BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety & 

       Health Division			)  Docket No:. SH90032 

	Plaintiff,			)  Citation No. C573000490

					)

ROSS BROS. CONSTRUCTION			)

 	defendant 			)  OPINION AND ORDER



	A hearing in the above captioned case was held in Salem, Oregon
on April 25, 1990 before the undersigned referee. The court
reporting service was Business Support Services. The Oregon
Occupational Safety & Health Division of the Department of
Insurance and Finance (hereinafter OROSHA) was represented by
its attorney, Norm Kelley. The employer, Ross Bros.
Construction, Inc., was represented by its safety director,
James Gibson.



	This is a contested case under the Oregon Safe Employment Act.
The employer has appealed a citation issued by OROSHA on
December 12, 1989 which cited the employer for allegedly
violating one of the standards, specifically OAR 4373040(1),
promulgated by the Director of the Department of Insurance and
Finance pursuant to the Director's authority under the Oregon
Safe Employment Act (ORS Chapter 654). At the hearing the
employer advised that it was challenging item 1-1 in the
citation with respect to the question of whether a violation
occurred and with respect to the penalty amount.



	Following the hearing the record was kept open for the
submission of written closing arguments. OROSHA submitted its
initial closing arguments on July 16, 1990. The employer
submitted its written responsive arguments on December 26, 1990.
OROSHA submitted its reply brief on January 8, 1991. A
transcript of the hearing testimony was subsequently ordered and
it was received on April 17, 1991. The record was closed at that
time.



                         FINDINGS OF FACT



	In October 1989 Ross Bros. Construction Co., an Oregon
Corporation, was engaged in a bridge construction project in
Chiloquin, Oregon.



	On October 11, 1989 Cliff Crawford, a safety compliance officer
with OROSHA, came to Ross Bros.' work site in Chiloquin for the
purpose of conducting a general inspection. Upon arriving at the
work site Crawford observed one of Ross Bros.' employees, Larry
Gregory, walking on an exterior girder/beam of the new bridge
without any fall protection. The fall distance to the ground was
about 1618 feet. The girder was about three feet wide. Gregory
walked along the girder for about 10 feet.



	Gregory had been employed by Ross Bros. since March 1989,
working at other job sites. October 11, 1989 was his first day
on the job site at Chiloquin. Gregory had not received any
specific orientation from Ross Bros. regarding the Chiloquin job
site. However, he was aware of the employer's rules regarding
fall protection and he had attended a safety meeting on the work
site earlier that same day. At that meeting either Frank Berg,
the job superintendent, or Bill James, one of the foremen, had
told Gregory and his coworkers not to walk on the qirders/beams.



	At the time of Crawford's inspection in October 1989 Ross Bros.
had a safety program regarding its construction sites that
involved weekly safety meetings which lasted about 1/2 hour. In
addition, the employer's supervisory employees had other safety
discussions from time to time with small groups of Ross Bros.'
employees regarding special projects which were about to begin.
The employer's Chiloquin job site superintendent, Frank Berg,
was not present at the work site throughout each workday, but
when he was not present a foreman would be present and in charge
of making sure that the employees worked safely. Such a foreman
had no disciplinary authority himself, but was responsible for
bringing a safety problem to the attention of Berg, who would
then take corrective action. Berg's general approach regarding
safety misconduct was to warn/threaten the employee the first
time and, if there was a repeat occurrence, fire the employee.
Berg did not tend to get repeat offenders. On one occasion Berg
fired a worker for being on drugs, which Berg considered a
safety matter. After learning of Gregory's misconduct on October
11. 1989 Berq gave him a verbal reprimand.



	Berg's predecessor as job superintendent at the Chiloquin site
was Larry Carter, currently a vice president for Ross Bros.
During the time that he was job superintendent Carter fired a
worker on one occasion for being drunk on the job. On another
occasion a worker was caught not wearing a safety belt and
Carter disciplined him by transferring him to a work site that
was less desirable in terms of its location and working
conditions. On other occasions when he was a job site
superintendent for Ross Bros. Carter sent people home for a few
days for safety violations and on some occasions he terminated
repeat offenders



	As a result of Crawford's inspection of Ross Bros.' Chiloquin
work site on October 11, 1989 OROSHA issued Citation No.
573000490 on December 12, 1989, charging Ross Bros. with a
violation of OAR 437-3-040(1), which addresses fall protection
for employes.



	The violation of OAR 437-3-040(1) which occurred at Ross Bros.'
Chiloquin work site on October 11, 1989 was due to Ross Bros.'
employee's misconduct, of which the employer's supervisory
personnel were not aware at the time of its occurrence. The
employer's safety program at the time of the October 11, 1989
inspection was not so inadequate that Gregory's misconduct is
chargeable to the employer.



	At the time of Crawford's inspection of Ross Bros.' Chiloquin
work site on October 11, 1989 said employer was not operating in
violation of OAR 437-3-040(1)

.

