THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                  
Health Division				)  Docket No: SH92355

 	Plaintiff			)  Citation No.P9762-065-92 

	versus				)



	Pursuant to notice, a hearing was held and the record closed on
August l6, l993 in Eugene, Oregon.  The plaintiff, Oregon
Occupational Safety and Health Division (OR OSHA), was
represented by Thomas Cowan.  The defendant employer, Morse
Bros., Inc., was represented by Jeffrey Johnson.  The proceeding
was recorded by Deva Dice of Business Support Services.  


	On August 2, l993, the plaintiff moved to amend its citation to
reference the standard violated as "OAR 437-02-015," instead of
"OAR 437-02-020."  There being no objection, the motion to amend
is hereby granted.


	The employer challenges Citation No. P9762-065-92, issued by OR
OSHA on August 4, l993, which, as amended, alleges a violation
of OAR 437-02-020 and 29 CFR l9l0.26(c)(3)(iii), and imposes a
$500 penalty.  The employer is not contesting that the violation
as alleged is serious, the reasonableness of the penalty
assessed, or the abatement period.


	The parties stipulated that an injury occurred on April 29,
l992 when a ladder in use fell, resulting in injury to Kenneth

                      FINDINGS OF FACT

	Kenneth Dickson worked for the employer as a maintenance
supervisor.  On April 29, l992, he was replacing electrical
switches at a height of about nine feet from a portable aluminum
extension ladder.  The ladder feet were designed to be used on
wet surfaces and the tread was in very good condition.  

	Mr. Dickson placed the ladder feet on the wet, rough concrete
slab located underneath the equipment he was repairing.  The
ladder feet are of a type to be used on wet surfaces.  There was
no oily form release compound residue directly underneath the
ladder's feet.  Mr. Dickson looked at the ladder feet and shook
the ladder to test the ladder footing.  The fourth time he
climbed the ladder that morning, the feet of the ladder slipped
out.  Mr. Dickson fell, sustaining multiple severe injuries.  

	The employer had knowledge of where Mr. Dickson was working and
the site conditions, what work he was performing, and how he was
performing it.  

	All witnesses were credible.  


	OR OSHA has the burden of proving a violation, Accident
Prevention Division v. Sunrise Seed Company, 26 Or App 879
(l976); OAR 438-85-820(1), by a preponderance of the evidence,
OAR 438-85-820(4).  A preponderance of the evidence means the
greater weight of the evidence, i.e., such evidence that, when
weighed with that opposed to it, has more convincing force and
is more probably true and accurate.  Riley Hill General
Contractor v. Tandy Corp., 303 Or 390, 394 (l987).

	The resolution of this case hinges upon a factual determination
of whether the ladder base section was placed on a secure
footing.  See OAR 437-02-020 and 29 CFR l9l0.26(c)(3)(iii).

	I first address the hearsay evidence of Maggie Kiser.  Her
statements, made through compliance officer Michael Patterson,
are neither reliable nor probative.  Ms. Kiser's statements
regarding mud making the area slippery is contradicted by the
photographic evidence (Exhibit l6 and l7) and is not
corroborated by any of the other individuals on site immediately
or shortly after the accident occurred.  Moreover, her
statements do not address the question of the location of the
ladder feet.  

	Cement trucks are filled with cement on the concrete slab where
Mr. Dickson fell.  There is no question but that an oily form
release compound drips off of the cement trucks onto the
concrete slab.  There also is no dispute that puddles form on
the concrete slab.  Additionally, there is no dispute that the
concrete slab is hosed down with lukewarm water at the end of
each work day.  Finally, there is no dispute that the accident
occurred prior to cement truck use of the concrete slab that

	I weigh the disputed evidence.  On the one hand, the compliance
officer wrote that it was difficult to determine what actually
caused the ladder to fall.  He testified that he did not know
exactly where the ladder was positioned, whether the oily
looking substance on the puddles was slippery, or what caused
the ladder to kick out.  Richard Imper, General Manager and Vice
President of the prestress plant where the accident occurred,
testified that some areas in the vicinity of the accident were
slippery if one stood there and tried to rub.  

	On the other hand, Mr. Imper testified that the oily substance
was tracked into the area after the accident occurred.  Dale
Burris, the first person to arrive at the accident site, did not
see any oil on the wet concrete slab.  Additionally, the
accident occurred at about 8:40 a.m., after the area had been
hosed down with lukewarm water the prior evening and before the
cement trucks used the concrete slab that day. 

	Moreover, there is also the direct and uncontradicted testimony
of Kenneth Dickson that, even though the surface was wet (as
compared to puddled), there was no oily form release compound
residue directly underneath the ladder feet or on the puddles on
the slab.  (If oily residue was present at the time of the fall,
it should have been as apparent on the wet surface to Mr.
Dickson and Mr. Burris as it was at other times to the
compliance officer.)  Mr. Dickson was the only truly competent
witness, i.e., the only witness who had actual knowledge of the
exact nature of the footing.  Based on Mr. Dickson's personal
observation, the ladder was placed on secure footing. 
Furthermore, Mr. Dickson was not under such time pressure that
it interfered with his ability to perceive.      

	I decline to go beyond the record to make suppositions
regarding whether the oily form release compound residue was
removed with only lukewarm water.  See OAR 438-85-865(2).

	On this record, the evidence most favorable to OR OSHA requires
me to make an inference that the ladder was placed on slippery
footing.  In contrast and by comparison, the employer presented
direct evidence from the only eye witness that the ladder was
placed on secure, albeit wet, footing.  On this record, I do not
find that it is more likely than not that the ladder was not
placed on a secure footing.  OR OSHA has not carried its burden
of proof.  Consequently, I conclude the citation and notice of
penalty is improper.  


	IT IS HEREBY ORDERED that the Citation and Notice of Penalty
No. P9762-065-92 issued on August 4, l992 is disapproved and set
aside 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

	ENTERED at Salem, Oregon SEP 15, 1993


				By I. Terri Myzak