BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH92044

	Plaintiff,			)  CITATION NO. P680800492

					)

		v.			)

					)

AFFORDABLE ROOFING, Defendant.		)  OPINION AND ORDER



A hearing in the above captioned case was convened and closed on
Tuesday, September 29, 1992 before Referee William H. Schultz.
Oregon Occupational Safety and Health Division (OROSHA),
plaintiff, was present and represented by Assistant Attorney
General Armonica M. Gilford. With Ms. Gilford at hearing was
safety compliance officer Powell. Defendant Affordable Roofing
was represented through its president, Randy Slipher. Exhibits 1
through 8 were offered and received into evidence and the
hearing tape recorded by Harris Reporting.



                         ISSUES



Defendant has appealed Citation No. P680800492 (Ex. 1) alleging
violations of OAR 437-3-040(1) and OAR 437-03-001. At hearing,
plaintiff withdrew Item No. 2-2 of the Citation which alleged a
violation of OAR 437-03-001. The sole remaining violation is
described in Item No. 1-1 of the Citation which alleges that the
employer violated OAR 437-3-040(1) by not providing adequate
protection to its workers from fall hazards.



                     FINDINGS OF FACT



Affordable Roofing is owned by Randy Slipher who had
subcontracted to put composition roofing on three story
condominiums located at 235 S.W. Hooker Street in Portland,
Oregon. On October 4, 1991 two of Mr. Slipher's employees,
Santos Reyes and Robert Reyes, were working on the site when
safety compliance officer William Powell drove by and observed
one of the workers walking across the ridge of a finished
section of the roof (Ex. 5, pages 13). The roof is approximately
28 feet off the ground. Mr. Slipher had previously installed
brackets and 2x6 toeboards approximately two feet from the
bottom edge of the roof. The toeboard had been removed from the
brackets on the finished section of the roof along which one of
Mr. Slipher's employees was walking when Mr. Powell drove by.



The safety officer ordered the workers off the roof and stopped
the job pending necessary corrective measures. Later, Mr.
Slipher appeared at the job site and discussed the matter with
the safety officer. At first, Mr. Slipher was advised that he
would not be able to continue the job unless he installed
multiple roofing brackets at least every five feet vertically or
used life lines at a minimum breaking strength of 5,400 pounds.
(This information was apparently based on an outdated
interoffice memorandum from the Department of Insurance and
Finance.) After discussing the matter with the general
contractor, the safety officer obtained an updated memo (Ex. 8)
recommending that on sloped roofs with a pitch up to 8:12, such
as the roof in question, 2x6 roofing brackets set no closer than
two feet from the bottom edge of the roof were acceptable for
fall protection. Mr. Slipher was advised of these requirements
and told that he could continue working if he complied. The
recommended corrections were made immediately.



The area of the roof in question where the 2x6 toeboard had been
removed was not an area where any of the Affordable Roofing
employees were working. That section of the roof had been
completed. Mr. Powell observed one of the employees walking
across the ridge of the roof toward another section of the roof
where the 2x6 boards were still in place.



Based upon his inspection of the jobsite, compliance officer
Powell issued a citation alleging that the employer had violated
OAR 437-3-040(1) by not protecting his employees from fall
hazards (Ex. 1, page 3). Because of the employer's immediate
correction of the problem and his good incident record, the
$1,000.00 fine was reduced to $500.00. Officer Powell evaluated
the fall hazard as creating a low probability of death. He
testified that the employer would not have been cited if the 2x6
toeboard had not been removed.



               ULTIMATE FINDINGS OF FACT



1. The fall protection provided by the employer in this case was
adequate given the circumstances present at the time of the
inspection.



               CONCLUSIONS AND OPINIONS



The plaintiff OROSHA has the burden of proof in this case. In
order to prevail, they must establish, by a preponderance of the
evidence that the employer was in violation of OAR 437-3-040(1)
which provides:



"All employees shall be protected from fall hazards when working
on unguarded surfaces more than ten 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).



With the exception of specific fall protection guidelines for
workers connecting steel beams found in OAR 437-03-040(2) and
(3), the only fall protection regulation which applies to the
facts of the instant case is the regulation in OAR
437-03-040(1), quoted above. As testified to by officer Powell
and represented by counsel for the plaintiff, the Department of
Insurance and Finance does not consider its "interoffice
memorandums" to be "rules" or "regulations" the violation of
which could lead to the issuance of a citation. However, it
appears that the interoffice memorandums do provide the safety
compliance officers, as well as employers with some guidance for
fall protection.



What is at issue here, specifically, is whether or not this
employer, given the circumstances of the job in question, was in
violation of OAR 437-03-040. I conclude that the plaintiff has
failed to meet its burden of proof. This employer never would
have been cited if the 2x6 plank had not been removed from the
roof brackets on that section of the roof where one of the
employees was observed walking.



Under the circumstances, namely, that the employee was simply
walking along the ridge of the roof, several feet above where
the toeboard would have been, it is difficult to speculate that
the existence of the toeboard would have in any way prevented
injury had the worker in question fallen. The worker's actions
at the time of the citation were not anymore unsafe than if a
building inspector had climbed up on the roof and walked along
the ridge to inspect the job. Working on any roof, 28 feet above
the ground, is inherently dangerous. The lack of a 2x6 toeboard,
under the particular circumstances in this case, did not make
that work any more dangerous. The plaintiff has failed to meet
its burden of proof.



                          ORDER



IT IS HEREBY ORDERED that:



1. Item No. 1-1 of Citation No. P680800492 is set aside in its
entirety;



2. Item No. 2-2 of Citation No. P680800492 is withdrawn per
stipulation of the plaintiff.



NOTICE TO ALL PARTIES: If you are dissatisfied with this Order,
you may, not later than sixty (60) days from the mailing date of
this Order, request a review by the Court of Appeals, State
Court Administrator, Records Section, 1163 State Street, Salem,
OR 97310. Any such request for review shall be mailed to the
Court of Appeals at the above address with copies of such
request mailed to all other parties to this proceeding. The
procedure for such judicial review is prescribed by ORS 183.480
and ORS 183.482. Failure to mail such a request for review
within sixty (60) days of the mailing date of this Order will
result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER.



	ENTERED at Portland, Oregon, Oct. 14, 1992 



				WORKERS' COMPENSATION BOARD

				By WILLIAM H. SCHULTZ 

				Referee