BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
      Health Division			)  Docket No: SH93278

	Plaintiff,			)

		vs.			)  Citation No: L3984-060-93

TOM O'BRIEN CONSTRUCTION CO.  INC.	)

	Defendant.			)  OPINION AND ORDER



	A hearing was held on January 9, 10, 11, 12, and 13, 1995, in
Pendleton, Oregon, and the hearing was continued and concluded
on January 31, 1995, in Portland, Oregon, before the undersigned
referee.  Plaintiff OR-OSHA was represented by its attorney,
Norman Kelley.  The defendant Tom O'Brien Construction Inc., was
represented by its attorney, George Goodman.  The hearing was
reported by Kennedy and Heitmanek, official court reporters, in
Pendleton, Oregon, and by Candy Lewis in Portland, Oregon. 
Exhibits A and I through 25 are all received into evidence,
except for exhibits 7 and 12, which were taken under advisement;
exhibit 18 was to be the transcribed testimony of Mr. Villalobes
from the hearing in case no.  SH 93173 but the parties
stipulated on May 22, 1995, that the referee take judicial
notice of Mr. Villalobes' testimony.  The record was left open
for the submission of written closing arguments and legal
briefs; the record closed on May 22, 1995.  Plaintiff s April
17, 1995, Motion to Strike is denied.



                         ISSUES



	1.  Whether the employees issues raised at the time of hearing
are untimely and barred.



	2.  Whether the citation is valid due to an invalid inspection.



	3.  Whether exhibits 7, page 1, and exhibit 12 are admissible
(photo and videotape).



	4.  Whether citation no.  L3984-060-93 is appropriate.



                         FINDINGS OF FACTS



	On May 5,1993, OR-OSHA compliance officer, Steve Lankford, was
on an "area survey" with no particular destination in mind while
looking for mobile construction sites.  Construction sites are
designated by OR-OSHA as high risk and so no written list of
construction sites or construction employers were kept.  While
driving around, he observed a large steel building framework
under construction in Hermiston, Oregon, by Tom O'Brien
Construction Company, Inc.  He parked his vehicle across the
street in a public parking area and took some video pictures for
8-1 0 minutes and one photograph or more while seated in his
vehicle during which time he observed several workers installing
sheet metal roofing, 31 feet off the ground; the workers were
wearing safety harnesses and lanyards but the lanyards were not
attached to anything while the workers were walking on steel
beams and walking within a foot or two of leading edges.  After
observing the workers for several minutes, Mr. Lankford
concluded that there was an "imminent danger' because none of
the workers ever hooked up their lanyards to any safety cable.



	Mr. Lankford exited his vehicle and approached the building and
called for the workers to come down from the roof.  Mr. Lankford
presented his credentials to the foreman on the site, Chris
Autry, and then held an opening conference with the foreman,
advising him of the inspection and the employees rights pursuant
to exhibit 5-4.  The foreman consented to the inspection and the
inspection proceeded.  The workers had gone up to the top of the
roof and came down from the top of the roof by means of a work
platform which had been 'force fitted" onto a lift truck forks;
the fork lift had a 4 foot guard in front of the chain and
pulleys in the fork lift tower; the platform on the fork lift
had no guard rails on either side or front but did have one on
the back to which all of the workers tied to with their safety
lanyards when going up to the roof or coming down from the roof
and only unhooked when they got off onto the roof or onto the
ground.



	The safety program of Tom O'Brien Construction Inc. required
all of its workers' to wear safety harnesses and hook up their
lanyards at any time they went above the ground level at any
distance.  On May 5, 1993, the acting foreman at the work site,
Chris Autry, deliberately instructed the workers not to hook up
to the safety cable so that they could work faster and thereby
hopefully help promote Autry's elevation to a permanent foreman
position with this employer.  Autry's actions were done without
the knowledge of his supervisor or the employer and was contrary
to the employers safety rules.  Subsequently, the employer
disciplined Autry for his failure to follow the safety rules and
for failing to have all of the workers use their fall hazard
equipment.



