THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH-90039

  					)  Citation No. N853201090

 		Plaintiff,		)

		VS.			)


		Defendant		)  OPINION AND ORDER

	This matter came on for hearing July 16, 1990 and the record
was closed July 23, 1990 by the undersigned referee. Western
Steel was represented by Rick Spruiell, Area Manager; George
Swift, President, was also in attendance. Department of
Insurance and Finance, Oregon Safety and Health Division,
Business Activities Section, was represented by Assistant
Attorney General Norm Kelley. The proceedings were recorded by
Harris Reporting Services.


	Employer, Western Steel, challenges both violations enumerated
in Citation No. N858201090.


	Employer is a reinforcing and structural steel erector
business. At all material times, employer was involved in such
activities as a subcontractor at a metropolitan area
construction site. Bryon Cox is a working foreman for the
employer. His job includes responsibility for seeing that
personnel on the job site use appropriate safety equipment and
followed appropriate safety rules, including company rules, the
general contractor's rules, and Oregon OSHA rules. He has been
employed by Western Steel for five years. He has no
responsibility for setting policy, but does have responsibility
for implementing policy, for writing up violations, or reporting
violations to senior personnel.

	Bill Dozier was a crew member working under Bryon Cox's
supervision on the day in question. On November 20, 1989, Dozier
was working at a height of about 14 feet, at the top of a
spandrel panel, without fall protection. Qt the same time, Bryon
Cox was working directly above claimant, at a height of about 30
feet, also on an unguarded surface, without fall protection. Mr.
Cox did not advise Mr. Dozier to "tie off" until Oregon OSHA
inspectors were known to be observing on the premises. At the
time in question positive fall protection could have been used
but was not. The hazards were patent and detectable to Cox.

	Dozier was working in plain view of Cox. If Cox did not see
Dozier working without safety equipment he could have and should
have. The employer did not prevent hazardous preventable
noncomplying conduct by its employees on the day in question.
Employer's employees were not effectively supervised with
respect to compliance with safety rules. The employer's safety
program was not effectively communicated and enforced as written.

	Cox's failure to require Dozier to use fall protection was not
contrary to an effective enforced work rule. At the time
disciplinary measures for failure to comply with company safety
rules had not been implemented or were not enforced.

	Discrepancies in the employer's evidence lead me to conclude
that either Mr. Cox or Mr. Spruiell was not entirely candid with
the referee.


ITEM 1 - 2:  STANDARD OAR 437-03-040(1)

	There is little factual dispute with respect to this
allegation. Both Cox and Dozier were working at unguarded
surfaces more than ten feet above ground or above a lower level.
Fall protection was not used. Contrary to Inspector Nutt's
report and as he acknowledged at hearing neither man had on a
safety belt and no precautions were in use.

	There is no evidence that Mr. Cox the employer's representative
with regard to safety matters took any steps on the day in
question to see that Dozier would follow safety requirements.
The fact that Dozier was not even wearing a safety belt which
Cox could not but fail to see speaks to the lack of advance
preparation in this regard.

	Cox testified that he had already been disciplined with respect
to the events of the day in question. Mr. Spruiell advised the
court that Mr. Cox "would be" disciplined. This is a significant
discrepancy. It is also noteworthy to me that Exhibit 15 is
dated November 3 1990. That date not having yet passed I find it
somewhat suspicious that a document prepared on November 3 1989
would have been erroneously dated in l990. Employer concedes
that the disciplinary provisions of the company's safety rules
were the last aspect of the safety program to be implemented.

	The State has made out a prima facie case of violation of the
stated rule. That being the case it is employer's burden to
demonstrate that unforeseeable employee misconduct: accounts for
the infraction. I am not persuaded by the employer's evidence
that Cox's violation of company policy was idiosyncratic
unforeseeable or unavoidable. 'the foreman's negligent behavior
raises an inference of lax enforcement and/or communication of
the company safety policies and that inference has not been
persuasively overcome.

	The violation has been proven.

	1-1:  STANDARD OAR 437-40-030(2)(c)

	Employer is charged with violating the general duty of
employers to take all reasonable means to require employees to
use all means and methods necessary to safely accomplish the
work where the employees were exposed to a hazard.

	The same underlying facts apply here; the actual violation has
been established as above. However the question is whether the
employer has violated its general duty to take all reasonable
means necessary to safely accomplish work where employees are
exposed to a hazard.

