THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH-93210

					)  Citation No.  P6808-063-93

	Plaintiff			)




	Defendant			)  OPINION AND ORDER 

	Pursuant to notice, a hearing was held in the above matter on
August 17, 1993 in Portland, Oregon before Marilyn Nichols,
Referee. The Plaintiff, Oregon Occupational Safety and Health
Division (OrOSHA) was represented by Armonica Gilford, Assistant
Attorney General. The Defendant, Affordable Roofing
Incorporated, did not appear at the hearing nor did anyone
appear in their behalf. The hearing was recorded by Jan Nelson
of Harris Reporting Services. The matter was closed at the
conclusion of the hearing.

	The following exhibits were submitted and received into the
record in this matter: Exhibits 1-10, with the exception of 7
(photographs) which were withdrawn.


	In the request for hearing, Defendant contested Item 1-1 of
Citation No. P6808-063-93, challenging the violation.

	The Defendant also contested Item 1-2 of Citation No.
P6808-063-93, challenging only the penalty.

                          FINDINGS OF FACT

	Randy Slipher is president of Affordable Roofing Incorporated,
a roofing business that was involved in doing roofing work at
the Clinton Street address in April 1993. On the date in
question, Affordable Roofing had several employees who were
working on the roof of a building. 

	On April 7, 1993, Bill Powell, a safety compliance officer
(SCO) for Or OSHA was driving by 1532 S.E. Clinton, Portland,
Oregon, when he observed workmen on the roof of the building.
Because they were doing flat build-up roofing work without
apparent fall protection, the SCO decided to conducted a safety
inspection. There were seven people working on the roof. The
roof was approximately nineteen feet from ground level. The size
of the roof was 50 feet by 60 feet.  The roof was flat with no
sides just a short, curb like edge around the roof. There was no
fall protection around the roof. Everyone who was on the roof
was actively working, no one was just standing around observing
the other workers. A video tape was made by the of the  SCO of
the workers actively engaged in work activity on the roof. 

	Another worker was engaged in melting asphalt on the ground in
a tar pot, the melted tar or asphalt, was then transported to
the roof to be applied by the workers. The individual who was
melting the tar was not wearing any protective gear to prevent
burns due to the splashing of the hot tar. He was wearing cotton
gloves and a short sleeved shirt. He was not wearing any eye
protection device. 

 	When the SCO asked to speak to whoever was in charge, Randy
Slipher came to talk to him. The SCO also talked to Carol Wilson
an employee of Affordable Roofing who had worked for Mr. Slipher
for about five years. Randy Slipher indicated that they were
using a safety monitoring system (a spotter) in lieu of any
other form of fall protection. No spotter was observed by the
SCO as all individuals on the roof were working, not watching
the other workers.

	The probability of an employee falling from this job was
determined by the SCO to be low, but the severity of the injury
would likely be death. The penalty was reduced by several
factors including a 10 percent reduction given for small
employers, a 30 percent reduction given for the employers loss
work day rate, and a 20 percent reduction given because the
violation was corrected immediately.

	The probability of the employee who was operating the tar pot
receiving an injury was also determined by the SCO to be low. If
an injury did occur, however, the injury would likely be severe.
This penalty was likewise reduced by 60 percent.


	OAR 438-85-810 provides, with the exception of a showing of
good cause, the failure of a party to appear at the hearing
shall be considered a default and waiver of all rights except
the right to be served with a copy of the referee's decision and
the right to request judicial review in accordance with ORS
183.480 and 183.500.

	OAR 438-85-865(3) provides that a default order may be issued
only upon a prima facie case made in the evidentiary record.

Item 1-1

	The Defendant contests the violation of item 1-1. The standard
cited as violated in this item is OAR 437-3-075(1)

		"General provisions: During the performance of built-up
roofing work on low-pitched roofs with a ground to eave height
greater than 10 feet, employees engaged in such work shall be
protected from falling from all unprotected sides and edges of
the roof as follows:

(a) By the use of a motion-stopping-safety system; or (b) By the use of a warning line system. . . ; or (c) By the use of a safety monitoring system on roofs 50 feet or less in width . . . where mechanical equipment is not being used or stored."
Because neither the Defendant nor anyone in its behalf showed up at the hearing, the Plaintiff is only required to put on a prima facie case in support of the citation. Plaintiff has the burden to prove that there has been a violation of the cited rule, that the cited employer was within the scope of the rule and that the penalty is appropriate. Plaintiff must prove this by a preponderance of the evidence. The record in this matter consists of the written documents that were submitted and received and the sworn testimony of Mr. Powell, the SCO. He drove past the work site, observed people working on the roof and stopped to make an inspection. He observed the seven people on the roof working without apparent fall protection. He interviewed the corporation president, Randy Slipher, as well as a couple of employees. Mr. Slipher acknowledged that he was using safety monitors (watchers or spotters) as fall protection as allowed by the rules. The SCO credibly testified and the video supported his testimony, that all the workers on the roof were actively working. No one was watching the other workers. There was a violation of the cited rule as there was no fall protection system in use and the height of the roof was over 10 feet from the ground to the eaves. There were no fall lines in place and there was no argument by the Defendant that such lines were being used. The employees were not wearing any fall protection devices at the time of the inspection. When the inspection was completed, the system of spotters was in place. The probability of a fall occurring on this job was low, but if a fall did occur, the result would likely have been death. The penalty using the matrix is appropriate. Item 1-2 The Defendant contests the penalty of item 1-2 of the citation. The Defendant has not challenged the violation of the cited standard: OAR 437-03-001. The employee who was working at the tar pot was not wearing protective clothing or devices. He was wearing cotton gloves and was wearing a short sleeve shirt. The employee did not have eye protection on. The employer did indicate that the type of asphalt block that was used was not likely to splash. The employee would place the block in the opening of the tar pot and push the block into the pot with a stick. The melted tar is extremely hot. The probability of an injuring occurring from being splashed by hot asphalt is low, OAR 437-01-135, but if an injury would occur, the type of injury would result in serious physical harm. See OAR 437-01-015(48)(a). The injury the employee would likely receive would be disabling burns. The penalty is appropriate according to the schedule contained in Table 1 of OAR 437-01-145. Therefore, ORDER IT IS HEREBY ORDERED that items 1-1 and 1-2 of Citation No. P6808-063-93 are affirmed. 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 Salem, Oregon August 16, 1994 Workers' Compensation Board Marilyn E. Nichols Referee