THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH90028

		Plaintiff		)  Citation No N858206989

		 v s .			)


		Defendant .		)  OPINION AND ORDER

	This matter came on for hearing and the record was closed July
3 199O before the undersigned referee. Andrew Beck appeared on
behalf of the corporate defendant; attorney Torn Elden appeared
on behalf of the Department of Justice.


	Defendant employer contests the Department's citation No.
N858206989  consisting of three violations.


	Defendant is a masonry contractor. On June 13 1989 Inspector
Gregg Nutt identified three violations as enumerated in Exhibit
1. On that date:

(1) Defendant failed to provide the required guard rails and toe
boards on the open sides of the scaffolding platforms that were
more than ten feet above the ground;

(2) Defendant elected scaffolding without adjustable or fixed
bases or on mud sills as required but rather set at least one
set of scaffold legs improperly on a pile of construction
materials; and

(3) although there was safe access to the scaffolding from one
side proper equivalent safe access or an access ladder was not
provided and employees were allowed to climb up and down from
scaffolding set at 16 feet or above .

                       OPINION AND CONCLUSIONS

	With respect to the first violation defendant's conduct
violates 29 CFR 1926.451(b)(15).

	With respect to setting the scaffolding on improper supports
defendant's conduct violates Section 29 CFR 1926.451(D)(4).

	With respect to the third violation there was one safe access
equivalent to a ladder around the other side of the building;
however employees were not required to use that and employees
were allowed to access and egress the highest point of the
scaffolding without an access ladder or equivalent safe access
in violation of 29 CFR 1926.45l(a)(13).

	While I appreciate the defendant contractor's business reasons
for failing to comply with the regulations the  regulations are
intended to foster the safety of workers not the business
convenience of the employer. Employer must devise techniques to
require its employees to comply with safety regulations and it
is employer's obligation to see that the work site is maintained
in a safe fashion as defined by the laws of the State of Oregon.

	While the referee Oregon OSHA defendant and no doubt all of
defendant's employees are certainly glad that no serious
accidents have yet occurred as a result of these or similar
safety violations as pointed out by employer the fact is that
the definition of an accident is that it is not expected to
happen. It could happen tomorrow.

	If the employer believes that the safety requirements of Oregon
law are unnecessarily restrictible or conservative the
employer's remedy is to work through the legislature or trade
associations or the Department to change those requirements.
Employer's chosen remedy not complying with the regulations is
followed at its own peril and at the peril of employees who may
in the future be injured.


First Violation

	I conclude that the proposed penalty as reduced of $250.00 is
appropriate for the failure to use the required guard rails.

Second Violation

	Qs described by Inspector Nutt the worksheet (Ex. 32) contains
a scrivener's error consisting of listing the severity violation
as medium rather than serious. I allow that scrivener's error to
be corrected, and conclude the proposed penalty of $250.00, as
reduced, is appropriate. I take particular note of the
photograph (Ex. 41) wherein in not only are scrap pieces of
material used to brace the scaffold leg depicted, but even that
"bracing" is poorly set. While I appreciate the acknowledgment
that the scaffolding would probably not fall over if these
supports were kicked out or disrupted, the employer must have
thought that some supports were a good idea because it placed
these there.

Third violation

	With respect to the failure to have a ladder, I consider the
employer's evidence of a permanent staircase accessing the
scaffolding as ameliorating the violation. However, it is a
large building and clearly employees were not relying on that
legal access exclusively, but were improperly allowed to use the
end of the scaffold frames for access and egress. In
consideration of the ameliorating factor, I deem it appropriate
to reduce the penalty from $75 to $60.

	The total penalties therefore will be $560.


	The Citation and Notice of Penalty (Ex. 1) as amended to,
reflect a total penalty of '$560.00 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. 19 1990 


				By Gilah Tenenbaum Referee