OSHRC Docket No. 6853

Occupational Safety and Health Review Commission

August 11, 1976


Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.  


Herman Grabt, Regional Solicitor

Richard D. Finley, LANGER ROOFING & SHEET METAL INC., for the employer

ROOFERS & WATERPROOFERS UNION, Local #65, for the employees




BARNAKO, Chairman:

A decision of Administrative Law Judge George W. Otto is before us for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").   Judge Otto vacated a citation which alleged a violation of 29 C.F.R. 1926.500(d)(1) in that employees were permitted to work on an unguarded flat roof.   The Judge vacated for procedural reasons and his decision was thereafter directed for review.

We do not find decision on the procedural issue to be necessary in this case.   Subsequent to the direction for review, Respondent submitted a motion asking that the review proceeding be dismissed and the citation be vacated on the basis that the cited standard does not apply to flat roofs.   The motion comports with the recent holding by a divided Commission in Central City Roofing Co., No. 8173, BNA 4 OSHC 1286, CCH OSHD para. 20,761 (June 4, 1976); we grant the motion [*2]   and vacate the citation and proposed penalty therefor.

It is so ORDERED.