BEFORE THE WORKERS' COMPENSATION BOARD OF THE STATE OF OREGON HEARINGS DIVISION
Oregon Occupational Safety & Health Division ) Docket No: SH-93319 ) Plaintiff, ) ) vs. ) Citation No: S0178-006-93 ) TOM O'BRIEN CONSTRUCTION ) COMPANY, INC. ) ) Defendant. ) OPINION AND ORDER A hearing was held on January 12 and 13, 1995, in Pendleton, Oregon, and then was continued in Portland, Oregon, on March 27, 28, 29, 30, 31, and April 3, 1995, before the undersigned administrative law judge. 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 recorded by Kennedy and Heitmanek, official court reporters, in Pendleton, Oregon, and by Jim Terrall in Portland, Oregon. Exhibits 1 through 62 were all received into evidence except for exhibits 48 and 54. Exhibit 38A was offered and submitted with plaintiff's rebuttal argument on June 27, 1995; there being no objection from the defendant, exhibit 38A is received into evidence. The record was left open for the submission of written closing arguments and legal briefs; the record closed on June 29, 1995, after receipt of the last of the written closing arguments and legal briefs.
ISSUES
1. Whether the employer's issues raised at the time of hearing are untimely and barred. 2. Whether Citation No. S0178-006-93 is appropriate.
FINDINGS OF FACTS
On May 28, 1993, Tom O'Brien Construction Company Inc. had a 4-man crew up on the roof of the Fleetwood Industries building in Pendleton, Oregon, replacing a roofing section. The roof was virtually flat and was approximately 24 feet high. Two of the workers were pulling off old sheet metal roofing which exposed a large hole in the middle of the roof of the building. Two other workers, Rusty Driver and the foreman on the job, Mahlon Dewey, were rolling out insulation over the recently exposed roof opening and then installing new sheet metal roofing over the top of the insulation. The removal of the old sheet metal roofing had exposed an open hole approximately 20 feet by 30 feet. This open hole was surrounded by a fixed safety cable that was 2 to 4 feet from the edge of the hole, all the way around it. This safety cable was installed by the employer's crew before they began removing the old sheet metal roofing. The cable system was designed by Ivan Driver, a professional engineer, and was capable of supporting a dead weight of 26,100 pounds. Before designing this safety cable system, Ivan Driver had consulted with the safety and loss control consultant for the Associated General Contractors. All of the workers were wearing safety harnesses together with 4 or 6 foot lanyards to hook up to the safety cable whenever they were in proximity of the exposed open hole in the middle of the roof. The new sheet metal roofing material was stacked up on an area of the old part of the roof so that none of the workers ever had to go closer than 6 feet from the edge of the roof. Large rolls of insulation material were also stacked up on another part of the old roof with some of them as close as two feet from the outside edge of the roof. In the middle of the morning on May 28, 1993, Rusty Driver was working with Mahlon Dewey as a team. They would together walk over and pick up a large roll of insulation, which was approximately 3 feet in diameter and six feet long, and each grab onto one end and walk and carry the insulation over to the leading edge of the open hole and then snap on their lanyards to the safety cable and roll out the insulation over the exposed open hole in the roof. Dewey, the foreman, always insisted that all the workers were tied off to the safety cable whenever they were near the leading edge. Earlier that morning, Dewey had warned Rusty Driver about not hooking up his lanyard to the safety cable and Dewey personally hooked the lanyard up and gave him a verbal warning. About one hour later, Dewey and Rusty Driver carried a roll of insulation over to the edge of the exposed open hole, knelt down approximately over the safety cable. Dewey hooked his lanyard onto the safety cable while he was kneeling and when he looked up he saw Rusty Driver taking one step forward onto the insulation and falling through. Rusty Driver had failed to hook his lanyard onto the safety cable and he fell approximately 24 feet to a concrete floor and was very severely injured. The employer, Tom O'Brien Construction Company Inc., had regular safety training and meetings with all of its workers but did not have a safety committee even though it had more than 11 employees. The employer's safety policy required all workers to hook up their safety lanyards whenever there was any fall hazard regardless of how high. The employer's safety policy called for a verbal warning on the first violation by a worker followed by a written warning and possible termination for subsequent violations of the safety policy. On October 7, 1993, OR-OSHA issued Citation No. S0178-006-93 to Tom O'Brien Construction Company Inc., which specified 6 violations:
Item No. Violation Class Date Correction Required Penalty
The following alleged violation(s) are not related to the accident investigation
1-1. Standard Violated: OAR 437-03-001
29 CFR 1926.104(b)
Description of Violation:
Lifelines were not secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds: (a) For the anchoring points of the static line used at the Fleetwood Plant in Pendleton, Oregon.
