BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
      Health Division			)  Docket No:  SH93173

	Plaintiff,			)

		 vs.			)  Citation No:  L3984-049-93

Tom O'Brien Construction Co.		)

	Defendant.			)  OPINION AND ORDER



	A hearing was held in Pendleton, Oregon, on January 4, 5, 6,
and 9, 1995, before the undersigned referee.  Plaintiff OR-OSHA
was represented by its attorney, Norman Kelley.  The defendant
Tom O'Brien Construction Company, Inc.,  was represented by its
attorney, George Goodman.  The hearing was reported by Kennedy &
Heitmanek, official court reporters.  Exhibits 1 through   22
and exhibits A, B and C were all received into evidence except
for the top photo on page 3 of exhibit 7 and all of page 7 of
exhibit 7.  The admissability of exhibit 6 was taken under
advisement.  The record was left open for the submission of
written closing arguments and legal briefs; the record closed on
April 17, 1995.  Plaintiff's April 17, 1995, Motion to Strike is
denied.



                         ISSUES



	1.  Lack of jurisdiction.



	2.  Whether the employer's issues raised at the time of hearing
are untimely and barred.



	3.  Whether the video tape, exhibit 6, is admissable.



	4.  Whether citation No. L3984-049-93 is appropriate. 



                         FINDINGS OF FACTS



	Sometime after 8:00 a.m. on March 24, 1993, OR-OSHA safety
compliance officer, Steve Lankford, was on his way to work on
Interstate Highway 84.  It was raining.  While proceeding down a
gradual incline into the Pendleton area, Mr. Lankford glanced
off to the south and noticed two people on the roof of a
building at the Fleetwood Manufacturing Plant.  The Fleetwood
Manufacturing Plant is located 733 yards from the point where
Mr. Lankford observed it from Interstate 84.  Mr. Lankford was
travelling at 65 miles per hour and observed the Fleetwood
Manufacturing Plant for approximately 3 seconds.  The two people
on the roof of the Fleetwood Plant appeared to Lankford to be
close to the edge of the roof presenting a potential fall hazard
of more than 10 feet, which he concluded to be in imminent
danger of a fall.  Lankford proceeded on to his office in
Pendleton and then drove out to the Fleetwood Manufacturing
around 10:15 a.m.  He parked in the public street adjacent to
the Fleetwood Manufacturing Plant where he had seen the workers
earlier and proceeded to do a small amount of videotaping of the
workers then up on the roof.  He then exited his car and
approached the workers after they had come down from the roof
and then commenced an OR-OSHA inspection.  



	Mr. Lankford presented his credentials to the supervisor on the
site and then held an opening conference with the supervisor,
advising him of the inspection and employer's rights pursuant to
exhibit 5.  The employer's representative consented to the
inspection and the inspection proceeded.  The roof of the
Fleetwood building upon which Lankford had earlier observed two
workers up on it is virtually flat with a pitch of 1/2 to 12 and
the edge of the roof is 22 feet above the ground.  The two
workers up on the roof had not been using any safety harnesses
or any other fall hazard protection.  The two workers up on the
roof had been installing flashing in the middle area of the roof
and were never closer than 9 feet from any edge of the roof
except when going away from or to the lift truck which had
provided access to the roof top.  The lift had an 8 foot by 12
foot platform surrounded by a standard guard railing.



	Although Mr. Lankford never went up onto the roof, he took
numerous photographs during the course of his inspection of the
construction site.  During the course of the inspection, Mr.
Lankford tested some of the electrical extension cords being
used by the employer and found that one had the hot and neutral
wires reversed, as to polarity, which he determined was serious
but created only a low risk of electrical shock to the workers. 
During the course of the inspection, Mr. Lankford found two
ladders on the site which the workers told him they had been
using and Lankford found a split ladder rail and a broken latch
and twisted and bent ladder rails and a ladder foot missing
which he determined was a serious safety violation but presented
only a low risk of a fall hazard.  Mr. Lankford also inspected
the employer's job trailer and found a gas can containing 4
gallons of gasoline with no label indicating its contents.  



	On April 27, 1993, OR-OSHA issued Citation No. L3984-049-93 to
Tom O'Brien Construction Company Inc., which specified four
violations.

