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Ezel / Agency Decisions / 14172-commission
OSHRC Commission decision Docket 14172, 14237 Decided April 19, 1977 Citations vacated

Tip-Top Roofers, Inc. and Western Waterproofing Co., Inc.

Flat-roof guarding citations vacated

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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

Tip-Top Roofers and Western Waterproofing were separately cited for failing to install perimeter guarding on flat roofs. The administrative law judge affirmed both citations. The Commission consolidated the cases because they presented the same factual and legal issue. Applying its intervening holding that the cited open-sided-floor standard did not apply to flat roofs, the Commission vacated both citations and their assessed penalties.

Decision snapshot

  • Cited standard(s): 29 C.F.R. § 1926.500(d)(1)
  • Outcome: The flat-roof perimeter-guarding citations and assessed penalties in both dockets were vacated.
  • Key point: The open-sided-floor guarding standard did not apply to flat roofs under the controlling Commission precedent.

Full text (OSHRC public release)

Docket No. 14172; Docket No. 14237

TIP-TOP ROOFERS, INC.; and WESTERN WATERPROOFING CO., INC.

OSHRC Docket No. 14172; OSHRC Docket No. 14237

Occupational Safety and Health Review Commission

April 19, 1977

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
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COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Ira J. Smotherman, Jr, for the employer

William F. Scupine, President, Tip-Top Roofers, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

Decisions of Review Commission Judge James D. Burroughs in the captioned cases are before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. �
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651 et seq. Because the issues of fact and law are the same, we order consolidation for decisional purposes.

In each case, Judge Burroughs affirmed a citation that alleged that the employer had violated 29 U.S.C. �
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654(a)(2) by failing to install perimeter guarding on a flat roof in contravention of 29 CFR �
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1926.500(d)(1).

In Central City Roofing Co., BNA 4 OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976), a divided Commission held that 29 CFR �
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1926.500(d)(1) does not apply to flat roofs.
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That decision is dispositive of the allegation at issue in each of these consolidated cases.

Accordingly, it is ORDERED that the citation for failure to
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comply with 29 CFR �
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1926.500(d)(1) and the penalty assessed therefor in Docket No. 14172 and Docket No. 14237 are vacated.
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