“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY ANDHEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11533 SLOAN ROOFING COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 2, 1976DECISIONBEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.CLEARY,Commissioner:OnAugust 25, 1975, Administrative Law Judge Erwin L. Stuller rendered a decisionvacating a citation that alleged failure to comply with the occupational safetyand health standard set out at 29 CFR ? 1926.500(d)(1).[1] Judge Stuller vacated thecitation because he found that none of respondent?s employees was subjected tothe possibility of falling off the perimeter of the building at respondent?sworkplace in Edison, New Jersey.TheSecretary petitioned for review of the Judge?s decision, and on September 24,1975, I granted the petition pursuant to section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq., [hereinafter ?theAct?]. I noted that the issue raised by the petition is:Whetherthe Administrative Law Judge erred in vacating the citation on the finding thatrespondent?s employees were not exposed to the hazard contemplated by the citedstandard???????????? It is unnecessary for the Commissionto 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 dividedCommission held that 29 CFR ? 1926.500(d)(1) does not apply to flat roofs.[2] Respondent, a roofingcontractor, 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. McLaughlinExecutive SecretaryDATED: SEP 2, 1976\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY ANDHEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 11533 T. F. SLOAN COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 25, 1975DECISIONAND ORDERAppearances:Ian P. Spier,Esquire Office of the Solicitor U. S. Departmentof Labor 1515 Broadway, Room 3555 New York, New York Attorney for theComplainant\u00a0Hugh P. Francis,Esquire Apruzzese &McDermott Independence Plaza 500 Morris Avenue Springfield, New Jersey Attorneyfor the Respondent?DECISIONOnDecember 13, 1974, the Secretary of Labor issued a citation charging that onDecember 4, 1974, the respondent failed to comply with a safety regulation inserious violation of section 654(a)(2) of the Occupational Safety and HealthAct 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 wasfiled by the respondent, and this Commission thereby acquired jurisdiction overthe subject matter under section 659 of the Act. A hearing was held on thismatter in New York City, New York, on April 4, 1975.Adescription of the alleged violation and the standard concerned are as follows:The open-sidedfloor on which the employees were working was not guarded by a standardrailing, or the equivalents, on all open sides. The open-sided floor referredto is approximately 24 feet above adjacent ground level.? \u00a0In violation of 29CFR 1926.500(d)(1)\u00a029 CFR1926.500(d)(1)?(d) Guarding ofopen-sided floors, platforms, and runways. (1) Every open-sided floor orplatform 6 feet or more above adjacent floor or ground level shall be guardedby a standard railing, or the equivalent, as specified in paragraph (f)(1) ofthis section, on all open sides, except where there is entrance to a ramp,stairway, or fixed ladder. The railing shall be provided with a standardtoeboard wherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create ahazard.?Therespondent herein is a roofing and waterproofing contractor. Many of thematerials and supplies used by the respondent were manufactured outside of theState of New Jersey and used by the respondent in that state, therefore, therespondent is engaged in a business affecting commerce within the meaning ofthe Act.OnDecember 4, 1974, the complainant?s Compliance agent inspected the respondent?sworksite in Edison, New Jersey. The respondent had a foreman and four employeesworking 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 theroof. The roof was 24-feet above the surrounding ground level. Upon reachingthe roof, the compliance officer saw four of the employees working on anexpansion joint. They were laying in rubber with hot tar. The roof of thebuilding was square, each side being 442-feet long. The expansion joint lay ina straight line halfway between the north and south edges of the roof and goingfrom the east edge of the roof to the west edge. The work was progressing fromthe east to the west. The employees at no time worked any closer than 40-footfrom the edge of the roof. At the time the compliance officer observed theemployees, 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 wouldmake this roof particularly hazardous.Therespondent had been working on this roof for approximately one hundred days,and, on the day of the inspection, the job was completed.Whenthe compliance officer reached the roof with the respondent?s foreman duringthe inspection, the compliance officer pointed out to the foreman that therewas no perimeter protection, in that there were no railings. He stated thatthis was a ?violation of the law.? When the foreman complained that theemployees were working in the center of the roof, and apparently not near theedge, the compliance officer ?informed him that it was still a violation of thelaw to have his people on a floor with no perimeter protection.?Atarriving at the above finding of facts, it was necessary to weigh theconflicting 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 wasvery unsure when he testified that the roof was between 70 and 80-feet wide and120-feet long. He appeared to have some difficulty in remembering thedimensions and appeared to be guessing. On the other hand, the respondent?switnesses were quite sure of the dimensions of the roof and, in addition,photographs of the roof received in evidence would appear to support theirtestimony.Basedon 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 theedge of the roof in question, it cannot be found that any of these employeeswere subjected to any possibility of falling off the perimeter of the building.Therefore, the citation herein will be vacated.ORDERBasedon the foregoing, it is ordered that the citation and the proposed penaltyherein be and are hereby VACATED.?ErwinL. Stuller,JudgeDated:August 25, 1975[1] The citation alleged that:The open-sidedfloor on which the employees were working was not guarded by a standardrailing, or the equivalents, on all open-sides. The open-sided floor referredto is approximately 24 feet above adjacent ground level.29 CFR ? 1926.500(d)(1)provides:(d) Guarding ofopen-sided floors, platforms, and runways. (1) Every open-sided floor orplatform 6 feet or more above adjacent floor or ground level shall be guardedby a standard railing, or the equivalent, as specified in paragraph (f)(1) ofthis section, on all open sides, except where there is entrance to a ramp,stairway, or fixed ladder. The railing shall be provided with a standardtoeboard wherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials could create ahazard.[2] In my opinion, the application of CentralCity should be limited to the roofing industry.”