BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91036

					)  Citation . No. A879507990

	Plaintiff			)

		vs.			)

LEAGJELD CONSTRUCTION.			)

	Defendant			)



	Pursuant to notice. a hearing was convened on June 3, 1991 and
concluded on June 18, 1991 in Portland, Oregon before Referee
Darren Otto. The Department of Justice (Department) was
represented by Armonica Gilford. The employer Leagjeld
Construction (Leagjeld), was represented by Roger Luedtke. The
proceedings were recorded by Harris Reporting Service. Exhibits
1 through 9 were received into evidence. At hearing the
Department and the employer withdrew a number of citations as
issues including l-3(a), 1-3(b) 1-3(c) 1-5 1-7(b) 3-11 and 3-12.



                            ISSUES



1. Whether the employer violated 29 CFR 1926.451(a)(13) and
(e)(5) by allegedly failing to have ladders or stairways affixed
or built into two mobile scaffolds and a tubular weld scaffold.
Items l-l(a) and (b) and 14.



2. Whether the employer willfully violated 29 CFR 1926.
451(d)(10) and (e)(10) by failing to install standard guardrails
and toeboards on the two mobile scaffolds and the tubular weld
scaffold. Items 2-9 and 2-10.                          



3. Whether the employer violated 29 CFR 1926.451(e)(4) by
allegedly failing to tightly plank a mobile scaffold being used
to mark and set glue lams. Item 1-2(a).



4. Whether the employer violated OAR 437-03-070(1) by allegedly
having a tubular scaffold platform of less than 20 inches in
width. Item 1-6(a).



5. Whether the employer violated OAR 437-40-035 by allegedly
failing to protect employees from potential impalement injuries
caused by exposed copper primer lines. Item 1-7(a).



6. Whether the employer violated OAR 437-40-030(2)(b) by
allegedly not taking all reasonable means to require employees
to conduct their work in compliance with all applicable safety
and health rules. Item l-8(a).



                          FINDINGS OF FACT



	On July 5 1990 Leagjeld began construction on a new Sizzler
Restaurant at NE 122nd in Portland Oregon. Initially only John
Pearson Jr. and Larry Herschenburg the two job supervisors
worked at the site. On August 7 L990 the glue lams arrived. On
August 8 1990. Fred Smally was hired as a carpenter. Tom Pearson
was also hired to do general construction work. No safety
meetings were held until August 29, 1990 because of the small
number of employees.



	On August 15, 1990, three scaffolds were erected. In the front
of the building, a fixed tubular weld scaffold and a mobile
scaffold were set up for the limited purpose of allowing Tom and
John Pearson to mark and bolt the glue lams. at the rear of the
building, another mobile scaffold was erected to provide Fred
Smally a platform off of which to cut and install cross beams
from one wall to another. All three scaffolds were 13 to 14 feet
tall.



	Tom Pearson used the mobile scaffold in the front. The top
level of that unit had two twelve inch wide planks which were
laid side by side. The top level, however was not fully planked.
John Pearson used the tubular weld scaffold which had only one
twelve inch wide plank laid across the top level. Neither
scaffold had quardrails or attached access ladders.



	A boom was used to raise the glue lams to their positions
approximately fourteen feet above the ground. Both Tom and John
Pearson waited beneath the upper levels of the scaffolds while
the glue lams were swung over the scaffolds and into position.
Then they climbed the unevenly spaced end frame rungs to the top
level where they sat and marked the glue lams. The men descended
and waited for the boom to lower the glue lams to the ground
where bolt holes were drilled. The boom raised the glue lams
back into place and Tom and John climbed up the scaffold rungs a
second time, bolting the glue lams into place from the top
level. Although a couple of hours were spent in this process,
the two men actually used the top level of the scaffold for only
a few minutes.



	In the rear, Fred Smally worked on the mobile scaffold platform
by cutting and installing cross beams. Since it had no attached
ladder or stairway, he climbed to the platform by stepping up
the unevenly spaced rungs of the end frame. After installing
every few beams. he moved the scaffold to continue his work. One
of the walls acted as a guard against falling; the other three
sides were open The platform was covered with three twelve inch
wide planks and a six inch plank but still was not tightly
planked from one side to the other. Diagonal rafters which
crossed over the scaffold and joined a wall only a foot above
the platform made it extremely difficult if not impossible. to
erect guardrails; therefore none were erected. Even if it were
feasible Smally would have had to disassemble. lower to the
ground and reassemble the guardrails after every ten minutes of
work to avoid the diagonal rafters as the scaffold was moved.
Any safety provided by the presence of guardrails would have
been far outweighed by the hazard of constantly assembling and
disassembling them.