Item No. Violation Class Date Correction Required Penalty
1-1. Standard Violated: OAR437-3-040(1)
Description of Violation:
All employees were not protected from fall hazards when working on unguarded surfaces more than 10 feet above a lower level or at any height above dangerous equipment:
(a) As with the two employees that were installing sheet metal on the roof, at the approximately 22 foot level without using fall protection, at 4640 Northwest Bartch Road in Pendleton, Oregon.
SERIOUS COMPLETED AT TIME OF INSPECTION $1,050.00
1-2. Standard violated: OAR437-03-001
29 CFR 1926.404(a)(2)
Description of Violation:
No grounded conductor shall be attached to any terminal or lead so as to reverse designated polarity.
(a) As with the cordset that had the hot and neutral reversed, at 4640 Northwest Bartch Road, in Pendleton, Oregon.
SERIOUS COMPLETED AT TIME OF INSPECTION 210.00
1-3. Standard Violated: OAR437-03-001
29 CFR 1926.1053(b)(16)
Description of Violation:
Portable ladders with structural defects such as, but not limited to, broken or missing rungs, cleats, or steps broken or split rails, corroded components or other faulty or defective components were not marked or tagged and removed from service.
(a) As with the 12 foot and 16 foot ladders with the split side rails and broken latches at 4640 Northwest Bartch Road, in Pendleton, Oregon.
SERIOUS COMPLETED AT TIME OF INSPECTION 210.00
2-4. Standard Violated: OAR 437-03-001
29 CFR 1926.59(f)(5)
Description of Violation:
The employer did not ensure that each container of hazardous chemicals in the workplace was labeled, tagged or marked with the identity of the hazardous chemical(s) contained therein, and the appropriate hazard warnings:
(a) As with the 5 gallon metal container that had approximately 4 gallons of gasoline in it and had no tag or label located in the job trailers, at 4640 Northwest Bartch Road, in Pendleton, Oregon.
GENERAL COMPLETED AT TIME OF INSPECTION 0.00
		             Total Penalty for This Citation:  $ 1,470.00



	On May 17, 1993, O'Brien Construction Company Inc. wrote to the
Department of Insurance and Finance "to request whatever
hearings or appeal procedures are required to eliminate these
fines."  On October 15, 1993, The employer's attorney wrote to
the Department of Insurance and Finance and advised that it was
now representing O'Brien Construction Company Inc. and further
advised that the employer appeals the citation for the reason
"that the employer contests the validity of each and every
alleged violation contained in the above-captioned citation and
denies that assertion that there was any violation of the Oregon
Safe Employment Act in this matter."  



                    ULTIMATE FINDINGS OF FACTS



	The Hearings Division has jurisdiction over this matter.  The
issues raised by the employer at the hearing are not barred. 
The video tape (exhibit 6) is admissible.  There is insufficient
evidence to establish that the employer's workers were not
protected from fall hazards.  Items 1-2 and 1-3 and 2-4
contained in Citation No. L3984-049-93 are appropriate.  



                    CONCLUSIONS OF LAW AND OPINION   



	The plaintiff first contends that the Hearings Division lacks
jurisdiction due to an improper request for hearing by the
employer.  Specifically, the plaintiff contends that the request
for hearing sent by the employer on May 17, 1993, is invalid
because it was signed by Ivan. G. Driver, who was not a
representative of the employer and he did not have authority to
request a hearing.  However, the uncontradicted testimony of Mr.
Driver was that he was the employer's construction manager at
the time that he wrote the letter requesting this hearing and
further that the employer's president read the letter and
approved it before it was mailed.  I conclude that the request
for hearing is valid and that the Hearings Division has
jurisdiction.  



	Plaintiff next contends that the issues raised by the employer
at the hearing are untimely and should be stricken.  Plaintiff
argues that OAR 438-85-111 requires an employer in its appeal to
specify the OR-OSHA action that is contested and the grounds
upon which the appeal is based.  The amended answer (the second
request for hearing dated October 15, 1993) contested the
validity of each violation and denied that any violation
occurred; this would constitute a general denial.  However, OAR
438-85-111(1) provides that an appeal does not have to be in any
special form.  Further, OAR 438-85-516 provides that formal
pleading are not required.  I conclude that the employer's
amended request for hearing or answer dated October 15, 1993,
complies with the rules.  Although the plaintiff complains that
the employer's general denial does not clarify the issues and
grounds, the plaintiff never sought to have the issues and
grounds clarified.  OAR 438-85-531 provides that any party can
seek clarification of the other party's grounds for appeal.
Here, the plaintiff had over a year to seek clarification of the
issues and grounds but did nothing.  I conclude that the
plaintiff's motion to strike all of the issues raised by the
employer should be denied.  



