“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14805 DALE CRAMPTON COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January26, 1977?DECISIONBefore BARNAKO, Chairman MORAN and CLEARY,Commissioners.??????????? Thiscase is before the Commission pursuant to a suasponte order for review. The parties have filed no objections to theAdministrative Law Judge?s decision, either by way of petitions fordiscretionary review or response to the order for review. Accordingly, therehas been no appeal to the Commission, and no party has otherwise expresseddissatisfaction with the Administrative Law Judge?s decision.??????????? Inthese circumstances, the Commission declines to pass upon, modify or change theJudge?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); CraneCo., 4 BNA OSHC 1015, 1975?76 CCH OSHD para. 20,508 (No. 3336, 1976); seealso Kenystone Roofing Inc., v. O.S.H.R.C.,539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describesno compelling public interest issue.??????????? TheJudge?s decision is accorded the significance of an unreviewed Judge?sdecision. Leone Constr. Co., 3 BNA OSHC 1979, 1975 76 CCH OSHD para. 20,387 (No. 4090, 1976).\u00a0Itis ORDERED that the decision be affirmed.?Dated: January 26, 1977?FOR THE COMMISSION:?William S. McLaughlinExecutive Secretary(SEAL)?MORAN, Commissioner, Concurring:??????????? Iwould affirm the Judge?s decision for the reasons set forth in his decisionwhich is attached hereto as Appendix A. For the reasons expressed in myseparate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC DocketNo. 14046, Dec. 20, 1976, I disagree with the majority?s view regarding thesignificance of decisions rendered by Review Commission Judges.?APPENDIX A\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14805 DALE CRAMPTON COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: August 6, 1976?DECISION AND ORDERAPPEARANCES:Allen L. Prince, Esq., of Dallas, Texas,for the Secretary of Labor\u00a0Robert L. Jones, Jr., Esq., of Fort Smith,Arkansas, for the Respondent\u00a0STATEMENT OF THE CASEBLYTHE, Judge.??????????? Thisis a proceeding brought pursuant to ? 10 of the Occupational Safety and HealthAct of 1970, 29 U.S.C. ? 651, et seq. (the Act), contesting a citation issuedby the complainant, the Secretary of Labor (the Secretary), against therespondent, Dale Crampton Corporation, a corporation, under the authority vestedin complainant by ? 9(a) of the Act. The citation, issued on August 22, 1975,alleges five nonserious items, only one of which is contested; it alleges, onthe basis of an inspection made on August 13, 1975, of a place of employmentlocated at Pomfret Center, University of Arkansas, Fayetteville, Arkansas, thatrespondent violated ? 5(a)(2) of the Act by failing to comply with 29 CFR1926.500(d)(1), which provided:Every opensidedfloor or platform 6 feet or more above adjacent floor or ground level shall beguarded by a standard railing, or the equivalent, as specified in paragraph(f)(i) of this section, on all open sides, exceptwhere there is entrance to a ramp, stairway, or fixed ladder. The railing shallbe provided with a standard toeboard wherever,beneath the open sides, persons can pass, or there is moving machinery, orthere is equipment with which falling materials could create a hazard.?Item 5 of the citation describes the alleged violationas follows:?The open-sided floor or platform 6 feetor more above adjacent floor or ground level did not have a standard railing orthe equivalent on all open sides; i.e., portion of roof being re-roofed onPomfret Center.????????????? Nopenalty was proposed for this alleged violation.[1]??????????? Pursuantto the enforcement procedure set forth in ? 10(a) of the Act, the respondentwas mailed a notification of proposed penalty dated August 22, 1975.Respondent?s notice of contest, in the form of a letter, was dated September 3,1975. The complaint was served on September 22, 1975, and on October 30, 1975,complainant moved to affirm the citation for respondent?s failure to answer. Byletter dated November 14, 1975, respondent indicated that it considered itsnotice of contest a sufficient answer. By order dated November 24, 1973, JudgeJoseph L. Chalk denied the motion to affirm.??????????? Thehearing was held at Fort Smith, Arkansas, on February 24, 1976. Both partieshave filed post-hearing briefs, and the case is now ripe for decision.??????????? Noemployees or representatives of affected employees sought party status in thisproceeding.FINDINGS OF FACT??????????? Theevidence consists of the testimony of Dale Crampton, respondent?s president(called by both parties), and Paul Hansen, OSHA compliance officer, and twophotographs, exhibits C?1 and C?2. On the basis of this evidence, the followingfindings of fact are made:??????????? 1.The respondent, Dale Crampton Company, is a corporation engaged in theconstruction business, usually as a subcontractor, in the installation ofroofing, sheet metal, and lightweight decks for acoustical ceilings. Itaverages about 28 employees, but sometimes has more on larger jobs. Its grossannual revenue is from $750,000 to $1,000,000. Most of its business is inArkansas but sometimes it operates in Oklahoma. Some of its supplies arepurchased outside the state of Arkansas (Tr. 14, 16, 17).??????????? 2. OnAugust 13, 1975, Compliance Officer Hansen inspected a work-place on theUniversity of Arkansas campus at Fayetteville, Arkansas, where respondent wasre-roofing the Pomfret Center (Tr. 19, 20).??????????? 3.The roof was essentially flat, with an 18 inch parapet on all the edges exceptfor a 46-inch overhang along 78 feet of one side. The overhang itself was notbeing re-roofed (Tr. 20, 21, 59).??????????? 4. Atthe time of the inspection, three of respondent?s employees were on the roof,and at times they worked near the parapet. They were throwing old, replacedroofing material over the parapet to the raised bed of a dump truck, installingnew roofing materials, and mopping on hot asphalt. Some of the roofingmaterials were being hoisted over the parapet by means of a rope hoist (Tr. 20,22, 23). The roof was about 27 feet from the ground, and there was a concretesidewalk the length of the building below the roof edge (Tr. 25, 26).??????????? 5. Nostandard railing was provided on the roof to prevent falls (Tr. 31). Such afall probably would result in death or serious injury (Tr. 29). The probabilityof such a fall was moderate (Tr. 30).OPINION??????????? Atthe time of the hearing, Commission precedent held that 29 CFR 1926.500(d)(1)applied to flat roofs. However, the Commission has very recently reversed itsposition in Secretary v. Central City Roofing Company, Inc., No. 8173,decided June 4, 1976. Therefore, the citation must be vacated.CONCLUSIONS OF LAW??????????? 1.The Commission has jurisdiction of the parties and of the subject matter ofthis proceeding.??????????? 2.The respondent was not in violation of 29 CFR 1926.500(d)(1) on August 13,1975.ORDER??????????? Onthe basis of the foregoing findings of fact and conclusions of law, it isORDERED that:??????????? 1.Citation 1 for nonserious violation of 29 CFR 1926.500(d)(1) be and it herebyis vacated.??????????? 2.This proceeding be and it hereby is terminated.DEE C. BLYTHE ADMINISTRATIVE LAW JUDGEJuly 6, 1976[1] During the hearingcomplainant moved to amend the complaint to allege a serious violation. In viewof the disposition to be made, this motion is denied.”