	On June 24,1993, OR-OSHA issued citation no.  L3984-060-93 to
Tom O'Brien Construction Company Inc., which specified four
violations:

Item No. Violation Class Date Correction Required Penalty
1-1. Standard Violated: OAR437-63-305(11)(f)
Description of Violation:
When a lift truck was used for lifting personnel, the area between workers on the platform and the mast had not been guarded to prevent contact with chains or other shear points.
(a) As with the two Pettibone High-Lift Super 8 forklift used at W Ridgeway Ave and NW Second Street in Hermiston, Oregon.
SERIOUS COMPLETED AT TIME OF INSPECTION $ 210.00
1-2. Standard violated: OAR437-63-305(11)(a):
Description of Violation:
When a liftruck was being used for lifting personnel a work platform equipped with standard guardrails or equivalent means, and firmly secured to the lifting carriage or forks was not used.:
(a) As with the personnel platform that did not have guardrails on the ends and or the front and was not attached to the forks used at W Ridgeway Ave and NW Second Street in Hermiston, Oregon.
SERIOUS COMPLETED AT TIME OF INSPECTION 210.00
1-3. Standard Violated: OAR437-40-030(2)(c)
Description of Violation:
The employer did not take all reasonable means to require employees to use all means and methods, including but not limited to ladders, scaffolds, guardrails, machine guards, safety belts and lifelines, that were necessary to safely accomplish all work where employees were exposed to a hazard.
(a) As with using a personnel platform without guardrails and working at approximately the 31 foot level without using fall protection at W. Ridgeway Ave and NW Second Streets in Hermiston, Oregon.
SERIOUS IMMEDIATELY UPON RECEIPT 1,750.00
2-4. Standard Violated: OAR 437-3-040(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 four employees that were installing sheet metal on the roof at the approximately 31 foot level without using fall protection at W Ridgeway Ave and NW Second Street.

A SERIOUS REPEAT VIOLATION of Item 1-1 on citation L3984-049-93, issued April 27, 1993.
REPEAT COMPLETED AT TIME OF INSPECTION 5,000.00
			      Total Penalty for This Citation: $7,170.00



	On July 15, 1993, the Department of Insurance and Finance
received from Tom O'Brien Construction Company Inc. its "request
to appeal all fines." On October 15, 1993, the employees
attorney wrote to the Department of Insurance and Finance and
advised that it was now representing Tom 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 issues raised by the employer at the hearing are not
barred.  The videotape and photographs (exhibits 7 and 12) are
admissible.  OR-OSHA's inspection was valid.  Item 1-1 contained
in Citation No. L3984-060-93 is appropriate.



                    CONCLUSIONS OF LAW AND OPINION



	Plaintiff first 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
pleadings are not required.  I conclude that the employers
amended request for hearing or answer dated October 15, 1993,
complies with the rules.  Although the plaintiff complains that
the employers 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 at the hearing should be denied.



	The employer contends that the entire inspection is invalid and
therefore the entire citation should be dismissed. 
Specifically, the employer contends that the selection criteria
process utilized by OR-OSHA violated OAR 436-01-57(1)(d) in that
this inspection was not scheduled from a written list.  The rule
requires OR-OSHA to schedule routine high hazard inspections
before it scheduled periodic inspections.  Under this rule, this
employees activities constitute a high hazard place of
employment.  As soon as Lankford discovered this place of
employment, he decided to inspect the worksite in Hermiston.  I
conclude that despite Lankford's failure to place this work site
on a written list and to formally schedule the inspection, he
substantially complied with the administrative rules. 
Furthermore, Lankford sat across the street and watched the
workers for several minutes before commencement of a formal
inspection and during that time he discovered an imminent danger
situation.  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.  Where there is an "imminent
danger," then the normal selection process for OR-OSHA to
conduct inspections is not followed and an immediate inspection
can be conducted.  Based upon the credible testimony of the
safety compliance officer, Lankford, I find that there was an
imminent danger presented when he observed four workers walking
high beams and within a foot or two of leading edges 31 feet in
the air on the top of the skeleton of the building that was
under construction.  I conclude that Lankford's action was valid
and appropriate for an imminent danger condition.



