SECRETARY OF LABOR,
Complainant,

v.
WACHSBERGER ROOFING AND SHEET METAL
WORKS, INC.,
Respondent.

OSHRC Docket No. 82-0569

ORDER

The Commission treats the Secretary's withdrawal as a motion to withdraw the citation and notification of proposed penalty and grants the Secretary's motion.[[1/]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated:  MAY 25 1984


RAYMOND J. DONOVAN, SECRETARY OF LABOR,
Complainant,

v.

WACHSBERGER ROOFING & SHEET METAL
WORKS, INC.,
Respondent.

OSHRC DOCKET No. 82-0569

SECRETARY'S WITHDRAWAL OF CITATION AND
NOTIFICATION OF PROPOSED PENALTY

The instant case concerns a citation alleging that respondent violated the personal protective equipment standard at 29 CFR 1926.28(a) by not requiring the use of safety belts during work on a flat roof.  On April 19, 1984 the Commission issued a supplemental briefing order requesting the parties to comment on whether citation to 29 CFR 1926.28(a) is improper because 29 CFR 1926.500(g), dealing with fall protection on flat roofs during built-up roofing work, is a more specifically applicable standard within the meaning of section 1910.5(c)(1).  Respondent had not raised this issue previously.  Although there are factual questions as to whether the work in this case was built-up roofing work within the meaning of 29 CFR 1926.502(p)(3), the Secretary has determined that the instant case is an inappropriate vehicle for litigating the issue of the definition of built-up roofing work. Therefore, the Secretary hereby withdraws the citation and notification of proposed penalty in the above-captioned case.

Respectfully submitted,
FRANCIS X. LILLY
Solicitor of Labor

FRANK A. WHITE
Associate Solicitor for Occupational
Safety and Health

DANIEL J. MICK
Counsel for Regional Trial Litigation

MARK J. LERNER
Attorney

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1/]] Commissioner Cleary dissents to this order because of lack of certification of service on affected employees.