BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH90148

		Plaintiff		)

		vs.			)  Citation No. C527103690

K-2 CONSTRUCTION CO.			)

		Defendant		)  OPINION AND ORDER



	This is a contested case under the Oregon Safe Employment Act
ORS Chapter 654. The matter came on for hearing in Portland
December 4 1990. Plaintiff Oregon Occupational Safety and Health
Division (OSHA) was represented by counsel Thomas K. Elden
Assistant Attorney General. Defendant K2 Construction Company
was represented by its president Mr. Gene Kozowski.



	The documentary evidence consists of . . . l) Seven documents
described and indexed by an exhibit list were admitted into
evidence as Exhibits 1 through 7; 2) a two-page statement of Mr.
Don Kozowski was admitted into evidence as Exhibit 8; 3) a
three-page statement of Mr. John Munchow Multnomah County Bridge
Inspector was admitted into evidence as Exhibit 9; and 4) a site
drawing by Mr. Gene Kozowski was admitted into evidence as
Exhibit 10.



                          FINDINGS OF FACT



	Defendant employer was cited May 8 1990 for violation of the
Oregon Safe Employment act in that all employees were not
protected from fall hazards when working on unguarded surfaces
more than 10 feet above a lower level or at any height above
dangerous equipment in violation of OAR 437-03-040(1).



	The citation listed a penalty of $500 (half of the amount which
could have been levied) because of the employer's immediate
compliance and because of the employer's good previous safety
record.



	The employer denies a violation occurred. The employer engages
in bridge construction and the job cited was about 80 to 90 feet
above the Willamette River.  The employer has not had a time
loss accident for four and one-half years and that one was
minor. The employer is extremely safety conscious and instructs
it's workers in safety procedures and practices.



	The safety compliance officer who issued the citation Gary
Camfield has been with OSHA as a compliance officer for about
one and one-half years. Prior to that he was a safety officer
for 2 years for some other organization. And prior to that he
was in the general contracting business building houses for
about 7 years. He has a bachelor of science from OCE.



	The job site was the Burnside bridge in Portland. section of
sidewalk was being replaced. Exhibit 6 is a series of eight
photographs which depict the work area.



	The inspection of the work site was performed on March 28 1990.
On that day there was no safety fence in place as it had been
taken down the day before in order to install certain material
in the constructing of the sidewalk. The safety fence had been
on the bridge side of the metal concrete supports seen in the
picture (which looks like a walkway). Those metal pieces are 7
l/2 feet log and 2-1/2 to 3 feet wide. They weigh about 30
pounds each. Looking at the top photo on page 1 of Exhibit 6
there appears to be a long brown colored board to the right of
the metal concrete supports. The safety fence was just to the
right of that. A safety cable was to be installed just to the
left of that. The safety fence had to be removed because of
interference with the construction process.



	The drawing represented in Exhibit 10 near the bottom shows the
approximate position an employee was in when the safety officer
arrived on the scene. The top picture on page 4 of Exhibit 6
shows approximately the same positioning. The compliance officer
concluded that a person in that position could conceivably fall
and go over the edge of the metal  supports and fall into the
river. The bottom picture of Exhibit 6-1 depicts where the metal
supports stop and a concrete sidewalk begins. To the left of
that concrete sidewalk there is a bridge railing.



	Both Exhibit 10 and Exhibit 6-4 reveal that the person was on
the concrete sidewalk portion of the area with a fence between
him and the river.



	The bottom photo on page 1 of Exhibit 6 shows the gate in an
open position and one of the concrete metal supports laying
beside the gate. That support had been across the opening shown
in that photo during the night and had been lifted out for work
in that area March 28.



	Mr. Camfield testified that he didn't know whether the man
depicted in the top photo on page 4 of Exhibit 6 was in a safety
violation position so that he would need a "tie off". Mr.
Camfield also testified that while he was on the  job site he
never observed any worker on the metal portion of the work area.
Mr. Camfield observed a man in the approximate position depicted
by Exhibit 10 but didn't know what he was doing.



	The person Mr. Camfield observed is the project foreman Mr. Don
Kozowski who is an experienced bridge construction man. None of
the workers on the job that day were in a fall hazard position
or area. The man observed (as depicted in Exhibit 10) was only
there for a short time and then he walked away.



                  ULTIMATE FINDINGS OF FACT



	There was no violation of the Oregon Safe Employment Act on
March 28 1990 as none of the employer's workers were working in
a position where there was a hazard of falling.



                 OPINION AND CONCLUSIONS OF LAW



	Much of the testimonial evidence consisted of judgment calls by
the employer and by Mr. Camfield the safety compliance officer.
The employer was of the opinion that a person in the position
depicted by Exhibit 10 was not at hazard. Mr. Camfield testified
(using the bottom picture on page 1 of Exhibit 6) that the
worker was near the paper sack or hammer depicted in the
foreground.  The depiction in Exhibit 10 shows a person a little
farther from the edge than Mr. Camfield recollected.



	However since there wasn't any worker on the metal part of the
construction area I fail to see how he could have been in danger
of falling. The top photo on page 3 of Exhibit 6 clearly depicts
a sturdy fence on the water side of the bridge sidewalk which
appears to be at least 5 feet in height.



	The uncovered portion between the sidewalk and the metal forms
as depicted on page 1 of Exhibit 6 reveals that half of the area
was filled with concrete and the other half of that area appears
to be a hole. However that hole was only about 10-l/2 inches
deep as there was construction material at that point a metal
beam etc. I suppose it is conceivable that if a person were to
walk from the concrete part of the area onto the metal form part
of the area he could step in the hole trip and fall. I don't
think that is very likely with experienced construction people
and in any event no one was working that day on the metal form
part of the area.



	Counsel for OSHA made several comments concerning the equipment
laying around as depicted in the lower photograph of Exhibit
6-1. Employer explained that when the gate was unlocked that
morning a truck had been backed in and the equipment unloaded. I
don't see anything in that picture that could not have been
placed where it is from the concrete area to the right of the
metal forms. Counsel argued that the single metal form shown
next to the gate was pretty close to the edge of the fall hazard
area. However that form is over feet long and human experience
tells me that one person would have picked it up in the
middle--and not on one end. Looking at the man depicted in the
top photo on page 4 of Exhibit 6, fail to see how he could have
fallen off the bridge. The citation does not involve that
particular person.



	However, the man who is involved in the citation was in
essentially the same position on the concrete aspect of the
sidewalk not on the metal form part of the construction area.



	Based on the evidence, and the record of this employer, I
conclude that a safety violation did not occur. Therefore, the
citation will be voided.



                             ORDER



	That the citation involved herein be, and the same hereby is,
voided, set aside, and held for naught. Defendant/employer did
not violate the Oregon Safe Employment Act at the time and place



	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
183.482.



	Entered at Portland, Oregon  on DEC 10, 1990 



				WORKERS' COMPENSATION BOARD

				By H. DON FINK

				Referee