OSHRC Docket No. 15549

Occupational Safety and Health Review Commission

March 17, 1977


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Baruch A. Fellner, Office of the Solicitor, USDOL

Francis LaRuffa, Reg., Sol. USDOL

Joseph O. Fyfe, President, J.P. Fyfe Inc., 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 Juige'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 [*2]   Judge's decision.   Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.  



MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A.   For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.



Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor, for complainant

Mr. Joseph P. Fyfe, President, J.P. Fyfe Inc., for the respondent

FIER, Judge:


This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C 651 et seq., hereinafter called the Act), wherein respondent contests the citation and penalty for one alleged repeated serious violation. The citation dated October 16, 1975, was based on an inspection conducted October 2, 1975.   The citation and proposed penalty was issued pursuant to section 9(a)   [*3]   and 10(a) of the Act.

Pursuant to section 10(c) of the Act, 29 U.S.C. 659(c), respondent through a letter dated October 28, 1975, from its President, noted its timely contest of the citation and proposed penalty.

The citation for alleged repeat serious violation sets forth the following:





29 CFR 1926.500(d)(1)

Employee working on opensided floor

more than 6 feet above adjacent

ground level was not guarded by a

standard railing or the equivalent.

The employee was approximately 15

feet above adjacent ground level,

at rear of building.


A penalty of $1,700,00 was proposed.

Standard as promulgated

"29 CFR 1926.500

(d) Guarding of open-sided floors, platforms, and runways. (1) Every opensided 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 [*4]   with which falling materials could create a hazard."


1.   Whether the respondent violated the Occupational Safety and Health Act as alleged.

2.   Whether the respondent failed to comply with section 29 CFR 1926.500(d)(1); if so, did it violate section 5(a) of the Act.

3.   If the alleged violation is a repeat serious violation, what penalties, if any, are appropriate.


The respondent, at the hearing, stated that it is a corporation organized under the laws of the State of New York.   It does a volume of business across state lines in excess of one million dollars annually.   Some of the materials used are manufactured in other states.   The respondent employs from ten to sixty people, depending on the size of the job (Tr. 5). *

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* Transcript page.

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Anthony Merisola, a compliance officer (hereafter referred to as C.O.) for the Department of Labor testified that he inspected the respondent's worksite on October 2, 1975 in Lebanon, New Jersey (Tr. 22).

The C.O. stated that at the [*5]   time of inspection he observed seven of respondent's employees working on top of a one-story structure (Tr. 24).   Two of the workers were within two or three feet of the edge (Tr. 30).   They were not wearing any personal protection equipment such as safety belts or lanyards (Tr. 30).   There was no perimeter guarding anywhere on the roof (Tr. 30).   There was a parapet around the entire roof with a height varying from 6 to 18 inches (Tr. 32).   The height of the roof above the ground was approximately 15 to 17 feet (Tr. 32).

The C.O. introduced a photograph he had taken at the time of inspection purportedly showing the respondent's employees working near the edge of the roof without guardrails or safety equipment (Exh. C-1).

The respondent testified that the parapet offered some protection and further, the amount of exposure to the edge of the roof was minimal.   The respondent also indicated that the feasibility and impossibility of compliance made the installation of perimeter guarding prohibitive in terms of cost because of the large roofing area (Tr. 121).


The respondent in the course of the hearing moved for a dismissal of the citation, relying on two recent Circuit [*6]   Court decisions.   The 7th Circuit Court of Appeals in Langer Roofing and Sheet Metal, Inc. v. Secretary of Labor and OSAHRC, 524 F.2d 1337, ruled that the interpretation of section 29 CFR 1926.500(d)(1) advocated by the Secretary and adopted by the Commission, did not accord with normal usage and was found to be unreasonable.   The court also noted that 29 CFR 1926.451(u)(3) was the only regulation expressly requiring protection for roof edges. The regulation does not apply to flat roofs and specifically exempts roofs having slopes of less than 4 inches in 12.   The standard essentially states, "A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with slope greater than 4 inches in 12 inches without a parapet." (emphasis added)

In Diamond Roofing Company, Inc., v. OSAHRC and USERY, 528 F.2d 645, (5th Cir. 1976), the court ruled that 29 CFR 1926.500(d)(1) does not apply to open-sided roofs. Specifically, the court has held that a roof is not a floor.

The Circuit Courts of at least two regions of the country have determined that standard 29 CFR 1926.500(d)(1), which requires that standard railings [*7]   be erected around open-sided floors does not apply to open-sided roofs and cannot simply be ignored.   The concurrence of the courts in this interpretation raises sufficient doubt regarding the clarity and ability to enforce this standard.

It thus appears that sufficient doubt has been raised to lond doubt as to the applicability of this standard to the factual situation here presented.

Under the circumstances the citation must be vacated.


The credible evidence and the record as a whole establishes preponderant proof of the following:

1.   Respondent J. P. Fyfe, Inc., is in the roofing business.   It does a volume of business across state lines.   Some of the materials used by it are manufactured in other states.

2.   The evidence and testimony establish that the surface upon which the respondent's employees were observed working, was an open-sided roof and not a floor.


1.   The respondent is and was at all times herein engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970.

2.   The Occupational Safety and Health Review Commission has jurisdiction over the subject   [*8]   matter and parties to this action.

3.   Respondent did not violate 29 U.S.C. 654(a)(2) by failing to comply with 29 CFR 1926.500(d)(1).


Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is hereby ORDERED that;

Citation No. 1, item 1 is vacated.