BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92301

	Plaintiff,			)

		vs.			)  Citation No. P680806792

BROWN'S SHEETMETAL INC			)

	Defendant			)  OPINION AND ORDER



A hearing was held on March 22, 1993 in Portland, Oregon.
Plaintiff was represented by Eric Stoop, authorized law student.
Marc A. Brown appeared for defendant.



                         ISSUE



Defendant challenges items 1-1 and 2-2 of Citation No.
P680806792 issued on May 28, 1992. Defendant does not contest
the penalty calculation.



                      FINDINGS OF FACT



On May 4, 1992 Marc A. Brown, president of Brown's Sheetmetal
Inc., and two employees were working on the roof of a church
being built in Lake Oswego. The roof was approximately 20 feet
high.



The roof itself had different levels with about 32 to 34 inches
between them. See Exhibit 6. There was no ladder, stairway,
ramp, runway, sloped embankment or personnel hoist between the
different roof levels and the employees stepped or jumped up and
down when going between them.



Someone had installed a warning line system on the roof but in
some areas it was down and in others it was less than 6 feet
from the edge of the roof. The employees had a rope fall
protection system with them with the rope tied around the air
conditioning system as the anchor. See photos, Exhibit 62.



Other trades worked on the roof before defendant and had left
debris such as pieces of lumber, plastic and nails. Brown
determined that the roof needed to be cleaned up before they
could do their work. He also felt it was unsafe to do this work
wearing the rope fall protection because the rope might catch on
some of the debris. He directed the employees to unhook the rope
protection. They then worked walking around on the roof,
including near the edge, doing the cleanup work without any
protection from fall hazards.



                     OPINION AND CONCLUSION



Citation 1-1



OAR 436-03-001, 29CFR 1926.1051(a) provides:



"A stairway or ladder shall be provided at all personnel points
of access where there is a break in elevation of 19 inches (48
cm) or more, and no ramp, runway, sloped embankment, or
personnel hoist is provided."



There was a break in elevation between sections of the roof of
more than 19 inches and defendant's employees moved between
these areas while performing their duties. No stairway or ladder
was provided. This work was done in violation of OAR 436-03-001,
29CFR 1926.1051(a).



Citation 2-2



OAR 437-03-040(1) provides:



"All employees shall be protected from fall 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 as stipulated in OAR 437-03-040(2)."



Brown determined that it was unsafe to do the cleanup work
wearing the rope fall protection. The safety compliance officer
does not disagree. Brown objects to the citation, in part,
because other companies made the mess and it was necessary for
him to clean it up, yet neither other subcontractors nor the
general contractor were cited.



ORS 654.010 requires that:



"Every employer shall furnish employment and a place of
employment which are safe and healthful for employees therein,
and shall furnish and use such devices and safeguards, and shall
adopt and use such practices, means, methods, operations and
processes as are reasonably necessary to render such employment
and place of employment safe and healthful, and shall do every
other thing reasonably necessary to protect the life, safety and
health of such employees."



The work that took place on the roof doing the cleaning up
involved employees walking around on the roof, including close
to the edge, without fall protection. This was in violation of
the cited rule. Notwithstanding that defendant was faced with
cleaning up someone else's mess, it has not shown that
compliance with the rule would have created a greater hazard to
employees or that it would have been impossible to comply with
the rule. The evidence is that alternate fall protection devices
could have been utilized.



The safety provision required fall protection for the work being
done. The employees worked without such protection. Citation 22
is affirmed. Oregon Occupational Safety and Health Division v.
RediRooter, 112 Or App 40 (1992).



                         ORDER



IT IS HEREBY ORDERED that Citation P680806792 is affirmed in its
entirety.



NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition to the State Court Administrator, Record
Section, 1163 State Street, 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 Portland, Oregon on April 8, 1993



				WORKERS COMPENSATION BOARD

				ALBERT L. MENASHE, Referee