                         OPINION AND CONCLUSIONS



	The safety standard involved in this case is OAR 437-3-040(1).
This standard provides that "all employes shall be protected
from fall hazards when working on unguarded surfaces more than
10 feet above a lower level or at any height above dangerous
equipment, except when connecting steel beams as stipulated in
OAR 437-03-040(2)" (see Ex. 5, p. 103). The alleged violation of
the standard is based upon an occurrence observed by OROSHA's
safety compliance officer, Cliff Crawford, on October 11, 1989.
At that time he observed one of Ross Bros.' employees, Larry
Gregory, walking on an exterior girder of a bridge under
construction and Gregory had no fall protection at the time 
that is, no safety belt or other protection against falling. The
credible testimony of Crawford establishes the occurrence of
this incident involving Gregory. Crawford also testified that
Gregory told him that he knew about Ross Bros.' fall protection
rules  the evidence shows that Gregory had been employed by Ross
Bros. at other job sites since March 1989  and that the employer
had had a safety meeting at the beginning of the workday on
October 11, 1989. The credible testimony of Crawford and Frank
Berg, the job site superintendent for Ross Bros. in October
1989, also establishes that either Berg or Bill James, one of
the job site foremen, had told everyone, including Gregory, at
the beginning of the workday on October 11, 1989 not to walk on
the girders/beams, but Gregory did it anyway. I find from the
evidence presented that the violation of the safety standard
involved herein was directly attributable to employee misconduct
that is, Gregory doing exactly what the employer, through one of
its supervisors, had told him not to do earlier the same day.



	The employer contends that such employee misconduct is not
chargeable to it as a violation of the safety code. OROSHA's
contention, as reflected by the cases cited and arguments
presented in its closing brief, is that Ross Bros.' employee's
misconduct is chargeable to Ross Bros. because said employer did
not have an adequate safety program  in terms of communicating
to its employees proper safety procedures/rules and enforcing
its safety program by meaningful disciplinary measures for
violations. In support of its contention OROSHA cites the fact
that Gregory did not get a safety orientation from his
supervisor on October 11, 1989, which was his first day at that
job site. However, the evidence establishes that Gregory had
worked for Ross Bros. at other job sites since March 1989 and
knew about the employer's safety rules. The evidence further
establishes that Gregory had been told either by the job
superintendent or one of the job site foremen on the morning of
October 11 that he and his coworkers were not to walk on the
beams. OROSHA argues that the fact that Gregory did not heed the
instruction to stay off the beams allows one to reasonably
assume that Ross Bros. had not adequately explained and enforced
the safety requirements regarding the Chiloquin job site. I am
not persuaded that such an assumption necessarily follows. It is
equally reasonable to assume from Gregory's conduct that on one
particular occasion he simply chose to ignore the instruction
from his supervisor, thinking that no one would see him for the
short time he was on the beam. In this regard, I note that
Crawford testified that when he talked to Gregory on October 11,
1989 Gregory indicated that he only intended to be on the beam
for a minute or so to move some materials. OROSHA further argues
that the fact that this episode of employee misconduct occurred
is itself evidence of the inadequacy of Ross Bros.' safety
program. But if this argument were accepted, then any time there
is an incident of employee misconduct that violates the safety
code, however isolated an occurrence it might be, the employer's
safety program would necessarily have to be considered
inadequate. In other words, the only way an employer's safety
program would ever be considered adequate is if no employee
misconduct ever occurred. This is not realistic or reasonable.



	The credible testimony of Frank Berg and Larry Carter
establishes that the employer did have a safety program at the
time of and prior to the October 1989 inspection and that the
employer enforced said program. The employer had weekly safety
meetings with its employees, lasting about 1/2 hour. In
addition, the employer from time to time had extra safety
meetings with small groups of employees regarding special
projects they were about to begin. Berg testified that although
he was not on the Chiloquin job site all day every day, when he
was not present a foreman would be in charge and would be
responsible for seeing to it that the employees worked safely.
Although such a foreman had no authority himself to discipline
an employee, he was responsible for bringing a safety violation
to Berg's attention and Berg would then take corrective action.
Berg testified that his disciplinary policy was to warn/threaten
a violator the first time and then, if the person repeated a
violation, he would be fired. Berg stated that he did not tend
to get repeat offenders. He stated that he did fire a worker on
one occasion for being on drugs, which Berg considers to be a
safety matter. Regarding the case involving Gregory in October
1989, Berg testified that he gave Gregory a verbal reprimand
after he learned of his misconduct.



	Berg's predecessor as superintendent at the Chiloquin job site
was Larry Carter. Carter testified that he fired a worker on one
occasion for being drunk on the job. On another occasion an
employee did not wear a safety belt and Carter disciplined him
by transferring him to another job site that was less desirable
in terms of its location and work conditions. Carter further
testified that he sometimes disciplined workers by sending them
home for a few days and that on some occasions he terminated
repeat offenders.



	Based upon the evidence presented, I find that the violation of
OAR 437-3-040(1) on October 11, 1989 was due to the misconduct
of Ross Bros.' employee, Larry Gregory, and that Ross Bros.,
through its on-site supervisors, was not aware of such
misconduct at the time of its occurrence. Further, I am not
persuaded by the evidence in this record that Ross Bros.' safety
program, in general and with respect to fall protection, was so
inadequate that Gregory's misconduct is chargeable to Ross Bros.
I conclude that OROSHA has failed to establish that Ross Bros.
violated OAR 437-3-040(1) on October 11, 1989. Accordingly, the
citation must be set aside.



                          ORDER



	IT IS THEREFORE ORDERED that Citation and Notice of Penalty No.
C573000490 issued by the Oregon Occupational Safety & Health
Division on December 12, 1989 is set aside.



	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 Salem, Oregon 09 JUL. l99l 



				WORKERS' COMPENSATION BOARD

				By John P. McCullough

				Referee