BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH91136
Plaintiff, ) Citation No. D537601991
vs. )
CLARK & SONS CONST )
Defendant ) OPINION AND ORDER
Hearing convened and closed before Referee Mills in Portland,
Oregon, on September 4, 1991. Plaintiff, occupational Health
Safety Division, was represented by Assistant attorney General
Armonica Gilford. The employer, Clark & Sons Construction,
Inc., was represented by its secretary/treasurer, Jerry Clark.
The proceedings were recorded by Harris reporting Services.
Exhibits l through 11 were received into evidence.
ISSUES
The employer contests citation number D5376Ol991 which contains
two citations. The first is for the failure to use a trigger
safety switch on a chop saw. The second is for not having
railings on two decks on the same job site.
At the time of hearing, Occupational Safety & Health Division
withdrew the citation regarding the chop saw. accordingly, the
only issue concerns citation number two dealing with the decks.
The employer contests both the citation and the reasonableness
of the $2,000 penalty assessed by OR OSHA.
FINDINGS Of FACT
On February 14, l991, the employer was a subcontractor
installing siding and trim at a job site located at 14O25 SW
Scholls Ferry Road in Beaverton, Oregon. Numerous multiple
family residences were being constructed at the job site. The
employer s supervisor on the! site was Ron Wiggens.
Prior to beginning work on the site, Mr. Wiggens was involved
in setting up the project to ensure the safety of his workers
and compliance with OR-OSHA regulations. Two of the buildings
that the employer was working on building numbers 9 and 12 are
type 1 buildings (ex. 1). Those buildings each have decks which
are more than six feet but less than ten feet above the ground.
With the exception of one deck on each building all of the
decks have dimensions in excess of 43 inches. One deck on each
building has a horizontal dimension of less than 43 inches.
To comply with OR-OSHA regulations as he understood them Mr.
Wiggens elected to use the larger decks as scaffolding without
rails. On the two smaller decks he had his workers use
lanyards for safety reasons. There was one occasion when a
worker was on one of the smaller decks for less than 10 minutes
without a lanyard. The reason for that is that it would have
been impractical to install a safety lanyard or any other safety
device given the amount of time that the worker was on the deck.
Installation of the lanyard for example would have placed the
worker in the same unsafe situation for the same amount of time
as going ahead and doing the work.
On February 14 l991 two OR-OSHA compliance officers Pat
Darby and Lynn DeSpain investigated the job site on Scholls
Ferry Road. They observed workers working on the larger decks on
the two type l buildings numbered 9 and 12. The employer was
subsequently cited for having workers on decks in excess of six
feet without railings. fine of $2000 was assessed with OR-OSHA
taking the position that this was a serious repeat violation
(ex. 1).
The employer had previously been cited in citation number
S838307690 for failing to have toeboards on an open-sided
platform (ex. 55). That citation was a general violation with
no penalty.
FINDINGS OF ULTIMATE FACT
The employer did have workers performing their duties on decks
or platforms in excess of six feet in height which did not have
railings. There was not a substantial probability that death or
serious physical harm would result from the employer's conduct.
CONCLUSIONS AND OPINION
The employer contests both the violation and the penalty. I
first address whether the employer violated OR-OSHA rules.
The employer argues that it has complied with the mandate of
OR-OSHA which is reflected in the statement of policy contained
at ORS 654.003:
The purpose of the Oregon Safe Employment Act is to
assure as far as possible safe and healthful working conditions
for every working man and woman in Oregon
I think it is clear as reflected in the Findings of Fact above
that the employer attempted to comply with that mandate. Mr.
Wiggens checked out the job that the employer would be doing
with a specific view towards keeping his employees safe. In
looking at the decks where siding would be installed it
appeared that with the exception of the one smaller deck on
each building the other decks were of sufficient dimension that
they would qualify as a scaffold without railings. Under 29 CFR
1926.451(a)(4) guardrails are required for scaffolds from four
to ten feet in height only if they have a smaller horizontal
dimension than 45 inches. The decks in question here were less
than ten feet in height but more than four. With the exception
of the two smaller decks they were greater than 45 inches in
all directions. accordingly the employer felt that it would be
safe to consider the decks as scaffolds and therefore not use
guardrails or any other safety device.
With respect to the smaller decks the employer did
use a safety device in the form of lanyards. There was one
occasion when an employee installed molding around a window a
job that took less than 10 minutes. The employee in that case
did not use a lanyard nor was one set up because it would have
taken longer to install the lanyard than to perform the job.
Mr. Darby indicated that under OROSHA policy it is appropriate
not to install a lanyard under such circumstances. Mr.
Darby indicated that other safety devices could be used but his
testimony on that issue was a very brief statement in rebuttal
and I did not understand his testimony to indicate that there
was any practical safety device that should have been used
in the alternative.
In any eventthe employer did seek to keep its workers safe and
felt that it had complied with the rules because the platforms
that it used would have been safe as scaffolds under the
administrative rules.
OR-OSHA's position is that the employer was cited because
scaffolds are specifically defined as being temporary under 29
CFR 1926.452(b)(27). Since the decks being used were admittedly
not temporary they could not be scaffolding and therefore the
employer did not have the right to rely upon the rules
concerning scaffolding.
The rules concerning open-sided platforms or decks are
different. Under 29 CFR 1926.500(D)(1) open-sided platforms
greater than six feet in height must have railings. It is this
section which OR-OSHA argues is applicable. I agree. OR-OSHA
also argues that it was violated. I agree. While the employer
attempted to protect the safety of its workers the employer did
commit a technical violation of the Act.
