguably for balance reasons. In the referee's
opinion if the same employees were measuring a concrete
foundation which was only 18 inches above the surface of the
ground they would be doing it standing on the ground and not
walking on the top of the 18-inch high concrete foundation.
Similarly therefore they could check the building for square
from a hydraulic bucket or from a ladder or from a number of
other less convenient but still time consuming methods. It
appears that walking the top of the 8-inch wall was the easiest
and quickest way.


	The difficulty testified to in defense in applying the roofing
materials and insulation materials is not involved in this
citation. That process had not yet started when the inspector
issued the citation.

	OAR 437-03-040 (fall protection) states without equivocation
that all employees shall be protected from fall hazards when
working on unguarded surfaces more than ten feet above a lower
level or at any height above dangerous equipment.

	All the argument and speculation concerning the softness of the
sandy soil both inside and outside the building is beside the
point and not a defense. The distance between the horizontal
beams forming the support for the roof which by various
estimates could have been as little as 19-3/4 inches between
makes no difference and is irrelevant.

	It was not pointed out to the undersigned what a "lower level"
means although it may be described in the Oregon administrative
Rules. It could be argued that the rectangular grid of beams on
the inside of the building could be a lower level and therefore
the rule would not have been violated had an employee fallen
inward even though he may have possibly slipped between the roof
supports. The point is that there was no protection provided for
a fall from the 13-foot wall to the sandy ground around the
perimeter of the building when the squareness measurements were
being taken. There was machinery such as what looks like an
engine generator along with pieces of material wherein a falling
employee could have been injured on contact with (Ex. 42).

	There was considerable unpersuasive argument that this was a
unique situation. This was a rather straightforward job on a
plain rectangular low building on a level site. Why could not B
& K have built a sufficiently wide platform 3 feet above the
ground extending far enough out to safely prop a ladder on. It
could have been moved around each side of the building as the
workers were working at heights and thereby bring the height
within the rule violated. If this does not satisfy the rules or
is prohibited by the rules, it was not pointed out how.

	The owner admitted that if the employees were walking on the
8-inch wall that was a violation. The insinuation was that
knowledge was not imputed to him. There was no testimony as to
how many employees there are in B & K but the undersigned is
convinced from the tenor of the testimony and the informality of
the preparations that the owner knew exactly what employees were
doing and how they were doing it on the job site on December 7,

	The undersigned is led to believe that B & K thought it could
not have been successful in its bidding had it included in the
bid fall protection that would have conformed to the rule the
safety specialist applied in this case.

	No exception was taken to the calculations used to come to the
penalty and the considerations used in reducing it by half to
$75. The calculation is approved.


	IT IS HEREBY ORDERED that the January 12, 1990 citation and
penalty No. R807303390 is approved.

	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

	Entered at Portland, Oregon on JUL. 18 1990 


				By James P. Leahy Referee