UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11533
SLOAN ROOFING COMPANY,
Respondent.

September 2, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

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).[1] 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.

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.[2] Respondent, a roofing contractor, was working on a flat roof when cited.

Therefore, we affirm the Judge’s vacation of the citation and proposed penalty.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: SEP 2, 1976

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 11533
T. F. SLOAN COMPANY,
Respondent.

August 25, 1975

DECISION AND ORDER

Appearances:

Ian P. Spier, Esquire Office of the Solicitor

U. S. Department of Labor 1515 Broadway, Room 3555 New York, New York Attorney for the Complainant

Hugh P. Francis, Esquire

Apruzzese & McDermott Independence Plaza 500 Morris Avenue Springfield, New Jersey Attorney for the Respondent

DECISION

On December 13, 1974, the Secretary of Labor issued a citation charging that on December 4, 1974, the respondent failed to comply with a safety regulation in serious violation of section 654(a)(2) of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereinafter referred to as the Act). Notification of Proposed Penalty was issued to the respondent on December 13, 1974, indicating a proposed penalty of $650.00. A timely notice of contest was filed by the respondent, and this Commission thereby acquired jurisdiction over the subject matter under section 659 of the Act. A hearing was held on this matter in New York City, New York, on April 4, 1975.

A description of the alleged violation and the standard concerned are as follows:

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.

In violation of 29 CFR 1926.500(d)(1)

29 CFR 1926.500(d)(1)

(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.

The respondent herein is a roofing and waterproofing contractor. Many of the materials and supplies used by the respondent were manufactured outside of the State of New Jersey and used by the respondent in that state, therefore, the respondent is engaged in a business affecting commerce within the meaning of the Act.

On December 4, 1974, the complainant’s Compliance agent inspected the respondent’s worksite in Edison, New Jersey. The respondent had a foreman and four employees working on the roof of the Michelin Tire Corporation building in that city. Access to the roof was obtained by a ladder in an opening in the middle of the roof. The roof was 24-feet above the surrounding ground level. Upon reaching the roof, the compliance officer saw four of the employees working on an expansion joint. They were laying in rubber with hot tar. The roof of the building was square, each side being 442-feet long. The expansion joint lay in a straight line halfway between the north and south edges of the roof and going from the east edge of the roof to the west edge. The work was progressing from the east to the west. The employees at no time worked any closer than 40-foot from the edge of the roof. At the time the compliance officer observed the employees, they were working within 10 to 15-feet of the center of the roof. The roof was flat. There was no evidence of any unusual conditions that would make this roof particularly hazardous.

The respondent had been working on this roof for approximately one hundred days, and, on the day of the inspection, the job was completed.

When the compliance officer reached the roof with the respondent’s foreman during the inspection, the compliance officer pointed out to the foreman that there was no perimeter protection, in that there were no railings. He stated that this was a ‘violation of the law.’ When the foreman complained that the employees were working in the center of the roof, and apparently not near the edge, the compliance officer ‘informed him that it was still a violation of the law to have his people on a floor with no perimeter protection.’

At arriving at the above finding of facts, it was necessary to weigh the conflicting testimony of the compliance officer and the respondent’s employees. It is found that in regard to the size of the roof the compliance officer was very unsure when he testified that the roof was between 70 and 80-feet wide and 120-feet long. He appeared to have some difficulty in remembering the dimensions and appeared to be guessing. On the other hand, the respondent’s witnesses were quite sure of the dimensions of the roof and, in addition, photographs of the roof received in evidence would appear to support their testimony.

Based on the foregoing findings of fact, it must be concluded that no hazard existed. As none of the respondent’s employees had gone closer than 40-feet from the edge of the roof in question, it cannot be found that any of these employees were subjected to any possibility of falling off the perimeter of the building. Therefore, the citation herein will be vacated.

ORDER

Based on the foregoing, it is ordered that the citation and the proposed penalty herein be and are hereby VACATED.

Erwin L. Stuller,

Judge

Dated: August 25, 1975

[1] 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:

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