M. M. SCHRANZ ROOFING & BUILDING SUPPLY CO., INC. �

OSHRC Docket No. 5750

Occupational Safety and Health Review Commission

July 7, 1976

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners. �

COUNSEL:

Herman Grant, Regional Solicitor

James G. Howard, for the employer

OPINION:

DECISION

BY THE COMMISSION:

On February 25, 1975, Administrative Law Judge George W. Otto issued his decision in this case, affirming item 2 of a citation for non-serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. � � 651 et seq. and assessing a $55 penalty. n1 The item alleged that respondent had failed to comply with the safety standard published at 29 CFR � � 1926.500(d)(1) n2 by not providing standard railings on a flat roof upon which its employees were working.

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n1 Two other items of the citation were not contested by respondent and have become final orders of the Commission pursuant to section 10(a) of the Act.

n2 29 CFR � � 1926.500 Guardrails, handrails, and covers

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(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)(i) 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 toe-board 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.

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Respondent petitioned for review of the Judge's decision. � Pursuant to section 12(j) of the Act review was directed by Commissioner Moran on the following issues:

(1) Whether the Judge ruled properly upon respondent's defense that compliance with the regulation was impossible.

(2) Whether the occupational safety and health standard published at 29 CFR � � 1926.500(d)(1) was applicable to the facts of this case.

The case has been briefed by the parties. � For the reasons set forth in Central City Roofing Company, Inc., No. 8173 (June 4, 1976) a divided Commission held that the cited standard is inapplicable to the flat roof involved.

Accordingly, it is ORDERED that the Judge's decision is reversed and item 2 of the citation and its attendant penalty are vacated. �