BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91227

	Plaintiff			)  Citation No: V158907891

					)

	Defendant			)

NW SHAKE TILE INC			)  OPINION AND ORDER



Hearing convened and closed on January 6, 1992 in Salem, Oregon.
Oregon Occupational Safety and Health Division (OROSHA) was
represented by Assistant Attorney General J. Kevin Shuba. The
employer, Northwest Shake Tile, Inc., was represented by
attorney M. Chapin Milbank. Diane Kliewar recorded the
proceedings.



                           ISSUES



The employer appeals OROSHA's citation dated July 8, 1991.
Particularly, the employer challenges items 1-1, 1-2, 1-3, 2-4,
2-5, 2-7, 2-8, and 2-9. OROSHA has withdrawn item 2-6. The
employer contends that it committed none of the violations for
which it was cited. It also contends that the penalty imposed in
items 1-1, 1-2, 1-3, 2-4, and 2-5 is erroneous.



                        FINDINGS OF FACT



                      GENERAL FINDINGS OF FACT



On June 12, 1991, the employer had a crew of 5 men installing
concrete tile roofing on a new residence on Lot 51 off N.W.
123rd Place in Portland. On that date Senior Safety Compliance
Officer (SSCO) George Vorhaueser was training Safety Compliance
Officer (SCO) Bill Powell. The two men conducted an inspection
in the area near where the employer's crew was working. When
they drove by the worksite where the employer's crew was
working, their attention was drawn to a fall protection device
the employer's crew was using. They stopped to check out the
fall protection device and, as they are required to do when
visiting a worksite, they inspected the site for safety
violations.



The two men found several possible violations, although none in
the fall protection device. They prepared field notes and made
recommendations concerning a possible citation. OROSHA issued
the citation in issue here based on their field notes.



Vorhaueser has been an SSCO for two and one half years. He has
special training in workplace safety for general construction.
He has worked for about fifteen and one half years in
construction including working as a roofer.



Powell has worked for OROSHA as an SCO for about one year. He
was in training with Vorhaueser at the time of this inspection;
at that time he had worked for OROSHA about six months. He has
received special training in workplace safety for general
construction. He has worked as a safety inspector in other
states since about 1984. Before beginning work for OROSHA, his
work was primarily in the inspection of overhead cranes.



Sharon Standley is the president of the employer. She has been
president of the company for about 11 years. The company's
office and headquarters is in Gervais, Oregon. The company
manufactures and installs concrete roofing tile. The company has
always cooperated with OROSHA (and its predecessor, Accident
Prevention Division) in allowing free access for inspections.
This citation is the second citation which the company has
received for alleged safety violations. The employer, through
its foreman, Guadalupe Ruvalcava, cooperated in this inspection.



ITEM 1-1



The employer was using electrical equipment as part of this job.
The electrical power was obtained from a temporary service
provided by the general contractor. Electrical cords were not
marked with tags indicating that an assured equipment grounding
conductor program was in place. Furthermore, the male end of one
of the electrical cord had exposed insulation.



ITEM 1-2



An employee was using a staple gun without eye protection. None
of the employees had eye protection devices on the site.
However, the employer has purchased eye protection devices and
has made them available to all employees.



ITEM 1-3



Electrical cords in use were wrapped around the fuel filler pipe
to the gas tank of the employer's truck. One of these cords was
the one with the exposed insulation. This created a low
probability of a serious accident. The probability was low
because the employees were working away from the truck.
Nonetheless, if an accident occurred it could be serious because
a spark igniting gas fumes close to an enclosed gasoline tank
would be likely to cause a significant explosion. The violation
was corrected at the end of the inspection.



ITEM 2-4



A ladder leading to the roof upon which employees were working
extended 24 inches above the point where it landed on the roof.
The ladder was not secured and there was no grab rail. This
creates a low probability of an employee's tripping and causing
a moderate injury by falling six feet to the ground. The
violation was corrected at the end of the inspection.



ITEM 2-5



The ladder leading to the roof was extended to approximately 9
feet. It extended 24 inches above the point where it landed on
the roof. The horizontal distance from the top support to the
foot of the ladder was about 43 inches. Using a ladder at this
pitch creates a low probability of a moderate injury. The
violation was corrected at the end of the inspection.



ITEM 2-7



The employer is in the process of developing a written Hazard
Communication Program. At the time of inspection it was not
completely in place.



ITEM 2-8



The employer has a material data safety sheet for each product
in use at this job site. These data sheets are kept at the
employer's office in Gervais.



ITEM 2-9



The employer does provide employees with information and
training on hazardous chemicals.



                  CONCLUSIONS OF LAW AND OPINION



OROSHA has the burden of proving by a preponderance of the
evidence that each alleged violation occurred and that the
penalty imposed for each violation which did occur is
appropriate. I conclude that OROSHA has proven items 1-3, 2-4
and 2-7. It has failed to sustain its burden of proof on all
other items. The penalty imposed as to each of the proven
violations is correct.



ITEM 1-1



29 CFR 1926.404(b)(1)(i) which has been adopted into the Oregon
code states in relevant part:



"The employer shall use either ground fault circuit
interrupters...or an assured equipment grounding conductor
program...."



