“SECRETARY OF LABOR,Complainant,v.WACHSBERGER ROOFING AND SHEET METALWORKS, INC.,Respondent.OSHRC Docket No. 82-0569_ORDER_The Commission treats the Secretary’s withdrawal as a motion to withdrawthe citation and notification of proposed penalty and grants theSecretary’s motion.[[1\/]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: MAY 25 1984RAYMOND J. DONOVAN, SECRETARY OF LABOR,Complainant,v.WACHSBERGER ROOFING & SHEET METALWORKS, INC.,Respondent.OSHRC DOCKET No. 82-0569SECRETARY’S WITHDRAWAL OF CITATION ANDNOTIFICATION OF PROPOSED PENALTYThe instant case concerns a citation alleging that respondent violatedthe personal protective equipment standard at 29 CFR 1926.28(a) by notrequiring the use of safety belts during work on a flat roof. On April19, 1984 the Commission issued a supplemental briefing order requestingthe parties to comment on whether citation to 29 CFR 1926.28(a) isimproper because 29 CFR 1926.500(g), dealing with fall protection onflat roofs during built-up roofing work, is a more specificallyapplicable standard within the meaning of section 1910.5(c)(1). Respondent had not raised this issue previously. Although there arefactual questions as to whether the work in this case was built-uproofing work within the meaning of 29 CFR 1926.502(p)(3), the Secretaryhas determined that the instant case is an inappropriate vehicle forlitigating the issue of the definition of built-up roofing work.Therefore, the Secretary hereby withdraws the citation and notificationof proposed penalty in the above-captioned case.Respectfully submitted,FRANCIS X. LILLYSolicitor of LaborFRANK A. WHITEAssociate Solicitor for OccupationalSafety and HealthDANIEL J. MICKCounsel for Regional Trial LitigationMARK J. LERNERAttorney————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Commissioner Cleary dissents to this order because of lack ofcertification of service on affected employees.”