BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91108

 	Plaintiff			)

	 				)  Citation No: C401604791

ROSS BROS CONSTRUCTION			)

	Defendant			)  OPINION AND ORDER



OREGON OCCUPATIONAL SAFETY &

HEALTH DIVISION				)  Docket No: SH91109

	Plaintiff			)

					)  Citation No: C401604891

ROSS BROS CONSTRUCTION			)

	Defendant			)  OPINION AND ORDER



	Hearing in these consolidated matters convened on August 2,
1991. The plaintiff, OR OSHA, was represented by Assistant
Attorney General, Norm Kelley. The defendant, Ross Brothers
Construction, was represented by attorney Gordon Hanna. The
proceedings recessed and reconvened on August 15, 1991. The
record closed with the close of testimony on August 15, 1991.
Business Support Services recorded the proceedings.



                            ISSUES



SH 91108



	OR OSHA issued citation number C401604791 to Ross Brothers on
April 11, 1991. Ross Brothers contests the following items in
that citation:



	Item 1-1: Ross Brothers contends that it did not commit the
violation. It also contends that if it did commit the violation,
the penalty is excessive.



	Item 1-2: Ross Brothers contends that it did not commit the
violation. It also contends that if it did commit the violation,
the penalty is excessive.



	Item 1-3: Ross Brothers contends that it did not commit the
violation. It also contends that if it did commit the violation,
the penalty is excessive.



	Item 1-4: Ross Brothers contends that it did not commit the
violation. It also contends that if it did commit the violation,
the penalty is excessive.



	Item 2-6: Ross Brothers contests the reasonableness of the
penalty.



	Item 2-7: Ross Brothers contends that it did not commit the
violation. It also contends that if it did commit the violation,
the penalty is excessive.



	Item 2-9: Ross Brothers contends that it did not commit the
violation .



SH 91109



	OR OSHA issued citation number C401604891 to Ross Brothers on
April 12, 1991. Ross Brothers contests the following items in
that citation:



	Item 1-1: Ross Brothers contends that it did not commit the
violation. It also contends that if it did commit the violation,
the penalty is excessive.



	Item 1-2: Ross Brothers contends that it did not commit the
violation.



	Item 2-3: Ross Brothers contends that it did not commit the
violation.



                        FINDINGS OF FACT



                    GENERAL FINDINGS OF FACT



	Norma Cross, a Senior Safety Compliance Officer for OR  OSHA,
and other compliance officers inspected a Ross Brothers
construction cite at N.E. 185th Ave. and Airport Way in
Portland, Oregon on March 12, 1991 and again on April 12, 1991.
Ross Brothers was engaged in bridge construction and was using
at least two cranes on this site.



	The initial inspection was prompted by an anonymous complaint
that workers were subject to unsafe working conditions at that
site. The second inspection was prompted by another anonymous
complaint that the deficiencies uncovered in the first
inspection had not been corrected.



	In general, Ross Brothers' personnel, including Frank Berg, the
site superintendent, cooperated with the inspectors. Although OR
OSHA obtained a warrant for the first inspection because of Ross
Brothers' alleged failure to cooperate in other inspections, the
inspectors were not required to serve the warrant because Mr.
Berg cooperated with the inspection.



                  FINDINGS OF FACT ON SH 91108



Item 1-1



	The 35 ton Lorraine crane in use at this site on March 12, 1991
did not have a rated load capacity chart posted in the
operator's cab. The employer should have known of this
deficiency. There is a medium probability that the lack of this
chart would cause an accident. Such an accident is likely to
result in serious harm to a worker or bystander.



	The load chart is necessary to accurately inform the crane
operator of the load capacities of the particular crane. This
particular job involved construction of bridge piers. Many sizes
of material were available to be picked up. This creates a
medium probability that without the load chart, the operator
might attempt to pick up a load that exceeds the cranes limits.
If this occurred, the crane could tip over or drop a load; such
an accident could cause serious harm.



Item 1-2



	Welding rods, rather than manufacturer's specified cotter pins,
were used as retainers for boom and pendant connecting pins on
the Lorraine crane on March 12, 1991. This creates a low
probability of a fatal accident.



	The welding rod is nearly as strong as the manufacturer
specified cotter pins. However, it is not to the manufacturer's
specifications. This failure to follow the manufacturer's
specifications creates only a low probability of an accident;
however, if such an accident were to occur, it could result in
serious injury or death because of the nature of the loads
lifted by the crane and held by the pendant pins and boom pins.



Item 1-3



	The motor carrier cab of the Lorraine crane was not equipped
with seatbelts. This deficiency creates a low probability of a
serious accident.



