BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92179 

	Plaintiff			)  CITATION NO: L626002392

PENCE/KELLY CONSTRUCTION, INC.		)

	 Defendant			)  OPINION AND ORDER



                        INTRODUCTION



	Hearing convened on December 9, 1992. Oregon OSHA was
represented by Mr. Norman F. Kelley. Mr. Terry J. Kelly,
Vice-President of Pence/Kelly Construction, Inc., appeared at
the hearing, and Pence/Kelly Construction, Inc., was represented
by Mr. Glen Starks of Associated General Contractors. Business
Support Services, Salem, Oregon, recorded the proceeding.
Exhibits 1 to 10 were received in evidence. The record closed
December 9, 1992.



                         ISSUES



	The propriety of Citation No. L626002392, Item 1-1, violation
of OAR 437-03-001, a serious violation, with a penalty
assessment of $75, for failure of the employer to protect
employees from potential eye or face injury from physical,
chemical, radiation agents, when pouring concrete and operating
a concrete vibrator.



                       FINDINGS OF FACT



	The Prudential Real Estate building was being constructed at
340 Vista Avenue, Salem, Oregon. Pence/Kelly Construction, Inc.,
was pouring concrete. PCP Concrete Pumping Company furnished the
concrete. The concrete was mixed from Portland cement. Mr. Bruce
Ferguson, an employee of Pence/Kelly Construction, Inc., was
using a concrete vibrator to consolidate the concrete mix. Mr.
Ferguson, when performing the work duties, was not wearing
protective eye goggles or safety glasses. Mr. Lawson, an Oregon
OSHA Compliance Officer, observed Mr. Ferguson using the
concrete vibrator. Mr. Lawson recommended that Pence/Kelly
Construction, Inc., be cited for a violation of OAR 437-03-001,
29 CFR 1926.102(a)(1), a serious violation, because Mr. Ferguson
was not wearing eye protection devices, i.e., goggles or safety
glasses, to protect from potential eye injury due to splatters
of wet cement in connection with use of the concrete vibrator or
from the pumping truck. On February 26, 1992, Citation No.
L626002392 was issued. A penalty assessment of $75 was levied.



	The violation was corrected at the time of the inspection of
January 13, 1992. Mr. Lawson advised Mr. Ferguson of the
problem. Mr. Ferguson immediately obtained his protective
goggles or safety glasses which Pence/Kelly Construction, Inc.,
had provided him and began wearing the safety devices, with
continued use of the concrete vibrator.



	The concrete is mixed with Portland cement, sand, rock, gravel
and chemical additives. Portland cement contains hazardous
ingredients, and is capable of causing eye injury to the cornea
of the eye, if splashed in the eye. Portland cement can cause
caustic or alkali burns to the eye and irritate the eyes
(Testimony of Mr. Lawson and Exs. 8 & 9).



	Pence/Kelly Construction, Inc., among other things, provides
its employees hard hats, gloves, hearing protection devices and
eye protection devices. Eye protection devices are required to
be used when cutting metal objects, grinding, chipping and
welding. Eye protection devices are not required to be used when
pouring concrete and using a concrete vibrator because no
industry standard calls for such use of eye protection devices,
and Associated General Contractors and SAIF Corporation, safety
consultants to Pence/Kelly Construction, Inc., have never
advised Pence/Kelly Construction, Inc., eye protective goggles
or safety glasses were required when pouring concrete and using
a concrete vibrator. In fact, Pence/Kelly Construction, Inc.,
has poured some 300,000 yards of concrete since 1980, without
any eye injuries to employees pouring or working concrete
(Testimony of Mr. Kelly).



	Mr. Kelly, Vice-President and Field Operations Superintendent,
has observed other employers allegedly violate OAR 437-03-001,
29 CFR 1926.102(a)(1), when Oregon OSHA Safety Compliance
Officers were on the job site. Oregon OSHA did not cite the
other employers for failure of employees to wear eye protective
devices when pouring or mixing concrete (Testimony of Mr. Kelly).



	Mr. Lawson has been employed as an Oregon OSHA Safety
Compliance Officer for three years. Citation No. L626002392
issued to Pence/Kelly Construction, Inc., for violation of OAR
437-03-001 is the only citation Mr. Lawson has issued to an
employer for an employee's failure to use eye protective devices
when pouring or mixing concrete (Testimony of Mr. Lawson).