	The employer contends that the video tape (exhibit 6) taken by
the safety compliance officer, Steve Lankford, is not
admissible.  Here, Mr. Lankford went to the construction site to
conduct an inspection due to his belief that there was an
imminent danger and upon his arrival observed two workers on the
roof of the Fleetwood building.  Mr. Lankford parked his car in
a public street adjacent to the building and took several
minutes of video tape before exiting his vehicle and entering
the construction site property and commencing his formal
inspection.  There is nothing in this record to indicate that
the employer had any reasonable expectation of privacy and the
videos taken by Mr. Lankford were taken while he was in his car
parked on a public street.  Mr. Lankford was in a place where he
or any other person had a legal right to be.  I conclude that
the video taken by Mr. Lankford (exhibit 6) prior to the
presentation of his credentials in commencement of a formal
inspection does not violate any fourth amendment right to
privacy, nor does it violate any state case law decisions
regarding administrative inspections.  See Oregon Occupational
Safety v. Don Whitaker Logging,  124 Or App 426 (1993).  



	Plaintiff next contends that all four violations charged in its
Citation No. L3984-049-93 are appropriate.  Plaintiff has the
burden to prove that each item cited in this case constituted a
true violation of the Oregon Safe Employment Act sufficient to
justify a monetary penalty.  The plaintiff must prove the
existent of a violative condition or violative conduct.  It must
prove that the employer either knew or should have known, with
reasonable diligence, of the existent of such conduct or
condition.  It must then prove that there were employees of the
employer exposed to a hazard that created a substantial
probability of harm as a result of a violative condition or
conduct, see APD v. Roseburg Forest Products, 106 Or App 69
(1991).  



	The employer contends that the entire inspection is invalid and
raises several constitutional and technical issues.  However,
the employer conceded during the hearing that if "imminent
danger", was the basis for the inspection, then these issues
become moot.  OAR 437-01-015(34) defines "imminent danger" as a
condition, practice or act which exists in any place of
employment and could reasonably be expected to cause death or
serious physical harm immediately or before the imminence of
such danger can be eliminated through the enforcement procedures
otherwise provided by the act.   The parties here agree that if
there was an :imminent danger" then the normal selection process
for OR-OSHA to conduct inspections is not followed and immediate
inspection can be conducted.  Based on the credible testimony of
the safety compliance officer, Steve Lankford, I find that there
was an imminent danger presented when he observed two
unprotected workers near the edge of a building's roof top that
was higher than 10 feet above the ground constituting a
potential fall hazard.  Accordingly, I conclude that Mr.
Lankford's inspection was valid and appropriate.  the employer
next contends that the inspection was invalid by Mr. Lankford
because he did not obtain the consent of the employer or
employer's representative or fully advise him of the inspection
process.  Although Mr. Lankford testified that he could not
remember exactly what he told the employer's representative at
the commencement of the hearing, he believes that he gave the
standard notification and gained consent for the inspection. 
Mr. Lankford's testimony is corroborated by his written notes
and checklist which indicates all of the items were covered in
the commencement and was signed by one of the employer's
representatives.  Furthermore, none of the employer's witnesses
affirmatively testified that such inspection advisement was not
given by Mr. Lankford.  The preponderance of evidence leads me
to conclude that Mr. Lankford properly advised  the employer's
representative and gained appropriate consent to conduct the
inspection.  



