BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92327

					)  Citation No. A879506692

	Plaintiff			)

A & C Masonry Inc., Defendant		)  OPINION AND ORDER



Pursuant to notice, hearing was held on April 28, 1993, in
Portland, Oregon. Kevin Shuba, Assistant Attorney General,
represented the Oregon Occupational Safety and Health Division.
Chuck Kenney, president of A & C Masonry, represented the
defendant company. Exhibits l10 were admitted into evidence at
hearing and the parties have copies. The record was closed on
day of hearing. At hearing, OSHA withdrew item 25 on Citation
No. A879506692.



                         ISSUES:



The defendant contests the violations cited in items l-l, 1-2
1-3 and 2-4 of Citation No. A879506692   The defendant does not
contest the penalty calculations, but just that the violations
occurred,



                         FACTS:



A & C Masonry is an Oregon corporation that is involved in brick
construction projects. Chuck Kenney is president of the
corporation and owns half of the stock. Andrew Beck is the
secretary treasurer and owns the other half of the stock.
Depending upon the profits, the owners are paid as either
employees or receive distributions. The number of employees
varies from two to four.



In early May 1992, A & C Masonry was involved in building a
brick wall on S. W. Pacific Highway in Tigard, Oregon. On May 7,
1992, Leslie Anderson, a safety compliance officer with OROSHA
was doing an area check of construction sites, when she noticed
that the scaffolding at the A & C Masonry project was not up to
code. She noticed and took pictures of the scaffolding. There
were two workers at the site besides the owners, Gary Beck and
Scott Kenney, the sons of the owners. The compliance officer saw
and photographed the workers on the scaffolding without hard
hats. She also saw one worker climb the end of the scaffolding.



The compliance officer held an opening conference where she
informed the employer about the violations and asked questions
about a written hazardous communication program. The owner made
certain admissions during this conference and then made some
corrections. The compliance officer then took some pictures of
the scaffolding after changes had been made.



                         OPINION:



l) Item l-l, violation of OAR 437-03-001. 29 CFR 1926.451 (d)
(10). serious, fine $75.



OROSHA alleges that the scaffolding was not safe or in
accordance with the standards because it did not have guardrails
and toeboards, but just some cross bars for protection.



The standard provides:



"Guardrails made of lumber, not less than 2 x 4 inches (or other
material providing equivalent protection), and approximately 42
inches high, with a midrail of lx6 inch lumber (or other
material providing equivalent protection) and toeboards, shall
be installed at all open sides and ends on all scaffolds more
than 10 feet above the ground or floor. Toeboards shall be a
minimum of 4 inches in height. Wire mesh shall be installed in
accordance with paragraph (a) (6) of this section." (exhibit 9
page 198)



The height of some work areas on the scaffolding exceeded ten
feet. The photographs of the work site and scaffolding taken by
the compliance officer prior to corrections demonstrate the
violation of this standard (exhibit 8). The employer contended
that the cross bars were sufficient protection, but the
compliance officer testified that there needed to be a guardrail
in conjunction with the cross bars. The purpose of this
regulation is to prevent falling to the ground. A fall from ten
feet could result in serious injury.



The employer admitted that it had no toe boards on the
scaffolding and again the photographs taken of the scaffolding
demonstrate no toe boards (exhibit 8). The purpose of this part
of the standard is to prevent materials from dropping on
workers' below. The employer's defense that he had never had an
accident and that he felt that toeboards were more of a safety
hazard from possibly tripping on them is no defense to the
violation of this standard. Again serious injury could result
from the 10 pound bricks that were being used on this project
fallinq on workers.



2) Item 1-2 violation of OAR 437-03-001 29 CFR 1926.451 (a)
(13). serious $75 fine.



OROSHA alleges that there was no access ladder or equivalent
safe access to the scaffolding so that employees had to climb
the end of the scaffold with irregular steps, one of which was
3.5 feet.



