THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH92163


	Plaintiff			)  CITATION NO.  C4016-016-92

 	v.				)               



	Defendant			)  OPINION AND ORDER

	Pursuant to notice, a hearing convened December 10, 1992 in
Portland, Oregon before Referee Michael V. Johnson and was
recorded by Laura McAfee of Harris Reporting Service. 
Plaintiff, Oregon Occupational Safety & Health Division
(OR-OSHA) was represented by Assistant Attorney General D. Kevin
Carlson.  Defendant P & C Construction Company was represented
by company safety director David Smejkal.  The record remained
open to permit OR-OSHA to provide Mr. Smejkal and the
undersigned referee a copy of exhibit 8, namely a copy of the
AIA Form A401, which had been identified as Exhibit 8.  The
record closed December 16, 1992 following receipt of the
referee's copy of said exhibit.  


	Whether the defendant employer should pay penalties because of
OAR 437-03-001 29 CFR 1926.500(b)(4), in that a skylight
openings was not guarded by a fixed standard railing or a cover
capable of sustaining the weight of a 200 pound person.  The
employer defends by asserting (1) there were other means
provided to protect a worker from falling through the skylight
opening and (2) if there was a violation, the responsibility
falls upon the subcontractor, Fred Shearer & Sons, and not upon
the employer.  The employer concedes that, if there has been a
violation, and if it is responsible for the violation, the
proposed penalty of $750 is correct. 


	At hearing, exhibits 1-7 submitted November 19, 1992 by OR-OSHA
and exhibit 8 submitted by the employer, were admitted into

                         FINDINGS OF FACT

	The employer is a construction company which is frequently
involved in remodeling classic older buildings.  The employer is
concerned about safety and typically provides full safety
protection for it's employees and for non-employed
subcontractors and their employees upon any premises for which
the defendant has responsibility.  At all material times herein,
the defendant had employees within the state of Oregon, and had
employees on the subject construction site.  

	December 1991, the defendant was the general contractor for the
renovation of the Old Governor's Hotel located in downtown
Portland, Oregon.  The hotel is approximately seven stories
high, and is constructed around a central "light well" which is
an open space extending from the ground level all the way to and
through the top level of the structure.  A low masonry wall, or
parapet surrounds the top of the light well, and provides some
protection against someone accidentally falling into the light
well.  Because the light well extends from the ground level
through the roof of the structure, there is a potential fall of
approximately 75 feet.  

	As is customary on a large construction project, various
subcontractors had agreed to perform certain parts of the actual
construction work.  One such subcontractor was Fred Shearer &
Sons, which had contracted to do the drywall work on the
construction project.  Fred Shearer & Sons agreed to conduct a
reasonably safe project, and to comply with "...applicable laws,
ordinances, rules, regulations and orders of public authorities
for the safety of persons or property in accordance with the
requirements of the Prime Contract."  (Ex. 8 p. 3)  The
subcontractor had also agreed as follows:  "...Subcontractor
shall use every device, care and precaution which it is
practicable to use for the protection and safety of life and
limb devices.  Without limiting the foregoing, subcontractor
shall provide protection to prevent damage, injury or loss to: 
(1) all employees on the work and all other persons who may be
affected thereby. ..." (Ex. 8 appendix A)

	Prior to December 12, 1991, the employer had constructed a
heavy wooden railing on the roof which surrounded the skylight
and was of a size and height appropriate to prevent workers from
accidentally falling into the opening.  Said safety railing had
remained in place until December 11, or 12, 1991.  On or about
December 12 the project called for a sheet metal subcontracting
company to come onto the roof and install a metal cap along the
low wall which surrounded the opening.  In order to accomplish
that, the general contractor removed the wooden railing which
had encircled the opening.  By that time it was expected that
Shearer & Sons would have completed it's project on the roof of
the structure and would not have been in the vicinity of the
now-open light well.  However, on the appointed day, and after
the railing had been taken down, employees of Shearer & Sons
went on the roof to take down scaffolding which they had used in
fulfilling their contract.  None of those workers used personal
safety devices which would have restrained them from falling
into the now-unguarded hole.  At that time a safety enforcement
officer from OR-OSHA entered onto the premises to conduct a
safety inspection.  As a result of her inspection and her
observation that there was an unguarded light well in the roof
of the hotel, and that there were workers in the vicinity, she
issued a Citation and Notice of Penalty.  


Safety alternatives

	The defendant argues that, because there was a raised parapet
around the opening into the light well, the structure, itself,
tended to prevent someone from accidentally falling into the
light well.  However, the height of the parapet was only
approximately 2 feet, which is exactly the height to trip a
worker who might accidentally back into that structure--rather
than provide protection against falling on over into the hole. 
It is true that there was a pile of lumber along one side of the
opening which, in fact, probably did prevent someone from
falling into the opening from that side, but that still left
many running feet of unprotected opening into which a worker
could have accidentally fallen.  

	The general contractor also was quick to point out how safe the
operations customarily are, and I would agree with that
assertion.  In fact, the OR-OSHA safety enforcement officer made
repeated references in her notes to the fact that this
particular company is well above average in its attention to
matters of safety and its provision of a safe working place for
its employees and other workers on the premises.  However, an
exemplary safety history does not rule out the possibility that
a violation may have occurred in a given instance.  

Subcontractor responsibility

	The primary argument made by the defendant is that it was up to
the subcontractor to comply with, and enforce, all safety
matters in relation to its own employees.  Exhibit 8 shows that
the subcontractor may well have promised to comply with all
safety regulations, but I do not find that excuses the general
contractor from its over-riding responsibility of seeing that
all workers on the premises are protected against unnecessary
hazards.  Therefore, I find that the defense does not excuse the
general contractor from its duty.  In this instance there was a
violation, and I find that the violation was the fault of the
general contractor, therefore, the citation is correct and the
employer must pay an appropriate fine.  

	It may also be true that under the working agreement between
the defendant and its subcontractors some indemnification may be
due the employer from the subcontractor whose actions led to the
citation.  However, that is a matter between the general and sub
contractors and does not excuse the general contractor from
paying the fine.  


	NOW, THEREFORE, IT HEREBY ORDERED that citation and notice of
penalty C4016-016-92 is affirmed.

	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

	ENTERED at Salem, Oregon, on January 14, 1993 


				By Michael V. Johnson