               CONCLUSIONS OF LAW AND OPINION



Credibility



Mr. Lawson, based on demeanor, is a credible witness.



Mr. Kelly, based on demeanor, is a credible witness.



Citation No. L626002392



	Citation No. L626002392, Item 1-1, violation of OAR 437-03-001,
29 CFR 1926.102(a)(1), should be vacated and set aside.



	The rule, 29 CFR 1926.102(a)(1), by its terms, requires that an
employer shall provide employees with eye and face protection
equipment when machines or operations present a potential eye or
face injury from physical, chemical, or radiation agents. The
rule in question is a federal rule promulgated by the Federal
Occupational Safety & Health Administration and adopted by
Oregon OSHA of the State of Oregon. OAR 437-03-001. Given this,
the interpretation placed on the rule by the federal government
should be considered persuasive in determining the application
of the rule. Oregon Occupational Safety and Health Division v.
PGE Company, 119 Or App 17 (1993). The cases cited by Mr. Kelley
at hearing establish that the federal government interprets the
rule to mean that the employer is not only required to provide
an employee with eye and face protection equipment but, in
addition, must also enforce the use when machines or operations
present Potential eye or face injury from physical. chemical. or
radiation agents. Accordingly, I so interpret the rule.



	The interpretation by the Referee, however, does not help
Oregon OSHA in sustaining the validity of the Citation No.
L626002392.



	Mr. Lawson issued the citation because he felt the work site
operation, including Mr. Ferguson's use of the concrete
vibrator, presented a situation for potential eye or face injury
from physical, chemical, or radiation agents. Mr. Lawson relied
primarily on his personal experience as a concrete laborer over
the years to reach the conclusion. He did not know the horse
power or frequency of the vibrator used, nor did he know the
slump which determines the strength of the concrete (Testimony
of Mr. Lawson).



	I am not persuaded that the work site operations, including the
use of the concrete vibrator by Mr. Ferguson, presented a
situation for potential eye or face injury from physical,
chemical, or radiation agents. The vibrator consolidates the
concrete mix. The type vibrator used by Mr. Ferguson does not
displace concrete or cause splatters. A shaking motion is
involved, not a throwing motion (Exhibit S and Testimony of Mr.
Kelley). I also consider other factors to be of importance when
making this determination. There is no industry standard for the
use of eye protection devices when pouring concrete and using a
concrete vibrator. The Association of General Contractors and
SAIF Corporation, Pence/Kelly Construction, Inc., "consultants"
on safety, did not advise Pence/Kelly Construction, Inc., to use
protective goggles or safety glasses when pouring concrete and
using a concrete vibrator. Pence/Kelly Construction Company has
poured some 300,000 yards of concrete since 1980, without any
eye injuries to employees pouring or working concrete. Mr.
Lawson, in his three years as an Oregon OSHA Safety Compliance
Officer, has issued only one citation for alleged violation of
OAR 437-03-001, 29 CFR 1926.102(a)(1), and that is the citation
in dispute in this case. Last, it is apparent that employees of
PCP Concrete Pumping Company were on the job site, exposed to
the same alleged hazard as Mr. Ferguson, and were not wearing
eye protective devices. Mr. Lawson, for reasons not revealed by
the record, did not cite PCP Concrete Pumping Company for
violation of the rule in question.



	Given the above, I conclude the work site operations of January
13, 1992, when Mr. Ferguson was using the concrete vibrator, did
not present a situation where there was a potential for eye or
face injury from physical, chemical, or radiation agents and,
accordingly, OAR 437-03-001, 29 CFR 1926.102(a)(1), has no
applicability to the facts of this case. I am of the opinion
Citation No. L626002392, Item 1-1, is invalid, and should be
vacated, set aside and held for naught.



                         ORDERS



	NOW, THEREFORE, IT IS HEREBY ORDERED Citation No. L626002392,
Item 1-1, serious violation of OAR 437-03-001, 29 CFR
1926.102(a)(1), including the penalty assessment of $75, is
vacated and set aside.



	IT IS FURTHER ORDERED any and all relief requested by Oregon
OSHA, Department of Insurance and Finance, is denied.



	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
183.482.



	ENTERED at Salem, Oregon, on MAY 14 1993 



				WORKERS COMPENSATION BOARD

				BY T. LAVERE JOHNSON