SERIOUS COMPLETED AT TIME OF INSPECTION $3,500.00
1-2. Standard Violated: OAR 437-03-001
29 CFR 1926.104(b)
Description of Violation:
The employer did not provide employee(s) with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area: (a) For the affected employees of Tom O'Brien Construction Company Inc.

The following alleged violation(s) of the Oregon Safe Employment Act result from the investigation of an accident which occurred on or about May 28, 1993, at approximately 7:30 a.m.
SERIOUS IMMEDIATELY UPON RECEIPT $270.00
2-3. 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) While employees worked at Fleetwood Plant in Pendleton, Oregon, fall protection was not utilized by some of the employees. One instance was evident when victim fell through the roof and another was when they retrieved roofing materials from the roof edge.
WILLFUL IMMEDIATELY UPON RECEIPT $50,000.00
2-4. Standard Violated: OAR 437-03-001
29 CFR 1926.21(b)(2)
Description of Violation:
The employer did not instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to his work environment to control or eliminate any hazard(s) or other exposure to illness or injury: (a) Employees, including foreman, of Tom O'Brien Construction Company Inc. were not properly instructed in the proper use of fall protection equipment and hazard recognition.
WILLFUL IMMEDIATELY UPON RECEIPT $20,000.00
2-5. Standard Violated: OAR 437-40-030(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) Employees of Tom O'Brien Construction Company Inc. were not properly supervised as victim was wearing a safety harness, yet he was not tied-off to anchoring system. Further, when working crew foreman and another employee were retrieving roofing materials from the roof edge, they were not using fall protection. Edge of the roof was approximately 22-24-feet high.

The following alleged violation(s) are not related to the accident investigation.
WILLFUL IMMEDIATELY UPON RECEIPT $30,000.00
3-6. Standard Violated: Description of Violation:
A safety committee had not been established and administered by the employer of 11 or more employees: (a) For the affected employees at Tom O'Brien Construction Company Inc.
MANDATORY IMMEDIATELY UPON RECEIPT $100.00
			Total Penalty for This Citation:       $103,900.00



	On October 15, 1993, the employer's attorney wrote to the
Department of Insurance and Finance and requested a hearing
appealing 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 the
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. Item 3-6 contained in Citation No. S0178-006-93 is appropriate but there is insufficient evidence to support the other alleged violations.
CONCLUSIONS OF LAW AND OPINION
Plaintiff 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 employer's request for hearing or answer 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 employer's 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. Plaintiff next contends that all six violations charged in its Citation No. S0178-006-93 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 condition or conduct. 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). In regard to Item 1-1, the citation describes the violation: "lifelines were not secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5400 pounds: (a) for the anchoring points of the static line used at the Fleetwood plant in Pendleton, Oregon." 29 CFR 1926.104(b) provides "lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5400." Plaintiff argues that the 5400 pound requirement is a requirement per person and that there were 5 or 6 workers up on the roof and therefore the employer has violated this rule. Firstly, the evidence was that the employer's crew consisted of 5 or 6 workers but there were only 4 up on the roof at one time. Four workers x 5400 pounds = 22, 000 pounds. Ivan Driver, an engineer, testified that the safety cable system was sufficient to handle 26,100 pounds which would be well within the rule. Plaintiff argues that the cable system did not look adequate and maybe did not meet the requirement. However, the plaintiff offered no evidence to establish what the capacity of the cable system was and therefore the only expert testimony is that of Ivan Driver. I conclude that the cable system was capable of supporting 26,100 pounds. Secondly, and more importantly, the plaintiff's argument that the 5400 pound requirement is per person is not supported by the rule. The rule clearly says that the lifeline or safety cable must be capable of supporting 5400 pounds. The rule is clear and unambiguous and it says nothing about 5400 pounds per person. I conclude that there is insufficient evidence to establish a violation of this rule. Accordingly, Item 1-1 should be dismissed. In regard to Item 1-2, the citation describes the violation: "the employer did not provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area: (a) for the affected employees of Tom O'Brien Construction Company Inc." 29 CFR 1926.59(h) provides "employers shall provide employees with information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new hazard is introduced into their work area." The employer correctly points out that there is no evidence in this record