Baker Concrete Constr. Co.

Plain-English summary

Baker Concrete employees climbed formwork to reach a partially dismantled scaffold at a shopping-mall construction site. An administrative law judge affirmed a serious citation for failing to provide a ladder or equivalent safe access and assessed $2,500. The Commission reversed because three OSHA pronouncements indicated that the ladder-access requirement did not apply, or could not be enforced, during scaffold erection and dismantling. Those interpretations did not give Baker fair notice that the standard could apply intermittently during a one-day dismantling process. Commissioner Montoya concurred and would also have vacated because “provide” meant make ladders available, not ensure their use, and the evidence showed that ladders were available.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(a)(13) and 1926.1051(a), and 29 U.S.C. § 654(a)(1).
• Outcome: Vacated. The Commission reversed the judge and vacated the serious scaffold-access citation and $2,500 penalty.
• Key point: OSHA's interpretive pronouncements can deprive an employer of fair notice when they reasonably indicate that a cited standard does not apply during the work at issue.

Full text (OSHRC public release)

                                         UNITED STATES OF AMERICA
          OCCUPATIONAL            SAFETY AND HEALTH REVIEW COMMISSION
                                        One Lafayette Centre
                                  1120 20th Street, N.W. - 9th Floor
                                     Washington, DC 200364419

SECRETARY OF LABOR,

                      Complainant,

    v.                                                            OSHRC Docket No. 93-606
                                                        .

BAKER CONCRETE CONSTRUCTION ;
COMPANY, ..

                      Respondent.


                                              DECISION

BEFORE: WEISBERG, Chairman; FOULKE and MONTOYA, Commissioners.
BY THE COMMISSION:
29 C.F.R. 0 1926.4Sl(a)(13) is a scaffolding standard that straightforwardly states:
“An access ladder or equivalent safe access shall be provided.” At issue in this case is
whether certain pronouncements by the Occupational Safety and Health Administration
(“OSHA”) interpreting 0 1926.451(a)( 13) deprived Baker of adequate notice of what the
standard required during assembly and disassembly of scaffolding. Judge Benjamin R. Loye
found that OSHA’s interpretations essentially instructed employers to continue to provide
ladders or equivalent safe access to the extent feasible. Because Baker did not raise or
argue the infeasibility defense, the judge affirmed the Secretary’s citation under
8 1926.451(a)( 13) for Baker’s failure to comply with the standard? For the following
reasons, we reverse the judge’s decision and vacate the Secretary’s citation.

‘The judge mentioned but did not need to address the Secretary’s alternative charges that
Baker violated 8 5(a)(l) or 29 C.F.R. 8 1926.105 l(a). Section 1926.1051(a) states: “A
stairway or ladder shall be provided at all personnel points of access where there is a break
in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or
personnel hoist is provided.”

                                                                                 1995 OSHRC No. 35
                                               2

    In 1983 OSHA responded            to another   employer’s request   for interpretation   of

8 1926.451(a)(13) with the statement that “ladder access at all times for employees
assembling or disassembling scaffold components” is “not practical or intended.“’ In 1986
OSHA issued a notice of proposed rulemaking (‘WPRM”) entitled “Safety Standards for
Scaffolds Used in the Construction Industry” that indicated that OSHA’s ladder access
standards “should not apply to employees performing scaffold erection and dismantling
operations because such rules often are not feasl’ble until a scaffold has been erected and
properly bracedT3 Then in 1992, in an internal memorandum regarding training, OSHA
seemed to confirm the inapplicability or unenforceability of 8 1926.451(a)(13) by stating that,’

21n full 9 the 1983 interpretation
A
stated:

    1.      It is not practical or intended that employers provide ladder access at
            all times for employees assembling or dismantling scaffold components;
            however, other safe access must be provided.

    2.      End frames are acceptable for access if the rungs are designed by the
            scaffold manufacturer as an access ladder, and they are arranged in
            such a way that they form a continuous series of steps from the
            scaffold top to its bottom. Maximum spacing between rungs shall not
            exceed 16 % inches.

