TIP-TOP ROOFERS, INC.; and WESTERN WATERPROOFING CO., INC.

OSHRC Docket No. 14172; OSHRC Docket No. 14237

Occupational Safety and Health Review Commission

April 19, 1977

  [*1]  

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Ira J. Smotherman, Jr, for the employer

William F. Scupine, President, Tip-Top Roofers, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

Decisions of Review Commission Judge James D. Burroughs in the captioned cases are before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. Because the issues of fact and law are the same, we order consolidation for decisional purposes.

In each case, Judge Burroughs affirmed a citation that alleged that the employer had violated 29 U.S.C. §   654(a)(2) by failing to install perimeter guarding on a flat roof in contravention of 29 CFR §   1926.500(d)(1).

In Central City Roofing Co., BNA 4 OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), a divided Commission held that 29 CFR §   1926.500(d)(1) does not apply to flat roofs.   That decision is dispositive of the allegation at issue in each of these consolidated cases.

Accordingly, it is ORDERED that the citation for failure to   [*2]   comply with 29 CFR §   1926.500(d)(1) and the penalty assessed therefor in Docket No. 14172 and Docket No. 14237 are vacated.