THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH-93171

	Plaintiff,			)  CITATION NO:  C5730-013-93



	Defendant			)  OPINION AND ORDER

	Hearing was held in Medford, Oregon on June 2, 1994 before
Philip A. Mongrain, Referee.  Oregon Occupational Safety &
Health Division (OR-OSHA) was represented by Assistant Attorney
General Thomas Cowan.  Mark Wendt Construction was represented
by Brad Mason.  The hearing was reported by Business Support
Services and was closed at its conclusion.  


	Whether the defendant violated safety standards for fall
protection as alleged in Item 1-1 of the citation issued by
OR-OSHA on March 5, 1993.

                          FINDINGS OF FACT

	On January 7, 1993 an employee of Mark Wendt Construction, Ben
McKeen, was shoveling snow from the flat 18 feet high roof of a
K-Mart with no fall protection other than an inadequate one foot
high parapet (Cliff Crawford's testimony, Exhibit 4).  Bob
Daggett, a foreman and safety manager for Mark Wendt
Construction, had previously told Mr. McKeen to dump the snow
over a higher parapet that would have provided adequate fall
protection, but Mr. Daggett had to go to another job and Mr.
McKeen was intimidated by a K-Mart manager into moving to the
less safe location (Brad Mason's testimony, Cliff Crawford's
testimony; Exhibit 4).  Mr. McKeen had been adequately trained
in proper fall protection, but as he informed Mr. Crawford on
January 7, 1993 he simply "didn't even think about it while
shoveling snow" (Exhibits B-G, 4).  As of January 7, 1993 the
employer had in place a strict fall protection policy that
required approval by Mark Wendt or Bob Daggett to review any
situation requiring work on a roof or structure more than 10
feet high, and Mr. McKeen should have taken the time on January
7 to call Mr. Daggett before moving to another area of the roof
(Brad Mason's testimony, Exhibit A).

	Compliance Officer Cliff Crawford observed Mr. McKeen working
on the roof without adequate fall protection and he talked to
Mr. McKeen who "...seemed to be...the lead man" (Cliff
Crawford's testimony, Exhibit 4).  Mr. McKeen informed Mr.
Crawford of his fall protection training but stated to Mr.
Crawford that he simply did not think about it while shoveling
snow (Cliff Crawford's testimony, Exhibit 4).  Mr. Crawford
concluded that the work conditions presented a low probability
hazard of a fall with serious severity of injury, the severity
of injury being somewhat reduced by the amount of snow on the
ground (Cliff Crawford's testimony).  He recommended a fine of
$120.00 based on the probability and severity factors and
reductions for the employer's excellent safety record, immediate
steps to provide fall protection and the number of employees
being fewer than 50 (Cliff Crawford's testimony, Exhibit 4).


	The employer did not provide adequate fall protection for its
employees on January 7, 1993.


	OAR 437-03-040 provides that 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.  Clearly, Mr. McKeen was not so protected.  He was
trained in proper fall protection and knew better.  Apparently
he simply did not think of it.  The employer is very safety
conscious and certainly has a fall protection policy. 
Unfortunately, Mr. McKeen did not adhere to the policy and I am
persuaded that he was probably the man in charge of the
operation absent Mr. Daggett's presence and as such had the
responsibility to see to it that the policy was carried out. 
OAR 437-01-145(5) together with Mr. Crawford's testimony
establish the level of the penalty for this violation as
appropriate.  Therefore, the citation must be affirmed.

                      CONCLUSION OF LAW

	The violation alleged in Item 1-1 of the citation has been


	IT IS HEREBY ORDERED that Citation No. C5730-013-93 is approved.

	NOTICE TO ALL PARTIES:  If you are dissatisfied with the 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, Oregon 97310, pursuant to ORS
183.480, 183.482.  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 a review within SIXTY (60) days after
the mailing date of the Order will result in LOSS OF RIGHT TO

	Entered at Medford, Oregon on this day August 25, 1994


				Philip A. Mongrain, Referee