of any hazardous chemical being present on this work site in Pendleton, Oregon, at any time, which would have necessitated the employer providing training on that chemical. Plaintiff relies upon the chemical list of Tom O'Brien Construction Company Inc. contained in exhibit 19. However, there is no evidence that any of these chemicals were ever on the work site in Pendleton, Oregon. In its rebuttal argument, plaintiff argues for the first time that the video, exhibit 37, shows a fork lift was on the job site which probably was fueled with either gas or diesel which are both hazardous chemicals listed in exhibit 19. I find this to be mere speculation because there is no evidence in this record that the fork lift had any gasoline or diesel fuel in it; it is just as likely that it was propane or electric powered. Furthermore, there is no evidence that this employer even owned or operated that fork lift. I conclude that there is insufficient evidence to establish that there were any hazardous chemicals ever on this job site, either initially or at any time while this employer's employees were working there. In addition, exhibit 17 page 19 establishes that these workers had been trained to deal with hazardous chemicals in their work area. I conclude that there is insufficient evidence to establish that this employer violated this rule. Accordingly, Item 1-2 should be dismissed. In regard to Item 2-3, the citation describes the 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) while employees worked at Fleetwood Plant in Pendleton, Oregon, fall protection was not utilized by some of the employees. One instance was evident when victim fell through the roof and another was when they retrieved roofing materials from the roof edge." OAR 437-03-040(1) provides "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, except when connecting steel beams as stipulated in OAR 437-03-040(2)." The evidence is clear that the employees were working on unguarded surfaces more than 10 feet above a lower level when they were near the roof edge or the leading edge of the exposed open hole on the roof. In regard to the leading edges of the exposed open hole in the roof, the evidence is clear that safety lines were present 2 to 4 feet from that leading edge and surrounding the entire exposed open hole. The evidence is also clear that all of the workers up on the roof were wearing safety harnesses with lanyards 4 to 6 feet long with which to clip to the safety lines whenever they were working near a fall hazard such as the leading edge. The thrust of the plaintiff's argument seems to be that, since one of the workers fell off the leading edge and was injured, there is automatically a violation of the safety rules. However, even Mr. Miller of OR-OSHA conceded in his testimony that the accident in and of itself does not constitute an automatic violation of the rules. The standard cited requires employees be protected from fall hazards. This is a general performance standard leaving it up to the employer to decide how to best protect employees given the circumstances of a particular work site. In the case of Ray Evers Welding v. OSHRC, 625 Fed 2d 726 (1980) (6th Circuit), the court found that fall protection rules that were general had to be considered in light of the applicable industry standards and customs at the time. In this regard, the employer here presented the testimony of Gerald Ripka, the safety director of Oregon Health Systems which assists Oregon Employers in developing safety programs and in complying with OR-OSHA rules and regulations, and Bruce Poinsette, a safety and loss control consultant for the Associated General Contractors of Oregon, which helps employers train and meet safety rules, and William Pulver, a safety consultant for the Associated General Contractors of Oregon who all testified that the fall protection system utilized by this employer relative to the exposed open hole in the Fleetwood Industries roof was consistent with acceptable standards within the construction industry at that time in Oregon and in compliance with the OR-OSHA rules. There is no evidence as to why Rusty Driver failed to hook his lanyard to the safety cable which was directly under his feet just before he stepped over the leading edge and fell. In regard to the workers picking up insulation near the edge of the roof, plaintiff contends that fall protection equipment was required under the rules and none was provided by the employer. The evidence is very sketchy as to about how close the insulation and the workers were to the roof edge or to how often the workers went out to the roof edge. Apparently, the workers had to get within 2 feet approximately of the roof edge on several ocassions to retrieve the insulation material. There is a "note" found in OAR 437-03-040 after paragraph (3) which provides "when the work is of limited duration and limited exposure, and the hazards involved in rigging and installing the safety devices equal or exceed the hazards involved in the actual construction, these provisions may be temporarily suspended, provided adequate risk control is exercised under immediate competent supervision." The expert testimony of Ripka and Poinsett and Pulver was to the effect that this exception or "note" applied to the work material situation here on this job site in picking up the insulation from the roof edge. I find that Ripka, Poinsett, and Pulver are credible and persuasive. I conclude that there is insufficient evidence to establish a violation of this rule. Accordingly, Item 2-3 should be dismissed. In regard to Item 2-4, the violation is described: "the employer did not instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury: (a) employees, including foreman, of Tom O'Brien Construction Company Inc. were not properly instructed in the proper use of fall protection equipment and hazard recognition." 