BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH92022

		Plaintiff		)

					)  Citation No: W465704291

METAL BUILDING SPECIALISTS Inc.		) 

		Defendant		)  OPINION AND ORDER



	Hearing convened and closed on September 17, 1992 in Eugene,
Oregon. Plaintiff, Oregon Occupational Safety and Health
Division (OR OSHA), was represented by Assistant Attorney
General Armonica Gilford. The employer, Metal Building
Specialists, Inc., was represented by its President Dale E.
Atkins. Business Support Services recorded the proceedings.



                             ISSUES



	The employer contests OR OSHA's citation number W465704291
dated October 4, 1991. The employer contends that it did not
commit the violation alleged in the sole item in the citation,
Item 1-1. In the alternative, the employer contends that ;f it
committed the violation, the penalty is excessive.



                         FINDINGS OF FACT



	The employer was cited by OR OSHA on January 3, 1991 for
violation of OAR 437-03-040(1), failure to provide a fall
protection for employees working at a height of 22 feet. That
citation is final.



	On August 15, 1991, Safety Compliance Officer (SCO) David
Wooley was passing a construction site when he thought he
observed workers on a roof without fall protection. The SCO
approached the site and after determining that the employer's
workers were the ones on the roof, contacted the employer's
foreman, Dave Weber. The SCO conducted an opening conference
with Weber on the ground. While the opening conference was going
on, the company president, Atkins, arrived on the scene. The
three men rode a lift up to the roof. On the roof, the SCO
determined that four workers were working on guttering on the
roof. The four workers were attached to a 200 foot static line
by 6 foot lanyards which were attached to each worker by a belt.
The lanyards had deceleration devices consisting of accordion
folded material which was sewn together. The devices are
designed to slow a workers' fall. The roof was approximately 20
feet above the ground. Both Weber and Atkins admitted that the
static line could probably be pulled to within one foot of the
roof's edge.



                 CONCLUSIONS OF LAW AND OPINION



	OR OSHA has the burden of proving its case by a preponderance
of the evidence. OAR 438-85-820(1) & (4). OR OSHA alleges that
the employer violated OAR 437-03-040(1) which states:



"All employees shall be protected from fall hazards when working on unguarded surfaces more than 10 feet above a lower level or at any height above dangerous equipment, except when connecting steel beams as stipulated in OAR 437-03-040(2)"
OR OSHA contends that the employer violated this rule because the static line could be stretched to beyond the edge of the roof, thus allowing the workers to fall over six feet. Even if this testimony is true, I am unsure how it establishes violation of the rule. The employer had a static line in place, the workers were attached with six foot lanyards and the lanyards were equipped with deceleration devices. Furthermore, while the SCO testified that he stretched the static line to beyond the edge of the roof, Atkins testified that he was on the roof with the SCO during the inspection and the SCO never stretched the static line. Both men appeared credible based on their demeanor. Thus, there is directly conflicting credible testimony concerning whether the workers were even exposed to a drop of over six feet. I conclude that OR OSHA has failed to carry its burden of proving that the workers were exposed to a drop of over six feet. Finally, I note that even if I accepted the SCO's testimony about the length of the potential drop, I would not be able to accept his conclusion that such a drop could result in death. The SCO testified that a fall of over six feet could result in death because the belt attached to the lanyard could cut a worker in half. He believed this to be true even With the deceleration devices attached. I do not find this testimony persuasive. Atkins testified that the deceleration devices were designed to slow a fall to prevent injury. His opinion seems more reasonable than does the SCO's. ORDER Citation number W465704291 dated October 4, 1991 is set aside in its entirety. 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 SEPT. 22, 1992 WORKERS' COMPENSATION BOARD Raymond W. Myers Referee