	The Lorraine crane is mounted on rubber tires and is moved by
being driven from a truck cab which is on the front of the
crane. The crane is moved at low speeds over rough terrain and
occasionally over the public highways for short distances. While
there is a low probability of an accident caused by turning over
on rough terrain or being hit on the public highways, with no
seatbelts such an accident is likely to cause serious injuries.



Item 1-4



	The wooden cribbing used to support the outriggers of the
Lorraine crane was inadequate to support the crane. This
deficiency created at least a low probability of a fatal
accident.



	The crane was being operated on spongy ground in the Columbia
Slough flood plane. The distance to solid rock was about eight
feet down. The wooden cribbing was constructed of various sizes
of wood which were successively placed under the outriggers and
pushed into the ground by loading the crane until the wood
cribbing no longer settled under weight. Some of the pieces of
cribbing were broken. The cribbing was in a state of failure.
This state of failure created at least a low probability of an
accident. If an accident happened it is likely that it would
cause serious injuries or death because the crane could tip over
under a load.



Item 2-6



	The motor carrier cab of the Lorraine crane was not equipped
with an operable horn. The employer knew, or should have known,
that there was no operable horn. This deficiency creates a low
probability of a moderate injury.



Item 2-7



	The fire extinguisher of the 100 ton Clark crane in use on this
project on March 12, 1991 was located in the engine compartment
and was discharged. This deficiency creates a low probability of
a moderate injury.



	The fire extinguisher was not in the operator's cab where there
is some danger of fire.



Item 2-9



	The starter switch in the Lorraine Crane was improperly wired.
This deficiency creates a low probability of a moderate injury.
The danger in this area is in the possibility of an electrical
fire.



                    FINDINGS OF FACT ON SH 91109



Item 1-1



	The 100 ton Clark crane in use on this site on April 12, 1991
was rigged with three quarter inch line; however, the wedge
socket and wedge at the dead-end of the whipline were designed
only for seven eights inch line. This deficiency creates a
medium probability of a serious injury.



	The improper size wedge socket creates the possibility that the
wedge socket will fail and the load will drop and seriously
injure a worker or bystander.



Item 1-2



	The second section of ladder for the fixed leads used for pile
driving was missing its required access ladder. This deficiency
creates a low probability of a serious injury.



	The fixed leads were missing an eight foot section of ladder;
therefore, to climb the fixed leads to repair problems would
require climbing scaffolding which is not as safe as a ladder.
The probability is low because most repairs do not require
climbing the fixed leads; nevertheless occasionally the fixed
leads must be climbed. This could result in a serious injury
because of the length of the fall which is at least four to
twelve feet.



Item 2-3



	Ross Brothers keeps an OSHA form 200.



                    CONCLUSIONS OF LAW AND OPINION



BURDEN OF PROOF



	OR OSHA has the burden of proving each element of each cited
item by a preponderance of the evidence. It also has the burden
of proving the correctness of the assessed penalties.



SH 91108



Item 1-1



	29 CFR 1926.,550(a)(2) which is adopted as a part of the Oregon
Administrative rules requires that a load capacity chart be
conspicuously posted on cranes and shall be visible to the
operator while operating the crane. The 35 ton Lorraine crane's
load capacity chart was admittedly not posted in the operator's
cab.



	Ross Brothers argues that the supervisor, Mr. Berg, did not
know that the chart was missing because the operator had not
told him it was missing. I conclude that Mr. Berg should have
known that the chart was missing. It is his duty to regularly
inspect the crane for defects. OAR 437-89-285. Mr. Berg was
aware that there had been vandalism problems on the job site and
that the cab of the crane had not been secured. He admitted that
a load chart is an important safety feature; nonetheless he did
not personally check to determine whether the load chart was in
the cab, but relied on the operator to tell him. Given the
importance of the chart and the fact that the site was subject
to vandalism, it was Mr. Berg's duty to make sure the chart was
in the operator's cab and not rely on the operator to keep him
informed if it were missing.



	I rely on Ms. Cross's expertise in finding that the absence of
a load capacity chart creates a medium probability of a serious
accident. Ms. Cross has significant experience both as a crane
operator and a safety officer. Mr. Berg's admission that the
chart is important bolsters Ms. Cross's conclusion.



	Based on the matrix found in OAR 437-01-145 the proper penalty
for this violation is $500.



Item 1-2



	29 CFR 1926.550(a)(1) requires the employer to either comply
with manufacturer's specifications or, where not available, to
use equipment approved by a qualified engineer whose
determination is documented in writing. The welding rod used to
replace the cotter pins was not to the manufacturer's
specifications and there is no indication that a qualified
engineer approved its use. The fact that it was later tested and
found to be nearly as strong as the specified cotter keys
indicates only that Ms. Cross was correct when she concluded
that the probability of an accident was low.



