THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No. SH90111

		Plaintiff		)  Citation No.	C401606290

		vs.			) 


		Defendant		)  OPINION AND ORDER

	This contested penalty case came on for hearing pursuant to
notice in Portland Oregon under the Safe Employment Act at
1.]:00 a.m. on July 26 l990 before James P. Leahy Referee.
Thomas K. Elden Assistant Attorney General represented the
Department of Justice and the Oregon Occupational Safety and
Health Division (OSHA) of the Department of Insurance and
Finance. Mr. Jack Maddalena the president of' Action Masonry
lnc. represented himself and was provided with a copy of the
rights and procedures for contested cases under the Oregon Safe
Employment Act which he acknowledged previous receipt of. The
court recorder was Jim Terrell .


	Action Masonry is charged with three violations. The first and
apparently most serious raising a penalty of $250 is for
altering a scaffold by removing cross bracing on a ten-stage
scaffold without supervision of a competent person. The second
violation is the absence of a person from the work site holding
a valid first aid certificate. No penalty. The third violation
was for scaffold planks not extending sufficiently over their
end supports. No penalty. By April 30 1990 letter received May
1990 by OSHA Mr. Maddalena appealed only the first violation the
removal of the scaffold cross-bracing.

                       FINDINGS OF FACT

	Norma Cross a compliance officer with five years of college
some special expertise in scaffolding and with some 15 years
experience as a construction manager visited the construction
site Lawrence Hall on the University of Oregon campus in Eugene
on March 28 1990 on a regularly scheduled inspection.

	Action Masonry's masons were actively engaged  in their trade
planking the scaffolding as they ascended. The scaffolding had
been procured from Dennis Newton who managed the scaffolding
branch of an entity known as Safeway Steel. The ten-stage
scaffold was erected by Action's masons the foreman of which had
years more experience in such things than the renter of the
equipment Dennis Newton Other trades were seen using the
scaffolding without the Permission of Action Masonry. Inc.

	The compliance officer observed that Action Masonry's masons
who at that time were working using the second stage of the
tenstage scaffold structure had removed cross braces as is
indicated in Exhibit 4 pages 3 through 15. The job was shut down
temporarily to allow the compliance officer to discuss the
matter. Mr. Newton was summoned the bracing was replaced and
construction was resumed at least by the next day March 29 1990
at which time the citation was prepared. It was issued on April
23 1990. The basis for the citation is that the ten-stage
scaffold had been altered without the supervision of a competent
person in that crossbracing had been removed among other places
in at least four side by side scaffold stages. The crossbraces
had been removed by masons to obtain easier access to their
work. They had provided no alternate stability bracing.

	The safety guidelines provided by the supplier of the tubular
scaffolding warned that scaffold safety is everyone's
responsibility (Ex. 7 page 1). There is no evidence that a
meticulous following of the guidelines of the supplier
automatically make the erector a "competent person". There is no
evidence that the renter of the scaffold equipment knows how to
inspect the condition of the ground upon which he places the
multiple supporting legs of the 60-foot high in this case
scaffold. There was no evidence that the analysis was done by a
qualified person. The guidelines admonish that scaffold assembly
must comply with local state and federal safety requirements.
The guidelines further admonish that no component of a completed
scaffold assembly should be removed except under the supervision
of a qualified person and that any component so removed should
be immediately replaced (Ex. 7 page 2).

	Oregon Administrative Rules (437-1926.450(a)(3) require that no
scaffold shall be erected moved dismantled or altered except
under the supervision of competent persons.

	"A competent person" means one capable of identifying existing
and predictable hazards in the surroundings or working condition
which are unsanitary hazardous or dangerous to employees and who
has authorization to take prompt corrective measures to
eliminate them.  OAR 437-1926-32(f).  The rules do not define a
"competent person" as a "qualified" person which means he does
not have to have a recognized degree, certificate or
professional standing or one who has by experience successfully
demonstrated his ability to solve or resolve problems relating
to the project. No "competent person" who was involved in
altering the scaffold testified.

	The contractor's unconvincing position is that his mason
foreman of many years experience in the use of scaffolds in the
erection of buildings qualifies as a competent person. There is
no formal training for scaffolders, there is no certificate
granted by any government or private entity and the scaffold
providers opinion is anyone who can follow the guidelines can
put up a scaffolding in a competent manner.

	The referee cannot resort to guess, conjecture or speculation
to whether or not a competent mason becomes a competent scaffold
erector if he had erected scaffolding before and this time
followed the rules set out in Exhibit 7.

	The bracing that was removed was stability bracing. It provides
rigidity necessary for ease in erection, vertical alignment of
the scaffolding legs for maximum load carrying capacity and
stiffness of the scaffold legs reducing the need for larger
diameter, heavier scaffolding frame legs. It is of prime
importance that each scaffold leg be properly braced (Ex. 8, pp
l, 2). The admonitions contained in the scaffolding renter's
safety guidelines (Ex. 7), in a professional scaffold bracing
engineer's admonitions (Ex. 8), and in the Oregon Administrative
Rules cited were obviously violated, and in any event were not
convincingly followed, at least from the evidence presented.

	I find that the scaffolding structure was inexpertly altered
for convenience.

	I find that the integrity of the scaffolding structure was

	I find that based on the observation and investigation of the
compliance officer that there is a reasonable basis for issuing


	Action Masonry, Inc. masons violated OAR 437-1296-451(a)(3), on
July 26, 1990.


	Citation No. C401606290 is approved.

	NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, not later than sixty (60) days after the mailing date
on this Order, request a review by the Court of appeals, Third
Floor, Justice Building, Salem OR 97310, pursuant to ORS
183.480].83.S00. a request for review shall be mailed to the
Court of appeals at the above address with copies of such
request mailed to al]. other parties to this proceeding. Failure
to mail. such a request for review within sixty (60) days after
the mailing date of this Order will result in LOSS OF RIGHT TO

	Entered at Portland, Oregon OCT. 31 1990 


				By JAMES P. LEAHY Referee