597 F2d 78 Schriber Sheet Metal Roofers Inc v. United States Occupational Safety and Health Review Commission

597 F.2d 78

1979 O.S.H.D. (CCH) P 23,593

SCHRIBER SHEET METAL & ROOFERS, INC., Petitioner,
v.
UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW
COMMISSION, and Ray Marshall, Secretary of Labor,
Respondents.

No. 78-3056.

United States Court of Appeals,
Sixth Circuit.

April 13, 1979.

Kenneth L. Schriber, Dayton, Ohio, Ira J. Smotherman, Jr., Stokes & Shapiro, Atlanta, Ga., for petitioner.

McNeill Stokes, Stokes & Shapiro, Atlanta, Ga., for amicus curiae National Roofing.

William S. McLaughlin, Executive Secretary, OSHRC, Washington, D. C., Michael H. Levin, Appellate Litigation, Thomas L. Holzman, U. S. Dept. of Labor, Al J. Daniel, Jr., Dept. of Justice, Washington, D. C., for respondents.

Before WEICK, LIVELY and KEITH, Circuit Judges.

ORDER

PER CURIAM.

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1

This matter is before the court on petition for review of an order of the United States Occupational Safety and Health Review Commission (OSHRC) finding the petitioner in violation of Section 5(a)(1) of the Occupational Safety and Health Act of 1970 because of its failure to provide its employees who were working on a flat roof more than six feet above the ground with protection "by a standard railing or equivalent." Upon consideration of the record on appeal the court concludes that there is no substantial evidence to show that a reasonably prudent employer in the roofing industry would have known that such railing was required under the conditions of the job where the citation was issued. The court also concludes there is no substantial evidence to support a finding that such railings would be feasible under the conditions shown to have existed at the job site where the citation was issued.

2

Accordingly, petition for review is granted and the decision of the Commission is vacated. Power Plant Division v. OSHRC, 590 F.2d 1363 (5th Cir. 1979); Diamond Roofing Co., Inc. v. OSHRC, 528 F.2d 645 (5th Cir. 1976).