THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91261

		vs .			)

					)  Citation No M797404991


	Defendant			)  OPINION AND ORDER

A hearing was held on February 19, 1992 in Portland, Oregon.
Plantiff was represented by J. Kevin Shuba. Owen A. Glaze
appeared as the authorized representative for defendant, Owen
Glaze Crane.

Defendant requested a hearing challenging Citation M797404991.
The citation concerns the use of safety equipment when exposed
to a hazard.

                      FINDINGS OF FACT

Defendant was hired by Hoffman Construction Co. to erect a crane
on a construction site in Salem for a new office building for
the state. On May 8, 1991 a representative of plaintiff made a
video of the work in progress at the construction site with the
intent of making a training film. Based on this video and an
inspection that took place the next day, the citation was issued.

Defendant had five employees working on the crane erection
project. Owen Glaze was on the job site, but was not working on
the crane.

The video shows the crane and the work activity. The horizontal
portion of the crane (jib) was about 135145 feet from the
ground. The section of the jib to the left of the vertical
structure of the crane is the counterweight section. The floor
of the counter weight section where the men are walking is a
steel grate that extends from side to side. There is a chain
across the back portion of the counterweight area. The men
working on the crane were equipped with a safety belt and a 6
foot lanyard, a line with a hook used to fasten onto something
to prevent a fall.

The men shown sitting and working on the rail of the crane were
tied off or hooked with the lanyard to a section of the crane.
The video shows the men pulling electrical cable and walking on
the counterweight jib. They were not tied off when doing this

Hoffman Construction and Owen Glaze Hoist held a pre-job safety
conference and discussed safety and fall protection. The safety
officer for Hoffman Construction, William Hesselbacher, is a
former employee of the plaintiff (7 years) and served as a
compliance officer and employer construction consultant. He was
aware the men were not tied off when walking on the jib and did
not identify this as a hazard. Hoffman has used the Owen Glaze
company on jobs before and after this citation and was aware the
Glaze company did the work in the same manner as shown in the
video. Hesselbacher testified that if he felt the work activity
presented a hazard, he would have required that Glaze employees
be tied off when walking on the jib.


Walking on the steel grate floor of the counterweight job
without a safety belt was not a hazard. Sitting on the rail of
the counterweight job was a hazard. Defendant's employees were
using safety equipment when exposed to a hazard.


Defendant is charged with violating OAR 436-40-030(2)(c) which

"(2) The employer shall take all reasonable means to require

(c) To use all means and methods, including but not limited to,
ladders, scaffolds, guardrails, machine guards, safety belts and
lifelines, that are necessary to safely accomplish all work
where employees are exposed to a hazard: and..."

No rule has been cited requiring fall protection when working on
a crane or the circumstances when fall protection should be used
when working on a crane. Employer has not been cited for failure
to comply with a specific fall protection standard. Chapter 40
contains general provisions applicable to all workplaces and
describes duties imposed on all employers.

Plaintiff's position is that the men working on the jib should
have been tied off at all times and defendants failure to
require that is a violation of the standard.

It is difficult to tell from the video whether the men were tied
off when working sitting on the rail and when working above the
grate. Randy Glaze, Owen's son, was working on the rail and
testified he was tied off when doing this activity. Photograph
Exhibits 8 and 9 illustrate how a picture from one angle might
not show whether a worker was tied off. I have no reason to
doubt Randy Glaze's testimony and accept his statement that they
were tied off when working above the grate. Certainly, there is
such apparent danger when working in that situation that it is
easy to accept that safety protection was used. I find the
employees working on the rail above the grate were wearing
safety equipment.

Plaintiff contends the back end of the counterweight jib was
open-ended and created a hazard even greater than that presented
by the sides. Randy Glaze testified there was a link chain on
each side of the back end of the jib. It was difficult to
observe this area from the ground, and the video doesn't resolve
the question. I accept Randy Glaze's testimony and find the back
area of the jib was not open-ended but was chained.

The men were not tied off when walking back and forth on the
counterweight jib doing their work such as pulling the
electrical cable. The steel grate they were walking on went all
the way across the bottom.

The question is when they were doing this work were they exposed
to a hazard warranting that they wear their safety belts and
lanyards. Plaintiff's representatives testified this was
hazardous and there was a danger of falling. Hesselbacher, who
is experienced in safety matters, did not consider walking on
the jib to be hazardous. He would have required fall protection
be used if he felt it was. Owen Glaze has been in business since
1970 and represented that he has put up more cranes on the West
Coast than anyone. He did not believe that a static line needed
to be used when walking on the steel grate flooring.

Plaintiff has the burden of showing a violation of the Standard.
There is responsible testimony on both side of the hazardous
exposure question when walking on the grate. Glaze and
Hesselbacher, on behalf of Hoffman Construction, demonstrated
that both companies are conscious of safety matters. They were
aware of the method and manner of the work being performed and
did not find it to be hazardous. If they did, the work would
have been done in a different manner. These are well experienced
people. Based on this testimony, I am not persuaded it was a
hazard to walk on the steel grate of the counterweight jib
without being tied off.

In summary, the employees were using fall protection equipment
when working on the jib above the floor level. Plaintiff has not
established by a preponderance of evidence that it was hazardous
to walk on the counterweight jib without using fall protection.
These findings cover the work performed on May 8 and 9, 1991.
Plaintiff has failed to establish a violation of OAR


IT IS HEREBY ORDERED that Citation No. M797404991 is vacated.

NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition to the State Court Administrator, Record
Section, 1163 State Street, 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 Portland, Oregon on MARCH 09,  1992 


				By Albert L. Menashe Referee