THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92181

	Plaintiff			)  Citation No. L626003692

	vs.				)


	Pursuant to Notice a hearing convened January 12, 1993 in
Salem, Oregon before Michael V. Johnson and was recorded by
Diane Kliewer. Plaintiff, Occupational Safety & Health Division
(OROSHA) was represented by certified law student Eric J. Stoop.
Defendant, Harlow S. Harris, dba Willamette Masonry, was
represented by Harlow S. Harris. Mr. Harris was fully advised of
the contents of ORS 183.413. The record remained open at the
conclusion of the hearing and closed March 10, 1993 when it was
finally decided that certain photographs Mr Harris had seen
during an Informal Conference were no longer available. No
affected parties, pursuant to OAR 438-85-411, elected to appear
as parties.

	This is a contested case under the Oregon Safe Employment Act,
ORS 654.


	Accuracy of Citation Optional Report No. L626003692:

(1) Whether the defendant employer violated OAR 437-03-001 29
CFR 1926.451(a)(4) by failing to provide standard guard rails
and toe boards on all open sides and ends of Platforms more than
10 feet above the ground.

(2) Whether the defendant employer violated OAR 437-03-001 29
CFR 1926.451(a)(13) by failing to provide an access ladder or
equivalent safe access route to scaffolding.

(3) If the employer violated either of said standards, whether
$500 respectively is an appropriate penalty.


	At hearing, the following exhibits were admitted into evidence:
1-7 submitted 12/31/92 by OROSHA; 8, a sketch of the premises;
9, a 5/23/92 letter submitted by the defendant.

                        FINDINGS OF FACT

	The defendant is a business organization doing business within
the state of Oregon and maintaining at least one employee at all
relevant times.

	During early 1992, a new office building was being constructed
in Salem, Oregon at 380 Vista Avenue. Pence/Kelly Construction,
Inc. was the general contractor, and Willamette Masonry was one
of several sub contractors.

	By mid February 1992, Willamette Masonry had constructed most
or all of the block walls on the site. The walls varied in
height between twelve to thirty-six feet. As the walls were
constructed, the blocks were initially mortored together, and
then after several courses of block had been laid, grout was
applied in the spaces between the blocks. The addition of the
grout greatly increased the structural strength of the wall.
During the course of actually constructing each wall, standard
scaffolding was erected along the face of the wall to enable the
masonry work to be performed at ever-increasing height. By the
time a full wall was constructed, there was a set of scaffolding
extending from the ground level to the top of the wall. While
the work on a wall was ongoing appropriate safety railings and
toe bars were installed on the working surface of the
scaffolding and appropriate ladders were attached to the
scaffolding structure to enable safe access to, and egress from,
the working level of the scaffolding.

	On the evening of February 17, 1992, a thirty-six foot high
wall had been constructed, but the upper twelve feet of the wall
had not yet been grouted. The employer planned to do the
grouting the following day. By that time there was a structure
of scaffolding extending the entire length and height of the
wall. Said scaffolding had been equipped with appropriate safety
railings, toe bars, and ladders. However, on the morning of
February 18, 1992, the weather was wet and windy, with
occasional gusts of wind up to approximately 45 miles per hour.
The employer was concerned that a gust would topple the recently
constructed wall because it was not as stable as it would
subsequently be after grout was applied. Therefore, employer
Harlow Harris and employee, Randy Marsh, brick mason, went to
the premises early in an effort to devise some sort of a brace
or other restraining device to prevent the wall from being blown

	When the employer and Mr. Marsh arrived on the premises they
immediately rested the boom of a tall crane across the top of
the wall to provide some stability and also raised the mast of a
large forklift and used the forks to help stabilize the wall.
(Ex. 54) They then quickly set about designing some more
permanent means of bracing the unfinished wall. They decided to
erect a descending framework of scaffolding on the leeward side
of the wall and thus provide a stable structural brace to
stabilize the wall. (Ex. 8) The scaffolding already in place was
to serve as the first, and highest, tier in the new wedge-shaped
structure. In the course of erecting the additional scaffolding,
the safety devices were removed from the original scaffolding
which still stood next to the working face of the wall, and then
the entire bottom row of new scaffolding was erected to form the
base of the triangle. Next the second level was constructed, and
so on. During the course of constructing the bracing framework,
no safety devices were installed, especially including ladders,
safety railings, or toe boards.

	While Mr. Harris and Mr. Marsh were rapidly constructing the
supporting scaffolding, safety compliance officer Bruce F.
Lawson arrived on the premises to perform a safety inspection.
He observed Mr. Harris and Mr. Marsh clambering up and down the
scaffolding as it was being erected. Lawson spoke to Harris who
agreed the situation was hazardous, but asserted that while
scaffolding was under construction, none of the standard safety
devices needed to be installed. The situation was immediately
corrected in that Harris called Marsh down from the scaffolding,
so the employee was no longer in danger.

	Safety Compliance Officer Lawson returned to his office and,
after working through the appropriate procedure, issued Citation
Optional Report No. L626003692 on March 11, 1992. (Ex. 1)

	It is an "accepted practice" within the construction industry
that while a scaffold is being erected or dismantled, the person
erecting or dismantling the scaffolding system need not comply
with the relevant guarding, planking and access rules. OROSHA
also accepts that practice. There is a proposed federal standard
which will soon "codify", and thereby "validate", said accepted
practice. (Ex. 9)


	OROSHA is well aware of the accepted practice that while
scaffolding is being constructed, otherwise mandatory safety
devices need not be employed. OROSHA's concern, therefore, is
not in relation to the scaffolding which Harris and Marsh were
hastily erecting on the morning of February 18, 1992.

	The onus of the citation is in relation to the scaffolding
which had been erected during the preceding several days as the
wall was constructed to the height of thirty-six feet, yet which
did not have the appropriate safety devices affixed at the time
the safety compliance officer came onto the premises. OROSHA
contends that said scaffolding was not actually under
construction, because it had been in place at least overnight.
For that reason, OROSHA contends that section of the scaffolding
must comply with the applicable safety requirements regardless
of the fact that additional scaffolding was being erected next
to it. The employer responds that in order to erect the
additional scaffolding, the new scaffolding had to be physically
attached to said existing scaffolding. The employer asserts that
in order to link the new scaffolding with the old, the safety
equipment had to be removed, and that it was solely for that
reason that the previously attached safety devices had been
deliberately removed. The employer further argues that as the
work on the new structure began, the original tower of
scaffolding also came under construction and, therefore, it was
not required to contain the appropriate safety devices.

	I find this to be an interesting case and a very close
decision. Both points of view were ably presented, and I
certainly feel well advised in the matter. I agree that, in
theory, perhaps the existing safety devices did not have to be
removed from the existing tower of scaffolding in order to
construct the new bracing structure. On the other hand, however,
I am also persuaded that what was being constructed was a new
scaffolding system which only incidentally utilized the existing
tower of scaffolding and which, in its entirety, constituted
"new construction". It appears that the employer was correct in
attending to the construction of the scaffolding without
affixing safety devices as the construction proceeded and was
also correct in removing the existing safety structures from the
preexisting tower. Therefore, though I do find this to be a very
fine line, I conclude that OROSHA has not met its burden of
proof by establishing that the employer violated either of the
two cited safety standards.


	NOW, THEREFORE, IT IS HEREBY ORDERED that Citation and Notice
of Penalty No. L626003692 is DISMISSED WITH PREJUDICE.

	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 March 11, 1993 


				By Michael V. Johnson