	In regard to item 1-1 in the citation, all of the witnesses in
this hearing, with the exception of Chris Autry, strike me as
being honest, hard-working individuals.  Although the testimony
of the witnesses revealed glaring differences, I find these to
be normal variances due to the passage of almost two years and
due to different locations and perspectives.  Similarly, if four
eyewitnesses were each standing on separate corners of an
intersection when an auto accident occurred two years ago, I
would expect their testimony to have differences.  Here, all of
the witnesses' vision of the scene as it was on March 24, 1993,
is slightly blurred by the passage of time alone.  Here, some of
the witnesses were at a better vantage point on March 24, 1993,
such that their vision today of what they saw then should be
more reliable.  Although I have no doubt as to the integrity of
Mr. Lankford, his opinions relating to fall hazards on the
Fleetwood Industries roof are based upon what he saw for 3
seconds while he was driving 65 miles per hour down the freeway
in a rainstorm and the roof with the workers on it was almost
one-half mile away.  Certainly, Mr. Lankford saw the workers
but, under those conditions, it seems unlikely to me that he
could tell whether the workers were four feet or six feet away
from any edge that represented a fall hazard.  The evidence is
uncontradicted that neither of the two workers up on the roof
were wearing any safety equipment.  The evidence is also
uncontradicted that, if a worker was more than five feet away
from an edge, there was no fall hazard requiring safety
equipment.  The foreman testified that the closest they ever got
to the edge of the roof was nine feet.  The other worker up on
the roof testified that they never got as close as five feet
from any unprotected edge.  When Mr. Lankford went out to the
construction site to conduct his inspection, he was never able
to see the top of the roof, although he could see the two
workers.  The video tape also shows the two workers walking
around on the roof but the roof top itself is not visible.  This
roof has been described as virtually flat with a pitch of
one-half to twelve.  I find the video tape to be inconclusive to
establish how close the workers were to the edge of the roof. 
It is impossible to say whether they were four feet from the
edge or six feet from the edge.  If they were six feet or more
from the edge then there is no violation.  I conclude that there
is insufficient evidence to establish that these workers were
ever close enough to any edge of the roof representing a fall
hazard to require safety equipment.  Accordingly, Item 1-1
should be dismissed.



	In regard to Item 1-2, OAR 437-03-001  section 1926.404(a)(2)
provides that no grounded conductor shall be attached to any
terminal or lead so as to reverse designated polarity.  Testing
of the electrical cord being used by the employer's workers on
March 24, 1993, revealed that the hot and neutral leads had been
reversed so as to reverse the designated polarity.  The
employer's only argument is that there is no evidence of
employer knowledge of this condition prior to the inspection. 
However, constructive knowledge is sufficient, see Skirvin v.
APD, 31 Or App 109 (1978).  I conclude that the violation
occurred and that the penalty assessed is appropriate under the
rules.  Accordingly, Item 1-2 and the penalty should be affirmed.



	In regard to Item 1-3, OAR 437-03-001 section 1926.1053(b)(16)
provides that portable ladders with structural defects, such as,
but not limited to, broken or missing rungs, cleats, or steps,
broken or splits rails, corroded components, or other faulty or
defective components, shall be immediately marked in the manner
that readily identifies them as defective, or be tagged with "do
not use" or similar language, and shall be withdrawn from
service until repaired.  The evidence is uncontradicted that two
of the employer's ladders were defective and violated this code
provision.  These ladders were not marked and no taken out of
service by this code provision.  Some of the workers reported to
Mr. Lankford that the ladders had been in use and they were
concerned about using them any further.  I conclude that the
violation occurred and that the penalty assessment of $210.00 is
appropriate under the rules.  Accordingly, Item 1-3 should be
affirmed.  



	In regard to Item 2-4, OAR 437-03-001 section 1926.59(f)(5)
provides that the employer shall ensure that each container of
hazardous chemicals in the workplace is labeled, tagged or
marked with the following information:  (1) identity of the
hazardous chemical contained therein, and (2) appropriate hazard
warnings.  Here the evidence is uncontradicted that there was an
unlabeled jeep can containing gasoline that was found by the
safety compliance officer in the employer's job trailer.  The
employer argues that this was a multi-employer worksite and
there was no evidence that the gas can was owned by the
employer.  However, it makes little difference who owns the gas
can or its contents, it was being kept in this employer's job
trailer which created a workplace hazard contrary to Oregon
Safety rules.  I conclude that the violation occurred.  No
penalty was assessed for this violation.  I find that Item 2-4
should be affirmed.  



                         ORDER      



	IT IS HEREBY ORDERED that Item 1-1 of Citation No. L3984-049-93
is dismissed and Items 1-2 and 1-3 and 2-4 are 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 183.482.



Entered at Portland, Oregon,  May 2, 1995



				Workers' Compensation Board

				GARY NELS PETERSON

				Referee