THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-92354

	Plaintiff 			)  Citation No. P6808-091-92


	Defendant 			)  OPINION AND ORDER

	This case was tried and closed September 16, 1993 in Salem,
Oregon before Referee Bruce D. Holtan.  Plaintiff, OR OSHA, was
present and represented by Thomas W. Cowan, assistant attorney
general.  Defendant, CSU Masonry, Inc., was not represented by
an attorney, but appeared through Terrance Uselman, president. 
Marlene Cromwell of Business Support Services recorded the

	Exhibits 1 through 9 were admitted into evidence.  


	1.  Defendant appeals Items 1-1 and 1-2 of Citation No.
P6808-091-92, issued August 4, 1992, involving alleged
violations of safety helmet and guardrail standards under OAR

                       FINDINGS OF FACT

	Mr. Uselman and the Safety Compliance Officer (SCO), Bill
Powell, were open, straightforward, and credible witnesses.  

	Mr. Uselman is president of CSU Masonry, Inc.  On July 1, 1992,
SCO Powell inspected a work site at 12115 SE Stevens Rd.,
Clackamas, Oregon.  Two employees were witnessed to be working
on a scaffold without wearing safety helmets.  Scaffold planks
and cement blocks were at or above the level of their heads.  

	A portion of the scaffolding had no guardrails in an area where
employees had loaded blocks.  The midrails were not secured to
the scaffolding.  


	Defendant appeals Item 1-1 of the citation involving the
alleged failure of employees to wear safety helmets pursuant to
OAR 437-03-001, 29 CFR 1926.100(a).  This safety rule provides
in pertinent part:

"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 No. 7-1, negative #6, shows two employees without protective helmets (hard hats) working on masonry on the first level of a three level scaffold. Cement blocks are stacked on the second level of the scaffold, at or above the height of the workers' heads. Defendant argues that the employees were in no danger because the scaffold and the blocks were stable. Plaintiff argues that the workers could bump their heads on the scaffold or the blocks, or that the blocks could fall and hit the workers on the head. I believe there is merit to the positions of each party. The standard, however, speaks of "possible danger of head injury." These qualifying words indicate that a broad application of the standard is intended. Certainly, the employees were in "possible danger" due to the height of the blocks and the scaffold, as can be seen in the picture. I, therefore, conclude that plaintiff has shown a violation of this standard. The defendant's argument is taken into account in the "Probability" rating of the violation as "low," the "Severity" as moderate," the classification as "general," and the absence of a monetary penalty. See OAR 437-01-145. Defendant appeals Item 1-2 of the Citation alleging a failure to have guardrails on a portion of the scaffold, or to have midrails secured on the scaffold, pursuant to OAR 437-03-001 [29 CFR 1926.451(a)(5)]. This standard provides in pertinent part:
"Guardrails shall be 2 x 4 inches, or the equivalent, approximately 42 inches high, with a midrail, when required . . . ."
Exhibit 7-1, negative #7, shows a portion of the scaffold without guardrails where employees loaded blocks. No evidence was presented to refute this alleged violation. In addition, both the safety compliance officer and Mr. Uselman testified that the midrails were not secured. Mr. Uselman explained that he had operated safely for many years without the midrails secured. Further, several previous OSHA inspectors had observed the midrails in the past, and had no problem with the setup. I fully accept his testimony as truthful. It does not, however, excuse a violation of the standards. The fact that claimant had not been cited before speaks more to the prior level of enforcement than to the existence of a violation. Again, the defendant's argument is reflected in the probability rating of "low," the severity rating of "moderate," the violation class of "general," and the absence of a monetary penalty. Items 1-1 and 1-2 of the Citation will be affirmed. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS: Citation No. P6808-091-92 issued August 4, 1992 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 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 DEC 17, 1993 WORKERS' COMPENSATION BOARD By Bruce D. Holtan Referee