Ezel / Agency Decisions / 76-3121-commission
OSHRC Commission decision Docket 76-3121 Decided June 17, 1977 Citations affirmed

New York Roofing Co.

Commission declines review of a deficient petition and affirms the judge

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Currency note: this decision dates from 1977
The OSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Decision of the Commission
This is a decision of the Occupational Safety and Health Review Commission, the highest level of agency review, citable as Commission precedent. It may have been appealed to a U.S. Court of Appeals after issuance; check subsequent history before relying on it. The full text below is from the official OSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official OSHRC release. The full text is the Commission's own document.
Read the official release (oshrc.gov)

Plain-English summary

New York Roofing Company was cited for violating 29 C.F.R. § 1926.28(a), the construction standard on personal protective equipment, and an Administrative Law Judge affirmed the citation. The company filed a petition for discretionary review, and a Commissioner directed the case for review. The Commission declined to review the merits because the petition did not specify how the judge's decision was wrong, which the Commission's rules require, and neither party filed a brief after being invited to. As a result, the judge's decision stands and carries the weight of an unreviewed judge's decision. The specific violation and penalty are not detailed in this short order.

Decision snapshot

  • Cited standard(s): 29 C.F.R. § 1926.28(a)
  • Outcome: The Administrative Law Judge's decision affirming the citation was affirmed; the Commission declined review.
  • Key point: A petition for discretionary review must specify the grounds for review; a petition that does not, and unfiled briefs, will lead the Commission to decline review and leave the judge's decision as an unreviewed decision.

Full text (OSHRC public release)

Docket No. 76-3121

NEW YORK ROOFING COMPANY

OSHRC Docket No. 76-3121

Occupational Safety and Health Review Commission

June 17, 1977

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

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Regional Solicitor, USDOL

Robert J. Ansbro, Vice Pres., New York Roofing Company, for the employer

OPINION:

ORDER

BY THE COMMISSION: This case is before the Commission pursuant to an order for review by former Commissioner Moran.
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Respondent filed a petition for discretionary review which requested review by the Commission of a citation for violation of 29 C.F.R. �
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1926.28(a) that was affirmed by Judge Jerome C. Ditore.
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The petition does not specify how the Judge's decision is in error.
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Commission Rule 91a(b) and (c), 29 C.F.R. �
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2200.91a(b) and (c), 41 Fed. Reg. 53016 (1976), requires that such petitions specify the grounds on which review is sought.
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Furthermore, although the parties were invited to file briefs in response to the direction for review, they have not done so.
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In these circumstances, the Commission will not review the case.
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See Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976).
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See
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also Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976).

The Judge's decision is accorded the significance of an unreviewed Judge's decision.
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Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

Accordingly, the Judge's decision is affirmed.
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