THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91257

HEALTH DIVISION, Plaintiff		)  Citation No. P680800691

 		vs.			)


Pursuant to notice hearing convened and closed April 6, 1993 in
Salem, Oregon. Plaintiff was represented by its attorney, J.
Kevin Shuba, Assistant Attorney General. Defendant was
represented by its attorney, Gregory C. Hansen. The proceedings
were reported by Angela Trafton.

Exhibits 1 through 7 are admitted.

The record was reopened April 12, 1993 and reclosed May 3, 1993
to consider supplemental argument.


Defendant appeals Citation No. P680800691, which alleged that an
excavation was improperly guarded. Defendant contends no
violation occurred, contests the violation classification as
serious and contests the $120 penalty assessed.

The applicable standard is OAR 437-40-015(1) which provides:

"437-40-015(1) Protective barriers or suitable guards shall be
erected when covers over openings are removed or excavations
made in places accessible to vehicular or pedestrian traffic.
Warning lights or flares shall be displayed if work is being
done at night. These protective measures shall be maintained,
until permanent or adequate covers or barricades are in place or
the hazard removed."

The alleged violation was described in the citation as follows:

"Protective barriers or suitable guards were not erected when
covers over openings were removed or excavations made in places
accessible to vehicular or pedestrian traffic.

"(a) At intersection of 3rd and Stark, Portland, Oreqon."

There is no dispute the worksite was at 3rd and Stark Street in
Portland, Oregon and that covers over openings were removed and
excavations made.

                        FINDINGS OF FACT

Defendant had contracted to install fiber optic cable
underground and whenever possible would run the cable through
existing unused pipes or conduits. The job site was in downtown
Portland and involved a five by seven-foot hole three and
one-half feet deep which exposed an abandoned gas line through
which the cable was being run. The hole was in an intersection
adjacent to two pedestrian crosswalks and surrounded by traffic

During non-work hours the hole was covered with four large steel
plates. During work hours the plates were slid off the hole. On
three sides of the hole, bright orange cones were placed on top
of the steel plates. On the fourth side a tractor with loader
and backhoe attached was parked, with one pedestrian crosswalk
running between it and the hole. The site was within the
foreman's field of vision, who had determined the position and
type of guarding to be used. No employees were observed in the
hole, employees were observed inside where the cones were placed
in the process of moving the plates over the hole for the night.

The inspection leading to the citation came about as the safety
compliance officer was passing by the site and noticed
pedestrians walking near the hole. The rule used to cite
defendant is a general provision applicable to all employers
regardless of the type of work involved. The likelihood of
anyone falling into the hole is low, if one did a break or
sprain would be a likely result.

At the conclusion of plaintiff's case in chief, defendant moved
to dismiss contending there was no showing of actual or
potential employee exposure. That motion was taken under
advisement. Defendant's April 12, 1993 post-hearing argument
concerning the motion will be considered, as well as plaintiff's
May 3, 1993 response.


Plaintiff must establish a violation of the cited rule, as well
as prove that the employer was within its scope. Employer
knowledge is a prerequisite to the finding of a violation of the
Oregon Safe Employment Act as well as actual or potential
employee exposure.

The actual employee exposure shown in this case was when workers
were placing the plates over the hole, which involved removing
the barriers and working inside where they were placed. As
conceded by plaintiff, as a practical matter, barriers of any
type would not serve to protect employees from falling in the
hole while they were placing plates over it.

Defendant moved to dismiss this matter after plaintiff rested
contending there was no proof, based on the evidence then in the
record, that employees were in the hole and the only time that
employees were near the hole was to cover it with the plates
which first required removing any barriers. The motion is
allowed. While it is not necessary to "catch" a worker in the
hole it can be inferred, based on appropriate evidence, that
employees who are present near the hole would use it since they
found it necessary to dig it. Accident Prevention Division vs.
Stadeli, 18 Or App 357 (1974). In Stadeli, there was testimony
that work was yet to be done in trenches which likely could have
taken place on the day of the alleged violation. In this case,
prior to defendant's motion, there was no testimony or evidence
that employees were currently exposed to the hole other than to
move the metal plates, which was not a violation. I conclude
plaintiff did not put on evidence of at least potential employee
exposure on the day of the alleged violation or any other time.
The motion to dismiss is allowed.

In the alternative, as to the merits, there is no question the
hole was uncovered and accessible to vehicular and pedestrian
traffic, factors known to defendant. The inquiry is focused on
employee exposure and whether or not suitable barriers or guards
were erected.

It's apparent from the notations made by the safety compliance
officer at the time of inspection and issuance of the citation
that a major concern was for the safety of non-employee
pedestrians who might fall into the hole while walking between
it and the backhoe. While that hazard might exist, it is
irrelevant to this case which involves a body of law requiring
the employer to protect only its employees, not the general

The hazards identified by plaintiff are falling in the hole or
having something fall on an employee who is in the hole. The
safety compliance officer conceded guard rails were not
necessary for compliance. The only guard that could prevent
something from falling in the hole would be one that covered the
hole completely, top and all sides. That exceeds the protection
afforded by guard rails which would cover only the sides and
since guard rails were more than what was needed for compliance
the only significant real life hazard to practically guard
against has to be an employee falling in the hole. The penalty
was based on that hazard.

There is no question all sides of the hole were guarded, three
sides by cones and one side by the backhoe. Since the backhoe is
a solid barrier, the problem seems to be the cones which the
safety compliance officer classed as warnings rather than
barriers or guards. That opinion was not based on the safety
code but rather on what the safety compliance officer believed
"DOT" considered them to be. I am not persuaded that is enough
to conclude the cones are unsuitable as guards. Likewise, a
description of better guards as given by the safety compliance
officer does not make the cones, while less suitable, unsuitable.

In sum, I conclude it has not been shown that the cones were
inadequate or that because of them employees were exposed to any
greater risk of harm. Accordingly, a violation of the rule has
not been established and all issues are therefore resolved in
defendant's favor.


IT IS ORDERED that Citation No. P680800691 is hereby vacated and
set aside.


	ENTERED at Salem, Oregon, May 14, 1993 


				By D. W. Daughtry, Referee