    3.      Portable wood or metal ladders used to provide safe access must
            comply with 29 CFR 1926.458(a)(3) and (4).

    4.      The fixed ladder standards do not apply to scaffolds.

    5.      The ladder standards do not apply to scaffold structures when they are
            built into the scaffold components.

3The full sentence in this NPRM, 51 Fed. Reg. 42680, 42687 (Nov. 25, 1986), is the
following:

   OSHA’s view is that [provisions proposed to clam 1926.451(a)( 13)] should
   not apply to employees performing scaffold erection and dismantling
   operations because such rules often are not feasl’ble until a scaffold has been
   erected and properly braced.
                                             3

“the existing [standard] do[es] not require the use of ladders during erection and dismantling
operations.“4
Involved in this case is a scaffold attached to the east side of formwork that Baker
had begun to dismantle when Steven Medlock, an OSHA compliance officer, came to
Baker’s construction site at a shopping mall in Cincinnati, Ohio. Medlock saw several
employees access the east scaffold by climbing the formwork, using its grid-like framework
(“the webs”) as a ladder. At most a fall could have been approximately 10 to 11 feet.
Baker’s employees were taking the bolts and other connecting devices out of all the
formwork inside a large, approximately rectangular poured-concrete planter, from which all
the formwork was going to be removed that day. The preceding day, Baker had erected the
formwork and scaffolding for the planter, and the preceding evening, Baker had poured the
planter’s concrete walls. Baker’s plan for this next day was to dismantle all the formwork
and scaffolding at the planter.
In testimony at the hearing, Joseph Tellup, union steward and lead carpenter, detailed
the dismantling work that was done prior to Medlock’s arrival. “The first thing we did was
begin to remove all the nails and everything that holds everything together, and we took the
two [north and south scaffold] ends down.” According to Tellup, a ladder on the west
section of scaffolding “was in the process of being removed, so [that] the scaffold could be
taken down,” Le., “one of the first things to be removed would have to be the ladder when
you get to that rung of scaffolding.” According to Tellup, no one ought to have used that
ladder. When asked whether the activity of climbing the webs was a safe practice, Tellup
testified:

41n full, the 1992 interpretation stated:

      Although the existing regulations, the 1988 ANSI rules, and the 1986 proposed
      OSHA rules do not require the use of ladders during erection and dismantling
      operations, it is strongly recommended that ladders be used whenever feasible.
      To this end, scaffold frame ladders meeting the criteria set out in the 1986
      NPRM [Notice of Proposed Rulemaking], would be acceptable for use as
      ladders.
                                            4

   Yes, sir, I am convinced it is. You can stand on the ground and see [that] the
   wedge bolts and wall ties are still intact. You know the panel is not going to
   come off the wall. You have plenty of things to hold onto. If it is wrong, it
   is wrong, but it has been a common practice to climb panels. That is not a
   strange thing to me.
   Tellup also testified that the scaffolds were “not 100 percent” intact.     “A lot of the

nails that would hold the handrail[s] in place [were missing], [and] the planking had been
denailed.” As Tellup specified, the scaffolding “was in the process of being demolished,”
and he would only “trust it enough to stand on one of the planks to take another plank and
hand [it] down to a man.” Tellup’s practice was to “check the scaffolding out, and then
access it and finish taking it down.” In short, this testimony reveals that Baker was in the
process of rendering all of the formwork and scaffolding unsafe for use as ladder landings
and work platforms, inasmuch as Baker’s plan was to finish doing the dismantling on that
one day.
Further, the evidence that Baker presented at the hearing indicates that, on the basis
of OSHA’s three pronouncements, Baker considered 8 1926.451(a)(13) inapplicable or
unenforceable for scaffold assembly and disassembly. Bruce Slattery, Baker’s corporate
safety director, testified at the hearing that these “interpretations . . . are widely known
throughout the industry” and that “other safety directors” with whom he had discussed the
applicability of 0 1926.451(a)(13) “agree[d] with me that they knew of the same interpreta-
tion that says when the scaffold is not complete, . . . this regulation does not apply.” Slattery
also testified that training and experience led him to believe that “the intention of the
access” required by 5 1926.451(a)( 13) “is for completed scaffold[s].“5

