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