BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91116

	Plaintiff,			)

	vs.				)  Citation No. V158904091

ROBINSON CONSTRUCTION CO.		)

	Defendant.			)  OPINION AND ORDER



Pursuant to notice, this matter was heard and closed at
Portland, Oregon on April 6, 1993 and was reported by Harris
Reporting Services. Plaintiff, Oregon Occupational Safety and
Health Division (OROSHA), was represented by Assistant Attorney
General Norman Kelley. Defendant/employer, Robinson Construction
Company, appeared through its corporate officer E. Lee Robinson.
Exhibits 1 through 10 were admitted into evidence.



This is a contested case under the Oregon Safe Employment Act,
ORS 654.001, 2654-295 and 654.991 and ORS 656.451, occasionally
referred to as "the Act."



                         ISSUES



The correctness of Item 2-3 of Citation No. V158904091.



Item 2-3.



Whether the employer violated OAR 437-3-040(1) while working at
2900 SW Borland Road job site, in that all employees were not
protected from fall hazards when working on unguarded surfaces
more than 10 feet above a lower level or at a height above
dangerous equipment. A penalty was assessed.



                         FINDINGS



Defendant is a corporation doing business within the state of
Oregon and maintains its principal office in this state.
Defendant has a good safety record with no serious accidents
ever having been reported.



Defendant has not appealed items Nos. 1-1, 1-2 or 3-4. Nor does
he contest the amount of penalty assessed in Item 2-3.



On February 14, 1991 defendant was involved in a construction
project at 2900 SW Borland Road. On that date its employees were
installing a roof on a structure which was more than 10 feet
above a lower level. These workers were observed by Safety
Compliance officers Vorhauer and Jernstedt. At the time the
workers were observed, they were installing a toe board without
the benefit of fall protection. There was no catch platform,
scaffold or fork lift basket in use. The workers were not
wearing lanyards or lines. The workers were working at an
elevation of more than ten feet above a lower level.



A second set of workers were installing trusses at a level of
more than ten feet above a lower level without fall protection.



By the time the inspectors actually got on the job site the
workers who had been installing the toe boards had completed
this task. The second set of workers installing joists brought
in additional scaffolding so that they came into compliance.



                  ULTIMATE FINDINGS OF FACT



On February 14, 1991 the employer allowed workers to work at
heights of more than ten feet above a lower level on an
unguarded surface without fall protection.



The probability of an injury in this set of circumstances is low
and the probable severity if an injury does occur is severe to
death.



                         CONCLUSIONS



Pursuant to OAR 437-03-040(1):



"All employees shall be protected from fall hazards when working
on unguarded surfaces more than ten 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)."



Safety compliance officers Vorhauer and Jernstedt testified to
the facts as indicated in the Findings. Their testimony is
regarded as credible and a fair an accurate description of their
observations.



Defendant called three of its workers to testify. Their
testimony essentially consisted of a recitation of factors
concerning the safety consciousness of their employer, the
adequacy and amount of the safety gear available for their use,
the instruction they receive concerning safety, and company
policy regarding penalizing workers who do not comply with
safety standards.



They also testified as to several of the approved manners of
installing the toe board at a height above ten feet. One of
those approved methods was the use of a fork lift with a safety
basket. They testified that this was the customary procedure
that they would employ in a situation such as this. One of the
workers felt confident that such a procedure had been employed
in this circumstance. There is no support in this record for the
supposition that such procedure had been employed in this
circumstance. The safety compliance officers testified that at
the time of their contact with the employer and supervisory
personnel no such claim was made and there was no evidence of
telltale signs which a fork lift would leave in the soil beneath
the building had one been used in this instance. The safety
compliance officers testified there was no fork lift in use when
they observed the workers installing the toe boards.



The worker on the crew installing the truss joists affirmed that
he had been working installing the joists without fall
protection. There is no dispute that he was working at a height
more than ten feet above a lower level.



I conclude, based upon the testimony of the safety compliance
officers that at the time they observed defendant's workers
installing the toe board and the truss joists that the workers
were working on an unguarded surface more than ten feet above a
lower level without adequate fall protection.



I conclude that the allegations in Citation No. V158904091, Item
2-3, have been established by a preponderance of the evidence.

                                 

                         ORDER



NOW, THEREFORE, IT IS HEREBY ORDERED that Citation No.
V158904091 be and hereby is affirmed 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 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 APRIL 21, 1993  



				By Ronald J. Podnar

				Referee