	The evidence demonstrates that the employer had actual or
constructive knowledge of the violation while in progress. While
Cox was not technically a member of management he was charged
with the responsibility for carrying out the employer's safety
program in the field.

	The evidence with respect to whether Cox was disciplined
regarding this incident is as noted confused. If he was not
disciplined that is indicative of a lack of enforcement.
Spruiell's suggestion that it would be unfair to discipline him
until the outcome of this instant hearing was known is
illogical. Whether any fine was ultimately levied Cox was
clearly on the facts at least negligent in carrying out his
responsibilities. There is also no evidence that Dozier was

	Employer's written safety and healthy policy has many admirable
elements. A safety policy with no enforcement provisions is not
effective. The only evidence of enforcement is that after Safe
Talk saw Western Steel employees engaging in "rambunctious
horseplay" and advised the employer's "superintendent" warnings
were given to one employee.

	Employer did not take all reasonable means to require employees
to use all means and methods including safety belts and life
lines where employees were exposed to hazard. Cox and Dozier's
behavior on the date in question supports that inference.

	There is no evidence that these safety and health policies
outlined in Exhibit 9 were followed. For example under personal
work rules horseplay is listed as a ground for immediate
termination yet Mr. Dozier was disciplined for horseplay not by
termination but by personal counseling and four hours time off
without pay. 'The inconsistency between the threatened
punishment and the actual punishment serves as a disincentive to
take work rules personally and a failure to effectively
communicate the safety program. On the same page a rule states
that safety lanyards are to be worn and used at all times when
working above ground. However both Cox and Dozier were well
above ground in hazardous circumstances with no safety lanyards
in evidence Item 20 of the safety rules (page 20) advises
employees not to interfere with any form of accident prevention
device or practice provided. Cox's working beyond the 6 foot
warning line erected by Cole on the upper story constitutes a
separate violation. Rules regarding extension ladders (page 6)
likewise do not appear to have been followed according to the
pictures. These discrepancies reflect inconsistent or
non-enforcement of internal safety policies.

	Employer offered no evidence that its own required safety
meetings were held or that the equipment safety inspection check
list were utilized. There is no evidence that crew leader
meetings were held or "tailgate" meetings with field employees
were held to review the planned safety needs of the day. all
these things being the case I conclude the state has made a
prima facie case for its allegation that the employer failed in
its general duty as alleged.

	Employer counters with the affirmative defense that its program
was effective and that the events on the date in question
constituted a unforeseeable or idiosyncratic deviation from its
own rules. In support of this contention employer points to the
safety inspections of the general contractor's designee. I have
discussed one such inspection previously (Ex. 11). Exhibit 10
shows that on one other day no unsafe conditions or unsafe acts
were observed. Given Inspector Nutt's evidence that the safety
inspector's were on the job site two or three times weekly I am
left to wonder what the results of their inspections were on the
many other occasions on which they must have been made.

	While the evidence demonstrates that employer has taken some
steps to comply with its duties I am not persuaded that the
employer has taken all reasonable means to require its employees
to use safety equipment or other techniques necessary to safely
accomplish the work.

	Cox contends that he was only in a hazardous situation for two
30-second periods. While such may have been the case with
respect to tossing out pieces of angle iron I find Mr. Nutt's
testimony more persuasive with respect to Mr. Cox's activity in
relieving he tension on a spreader bar. The fact that in any
given situation, it might take more time to create a safe
working environment than to actually do the work, is not
justification for failing to create a safe work environment.
This is a fundamental principle which the employer is obligated
to impart to the persons it puts in charge of insuring safety on
the job. Likewise, I am not persuaded by Mr. Cox's testimony
that insuring his own safety would have put him in a more
insecure position than failing to do so. Such an attitude
suggests that the foreman's actions on that date were not

	The fact that "all reasonable means" may be a somewhat
subjective standard does not mean that it is incapable of
definition or that in any given situation one cannot determine
whether the means used were sufficient or not.

	From all the evidence, I conclude that a prima facie case has
been made by the state that the employer failed in its general
duty to use all reasonable means to require its employees to
work in a safe manner when confronted with hazards. I also
conclude the employer has failed to establish any affirmative
defense to the allegations.

	Evidence reflects that the penalties were properly calculated.


	Citation No. N858201090, Items 1-1 and 1-2, and Notice of
Penalties thereon, in the amount of $1,400.00 total, are

	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 AUG. 13 1990


				By Gilah Tenenbaum