Wachsberger Roofing and Sheet Metal Works, Inc. (Commission decision, May 25, 1984)

Plain-English summary

OSHA cited Wachsberger Roofing for not requiring safety belts during work on a flat roof. The Commission asked whether the general personal-protective-equipment standard was displaced by the more specific flat-roof fall-protection rule for built-up roofing. Because factual questions remained about whether the work qualified as built-up roofing, the Secretary decided the case was not a suitable vehicle for resolving that definition. The Commission treated the filing as a motion to withdraw the citation and proposed penalty and granted it. Commissioner Cleary dissented because service on affected employees had not been certified.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.5(c)(1), 29 C.F.R. § 1926.28(a), 29 C.F.R. § 1926.500(g), and 29 C.F.R. § 1926.502(p)(3)
• Outcome: Citation and proposed penalty withdrawn.
• Key point: The Secretary withdrew rather than litigate whether the work fell within the specific built-up-roofing fall-protection provisions.

Full text (OSHRC public release)

Docket No. 82-0569

SECRETARY OF LABOR,

Complainant,

v.

WACHSBERGER ROOFING AND SHEET METAL

WORKS, INC.,

Respondent.

OSHRC Docket No. 82-0569

ORDER

The Commission treats the Secretary's withdrawal as a motion to withdraw the citation and notification of proposed penalty and grants the Secretary's motion.[[1/]]

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated:  MAY 25 1984

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

Complainant,

v.

WACHSBERGER ROOFING & SHEET METAL

WORKS, INC.,

Respondent.

OSHRC DOCKET No. 82-0569

SECRETARY'S WITHDRAWAL OF CITATION AND

NOTIFICATION OF PROPOSED PENALTY

The instant case concerns a citation alleging that respondent violated the personal protective equipment standard at 29 CFR 1926.28(a) by not requiring the use of safety belts during work on a flat roof.  On April 19, 1984 the Commission issued a supplemental briefing order requesting the parties to comment on whether citation to 29 CFR 1926.28(a) is improper because 29 CFR 1926.500(g), dealing with fall protection on flat roofs during built-up roofing work, is a more specifically applicable standard within the meaning of section 1910.5(c)(1).  Respondent had not raised this issue previously.  Although there are factual questions as to whether the work in this case was built-up roofing work within the meaning of 29 CFR 1926.502(p)(3), the Secretary has determined that the instant case is an inappropriate vehicle for litigating the issue of the definition of built-up roofing work. Therefore, the Secretary hereby withdraws the citation and notification of proposed penalty in the above-captioned case.

Respectfully submitted,

FRANCIS X. LILLY

Solicitor of Labor

FRANK A. WHITE

Associate Solicitor for Occupational

Safety and Health

DANIEL J. MICK

Counsel for Regional Trial Litigation

MARK J. LERNER

Attorney

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our 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 of certification of service on affected employees.