OSHRC Docket No. 14811

Occupational Safety and Health Review Commission

February 18, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of his Solicitor, USDOL

William S. Kloepfer, Reg. Sol., USDOL

Scott J. Saum, for the employer



This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party has otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSH 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.



MORAN, Commissioner, Dissenting:

The Judge properly concluded that the cited standard, 29 C.F.R. 1926.500(d)(1), does not apply to flat roofs. Secretary v. Central City Roofing Co., OSAHRC Docket No. 8173, June 4, 1976. He erred, however, in granting complainant's motion to amend the charge to allege noncompliance with 29 C.F.R. 1926.28(a) and affirming the citation as so amended. Because of the unique nature of citations under the Act, such amendments, made after the filing of a notice of contest, are inherently prejudicial and, therefore, should be prohibited except in the most extraordinary of circumstances. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion). However, assuming arguendo that amendment in this case was proper, the evidence is insufficient to establish a failure to comply with 1926.28(a) because the roof in question was less than 25 feet above the ground. Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143 (1975) (dissenting opinion). Vacation of the citation [*3] is therefore required.

Furthermore, for the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, December 20, 1976, I disagree with the manner in which my colleagues are disposing of this case and with their views regarding the significance of decisions rendered by Review Commission Judges. Since my colleagues do not address any of the matters covered in Judge Zinn's decision, his decision is attached hereto as Appendix A so that the law in this case may be known.