SECRETARY OF LABOR, Complainant, v. WACHSBERGER ROOFING AND SHEET METAL WORKS, INC., Respondent. OSHRC Docket No. 82-0569 _ORDER_ The Commission treats the Secretary's withdrawal as a motion to withdraw the citation and notification of proposed penalty and grants the Secretary's motion.[[1/]] FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary Dated: MAY 25 1984 RAYMOND J. DONOVAN, SECRETARY OF LABOR, Complainant, v. WACHSBERGER ROOFING & SHEET METAL WORKS, INC., Respondent. OSHRC DOCKET No. 82-0569 SECRETARY'S WITHDRAWAL OF CITATION AND NOTIFICATION OF PROPOSED PENALTY The instant case concerns a citation alleging that respondent violated the personal protective equipment standard at 29 CFR 1926.28(a) by not requiring the use of safety belts during work on a flat roof. On April 19, 1984 the Commission issued a supplemental briefing order requesting the parties to comment on whether citation to 29 CFR 1926.28(a) is improper because 29 CFR 1926.500(g), dealing with fall protection on flat roofs during built-up roofing work, is a more specifically applicable standard within the meaning of section 1910.5(c)(1). Respondent had not raised this issue previously. Although there are factual questions as to whether the work in this case was built-up roofing work within the meaning of 29 CFR 1926.502(p)(3), the Secretary has determined that the instant case is an inappropriate vehicle for litigating the issue of the definition of built-up roofing work. Therefore, the Secretary hereby withdraws the citation and notification of proposed penalty in the above-captioned case. Respectfully submitted, FRANCIS X. LILLY Solicitor of Labor FRANK A. WHITE Associate Solicitor for Occupational Safety and Health DANIEL J. MICK Counsel for Regional Trial Litigation MARK J. LERNER Attorney ------------------------------------------------------------------------ The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES: [[1/]] Commissioner Cleary dissents to this order because of lack of certification of service on affected employees.