MOSER HEATING AND ROOFING COMPANY, INC.  

OSHRC Docket No. 1295

Occupational Safety and Health Review Commission

January 2, 1974

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Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners.  

OPINIONBY: VAN NAMEE

OPINION:

  VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge James D. Burroughs.   Judge Burroughs vacated one item of Complainant's citation charging a non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., hereinafter "the Act"), on the ground that the standard upon which Complainant relied (29 C.F.R. 1926.500(d)(1)) n1 is inapplicable to flat roofs.

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n1 The cited standard provides:

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.

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We have reviewed the entire record.   Judge Burroughs' decision is adopted only to the extent it is consistent with this decision.

For the reasons stated in our decisions in Secretary of Labor v. S.D. Mullins Company, Inc., Secretary of Labor v. Diamond Roofing Company, Inc. Secretary of Labor v. Heyse Sheet Metal and Roofing Company, Inc.,