BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
     Health Division			)  Docket No:  SH-95188

					)

		Plaintiff,		)

					)

		vs.			)  Citation No:  R0923-027-95

					)

	MR. PIERCE CONSTRUCTION		)

					)

		Defendant.		)  OPINION AND ORDER



	Hearing was held in Portland, Oregon on Tuesday, November 14,
1995. with Harris reporting.  OR-OSHA  was represented by
Rochelle A. Nedeau, Assistant Attorney General.  The defendant
was represented by Maxine Pierce, its president.  Exhibits 1-10
were received in evidence.  The case was closed on day of
hearing.



ISSUE:



	Whether the defendant violated OAR 437-03-040 (1) by not
protecting its employees from fall hazards when working on
unguarded surfaces more than ten feet above the ground.



FINDINGS OF FACT:



	1.  During all times relevant to the citation, the employer was
an Oregon business engaged in construction of highway overpass
guard fences in Oregon and subject to OR-OSHA standards.



	2.  On January 11, 1995, the defendant was installing a fence
on the I-5 overpass known as Boston Mill Bridge, about ten miles
south of Albany.



	3.  On January 11, 1995, about 9 am, compliance officer Ron
(Rocky) Shampang was on his way to a sawmill inspection, when he
observed warning signs on the highway of overpass construction
and then saw two employees standing or walking along the edge of
the highway bridge, about twenty two feet and six inches above
the freeway, with no fall protection.  He turned his car around
at the Corvallis interchange and again noticed the employees
standing or walking along the edge of the bridge with no
protection.  He then exited the freeway and drove to the work
site.



	4.  When he arrived at the work site, two employees were
standing or walking along the edge of the bridge and drilling on
the parapet (exhibit 7-1 &2).  He observed the workers
unprotected for about 30 minutes total from the time he first
noticed them from the freeway.  The workers were not subject to
a fall hazard when kneeling, but were when they stood.  A
lanyard was present at the work site and attached to a 150 pound
compressor, but was not being used (exhibits 7-3 &4).



	5.  Mark Pierce, the defendant's foreman, said that he had been
tied off to the air compressor but was not presently using
protection as the employees were returning for a short time to
drill in the rebar reinforced concrete.   Earlier in the
morning, the crew had been tied to 1 1/2 square, box metal
tubing with holes that went over the wall and was used to
measure the holes.  The employees used the lanyard choked to the
bar and wrapped instead of being attached to a fitting.



	6.  The compliance officer informed the foreman of the safety
requirements for protecting the workers from fall, had the
workers back off the work site and cited the defendant.  The
compliance officer treated the defendant as he would any other
employer.  The defendant complied with the safety requirements
the next day by using a guard rail that fit over the parapet
walls.



	7.  The probability of an accident was low for the exposed
workers, but the chance of injury from a fall could be serious
physical harm or death, as the worker would fall over 22 feet to
the freeway.  A $1500 penalty assessed, but was reduced 20
percent because the employer complied at the time of inspection,
30 percent because of the employer's loss work day incident rate
was less than the state wide average for businesses and l0
percent because the employer had less than 50 employees,
resulting in a reduced fine of $600. 



OPINION:



	Defendant has been cited in a one item citation issued on
January 30, 1995, for violation of OAR 437-03-040 (1) because
two employees were working on the parapet of the Boston Mill
Road/Interstate 5 overpass without protection from fall hazards.
 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 defendant argued that it came with the "NOTE:" exception in OAR 437-03-040 (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."
In particular, the defendant contends that its employees were just working for about five minutes to re-drill the areas where they had run into problems with the concrete because of the rebar and they had earlier been protected by an anchor that would comply with Washington State safety standards. In particular, the defendant relied upon the testimony of Bruce Poinsette, a former OR-OSHA compliance officer and now a loss control consultant for Associated General Contractors, who said that a fall restraint anchored to a 200 pound anchor was sufficient in Washington state and he had discussed this issue with OR-OSHA. In his opinion Mark Pierce's tying himself to the compressor would have satisfied the fall restraint rule in Washington. The employer also introduced a test of a support bracket (exhibit 10) that was sufficient to hold weights up to 5,500 pounds. Oregon's standards apply to the defendant, however, and not Washington's standards. There is no evidence that Oregon has adopted the Washington standard and Mr. Poinsette could not point to a comparable Oregon standard. The defendant has not shown that it would be more of a hazard or an equal hazard to set up protection than to work unprotected. And the defendant has not shown that the exposure was limited. The compliance officer observed employees being exposed for about thirty minutes. Even if the foreman had been tied earlier to the lanyard on the air compressor, as he told the compliance officer, other employees were not protected, and the foreman's protection was inadequate to comply with Oregon safety standards. OAR 437-03-040 (3)(b) requires that anchors support a minimum dead weight of 5,400 pounds. The air compressor weighed about 150 pounds and the worker over 200 pounds According to the safety compliance officer, even if the compressor were further away from the edge of the overpass than he observed it, it would not hold a falling man. For the same reasons the tubular measuring device was insufficient as an anchor. As pointed out by the compliance officer, a number of methods were available to comply with the standard, including the guard rail that was ultimately chosen by the defendant, and safety belts and a lanyard that did not choke back on itself. The defendant could have anchored its employees to the fixed highway guard rail. There was no evidence that there was a support bracket that was tested in March 1995, as reflected by exhibit 10, was on the job site on January 11, 1995. The lanyards and ropes on the job site were adequate but there was no evidence that the defendant had a sufficient hook-up system. OR-OSHA has proved that the defendant violated item 1-1 in citation. It has shown that the defendant's employees were working on unguarded surfaces over 10 feet above another level without adequate protection from fall hazards and that the note exception does not apply in this case. ORDER: IT IS THEREFORE ORDERED that Citation No R0923-027-95 is affirmed in its entirety. 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, November 20, 1995 Workers' Compensation Board VINITA J. NEAL Administrative Law Judge