The employer admits that it had no assured equipment grounding
conductor program.



However, OROSHA has failed to prove that ground fault circuit
interrupters were not used. Powell thought that the electrical
power being used was coming from a gas generator. Vorhaueser
thought that there was an electric generator and power from a
temporary service in use. Standley testified that the employer
always uses temporary service supplied by the general contractor
and that she relies on the general contractor to provide the
ground fault circuit interrupters. Vorhaueser admitted that he
and Powell did not look for a ground fault circuit interrupter.
I accept Standley's testimony because she is much more familiar
with the practices of her own company than are the inspectors
who inspect several job sites daily.



ITEM 1-2



29 CFR 1926.102(a)(1) provides in relevant part:



"Employees shall be provided with eye and face protection
equipment when machines or operations present potential eye or
face injury from physical...agents."



It is true that none of the employees on this job site was
using, or even had with him, eye protection. However, the
unrebutted testimony is that the employer did provide these
devices. I am persuaded that the rule requires only that these
devices be made available not that the employer require workers
to use them. In other parts of the code responsibility is placed
on the employer to assure that workers use safety devices.
Clearly the drafters of the code knew how to require use of
safety devices. Here they did not require their use, only their
availability. The employer has complied with the code.



OAR 437-123-035 states:



"In locations where flammable vapors may be present, precautions
shall be taken to prevent ignition by eliminating or controlling
sources of ignition. Sources of ignition may include...sparks
(static, electrical, and mechanical)...."



The employer had electrical cords draped over the filler pipe of
the gas tank of its truck. One of the electrical cords had
exposed insulation. This creates a possible source of electrical
sparks. There is a strong possibility of gasoline fumes around
the filler pipe of a gas tank even when there is a cap on the
pipe. I conclude that the employer violated this regulation.



I accept the testimony of the SCOs that this creates a low
danger of a serious injury. Under the matrix found in OAR
437-01-045 $120 is the appropriate penalty when reduced by 20
percent for an immediate correction.



ITEM 2-4



29 CFR 1053(b)(1) requires that portable ladders extend at least
3 feet above a landing surface or (when this is impossible)
secured to a rigid support with a grasping device. The ladder in
this case did not extend at least 3 feet and had no rigid
support or grasping device. The employer violated this rule.
Although Ms. Standley testified that she measured the portion of
the ladder extending above the roof and that it measured 33
inches, I conclude that she is mistaken. The SCOs testified that
the normal distance between rungs of a ladder is 12 inches. That
testimony is more consistent with common experience than is the
distance testified to by Ms. Standley. Accordingly, I found as a
fact that the distance in question is 24 inches. In either case,
it violates this rule.



Once again, I accept the expert opinion of the SCOs that this
causes a low probability of a moderate injury. Under the matrix
found in OAR 437-01-045 $60 is the appropriate penalty when
reduced by 20 percent for an immediate correction.



ITEM 2-5



29 CFR 1926.1053(b)(5)(i) provides:



"Non-self supporting ladders shall be used at an angle such that
the horizontal distance from the top support of the ladder is
approximately one-quarter of the working length of the ladder
(the distance along the ladder between the foot and the top
support."



The SCOs testified that in this instance, the horizontal
distance far exceeded one quarter of the working length of the
ladder. This testimony is consistent with the photo of this
ladder which is in evidence as well as the known measurements.
The ladder is approximately nine feet. Twenty four inches of
that nine feet are above the support. This leaves a working
length of about seven feet. The distance from the ground to the
eave is about six feet. Applying the Pythagorian theorum to this
problem yields the calculation that the horizontal distance is
slightly over 43 inches which is far in excess of one-quarter of
the working length of the ladder. I conclude that the employer
violated this regulation.



Once again, I accept the expert opinion of the SCOs that this
causes a low probability of a moderate injury. Under the matrix
found in OAR 437-01-045 $60 is the appropriate penalty when
reduced by 20 percent for an immediate correction.



ITEM 2-7



29 CFR 1926.59(e)(1) requires employers to develop, implement
and maintain" a written hazard communication program. Ms.
Standley admitted that the written program was not totally in
place and that she was still working on it. I conclude that the
employer violated this regulation.



Because OROSHA rated this violation as a general one, with no
penalty, I need not address the reasonableness of the Penalty.



ITEM 2-8



29 CFR 1926(g)(1) requires employers to keep a material safety
data sheet for each chemical used. Ms. Standley testified that
the employer does so. I conclude that OROSHA has failed to prove
that the employer violated this regulation.



ITEM 2-9



29 CFR 1926.59(h) requires employers to provide employees with
information and training on hazardous chemicals in the
workplace. Ms. Standley testified that the employer does so. I
conclude that OROSHA has failed to prove that the employer
violated this regulation.



                           ORDER



Items 1-3, 2-4, 2-5 and 2-7 are upheld in their entirety. Item
2-6 is withdrawn. Items 1-1, 1-2, 2-8 and 2-9 are set aside.



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 183.480 and ORS
183.482.



	Entered at Salem, Oregon January 21, 1992  



				WORKERS' COMPENSATION BOARD

				By Raymond W. Myers

				Referee