BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91282

	Plaintiff 			)  CITATION NO. C5730-094-91

					)

 		 v.			)

 					)

  					)

BELLET CONSTRUCTION, Defendant		)  OPINION AND ORDER



	Hearing convened and closed in Klamath Falls, Oregon on
February 5, 1992.  The plaintiff, Oregon Occupational Safety and
Health Division was represented by Attorney Armonica Guilford. 
Jim Bellet represented the interests of Bellet Construction
Company.



	This a contested case under the Oregon Safe Employment Act. 
The employer has appealed the citation issued by plaintiff on
July 29, 1991 which cited it for allegedly violating OAR
437-03-041 (1) promulgated by the Director of the Department of
Insurance and Finance pursuant to the Director's authority under
the Oregon Safe Employment Act (ch. 654).



                         FINDINGS



	Based upon a preponderance of the evidence, I find:



	(1)  Safety Compliance Officer Cliff Crawford inspected the
employer's work site on June 14, 1991.  He observed four workers
on the roof, which was almost flat, 28 feet 4 inches from peak
to the ground level.  



	(2)  Two of the employees were laying metal roofing from the
peak to the edge of the building, a distance of 22 feet.  The
surface they were on was solid - the leading edge.  Two other
employees were rolling insulation perpendicular to the leading
edge, a distance of up to 21 feet.  They were walking on purlins
or beams and cross beams, and roofing temporarily laid for the
purpose of walking.  There was ample space between the beams and
cross beams for a person to fall through to the ground.



	(3)  A one half inch nylon line stretched from one eave to the
other, perpendicular to the ridge, parallel to the leading edge.
 Safety belts and lanyards were supplied and worn, but the two
insulation installers were not tied off to the cantenary line
(see Ex. 6, page 2, top photograph).



	(4)  One of the installers admitted not being tied off.  He
stated that the lanyards supplied by the employer were not
sufficiently long (Ex. 4-1).  



	(5)  Taking into consideration that the employees were
experienced journeymen, Mr. Crawford evaluated the probability
of an accident as low.  Given the distance to the ground, he
evaluated the severity as death.



	(6)  On July 29, he issued Citation C573-094-91, alleging a
violation of OAR 437-03-040 (1):  failure to protect from fall
hazards.  Because this was a repeat violation, he assessed a
$2,000 penalty.



	(7)  A prior citation alleging a violation of the same rule has
become final (Ex. 5).  



	(8)  Mr. Crawford was notified by another department employee
that employees had been observed working on the roof not tied
off.  He inspected the site several days later.  He testified
that he had other assignments, he was hoping no one would fall
off in the interim.  Mr. Dendauw, the foreman, testified that
most of the time the workers were on the leading edge, they were
tied off.  When laying insulation, they were not.  Mr. Solis was
unusually far out the day of the inspection.  Since the
insulation is yellow, the workers know that "When you step on
yellow, your're dead." 



                ULTIMATE FINDINGS OF FACT



	(1)  On June 14, 1991, two Bellet Construction employees were
working on an unguarded surface more than 10 feet above a lower
level.



	(2)  They were not connecting steel beams.



                          OPINION



	Plaintiff takes the position that all it needs to show is that
the employees were over 10 feet off the ground and not tied off.
 That is not what the rule provides.  OAR 437-03-040 (1)
provides:  "All employees shall be protected from full 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. . ."  



	The requirements for life lines, safety belts and lanyards are
specified in the following subsections adopted from 29 CFR. e
1926.104.  



	The rule requires that fall protection be provided.  It does
not specify that it must be provided in any specific manner. 
For example, another fall protection rule, not applicable here,
specifies methods of fall protection by utilizing the language
"as follows:", after which specific methods are enumerated.  See
OAR 437-03-075 (1).  



	See also OAR 437-03-075 (3), which uses almost the same
language as the instant rule, but continues:  ". . .shall be
protected from falling by the use of MSS system. . ."  



	In this case, all the workers were journeymen.  They knew the
danger:  "Step on the yellow and you are dead."  For the most
part they did tie off.  When they did not, they paid attention
to where they were walking.  Taking their expertise and
experience into account, Mr. Crawford did not rush right out to
the job site; he rated the risk of occurrence as low.



	Other fall protection rules that do specify methods of fall
protection allow employees to "work without a net," so to speak.
 A person connecting steel building skeletons is not required to
have fall protection.  OAR 437-03-040 (2).  A lookout is
sufficient for workers building uproots on buildings less than
50 feet wide.  OAR 437-03-075 (1)(c).  



	In summary, contrary to plaintiff's position, the way this
particular rule is written, it must prove not just that a worker
was not tied off, but that no fall protection whatsoever was
provided.  If it was reasonable for the SCO to rely on their
expertise as journeymen workers and delay his inspection for
several days, then it cannot be said that their expertise
provided no fall protection.



                         ORDER



	IT IS HEREBY ORDERED that Citation No. C5730-094-91 is
dismissed.



	You are entitled to judicial review of this Order.  Proceedings
for review are to instituted by filing a petition in the Court
of Appeals, Supreme Building, Salem, OR  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 Medford, Oregon on June 24, 1993



				WORKERS' COMPENSATION BOARD

				Stephen D. Brown, Referee