	Below the rear mobile scaffolding, a row of unprotected crimped
copper primer pipes projected from the concrete floor
constituting a threat of serious injury due to impalement if
Smally or another employee fell from that scaffold.



	on August 17, 1990, Leslie Anderson and Chris Hernandez Safety
Compliance Officers with OSHA, drove by the Sizzler Restaurant
building site and saw Tom and John Pearson working with the glue
lams on the scaffolds' top platforms without guardrails; they
decided to conduct an inspection. Ms. Anderson led the
investigation and Mr. Hernandez observed. Ms. Anderson noted the
lack of full planking, guard rails and attached ladders or
stairways on all three scaffolds and questioned John Pearson in
that regard. Mr. Pearson told her that the scaffolds did not
need attached ladders since the end frames had ladders built
into their frames already. He also indicated that there were
sufficient planks and guardrails to fit all three scaffolds if
necessary. Ms. Anderson did not ask Mr. Pearson why the
scaffolds were neither fully planked nor fitted with guardrails.
Instead, she wrote up the employer for 14 citations which were
issued on November 14, l99O. Two of those were classed as
willful violations. The employer timely appealed those citations.



	During 1989 Leagjeld had a zero lost work days injury rate and
the Department reduced its fines as a result of that outstanding
record.

 

                     FINDINGS OF ULTIMATE FACT



	It was not feasible for the employer to install guardrails on
the mobile scaffold where Fred Smally was installing cross beams.



	Tom and John Anderson used the top levels of the scaffolds as
platforms while working on the glue lams. Those platforms were
not fully planked because they were not extensively used and did
not have guardrails because they interfered with the placement,
marking and bolting of the glue lams. It was however, feasible
to install guardrails on those two scaffolds.



	All those scaffolds were designed with built-in end frame
ladders used in climbing to the top platform.



	The copper primer lines in the back of the building area were
not protected to prevent an impalement injury to employees.



	The employer took all reasonable means to require employees to
conduct their work in compliance with all applicable safety and
health rules.



                       CONCLUSIONS OF LAW



1. Ladders or stairways



	Item 1-1 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.



	Item 1-4 additionally charged a violation of 29 CFR
1926.451(a)(13):



	An access ladder or equivalent safe access shall be provided.



	John Murphy the Department's lead safety supervisor, testified
at hearing that his only real concern was that none of the
scaffold end frame rungs were evenly spaced. 29 CFR 1926.450
refers to ladders and the requirement of the American National
Standards Institute Safety Code. The rules Leagjeld are charged
with violating however require that a ladder be provided for
proper access and exit and that it be located so it won't tip
the scaffold. Leagjeld's two mobile scaffolds and the tubular
weld scaffold were all constructed with built-in rungs which
were used as ladders. See the photos in Exhibit 5. The fact that
the rungs were not evenly spaced does not change the character
of the structures. The built-in rungs of all three scaffolds
reasonably constitute ladders. Leagjeld complied with 29 CFR
1926.451(a)(13) and (e)(5). Items l-l(a) and (b) and 1-4 are
vacated.



2. Guardrails



	Referring to the manually propelled mobile scaffolds item 2-9
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 l 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.



	Item 2-10 further charged a violation of 29 CFR 1926.451(d)(10)
which provides for the same guardrail and toeboard requirements
as listed above for tubular weld frame scaffolds.



	When interpreting and applying the OSHA standards "some modicum
of reasonableness and common sense is implied." Dunpar
Engineered Form Co. OSHRC Docket No. 792553 36,023 (1986). A
standard of "feasibility" is applied. Id. "Just because there
[is] some conceivable way to erect guardrails does not mean that
guardrails [are] feasible." Id. at 36,027. Furthermore requiring
an employer constantly to erect and tear down the guardrails or
to have its employees work outside the guardrails in order to
complete their work is not a feasible method of complying with
[the OSHA rules]. Id.



	Leagjeld complied with the OSHA rules if the erection of
guardrails was not feasible. In regard to Fred Smally's mobile
scaffold I conclude that it was not feasible to erect
guardrails. First diagonal beams crossed low over the platform,
making it extremely difficult if not impossible, to erect them.
Second even if it were possible Smally would have had to
disassemble, lower and reassemble the guardrails every ten
minutes when he moved the scaffold. That sort of absurdly
hazardous and impractical procedure is exactly why the OSHA
standards are not to be taken literally. Because guardrails were
not feasible on Smally's mobile scaffold, Leagjeld complied with
29 CFR 1926. 451(e)(10) and item 29(b) is vacated.



	The employer also contends that the two scaffolds used while
marking and bolting the glue lams were not used as platforms but
rather as ladders and therefore did not require guardrails It
further contends that even if guardrails were required they were
not feasible.



