BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91154

		PLAINTIFF		)

NW SHAKE TILE INC			)  CITATION NO D477506391

		DEFENDANT		)  OPINION AND ORDER

 

	Pursuant to notice, a hearing was held in the above matter on
September 26, 1991, in Salem, Oregon before Referee Donna
Garaventa.  The plaintiff, Oregon Occupational Safety and Health
Division (hereinafter Or Osha), was represented by Norm Kelley. 
The defendant, Northwest Shake Tile, inc., was represented by M.
Chapin Milbank.  The court recorder was Marlene Cromwell of
Business Support Services.  



	No affected employees elected to appear as parties pursuant to
OAR 438-85-411. 



	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to 654.295 and 654.991.



                          ISSUES



	Defendant has appealed Citation No D477506391, which alleges a
violation of OAR 437-3-040(1) (Item No. 1-1), and imposes a
penalty of $1,200.  The alleged violation occurred at 2159
Crystal Dr., McMinnville, OR 97128, on April 8, 1991 to April
12, 1991.  The defendant disputes the alleged violation and the
reasonableness of the proposed penalty.



                       FINDINGS OF FACT



	On April 8, 1991, Sam Drill, a compliance officer for Or OSHA
conducted a mobile inspection of the worksite at 2159 Crystal
Dr., McMinnville, OR, where Northwest Shake Tile had three
employees engaged in its work operation.  The company was
installing a cement tile roof on a two-story new construction
residential building.  Mr. Drill noticed two employees working
on the roof and he observed no fall protection as required under
OAR 437-03-040(1).  He took photographs from his automobile at a
distance and then approached the site where he talked to the
workers.  He did not climb the ladder to look at the roof, nor
did he measure the distance from the ground to the second-story
& eaves.  Based on the weather condition (the ground was wet and
employees were wearing rain gear), the employees' closeness to
the edge of the roof, (approximately 2-3 feet), and the pitch of
the roof (estimated at 5"-12"), he estimated that there was a
moderate probability of an accident occurring.  Because he
estimated that the fall would be from an elevation of
approximately 20 feet, he believed that a death could result,
and he rated the severity at death.  As a result of his
inspection, a citation was issued and a penalty of $1,200 was
imposed.



	Northwest Shake Tile is one of two Oregon companies to
manufacture and install cement tile roofs.  This company has
been in business for 36 years and has used the same method of
installation, an old European method, for the entire period. 
under that method, a felt-surfaced lath is applied over the
rafters and boards of high-quality fir are nailed every foot
over the entire roof, creating a ladder-like lattice effect. 
Workers wear safety harnesses when applying the lath and lattice
work.  No harnesses are worn when the tile is being applied,
however, because of the danger of a line catching on the stacks
of cement tile and causing them to fall down the roof and strike
employees. The lath on which the workers stand is made of felt
and is tacky, particularly when it is wet.  The lattice-work
which covers the entire roof acts as foot stops and hand-holds
for the workers.  In addition, there is a 2-1/4 inch raised
cleat at the edge of the roof which provides an additional means
of stopping should an employee slip.  The workers do not stand
or walk on the cement tile.



	At the time of the inspection, the ground around the building
was soft and muddy.



	In 1983, the company was cited for a similar violation by what
was then the Accident Prevention Division.  The parties met at
an informal hearing and the installation process was described. 
The citation was withdrawn.  The same procedure was being used
during the 1991 inspection.  After the 1991 inspection, but
before the citation was issued, the company spent more than
$22,000 on state-of-the-art safety equipment which was not
available for sale to the public until after the date of the
inspection.  Oregon Shake Tile purchased the first set of this
equipment available on the market.



                   CONCLUSIONS AND OPINION 



	The state has the burden of proving, by a preponderance of the
evidence, that a violation occurred as alleged.



OAR 437-03-040(1) provides in pertinent part, "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,. . ."
Item 1-1 of the citation alleges that the roofers "...were not using any form of fall protection to protect themselves against the probability of a fall." Considering the weather conditions, the closeness of the workers to the edge of the roof, and the pitch of the roof, the inspector estimated that there was a moderate probability that an accidental fall would occur and that death would result from the fall. The inspector is not trained in roofing, or, more specifically, in the specialized field of cement tile roof installation. he did not measure the height at which the workers were working and he did not look at the roof to observe the method being used and what was on it. He did not see and he was not aware of the nature of the surface on which the workers were standing. Neither was he aware of the raised cleat along the edge of the roof. Nevertheless, he assumed that, being on the roof at a 5"-12" pitch was dangerous and that the workers were in danger of slipping, sliding, and falling off. The administrative rules do not define the terms, "protected" and "unguarded surfaces" for purposes of this rule. Based on the testimony of Mrs. Standley, I find that the raised cleat around the perimeter of the roof provides guarding from falls from the roof surface. under that situation, the administrative rule does not apply. Even if the roof surface was considered unguarded, however, I find that adequate protection from fall hazards was provided. This roofing process in uncommon. There are only two companies in the area to use it. Workers stand on felt-covered lath, a non-slippery surface. Wooden lattice-work over the entire roof serves as a ladder-like function to further prevent feet from slipping and to provide workers something to hold onto for stability. The raised cleat on the edge of the roof serves as a stop in the event that a worker should slip. The error in the inspector's conclusion that safety lines should have been worn was pointed out by Mrs. Standley, who logically explained the danger to workers in requiring them to wear safety lines under these circumstances. The company has been in the business of roofing using the European lath method for 36 years. During that time, no one involved in the roofing operation has fallen from a roof, and a similar citation issued in 1983 was withdrawn. Considering the photographs and the description of the process by Mrs. Standley, I find that the method used by the company provided the best precautions possible under the circumstances. That the company was the first to purchase costly state of the art safety equipment even before the citation is further evidence that it is concerned about the safety of its employees and provides every available precaution against injury. Even if the precautions had been found insufficient, I would not rate the probability as moderate, but would reduce that to low. The materials on which the workers stand is not slippery and there has not been a fall using this method for 36 years. Further, considering the height and the softness of the ground below, I would reduce the seriousness factor from death to serious. As a result, I would reduce the penalty from $1,200 to $120 under the penalty scheduled provided in Table 1 of OAR 437-01-145 ($150 for low probability of serious physical harm, reduced by 20 percent to $120 for alleviation at the time of inspection pursuant to OAR 437-01-145(2)(a)). ORDER NOW, THEREFORE, IT IS HEREBY ORDERED Citation No. D477506391 which alleges a violation of OAR 437-03-040(1) and imposes a penalty of $1,200, is dismissed with prejudice. NOTICE TO ALL PARTIES; You are entitled to a 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 Salem, Oregon OCT. 28 1991 WORKERS COMPENSATION BOARD DONNA GARAVENTA, REFEREE