	During the course of this hearing, the employer objected to the
admissibility of exhibits 7 and 12, which were photographs and a
videotape taken by the safety compliance officer while he was
seated in his vehicle for some 1 0 to 15 minutes prior to
walking onto the construction site and commencing a formal
inspection.  In the employer's written argument dated March 20,
1995, page 4, it stated that "there is no issue concerning
admissibility of the videotape"- it is unclear whether the
employer is conceding admissibility or not of exhibit 12, the
videotape, but says nothing and makes no argument in regard to
the photographs or the videotape.  Regardless, Mr. Lankford
parked his car on a public street adjacent to the construction
site and took several minutes of videotape and one or more
photographs on a camera before exiting his vehicle and entering
the construction site 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 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
photographs and video taken by Mr. Lankford prior to the
presentation of his credentials and commencement of a formal
inspection does not violate any Fourth Amendment right to
privacy, nor does it violate any state case law decision
regarding administrative inspections.  See Ore-gon Occupational
Safety v. Don Whitaker Logging, 124 Or App 426 (1993). 
Accordingly, I conclude that exhibits 7 and 12 should be
admitted into evidence.



	The next issue presented is the plaintiffs contention that all
four violations charged in its Citation No. L3984-060-93 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 existence of a violative condition
or violative conduct.  It must prove that the employer either
knew or should have known, with reasonable diligence, of the
existence of such conduct of condition.  It must then prove that
there were employees of the employer exposed to a hazard that
created a substantial probability that death or serious bodily
injury could result from a violative condition or conduct, see
APD v. Roseburg Forest Products, 106 Or App 69 (1991).



	In regard to item 1-1 in the citation, it is charged that "when
a lift truck was used for lifting personnel, the area between
workers on the platform and the mast had not been guarded to
prevent contact with chains or other shear points (a) as with
the Pettibone High Lift Super 8 fork lift used at west Ridgeway
Avenue and northwest Second Street in Hermiston, Oregon," in
contravention of OAR 437-63-305(11)(f).  Mr. Lankford testified
that the fork lift being used by the emplioyer had no guard in
front of the chain and pulleys sufficient to prevent workers
from getting caught and possibly being seriously injured.  The
employer argues there was a guard and that the workers were too
far from any pinch points to get caught.  However, Mr. Autry
testified that the guard was about four feet high and the photos
seem to corroborate this.  All of these workers were over four
feet tall and so could easily get a hand or arm caught in the
chains and pulleys located in the fork lift tower adjacent to
the platform.  In the process of transporting men up to the top
of the roof or down from the roof, the movement of the platform
relative to the mast cross frame members and the chain and
pulley assemblies all create hazardous shear points which could
seriously injure a worker.  The preponderance of evidence leads
me to conclude that a violation occurred as charged in the
citation.  During the course of this hearing, the parties
stipulated that the penalties calculated for this citation were
calculated correctly under the rules.  Accordingly, I conclude
that item 1-1 should be affirmed in its entirety.



	In regard to item 1-2, the citation charges "when a lift truck
was being used for lifting personnel a work platform equipped
with standard guard rails or equivalent means, and firmly
secured to the lifting carriage or forks was not used (a) as
with the personnel platform that did not have guard rails on the
ends and/or the front and was not attached to the forks used at
west Ridgeway Avenue and northwest Second Street in Hermiston,
Oregon," in contravention of OAR 437-63-305(11)(a).  There are
two parts to this charge: first, that the work platform was not
securely attached to the lifting carriage of the lift truck and,
secondly, that the work platform was not equipped with standard
guard rails or equivalent means to protect the workers from a
fall hazard.  In regard to the platform being firmly secured,
Mr. Autry testified that the platform was 'force fitted" onto
the lift truck forks and was solid.  There is no evidence as to
exactly how secure it actually was.  The plaintiff argues that
"perhaps" the platform could have slid off the forks.  However,
this is only speculation because there is no evidence to support
this argument.  In regard to the second part of this charge,
that the platform was not equipped with standard guard rails or
equivalent means, the parties agree that only the back side of
the work platform was equipped with a standard guard rail and
that the sides and front had no guard rails at all.  However,
Mr. Storm credibly testified that all of the workers "tied off
to the fork lift platform" with their safety lanyards when they
got onto it and only unhooked when they got off of it onto the
roof.  There is no contrary evidence to Mr. Storm's testimony. 
I conclude that "equivalent means" is satisfied by the workers'
use of their safety lanyards.  Accordingly, I conclude that
there is insufficient evidence to establish any violation under
1-2 and therefore it should be dismissed.