%lattery Baker’s safety director for eight years, had received training from the OSHA
Training’Institute, become a certified OSHA instructor in the Outreach Program, asked the
OSHA Training Institute on numerous occasions for interpretations of standards, asked
manufacturers and providers of safety equipment for guidance as to safety requirements,
served on the safety committees of several trade organizations, and obsenred concrete
construction in about 20 states. According to Slattery, it is common practice in the industry
to climb formwork to access partially disassembled scaffolds: “Just about any day you can
go to a job site where this type of form system is being used, and you will see it.” He listed
companies and worksites. In similar testimony, Stephen Spaulding, safety director for Turner
(continued...)
5

   We find that Baker was justified in relying on the three               pronouncements     for

permission to omit ladder-like access to its scaffolds during the day of their disassembly.
Compare Martin v. Miami Industries, Inc., 983 F.2d 1067 (6th Cir. 1992) (unpublished
opinion) (“inartful drafting” of regulatory requirements, “common understanding and
commercial practice,” and “confirmation of industry practice by the pattern of administrative
enforcement” can together demonstrate lack of notice, citing Dieboh$ hc. v. Marshall, 585
F.2d 1327 (6th Cir. 1978)). The Secretary’s argument to limit any exemption only to times
when scaffold assembly or disassembly was actually taking place is not consistent with a
reading of the three interpretative pronouncements (1983, 1986 NPRM, and 1992). All
three pronouncements refer to the impracticality or infeasibility resulting from instability as
the rationale for OSHA’s decision to exempt partially erected scaffolds from standards
requiring ladder-like access. They certainly did not give Baker notice that the cited standard
could apply intermittently during a process of scaffold disassembly that would render the

‘(...continued)
Construction, and Alan Morgan, Baker’s project manager (employed by Baker for 15 years
in various capacities), stated on the basis of their training and experience that industry
practice is to permit employees to climb formwork during assembly or disassembly.
Furthermore, Tellup, the union steward on the worksite in ‘this case, and Kelly Wood, a
journeyman carpenter involved in taking down the scaffolding in this case, both testified that
climbing the formwork during disassembly is a common practice. Medlock disagreed, but
his experience with the industry was limited; he had only inspected two construction sites
having formwork as high as the lo-foot height involved in this case.
6

scaffolds unstable throughout the day. Accordingly, we reverse the judge’s decision on the
basis of lack of notice of the cited standard’s applicability and we vacate the citation!

                                                      Stuart E. Weisberg
                                                      Chairman




                                                      Commissioner

Dated: April 27) 1995

6Commissioner Foulke wholeheartedly agrees with the substance of Commissioner Montoya’s
concurring opinion. He adheres to the view he expressed in Contractors Welding of Wiitexv
New York; Inc., 15 BNA OSHC 1249,199l CCH OSHD 129,454 (No. 88-1847 1991), rev’d
in part and remanded, 996 F.2d 1409 (2d Cir. 1993), that the meaning of the word “provide”
is clearly to “make available” rather than to “ensure use.” In his view, Contractors Welding
overruledBorton, Inc., 10 BNA OSHC 1462,1982 CCH OSHD ll 25,983 (No. 72-2115,1982),
rev’d, 734 F.2d 508 (10th Cir. 1984). But for the Secretary’s inappropriate use of the
settlement process alluded to in the concurrence, this issue need not be raised at this time.
As it is, Borton, Inc. has been overruled in its own circuit and, in Commissioner Foulke’s
view, is not consistent with the weight of other court precedent or sound jurisprudence.
Nevertheless, noting that the Commission is unanimous in its conclusion that the citation
should be vacated based on the threshold issue of lack of fair notice of the standard’s
applicability, Commissioner Foulke finds it unnecessary in this case to reach the subordinate
question of the standard’s interpretation posed by the concurrence.
MONTOYA, Commissioner, concurring:
I agree with my colleagues’ decision to vacate the alleged violation of 29 C.F.R.
8 1926.451(a)( 13) based on the Secretary’s representations regarding the disassembly
process. However, I would also consider whether the term “provide” in the standard means
“require the use of,” and if not, whether the ladders were provided. These are the issues
the parties were asked to brief.
In my opinion, the term “provide” in section 1926.451(a)( 13) should not be read to
include a requirement that employers “ensure the use of’ ladders or equivalent safe access.
I recognize that the Commission reached the opposite conclusion in Barton, Inc., 10 BNA
OSHC 1462,1982 CCH OSHD tT25,983 (No. 72.2115,1982), but that decision was reversed
by the Tenth Circuit, which held that, by its plain meaning, “provide” does not require that
a company ensure the use of a ladder. Barton, Inc. v. OSHRC, 734 F.2d 508 (10th Cir.

