THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH90060

		vs.			)  Citation: H980102890


		Defendant		)  OPINION AND ORDER

	Pursuant to notice dated March 23, 1990, this safety case came
on regularly for hearing on August 10, 1990 in Portland, Oregon
before James P. Leahy, Referee. The Oregon Occupational Safety
and Health Division was represented by Thomas K. Elden,
Assistant Attorney General. Daniel A. McCain, dba RecdiRooter,
appeared in person and represented himself. He was given a copy
of the Notice of Rights and Procedures in contested Safety
cases. ORS 183.413. He was requested to read the document which
he did prior to commencement of the taking of testimony. He
reiterated that he did not want to be represented by counsel.
The court recorder was Scott Weber.


	By RediRooter letter dated February 26, 1990, Mr. McCain asked
for a hearing. At the hearing he disputed only Item 1-1:
Description of violation: A11 employees were not protected from
fall hazards when working on unguarded surfaces more than ten
feet above a lower level and/or at any height above dangerous
equipment. Specifically, in this case, an alleged employee was
observed walking on the roof of a building with no fall
protection. Mr. McCain admitted Items, 2-2 and 2-3 concerning
ladder positions.

                           FINDINGS OF FACT

	On January 29, 1990 OSHA and safety compliance officers
Fernandez and Solis observed from their moving vehicle Mr. Jeff
Bynes, 34 years old, walking on the edge of the roof, in the
gutter area of a commercial building in Lake Oswego, Oregon (see
photos, Ex. 4). At the time they first observed Mr. Bynes, he
was an estimated 20 feet above the sidewalk without fall
protection. Neither compliance person alightedfrom the vehicle
which was stopped in traffic giving them the opportunity to take
many photographs. They waited until they could park, alight from
their vehicle, take more pictures and then accost Mr. Bynes, who
had by then reached the greater height from the ground. Mr.
Hernandez admitted that he watched the alleged workman for 10 to
l5 minutes on all four sides of the building after he first saw
him before he called him down.

	Mr. Bynes was cooperative with the compliance officers until he
learned that there was a potential fine. Then he told them to
contact the RediRooter office. In any event Mr. Bynes descended
from the building root gutter level and did no more work.

	There is no evidence of a contract involving the unidentified
entity that would have requested gutter or downspout work. There
is no evidence of a contract involving the owner of the
structure whoever that unidentified entity is. There is no
evidence that RediRooter or Mr. McCain was in control of
whatever what Mr. Bynes was doing on that building that day
unless these unrepresented people are to be allowed to more or
less incriminate themselves by attending a hearing. Mr. Bynes
only admitted that he was "radio dispatched". If there was a
work order concerning the undescribed job it was not included as
an exhibit. There was no convincing evidence of what practical
fall protection could be applied to this job.

	The manager of Oregon OSHQ Technical Services testified that
there are certain "limited duration" or "intermittent"
exceptions to the rule concerning fall protection. Fall
protection is what this citation is all about. These exceptions
to the rules can apply for instance to steel workers hundreds of
feet above pavement in erection of buildings. These exceptions
are found in federal laws which are borrowed by Oregon. These
"'limited duration" exceptions to fall protection rules are in
the building erection codes (Ex. 9) and not in building
maintenance codes. The reasons for the exceptions are political
but the argument is that it is more dangerous to expose oneself
to falling while trying to rig a safety lanyard than it is to do
the work without the lanyard. The referee is led to believe that
in any event these exceptions in the erection of a building
cannot be allowed in the maintenance of the building. But Ex. 5
does not cover that nor does Ex. 7. I will apply the exceptions
to maintenance also as should the rules.  Nor does OAR
437-03-075(3) appear to apply here (Ex. 10).

	In order to enforce a fine of this magnitude under the above
circumstances of this particular case the undersigned would
require exact measurements The heights here are guessed at. He
would require believable evidence of exactly who the workplace
was under the control of. He would require proof of the
willingness of the state inspectors to attempt to prevent a
violation from happening rather than standing by and allowing it
to happen and then issuing a citation, or evidence that they are
not permitted any such discretion by DIF.

	Had there been some indication on the State's part of give and
take, the fine might only have been reduced. But the adamant
stand in the face of immediate termination of work after its own
tactics leaves a bad taste of the appearance of gamesmanship on
DIF's part, rather than its duty to protect the worker.


	Item No. l-1 of the citation is dismissed along with a penalty
of $1050.

	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 NOV. 15 1990 


				BY James P. Leahy Referee