	On August 17 L990, Ms. Anderson and Mr. Hernandez saw Tom and
John Pearson walking along the top levels of the two scaffolds.
John Pearson admitted at hearing that he and Tom both walked and
sat on the top level at least for a short time while marking and
bolting the glue lams. The rules do not define "platform." I
therefore adopt its common meaning of a horizontal flat surface
usually higher than the adjoining area. Webster's Third New
international Dictionary L976. Tom and John Pearson used both
scaffolds in the front as platforms not ladders. Although the
platforms were not in constant use they were used and therefore
guardrails were required.



	John Pearson's testimony that erecting guardrails was not
feasible was also not persuasive. The boom was available to move
the glue lams into place without toppling the scaffolds. The
guardrails did not create a solid barrier between the employees
and their work. Both Pearsons could have worked around the
guardrails still using them for support, to mark and bolt the
glue lams. Therefore Leagjeld did not comply with 29 CFR
1926.451(d)(10) and (e)(10).



	Those violations however were classified as willful.



	A violation is not willful when it is based on a nonfrivolous
interpretation of OSHA's regulations.



	McLaughlin v. Union Oil Co. of California 869 F.2d 1039, 1047
(7th Cir. 1989).



	The Department did not show that Leagjeld's failure to use
guardrails on the glue lam scaffolds was an apparent and
frivolous rule violation at the time it was committed. Id. John
Pearson credibly testified that he did not believe that he was
using the scaffolds as platforms but rather as ladders. The time
he spent on the top platform was minimal and usually seated.
Since the rules do not adequately define "platform" John
Pearson's interpretation of "platform" was nonfrivolous. Also
although I concluded that it was feasible to erect the
guardrails, that was not obviously so at the time. Therefore,
Leagjeld's failure to erect guardrails on the two scaffolds
involved in marking and bolting the glue lams was not a willful
violation, but rather a serious violation and the citations are
so amended. The fines associated with items 2-9(a) and 2-10(a)
are reduced to $250 per violation.



3. Plankinq



	Item 1-2(a) 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.



	Item 1-6 further charged a violation of OAR 437-03-070(1) on
the grounds that



	There was a single 12 inch plank being used for a work platform
on the upper level of the tubular welded scaffold approximately
13 feet above the concrete floor.



	Leagjeld contends again that the scaffold was not used as a
platform and therefore it was not required to comply with the
planking provisions. As previously discussed, that contention
was not persuasive and items 1-2(a) and 1-6 are affirmed.



4. Copper primer lines



	Item 1-7(a) charged a violation of OAR 437-40-035



	When conditions arise that cause unusual or extraordinary
hazards to workers, additional means and precautions shall be
taken to protect workers or to control hazardous exposure. If
the operation cannot be made reasonably safe regular work shall
be discontinued while such abnormal conditions exist or until
adequate safety of workers is ensured.



	The presence of the unprotected crimped copper primer lines
directly below the mobile scaffold in the back of the building
caused an unusual hazard to workers and precautions were not
taken to protect workers or to control the hazardous exposure.
Therefore Leagjeld violated OAR 437-40-035 and item 1-7(a) is
affirmed.



5. Supervision



	Item 1-8 charged a violation of OAR 437-40-030(2)(b):



	The employer shall take all reasonable means to require
employees to conduct their work in compliance with all
applicable safety and health rules.



	One indication that Leagjeld took all reasonable means to
require employees to conduct their work in compliance with the
applicable safety and health rules was its zero lost work days
injury date during 1989. The Department in fact reduced its
fines as a result of that outstanding record.



	Although Leagjeld did violate some of the OSHA rules none of
those violations were willful and some were a matter of
misinterpretation of the rules; others I have vacated. Based on
the previously discussed violations I conclude that Leagjeld did
take all reasonable means to require its employees to conduct
their work in compliance with the applicable safety and health
rules. Therefore item 1-8 is vacated.



                         ORDER



	IT IS THEREFORE ORDERED that the Department of Justice's items
l-l(a) l-l(b) 1-4 and 1-8 are vacated.



	IT IS FURTHER ORDERED that the Department of Justice's items
2-9(a) and 2-10(a) are affirmed as amended.



	IT IS FURTHER ORDERED that the Department of Justice's items
1-2(a) 1-6 and 1-7(a) are affirmed.



	NOTICE TO ALL PARTIES ANY PARTY TO THIS PROCEEDING WHO IS
DISSATISFIED WITH THIS ORDER MAY NOT LATER THAN SIXTY (60) DAYS
AFTER THE MAILING DATE OF THIS ORDER. PETITION FOR JUDICIAL
REVIEW AS PROVIDED IN ORS 183.480



	Entered at Portland, Oregon on June 28, 1991 



				WORKERS' COMPENSATION BOARD

				DARREN L. OTTO Referee