I note that there are many similarities between an OR-OSHA
proceeding and a criminal proceeding under Oregon law. Under
both systems it is not a defense that one is in substantial
compliance with the law. It is not a defense that one is
unaware of the requirements of the law. Essentially both
criminal law and many types of administrative regulations such
as the OR-OSHA regulations provide for what amounts to strict
liability. If one is not in compliance with the law one has
violated the law. This case is analogous to a criminal law case
where a person is speeding down a deserted highway in Eastern
Oregon. No one is presumably put at risk by such an action but
there is still. a violation of the law which can be cited. I
conclude that the Occupational Safety & Health Division has
sustained its burden of proving that there were two violations
on buildings numbered 9 and 12 at the worksite.
I next address the employer's argument that the $2 000 fine is
unreasonable. I agree.
The fine was based on the compliance officer's conclusion
following application of the administrative rules at OAR
437-01-135 et seq. that there were two repeat serious violations
justifying a $2 000 fine. I first address whether this was a
repeat violation.
The employer was previously cited for a general violation
dealing with the same administrative law provision 29 CFR
1926.500(d)(1) regarding open-sided platforms. However the
citation reveals that the employer was cited because it did not
have a toe board around an open stairwell. Railings were in
place and thus the facts of that case were substantially
dissimilar to this case. The fact that the earlier citation
was a general one with no fine reflects that the
violation there was quite different than the violation
here even according to OR-OSHA.
Under OAR 437-01-160 a repeat violation is described as
follows:
violation of any statute regulation rule standard
or order shall be cited as repeated when upon reinspection
another violation of the previously cited requirements of the
statute regulation rule standard or order is found. [My
emphasis.]
The Occupational Safety & Health Division argues that this is a
repeat violation because the same statutory provision has been
violated. However the administrative rule requires that the
violation be of the same requirements of a regulation. The
regulation in question requires not just rails but toeboards.
There are two requirements. The previously cited requirement
dealt with toeboards not rails. The current citation deals
with rails. I conclude that the employer did not violate the
same requirements of a regulation and that it was therefore
inappropriate to calculate the fine as a repeat violation.
I next address whether the violation should have been
classified as a serious violation resulting in a fine of $500
for each violation. The compliance officer under the
administrative rules concluded that the probability of an
accident was medium and that the potential severity of an
accident was for serious injury. Using the matrixes set forth in
the administrative rules that resulted in a serious violation
leading to a $500 fine.
For a number of reasons I conclude that the violation was not
a serious violation.
ORS 654.086(2) defines a serious violation as
follows:
A serious violation exists in a place of employment if there is
a substantial probability that death or serious physical harm
could result from . . . the violation.
With respect to whether the violation was serious or not accept
as persuasive the employer s argument which is in essence as
follows: Under OR-OSHA rules a determination has been made
that the use of a scaffold of between four and ten feet in
height without rails does not violate safety rules. Obviously
there is still some risk of injury in using such a scaffold and
in fact the compliance officer testified that he did not feel
that such a scaffold would be particularly safe. However the
point is that under OR-OSHA's own rules such a scaffold is not
considered to violate safety rules.
In this case the decks used as scaffolding by the employer did
not meet the definition of a scaffold because they were not
temporary. The fact that they were not temporary does not
render them any less safe than scaffolding that would not have
violated safety rules.
A determination has been made under the rules that the risk
associated with the use of scaffolding is low enough that
scaffolding between four and ten feet does not need a rail. I
am unable to conclude that there is a substantial probability if
death or serious physical harm involved in the use of decks
which have the same if not less risk of injury than would
scaffolds under similar circumstances.
Moreover my examination of the photographs in exhibit 6 do not
reveal a substantial probability of death or physical injury to
the workers using the decks as work platforms. As opposed to
there being a substantial probability of injury I conclude that
there is a very low risk of injury. It simply does not appear
likely that a worker would fall. off any of the decks.
Again getting back to the criminal law analogy while I have
concluded that the speeder should be cited under the
circumstances of the speeding I conclude that the violation was
deminimus.
I therefore modify the citation to cite. the two violations as
general violations. The issue remains whether a fine should be
assessed. In this case as soon as the compliance officers
brought their concerns to the attention of the employer workers
were removed from the decks. A consultation was obtained and
the employer was advised that railings would have to be
installed. The railings were immediately installed and no
workers worked on the deck until that was accomplished. Thus
there was a general violation that was immediately corrected by
the employer. Given the fact that the employer had felt that it
was in compliance with the scaffolding requirements I conclude
that under the circumstances of this case no fine is warranted.
In addition note that no evidence or argument was provided on
what a reasonable penalty would be should I find the violation
not to be a repeat and to be general rather than serious.
OR-OSHA has the burden of proof on this issue.
ORDER
IT is HEREBY ORDERED that the citation in D537601991 is amended
in part and approved in part.
Citation number l dealing with the trigger safety switch on a
chop saw is deleted.
Citation number 2 is approved. However the classification of
the violation as repeat and serious is deleted. The citation is
reclassified as general and the penalty of $2OOO is deleted.
NOTICE TO ALL PARTIES: If you are dissatisfied with this Order
you may not later than sixty (60) days after the mailing date
on this Order request a review by the State Court Administrator
Record Section 1163 State Street Salem Oregon 97310. Any
such request for review shall be mailed to the Court of Appeals
at the above! address with copies of such request mailed to all
other parties to this proceeding. Failure to mail such a
request for review !w within sixty (60) clays after the mailing
date of this Order will result in LOSS OF RIGHT TO APPEAL FROM
THIS ORDER.
Entered at Portland Oregon SEPT 16, 1991
WORKERS ' COMPENSATION BOARD
By JOHN MARK MILLS
Referee