White Plains Iron Works, Inc.

Plain-English summary

The judge affirmed a repeated-serious citation alleging that White Plains Iron Works failed to install perimeter guarding on a flat roof. After that ruling, the Commission held in another case that the cited open-sided-floor standard did not apply to flat roofs. Because that precedent controlled and the Secretary had not sought an alternative fall-protection charge, the Commission vacated the repeated-serious citation and its $1,400 penalty. Four separate nonserious items and their total $105 penalty were not challenged and remained outside the Commission's review.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
• Outcome: The repeated-serious flat-roof citation and $1,400 penalty were vacated; unrelated unreviewed items remained in place.
• Key point: A guardrail citation could not stand after the Commission determined that the cited standard did not cover flat roofs.

Full text (OSHRC public release)

Docket No. 13384

WHITE PLAINS IRON WORKS, INC.
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OSHRC Docket No. 13384

Occupational Safety and Health Review Commission

November 28, 1977

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Before: CLEARY, Chairman; and BARNAKO, Commissioner.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

George Gary Janis, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge Seymour Fier, dated December 15, 1975, is before this Commission for review pursuant to 29 U.S.C. �
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661(i).
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That decision affirmed a citation which alleged a repeated-serious violation of 29 C.F.R. �
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1926.500(d)(1) for the respondent's failure to install perimeter guarding on a flat roof. n1

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n1 The Judge also affirmed items 1-4 of a citation for nonserious violations and a total penalty of $105 on the basis of respondent's withdrawal of its notice of contest to that citation.
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The Judge vacated item 5 of that citation following the complinant's withdrawal of it.
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Since no party has taken exception to the Judge's disposition of this citation, the Commission will not review it.
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See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

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In Secretary v. Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), a divided Commission held that 29 C.F.R. �
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1926.500(d)(1) does not apply to flat roofs.
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That decision is dispositive of the charge in issue in the instant case. n2

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n2 Chairman Cleary notes the absence of any motion to amend to 29 C.F.R. �
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1926.28(a) or to the general duty clause, 29 U.S.C. �
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654(a)(1).
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See Dunlop v. Uriel G. Ashworth & OSHRC, 538 F.2d 562 (4th Cir. 1976).

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Accordingly, the citation for a repeated-serious violation of 29 C.F.R. �
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1926.500(d)(1) and the $1,400 penalty assessed therefor are vacated.
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