	Again, I defer to Ms. Cross's expertise in finding that if an
accident happened it could result in death. Furthermore, it
seems self-evident that if a crane toppled over or dropped a
load, it could result in serious injury or death.



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $1,000.



Item 1-3



	29 CFR 1926.601(b)(9) requires that motor vehicles which
operate at an off highway job site have seat belts. The motor
carrier cab of the Lorraine crane admittedly had no seatbelt.



	Once again, I defer to Ms. Cross's expertise as a safety
officer in finding that although the probability of an accident
is low, it could result in serious injuries. I am also persuaded
of this by the fact that the crane is moved over rough terrain.
This could result in the crane tipping over while being moved.
If the crane tipped over, an unbelted operator could be
seriously injured. Furthermore, the crane could be struck while
being driven on the public highways.



	The employer's argument that the carrier cab is so small that
the operator could brace him or herself carries no weight. The
purpose of a seatbelt is to keep the operator from having to
hold him or herself in. The seatbelt is by nature more secure
than bracing with the feet and hands.



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $150.



Item 2-6



	29 CFR 1926.601(b)(3) requires that all motor vehicles be
equipped with an adequate audible warning device in operable
condition. The Lorraine crane had no operable horn.



	I defer to Ms. Cross's determination that there is a low
probability of a moderate injury accident without an operable
horn.



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $75.



Item 2-7



	29 CFR 1926.550(a)(14)(i) requires that a fire extinguisher be
available at the operator's station of a crane. The fire
extinguisher for the Clark crane was located in the engine
compartment rather than the operator's cab and it was discharged.



	Ross Brothers argues that the lack, of an operable fire
extinguisher creates no probability of injury because the
operators are instructed to flee from a fire. While this may be
a wise instruction, it does not eliminate the possibility of a
fire causing an injury. A fire between the operator and the exit
would be a likely cause of an injury unless the operator could
extinguish the fire.



	I defer to Ms. Cross's determination that the lack of a fire
extinguisher creates a low probability of a moderate injury.



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $75.



Item 2-9



	OAR 437-89-285 requires employers to inspect for and to correct
deficiencies in electrical apparatus. The starter switch on the
Lorraine crane was "hot wired." This is a deficiency.



	OR OSHA introduced photographs into evidence of a "hot wired"
starter switch; however, Ms. Cross acknowledged that these
photographs are of a forklift. Nonetheless, she testified that
the Lorraine crane's starter switch was also "hot wired." Her
testimony and Mr. Berg's corroboration are sufficient to prove
that the starter switch on the Lorraine crane was also "hot
wired."



	I defer to Ms. Cross's determination that this defect creates a
low probability of a moderate injury.



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $75.



SH 91109



ITEM 1-1

	

	29 CFR 1926.550(a)(1) requires the employer to comply with
manufacturer's specifications applicable to the operation crane
at this site on April 12, 1991 was three quarter inch line.  Mr.
Berg agreed.  ms. Cross further testified that the wedge socket
in use on the dead end of the ship line was designed for seven
eights inch line and was so stamped.  She checked with the
manufacturer by telephone and the manufacturer confirmed that
this particular wedge socket was designed only for seven eights
inch line.



	Once again, I defer to Ms. Cross's expertise in finding that
this violation creates a medium probability of a serious injury. 



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $500.



ITEM 1-2



	29 CFR 1926.603(a)(8) requires that fixed leads be provided
with ladder  and attachment points for a safety belt.  The fixed
lead in operation in the e pile driving operation was missing a
section of ladder.



	While it is true that workers rarely have to climb fixed leads,
even Mr. Berg testified that he had seen it required at least
once. Therefore I accept Ms. Cross's determination that this
violation creates a low probability of a serious injury.



	Based on the matrix found in OAR 437-01-145 the appropriate
penalty for this violation is $150.



ITEM 2-3



	Oar 437-01-705(1) requires an employer to keep an OSHA 200 form
(log and summary of injuries and illnesses) in each
establishment.  Mr. Berg testified that he did keep an OSHA 200
form, but that he misunderstood that the inspectors were asking
for.  I accept his testimony and conclude that OR OSHA has
failed to prove that Ross Brothers failed to keep an OSHA 200
form.



                            ORDER



	Citation C4016-047-91 is affirmed



	Citation C4016-048-91 is affirmed in part and reversed in part.
Items 1-1 and 1-2 are affirmed.  Item 2-3 is reversed.



	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, OR 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 Sept. 4, 1991 



				WORKERS' COMPENSATION BOARD

				RAYMOND W. MYERS, REFEREE