BROWN AND KERR, INC.
OSHRC Docket No. 3055
Occupational Safety and Health Review Commission
October 25, 1973
Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners
OPINIONBY: VAN NAMEE
OPINION:
VAN NAMEE, COMMISSIONER: This matter is before the Commission upon my order directing review of a decision of Judge Herbert E. Bates. Judge Bates granted Respondent's motion for summary judgment and vacated Complainant's citation charging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act").
Respondent moved for judgment on the ground that the standard upon which Complainant relied (29 CFR 1926.500(d)(1) n1 is inapplicable to flat roofs.
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n1 The cited standard provides:
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 toeboard 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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We have determined that the cited standard applies to flat roofs. Secretary of Labor v. S.D. Mullins Company, Inc., Secretary of Labor v. Diamond Roofing Company, Inc. Secretary of Labor v. Heyse Sheet and Roofing Company, Inc.,
This case differs, however, from the cited cases on its facts. It appears from the record that Respondent's employees were installing guttering along the outside edge of the roof. It may be that compliance with the requirements of the standard would have made performance of the work impossible. Accordingly, I requested submissions on the question of whether the citation for violation of 29 CFR 1926.500(d)(1) should be vacated for the reason that compliance with its requirements could not be accomplished because of the nature of the work being done.
Complainant responded to the direction for review by submitting a document styled "Secretary's Withdrawal" in which he stated that he was withdrawing the citation and penalty proposed. In the circumstances of this case, however, Complainant has no power unilaterally to withdraw the citation.
Both section 12(g) of the Act and Commission Rule 2(b) (29 CFR 2200.2(b)) provide that in the absence of a specific Commission rule, proceedings before the Commission shall be in accordance with the Federal Rules of Civil Procedure. Since we have adopted no rule regarding the withdrawal of a citation, the provisions of Federal Rule 41(a)(2) n2 have particular application.
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n2 In pertinent part the Rule is as follows: ". . . an action shall not be dismissed at the [complainant's] instance save upon the order of the court and upon such terms and conditions as the court deems proper . . ."
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We note that Respondent filed a reply stating that it favors withdrawal for the reasons set forth by Complainant. However, Complainant's withdrawal (which we treat as an unopposed motion) is unsupported by statements of fact, reason, and argument.
Respondent also assets that the citation should be withdrawn for the reasons given in its brief before the Judge. However, Respondent's brief is directed solely to the applicability of 29 C.F.R. 1926.500(d)(1) to flat roofs, the issue which we have since decided contrary to Respondent's position.
In the circumstances we do not reach the issue on review. The interests of Justice are best served by vacating the citation with prejudice.
Accordingly, it is ORDERED that the citation be and the same is hereby vacated with prejudice.
CONCURBY: MORAN
CONCUR:
MORAN, CHAIRMAN, concurring: I agree that the citation ought to be vacated but the discussion in this opinion is fallacious as I pointed out in Secretary v. S. D. Mullins et al., supra.
[The Judge's decision referred to herein follows]
BATES, JUDGE, OSAHRC: The Respondent herein, by verified Motion for Summary Judgment [to which the Complainant made no timely reply n1], prays that the Serious Citation and Notification of Proposed Penalty in the captioned case be dismissed on the ground that there is no genuine issue as to any material fact and that the Respondent is entitled to a judgment as a matter of law, since 29 CFR 1926.500(d)(i) does not apply to an "essentially flat roof."
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n1 The Respondent's motion was served by mail on July 2, 1973 and the Secretary's reply thereto similarly served on July 26, 1973, received by the Commission on July 30, 1973 and by my office on July 31, 1973. Although this untimely reply caused a certain amount of confusion in my approach to the motion herein involved, it was accorded due and full consideration in my ruling on the instant motion.
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The uncontested facts, as attested to by Mr. Wayne Wimpee in affidavit form, unchallenged by the Complainant, makes it appear undisputed that the situs of the violation herein alleged was, in fact, an essentially flat roof.
My careful review of the briefs submitted by the parties captioned, lead to a conclusion that the aforementioned standard under which the Respondent was cited for a serious violation of the "Safety and Health Regulations for Construction" does not require perimeter barricading of the flat roofs, similar to the roof herein involved.
Accordingly, the Respondent's Motion for Summary Judgment [which I am treating as a motion for judgment on the pleadings] should be, and is, granted, and it is hereby ORDERED that the Serious Citation in the captioned case issued on May 9, 1973 and the penalty proposed for that violation be, and are, hereby dismissed.
The Respondent's Motion to Strike the Complainant's Brief (opposing Respondent's Summary Judgment Motion) is hereby denied and it is so ORDERED.