THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No. SH90176

	Plaintiff,			)  Citation No. C572109190

		vs 			)


	Defendant			)  OPINION AND ORDER

	A hearing was held on April 10, 1991 in Portland, Oregon.
Oregon Occupational Safety and Health Division (OROSHD) was
represented by Norman F. Kelley. D. Rhyne Painting Co. (Rhyne)
was represented by Roger A. Luedtke.


	Rhyne challenges items 1 through 4 of Citation C527109190
issued on September 13, 1990, and also the amount of the penalty
in items 13 and 14.

                      FINDINGS OF FACT

	On July 31, 1990 a supervisor and two employees of Rhyne were
using a manually propelled mobile scaffold to paint the exterior
of a building in Tigard. The men were working 18 feet above an
asphalt surface. See Exhibit 7 for pictures of the scaffold and
work site. The employees worked standing on two 18-inch-wide
boards. The scaffold was designed to hold three boards. The
third board was not used since it was easier to paint the lower
area of the building without it.

	The scaffold had built-in rungs which the employees used as a
ladder to reach the 18-foot work area. The rungs were more than
12 inches apart.

	On the back of the scaffold where the employees were working
was a crossbrace. The height of the crossbrace was 30 inches. On
each end of the scaffold where the men were working was a
vertical bar in the middle but no mid guard rail along half of
each end. This section was used as entry and exit to the work
area from the built-in rungs.

	Rhyne had boards. guard rails and extension ladders at the job
site. The supervisor did not use them because of practical work
purposes and because he did not perceive any hazard.

	It is reasonably predictable that serious physical harm or
death could result from a fall from the work area to the asphalt

                   OPINION AND CONCLUSIONS

	Item 1-1 charged a violation of 29 CFR 1926.451(e)(4):

	"Platforms shall be tightly planked for the full width of the
scaffold except for necessary entrance opening. Platforms shall
be secured in place."

	The platform where the employees were working was not tightly
planked. The third board was available but not used because it
was easier to paint the lower surface without it.

	Rhyne argues a platform is not required at 18 feet and the term
"platform" as used in the rule is vague and unclear. The rule
requires that when platforms are used they be tightly planked
without qualification or restriction as to height. The rule uses
the word "platform" with its common meaning of a horizontal flat
surface usually higher than the adjoining area. Webster's Third
New International Dictionary, 1976. No evidence was presented
that Rhyne didn't know what a platform was or that the boards
the employees were standing on was something other than a
platform. The rule is clear, unambiguous, enforceable and
applies to the facts of this case.

	The preponderance of evidence is that employees of Rhyne were
working on a platform that was not tightly planked in violation
of 29 CFR l926.451(e)(4).

	Item 1-2 charged a violation of 29 CFR 1926.451(e)(5):

	"A ladder or stairway shall be provided for proper access and
exit and shall be affixed or built into the scaffold and so
located that when in use it will not have a tendency to tip the
scaffold. A landing platform must be provided at intervals not
to exceed 35 feet."

	It is apparent from the compliance officer's testimony that
OROSHD's concern was that the rungs were more than 12 inches
apart. He estimated them to be 14 to 15 inches. 29 CFR 1926.450
refers to ladders and the requirement of the American National
Standards Institute Safety Code. The compliance officer said
this code adopted by 29 CFR 1926.450 requires ladder rungs to be
no more than 12 inches apart.

	The rule Rhyne is charged with violating, however, requires
that a ladder be provided for proper access and exit and that it
be located so it won't tip the scaffold. It is readily
discernible form Exhibit 7 that the scaffold was constructed
with a built-in ladder which was used as a ladder. The fact the
rungs were two to three inches beyond code does not change the
character of the structure. The built-in rungs reasonably
constitute a ladder. Rhyne complied with 29 CFR 1926.451(e)(5).
Item 12 vacated.

	Item 1-3 charged a violation of 29 CFR 1926.451(e)(10):

	"Guardrails made of lumber, not less than 2x4 inches (or other
material providing equivalent protection), approximately 42
inches high, with a midrail, of 1 x 6 inch lumber (or other
material providing equivalent protection), and toeboards, shall
be installed at all open sides and ends on all scaffolds more
than 10 feet above the ground or floor. Toeboards shall be a
minimum of 4 inches in height. Wire mesh shall be installed in
accordance with paragraph (a)(6) of this section.

	Exhibit 7 shows a gap without a midrail on each end of the
platform that ran half the distance of the platform work area.
The rule required a midrail to provide protection from falling.
The fact this area was used to get on and off the platform from
the ladder does not excuse the necessity to have a midrail when
people were working.

	Rhyne argues the back side was not open ended because it had a
crossbrace. It is arguable that because of the crossbrace Rhyne
did not believe the back side was open ended as the term is used
in the rule. In any event, the two ends were not properly
protected in violation of the rule.

	Rhyne contends with respect to this and the other charged
violations that, based on experience of the owner and
supervisor, the violation was not a safety problem. This
subjective evaluation of safety considerations does not excuse
violation of the rule.

	Rhyne contends the amount of the penalty in 1-3 is excessive.
The penalty was based on a low probability and a severity rating
of death adjusted by Rhyne's injury experience factor, which was
better than average. OAR 437-01-135 to 145.

	The compliance officer testified to a legitimate probability
that death could occur from a fall off the platform onto the
asphalt surface. No other evidence on severity was presented. I
conclude it is more probably true than not that he is correct.
The evidence supports the $500 penalty.

	Item 14 charged a violation of OAR 437-40-030(2)(c):

	"The employer shall take all reasonable means to require

	"(c) To use all means and methods, including but not limited
to, ladders, scaffolds, guardrails, machine guards, safety belts
and lifelines, that are necessary to safely accomplish all work
where employees are exposed to a hazard; and...."

	A supervisor with 20 years painting experience and 4 years with
Rhyne was on the job when the work was being done.

	The evidence shows it was feasible and possible to do the work
in compliance with the rules. Additional planking and guard
rails were at the job site. A conscious decision was made not to
use them because of work considerations and because the
situation was not perceived to be hazardous. Based on the
testimony of one of the owners as well as the other evidence, I
conclude the supervisor's conduct was consistent with company
policy. The result of not using additional planking resulted in
a gap between the platform and the building where someone could
fall and the failure to have a guardrail also presented the
hazard of falling. Employer was aware of the situation.
Reasonable means could have been taken to eliminate the hazard.

	OROSHD has established a violation of OAR 437-40-030(2)(c) and,
as discussed above, the appropriateness of the penalty.



1. Item 1-2 of Citation C527109190 is vacated.

2. Items 1-1, 1-3 and 1-4 of Citation C527109190 are affirmed.

	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 133.480 and ORS

	Entered at Portland, Oregon on MAY 8 1991 


				Albert L. Menashe, Referee