29 CFR 1926.21(b)(2) provides that "the employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposures to illness or injury." Plaintiff argues that the employer here failed to train employees relative to the OR-OSHA regulations applicable to fall protection. However, the evidence in this record is clear that the employees of Tom O'Brien Construction Company Inc. understood that the employees safety program required them to hook up to a safety cable whenever they were closer than 6 feet from an edge or at any time they were off the ground. The employees safety program exceeded the requirements of OR-OSHA. There is no evidence in this record indicating that the employees did not know how to properly use their lifelines, lanyards, safety harnesses or safety belts. The instructions and safety training given to the employees was confirmed by the credible and persuasive testimony of Mr. Ripka. I conclude that there is insufficient evidence to establish a violation of this rule. Accordingly, Item 2-4 should be dismissed. In regard to Item 2-5, the violation is described as: "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) Employees of Tom O'Brien Construction Company Inc. were not properly supervised as victim was wearing a safety harness, yet he was not tied off to anchoring system. Further, when working crew foreman and another employee were retrieving roofing materials from the roof edge, they were not using fall protection. Edge of the roof was approximately 22-24 feet high." OAR 437-40-030(2)(c) provides "the employer shall 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, lifelines, that are necessary to safely accomplish all work where employees are exposed to a hazard." The plaintiff argues that the employer failed to supervise its employees regarding the use of fall protection equipment. Mahlon Dewey was the supervisor of the work crew up on the roof. Dewey was working side by side with Rusty Driver who he had given a verbal warning earlier that morning for failure to hook up his safety lanyard to the safety cable. Dewey could not see that Driver had failed to snap off to the safety cable until it was too late and Driver had fallen. No one knows why Driver did not snap off to the safety cable. However, it is clear that all of the workers were expected to do so when working near the leading edge and Driver had earlier that morning been given a verbal warning for his failure to do so. Certainly, a supervisor cannot be reasonably expected to see everything that each worker on the work crew does or does not do. In this setting, I conclude that there was adequate supervision and that this safety rule was being complied with. Accordingly Item 2-5 should be dismissed. In regard to Item 3-6, the citation describes the violation "A safety committee had not been established and administered by the employer of 11 or more employees: (a) For the affected employees at Tom O'Brien Construction Company Inc." OAR 437-40-045(l) provides "every public or private employer of 11 or more employees shall establish and administer a safety committee." The evidence is clear that this employer had more than 11 employees working in the State of Oregon. The evidence is also clear, and the employer concedes, that it did not have a safety committee. The employer argues that it did have regular safety meetings of all employees and that, because no hazard has been shown to flow from the distinction or difference between the type of safety meetings held by the employer and the type of safety committee meetings required by the administrative rule, plaintiff cannot sustain its burden of proving that there was any employee exposure to a hazard as a result of the violative conduct. In other words, the employer argues that even though it violated the rule, no harm no foul. However, it is not necessary that a clear and present danger exist in order to issue a citation and the primary goal of the OR-OSHA rules is the prevention of accidents, see Gilles and Coatings Inc., 3 OSHC 2002. OAR 437-01-203(7) establishes a minimum penalty of $1 00.00 for this violation. The plaintiff seeks the $100.00 minimum penalty. I conclude that the $100.00 penalty for this violation is appropriate. Accordingly, Item 3-6 should be approved.
ORDER
IT IS HEREBY ORDERED that Item 3-6 of Citation No. S0178-006-93 is affirmed and that Items 1-1, 1-2, 2-3, 2-4 and 2-5 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, July 28, 1995 Workers' Compensation Board GARY NELS PETERSON Administrative Law Judge