	In regard to item 1-3, the citation charges that "the employer
did not take all reasonable means to require employees to use
all means and methods, including but not limited to ladders,
scaffolds, guard rails, machine guards, safety belts and life
lines, that were necessary to safely accomplish all work where
employees were exposed to a hazard (a) as with using a personnel
platform without guard rails and working at approximately the 31
foot level without using fall protection at west Ridgeway Avenue
and northwest Second Street in Hermiston, Oregon," in
contravention of OAR 437-40-030(2)(c).  Plaintiff argues that no
reasonable means were being used to see that the crew performed
its construction tasks safely and that the foreman in charge,
Mr. Autry, completely failed to provide safety supervision. 
However, as I above stated, the uncontradicted testimony of Mr.
Storm was that all of the workers were tied off to the fork lift
platform with their safety lanyards at all times when it left
the ground and all the way up to the top of the building at the
31 foot level.  I conclude that all of the workers were using
fall protection at all times when they were riding on the
personnel platform or working off the personnel platform from
the ground level all the way up to 31 feet.  The workers did not
unhook their safety lanyards until they went out to work on the
roof area.  I conclude that there was no violation and
furthermore, the factual basis for this charge is the same as in
item 1-2 and 2-4 and should have been grouped together, contrary
to ORS 654.025(3)(c). I conclude that item 1-3 should be
dismissed.



	In regard to item 2-4, the citation charges that "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 four employees that
were installing sheet metal on the roof at the approximately 31
foot level without using fall protection at west Ridgeway Avenue
and northwest Second Street," in contravention of OAR
437-3-040(1).  The employer concedes that its four employees
were installing sheet metal roofing at the 31 foot level without
using fall protection contrary to the rule.  The evidence is
also clear that the lead man in charge of the crew, Mr. Autry,
intentionally did not have the crew hook up their safety
lanyards to a safety cable, even though they were all wearing
safety lanyards.  Mr. Autry admitted that this was in direct
contravention of the instructions he had received from his
immediate supervisor and was in contravention of the employees
safety rules.  Nonetheless, in the hopes of speeding up
production and thereby impressing his employer, Mr. Autry
elected to work without utilization of the safety equipment that
was available on the date of this inspection and was, by
happenstance, caught by the safety compliance officer.  Here,
this employer had a safety program that was in place and being
enforced.  Mr. Autry was subsequently disciplined.  The employer
contends that the knowledge of Autry of his own improper conduct
should not be imputed to the employer.



	In the case of Pennsylvania Power and Light v. OSHRC, 737 Fed
2d 350 (3d Circuit 1984), the court ruled that inferring
employer knowledge through misconduct of a supervisor was only
allowable where the evidence indicated that the employer did not
have in place a valid and enforced safety program covering such
conduct.  Although the facts are somewhat different, the court
held in the case of Western Waterproofing Company Inc. v.
Marshall, 576 Fed 2d 139 (8th Circuit 1978) that "an employer is
excused from responsibility for acts of its supervisory
employees only if it shows that the acts were contrary to a
consistently enforced company policy, that the supervisors were
adequately trained in safety matters, and that reasonable steps
were taken to discover safety violations committed by its
supervisors." Here, the credible testimony of Mr. Ripka, which
was uncontradicted, was that this employer had a safety program
in place and in use on and before May 5, 1993, which met or
exceeded the standards required by the OR-OSHA rules.  Further,
Mr. Ripka testified that the safety program was effectively
implemented and enforced by this employer.  I find the testimony
of Mr. Ripka to be probative and persuasive.  I conclude that
the intentional acts of Mr. Autry on May 5, 1993, were
intentionally done for his own personal benefit and in
contravention of the employers safety rules and OR-OSHA rules
which put himself and three other workers in dangerous positions
in regard to fall hazards.  I further conclude that Mr. Autry's
action and knowledge should not be imputed to this employer. 
Accordingly, item 2-4 should be dismissed.



                         ORDER



	IT IS HEREBY ORDERED that item 1-1 of citation no. 
L3984-060-93 is affirmed and the balance of the items are
dismissed.



	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 31, 1997



				Workers' Compensation Board

				GARY NELS PETERSON

				Referee