BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No:  SH92070

	Plaintiff,			)  CITATION NO: D223808191

					)

PAC ELECTRICAL CONTRACTORS Defendant	)  OPINION AND ORDER



Hearing was held in Medford, Oregon on August 11, 1992 before
Philip A. Mongrain, Referee. Oregon Occupational Safety & Health
Division was represented by Assistant Attorney General Norman F.
Kelley. Pacific Electrical Contractors, Inc. was represented by
Emerson Hamilton. The hearing was reported by JoeAnn Johnson of
Business Support Services and was closed at its conclusion.



                         ISSUE



Whether the employer violated a safety standard as alleged by a
citation issued on September 25, 1991.



                      FINDINGS OF FACT



On September 5, 1991 Mike Hill, an employee of Pacific
Electrical Contractors, Inc. was observed by Safety Compliance
Officer Dennis Dixon working for about five minutes in an aerial
lift about 25 feet above a paved surface while repairing a
pole-mounted light (Dennis Dixon's testimony; Exhibits 3, 4).
While doing this work Mr. Hill did not wear a safety belt and a
lanyard, although a belt and lanyard were in the truck cab
(Dennis Dixon's testimony; Exhibits 3, 4). Mr. Hill stated to
Mr. Dixon that he was trained to use a belt but often did not
wear the belt and lanyard for "short" jobs at heights less than
50 feet; that the time it takes him to put the equipment on is
as long as a short job may require (Dennis Dixon's testimony;
Exhibits 3, 4). Mr. Hill stated that use of a safety belt and
lanyard had been discussed by the company but over a period of
time there had been no follow-up that frequently he might not
see a supervisor on the job site for as long as two weeks
(Dennis Dixon's testimony). The aerial ladder which Mr. Hill
climbed on September 5 had a sign on it requiring a safety belt
when using the ladder (Exhibit 5, page 2).



After speaking with Mr. Hill the compliance office spoke with
Steve Hess, owner and president of Pacific Electrical
Contractors (Dennis Dixon's testimony; Exhibit 3). Mr. Hess
acknowledged his awareness of the rules and stated that
employees are trained to use belts when in the basket (Exhibit
3). Mr. Hess then prepared documents describing a violation of
OAR 437-03-001 29 CFR 1926.556 (b)(2)(v), pertaining to failure
to use a safety belt and lanyard on an aerial ladder (Dennis
Dixon's testimony; Exhibit 3). A citation was issued on
September 25 charging the employer with violation of the above
standard in that an employee working on an aerial lift was not
using a body belt with attached lanyard (Exhibit 1, page 2). A
penalty of $800 was imposed for a serious violation, based on
Mr. Dixon's assessment of a low probability of an injury that
could result in death, and a 20 percent reduction for immediate
compliance (Dennis Dixon's testimony; Exhibits 1 (page 3), 3).



The employer has a thorough safety program for advising
employees of safety rules and the importance thereof, including
recognition for safety, a general policy guide, safety meetings,
internal "newsletter" publications, and envelope "stuffers"
(Steve Hess's testimony; Exhibit 8). Enforcement of company
rules, including violation of safety rules, is accomplished by
escalating measures from verbal warnings by Steve Hess to
written warnings to termination (Steve Hess's testimony; Exhibit
8). However, site inspections and monitoring of possible
violations on small jobs is difficult and not subject to any
clear and regular procedure (Steve Hess's testimony). safety
rules are at times difficult to publicize and enforce because yf
more flexible work hours of more employees and because highly
skilled electrical workers are often not intimidated by threats
of termination (Steve Hess's testimony).



The booklet outlining for employees the employment procedures
and policies of Pacific Electrical Contractors was amended at
some point, possibly after this incident, to require without
exception the use of safety belts and lanyards with ladder
trucks (Exhibit 8, page 14).



Mr. Dixon testified that Steve Hess stated he knew some
employees did not wear belts on "short term" jobs, but he did
not know what to do about it. Mr. Hess testified he was unaware
where such an interpretation came from.



                 ULTIMATE FINDINGS OF FACT



1) An employee of Pacific Electrical Contractors violated the
safety standard requiring use of a safety belt and lanyard.



2) The employer safety program is deficient insofar as
discovering violations of the type alleged.



                         OPINION



OAR 437-03-001 29 CFR 1926.556 (b)(2)(v) provides:



"A body belt shall be worn and a lanyard attached to the boom or
basket when working from an aerial lift."



Clearly, the standard was violated on September 5, 1991 when
Mike Hill was working without a belt and a lanyard. The
employer, however, alleges the affirmative defense of employee
misconduct contrary to its safety program, which is a proper
affirmative defense. H.B. Zachry Company v.OSHRC 638 F2d 812
(1981). Such a defense places in issue the adequacy of the
safety program. Zachry, supra.



As I view it, the employer's safety program was appropriately
designed to provide information to the employees about safety
matters, including use of safety belt and a lanyard when working
on an aerial ladder. Meetings, newsletters and envelope
"stuffers" apparently provided a great deal of relevant
information, and of course in this case the aerial ladder itself
carried a sign that a belt must be used. Mr. Hill was aware of
the rule.



The employer's safety program apparently provided a mechanism
for warning an employee about safety standard violations and
ultimately discharging him. Perhaps something more could have
been done in the way of positive or negative recognition insofar
as safety violations, but I am not prepared to conclude that the
enforcement mechanism was insufficient.



The problem with the safety program, as I see it, is that there
is no persuasive evidence of sufficient procedures to discover
violations on the short term jobs, for example one hour or less.
The burden is on the employer to establish the adequacy of its
program, so it must prove the program was sufficient to discover
such violations. Zachry, supra. I recognize the problems of
monitoring short term jobs that might be completed before a
supervisor could even get to the work site, but surely something
could be done. What that might be I am not sure, since I am not
at all educated in the operation of this type of business, but
the law would appear to require the employer to at least present
evidence of an attempted procedure to discover violations. At
the risk of sounding like one more uninformed bureaucrat as far
as the practical realities of business operation, I feel
compelled to conclude that no such evidence was presented and
therefore the employer's burden has not been met. Accordingly,
although I believe the employer to be sincerely concerned about
the safety of its employees the affirmative defense must fail.



I have no basis to dispute Mr. Dixon's assessment that the
violation represents a low probability of the employee falling
and death being the most severe possible result of a 25 foot
fall to a paved surface. Such an assessment requires a $1000
fine, which was imposed and properly reduced by $200 for
immediate correction.   OAR 43-701-145; Exhibits 1 (page 2), 3
(page 1).



                       CONCLUSION OF LAW



The alleged violation in the citation has been proved, with no
proved affirmative defense.



                          ORDER



IT IS HEREBY ORDERED THAT the alleged violation and proposed
penalty in Citation No. D223808191 are approved.



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 Court of Appeals, Third
Floor, Justice Building, Salem, OR 97310, pursuant to ORS
183.480, 482.  A 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 within sixty (60) days after the
mailing date of the Order will result in LOSS OF RIGHT TO APPEAL
FROM THIS ORDER.



	Entered at Medford, Oregon on this day October 21, 1992



				WORKERS' COMPENSATION BOARD

				Philip A. Mongrain,Referee