The standard provides:



"An access ladder or equivalent safe access shall be provided."
(exhibit 9 page 190)



The photographs (exhibit 8) reveal that there was no scaffolding
ladder and the owner admitted that there was none. The
compliance officer noticed a worker use the end of the
scaffolding. The first step to the curved end of the scaffolding
was over 3.5 feet as was the step for each section. In addition,
the end of the scaffolding used as a ladder was narrow, which
also made the end of the scaffolding not safe to use as a
ladder. A worker could lose his balance and fall, resulting in
serious injury. The employer's defense that the end ladders or
the use of an aluminum ladder wired at the top might provide
other safety problems is no defense to the violation of this
standard.



3) Item 1-3, violation of OAR 437-03-001. 29 CFR 1926.100 (a).
serious, $75 fine.



OROSHA alleges that employees were working without hard hats in
violation of the standard.



This standard provides:



"Employees working in areas where there is a possible danger of
head injury from impact, or from falling or flying objects, or
from electrical shock and burns, shall be protected by
protective helmets." (exhibit 9 page 98)



The compliance officer testified that she was on the job site
for 10 minutes and observed employees working in and around the
scaffolding where there was a danger of falling and from falling
bricks and tools, but did not see any employee wear a hard hat
before the opening conference. There was one hard hat, hanging
on the scaffolding. She took pictures that demonstrated some
employees working without hard hats (exhibit 8). If bricks or
other materials fell on employees or if they fell, they could be
seriously injured. The employer's testimony that they had just
returned from lunch and had not put on their hard hats yet, is
no excuse for violation of this standard. After the opening
conference, the employees went to the truck and then wore hard
hats. Even a few minutes of working without hard hats posed a
danger.



4) Item 2-4. violation of OAR 437-03-001 (e) (l). general no
fine.



29 CFR 1926.29



OROSHA alleges that the employer did not have a fully developed
written hazard communication program when the workers were
exposed to hazardous chemical including dolomitic lime and acid
finishes



The standard provides:



"Employers shall develop, implement, and maintain at the
workplace, a written hazard communication program for their work
places which at least describes how the criteria specified in
paragraphs (f), (g), and (h) of this section for labels and
other forms of warning, material safety data sheets, and
employee information and training will be met, and which also
includes the following:



(i) A list of the hazardous chemicals known to be present using
an identity that is referenced on the appropriate material
safety data sheet (the list may be compiled for the workplace as
a whole or for individual work areas); and,



"The methods the employer will use to inform employees of the
hazards of non-routine tasks (for example, the cleaning of
reactor vessels), and the hazards associated with chemicals
contained in unlabeled pipes in their work areas." (exhibit 9
Page 83.



The owners admitted during the opening conference and later that
they did not have a written hazard communication program. It was
established that at least Dolomite lime was used by the
employers. The purpose of this standard is to warn employees so
that they can protect themselves from the use of the hazardous
chemicals. The employer's statement that he had worked in the
industry and had no adverse affects from the use of lime or
acids, even when he got them in his eyes, is no defense for
violation of this standard.



                         ORDER:



IT IS THEREFORE ORDERED that Items 1-1, 1-2, 1-3 and 2-4 of
Citation No. A8795-066-92 are affirmed and Item 2-5 is dropped.



NOTICE TO ALL PARTIES



If you are dissatisfied with this Order, you may, not later than
sixty (60) days after the mailing date on this Order, request a
review by the Court of Appeals, Third Floor, Justice Building,
Salem, OR 97310, pursuant to ORS 656.740(4) and 183.480 et seq.
A request for review shall be mailed to the Court of Appeals at
the above address with copies of such request mailed to all
other parties to this proceeding. Failure to mail such a request
for review within sixty (60) days after the mailing date of this
Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER



	ENTERED at Portland, Oregon, on MAY 04 1993 



				WORKERS' COMPENSATION BOARD

				VINITA J. NEAL

				Referee