THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92358


		Plaintiff 		)  Citation No. D6898-089-92




		Defendant 		)  OPINION AND ORDER

	Pursuant to notice, a hearing was held in the above matter on
July 28, 1993, in Salem, Oregon, before Referee Donna Garaventa.
 The Plaintiff, Oregon Occupational Safety and Health Division
(hereinafter Or OSHA), was represented by Christopher R. Burke,
a certified law student under the supervision of Kevin Shuba,
Assistant Attorney General.  The Defendant, Phase I
Construction, Inc., was represented by Glen R. Stark.  The
proceedings were recorded by Diane Bachmeier of Business Support

	No affected employees elected to appear as parties pursuant to
OAR 438-85-411.

	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to 654.295 and 654.991.


	Exhibits 1 through 7 were received into evidence.


	Defendant contests Item 1-1 of Citation No. D6898-089-92. 
Defendant denies that the alleged violation occurred, but admits
that, if the citation is affirmed, the proposed penalty is

                        FINDINGS OF FACT

	On May 21, 1992, Lynn DeSpain, a safety compliance officer for
Or OSHA, conducted a safety inspection at 2270 Commercial St.
S., Salem, Oregon, where Phase I Construction, Inc. was
constructing a two-story building.  The inspection was prompted
by DeSpain's supervisor, John Murphy, who had driven by the site
at approximately 7:15 a.m. and noticed several unguarded
openings in walls on the second level of the building under

	DeSpain arrived at the site at approximately 8:30 a.m., and
noticed five employees working on the second level of the
building installing interior walls.  He was approached by Bruce
Davidson, the superintendent of Phase I Construction, who was on
site.  DeSpain identified himself and conducted an opening
conference with Davidson.  Davidson then accompanied DeSpain on
the inspection.

	The outside walls of the building had been raised and braced
that morning and at the time of the inspection, interior walls
were being installed to stabilize the outer walls.  There were
six openings less than three feet above the ground with a drop
of more than four feet.  The openings were marked for guarding,
but no guards were in place.  

	The framing of the building had been sub-contracted to Joe
Koenig Construction.  Koenig and one worker were working at the
far end of the building away from the hazard.  Three workers
were working within 20 feet of the hazard.

	When the hazard was pointed out to Superintendent Davidson,
Davidson directed Koenig to put the guardrails up.  It was done

	Following the inspection, a closing conference was held with
Davidson and Steve Rux, the owner of Phase I Construction.  Or
OSHA issued Citation No. D6869-089-92, which alleged a violation
of OAR 437-03-001, CFR 1926.500(c)(1), and assessed a penalty of
$75 against Phase I Construction.

	Defendant timely appealed the citation.


	OAR 437-03-001 adopts the Federal safety and health code for
floors and wall openings, 29 CFR 1926.500(c)(1), which requires
guarding of wall openings from which there is a drop of more
than 4 feet, and the bottom of the opening is less than 3 feet
above the working surface.

	At the time of the inspection, there were six wall openings
which met the requirement for guarding under the code.  The
openings were not guarded.

	Phase I Construction asserts two theories of defense.  First,
it argues that it was not the employer responsible for complying
with the safety code.  Second, it contends that the code was not

	With respect to the employer's first argument, Phase I contends
that Koenig, the subcontractor, was responsible for compliance
with the safety code.  

	There are no statutes, administrative rules, or Oregon court
decisions directly addressing responsibility on multi-employer
cases.  However, assistance can be gained from judicial
interpretation of the code in the federal system.  See
McKean-Coffman v. Employment Div., 312 Or 543, on remand 314 Or
645 (1992); Karsun v. Kelley, 258 Or 155 (1971); Oregon
Occupational Safety v. PGE, 119 Or App 17 (1993).

	In cases involving multiple employers, the Federal Occupational
Safety & Health Review Commission (Commission) has consistently
held that the responsibility for complying with the safety code
lies with the party having control over the worksite.  See
Secretary of Labor v. MLB Industries, Inc., OSHC No. 8309231,
OSHD Paragraph 27,408 (1985); Grossman Steel & Aluminum
Corporation v. Secretary of Labor, 4 OSHC 1185 (1975); Secretary
of Labor v. Frank J. Rooney, Inc., 14 OSHC 1959 (1990).

	In the present case, Defendant's superintendent represented to
the inspector, at least by his actions, that he was in charge of
and controlled the worksite.  He presented himself to the
inspector, participated in the opening and closing conferences,
and accompanied the inspector on the inspection.  At no time did
he indicate that he was not responsible for the conditions on
the site.  In fact, when the hazard was pointed out, he
instructed the sub-contractor to install the guards and it was
immediately done.  

	I find that, at the time of the inspection, Phase I
Construction was in control of the worksite and was, thus, the
party responsible for complying with the safety code.

	With respect to its second argument, Defendant contends that it
had begun installation of the guards and that the code was not
violated.  Specifically, it argues that the walls had just been
raised and the openings marked, but that the guards could not be
installed until the walls had been properly secured.

	At 7:15 a.m., when Murphy drove by the site, walls were in
place and were braced.  When DeSpain arrived at 8:30 a.m., all
walls were up and braced, and workers were installing interior
walls.  Still, no guards on the outside wall openings were in

	DeSpain testified that guards are not expected to be installed
until after the walls are raised.  The issue, therefore, turns
on the question of just how long after the walls are raised a
builder has to get the guards in place.  Defendant's argument
that the interior walls were necessary to secure the outside
walls is attractive.  However, exposure of the workers to the
hazard was demonstrated by the photographs in evidence. 
Although guards cannot be installed until the walls have been
raised and braced, I do not find that they have to be totally
secured by a complete network of interior walls before the
installation of safety protections is necessary.  

	Based on the evidence in this record, I find that Defendant did
not technically comply with the rule requiring guarding on
outside wall openings where the drop was more than 4 feet and
the sill height was less than 3 feet.  The citation was,
therefore, proper.


D6869-89-92, which found a violation of OAR 437-03-001, 29 CFR
1926.500(c)(1), and imposed a penalty of $75 is affirmed.

	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 September 2, 1993


				By Donna Garaventa