T.F. SLOAN COMPANY

OSHRC Docket No. 11533

Occupational Safety and Health Review Commission

September 2, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Francis V. LaRuffa, Reg. Sol., USDOL

Hugh P. Francis, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Commissioner:

On August 25, 1975, Administrative Law Judge Erwin L. Stuller rendered a decision vacating a citation that alleged failure to comply with the occupational safety and health standard set out at 29 CFR 1926.500(d)(1). n1 Judge Stuller vacated the citation because he found that none of respondent's employees was subjected to the possibility of falling off the perimeter of the building at respondent's workplace in Edison, New Jersey.

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n1 The citation alleged that:

The open-sided floor on which the employees were working was not guarded by a standard railing, or the equivalents, on all open-sides. The open-sided floor referred to is approximately 24 feet above adjacent ground level.

29 CFR 1926.500(d)(1) provides:

(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.

[*2]

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The Secretary petitioned for review of the Judge's decision, and on September 24, 1975, I granted the petition pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., [hereinafter "the Act"]. I noted that the issue raised by the petition is:

Whether the Administrative Law Judge erred in vacating the citation on the finding that respondent's employees were not exposed to the hazard contemplated by the cited standard?

It is unnecessary for the Commission to address the issue of employee exposure here. In Central City Roofing Co., BNA 4 OSHC 1286, CCH 1975-76 OSHD para. 20,761 (No. 8173, 1976), a divided Commission held that 29 CFR 1926.500(d)(1) does not apply to flat roofs. n2 Respondent, a roofing contractor, was working on a flat roof when cited.

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n2 In my opinion, the application of Central City should be limited to the roofing industry.

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Therefore, we affirm the Judge's [*3] vacation of the citation and proposed penalty.