1984). See also Usey v. Kennecott Copper Corp., 577 F.2d 1113 (10th Cir. 1977)
(1910.28(a)( 12)); G eneral Elec. Co. v. OSHRC, 540 F.2d 67 (2d Cir. 1976) (1910.133(a)(l));
Pratt & W?dney Aircraft Group, 12 BNA OSHC 1770, 1986-87 CCH OSHD ll27,564 (No.

80-5830, 1986), ajf?$ 805 F.2d 391 (2d Cir. 1986) (Table) (unpublished opinion); but see
Cleveland Aluminum Casting Co. v. Secretary, 788 F.2d 38 (D.C. Cir. 1986) (unpublished
opinion). I rely on the Commission’s reasoning in Contractors Welding of Western N&v York
Inc., 15 BNA OSHC 1249, 1991 CCH OSHD II 29,454 (No. 88-1847 1991) rev’d in part and

remanded, 996 F.2d 1409 (2d Cir. 1993). There, the Commission examined the Second and

Tenth Circuit case law cited above and found that “the word ‘provide’ is not ambiguous and
that it means make available.” The Commission further concluded that by interpreting
“provide” to mean “require the use of’ the Secretary had “stretche[d] the word far beyond
its commonly understood meaning.” The Secretary succeeded in eliminating our decision
as precedent through settlement, a practice that has been since disallowed by the Supreme
Court. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 386 (1994). As a
result, I welcome this opportunity to state my position on this issue.
I further find that the preponderance of the evidence establishes that ladders were
provided. Although CO Medlock testified that Baker’s employees had some difficulty
locating a ladder, Baker’s lead carpenter and steward Joseph Tellup testified that “[o]n this
particular job, we had a lot of what we call fabricated job ladders.” Alan Morgan, Baker’s
2

project manager, added that, “I know there were several, because this was the last part of
the job...[and] we had built several ladders to access our different levels of work.” Although
Baker’s witnesses were unable to recall the exact number of ladders at the site or their exact
locations, such precision is hardly necessary when the standard requires only that ladders be
made available. I would therefore vacate the citation on this basis and overrule the

Date: April 27, 1995
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

PHONE:
.
COM (202) 6064100 &02)6o64o5o
Rs(202)606-5100 FW202)-

                                                .
                                                .

SECRETARY OF LABOR, ..

                 Complainant,

       v.                                                   Docket No. 93-0606
                                                .
                                                .

BAKER CONCRETE ..
CONSTRUCTION CO., ..

                 Respondent.




                                NOTICE OF COMMISSION DECISION

The attached decision by the Occupational Safety and Health Review Commission was issued on
Ami127.1995. ANY PERSON ADVERSELY AFFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970,29 U.S.C. 8 660.

                                                            FOR THE COMMISSION

A~ril27. 1995
Date
Executive Secretary
Docket No. 93-0606

NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Benjamin T. Chinni, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199

Michael S. Holman, Esq.
Elizabeth A. Preston
Bricker & Eckler
100 South Third Street
Columbus, OH 43215

BenjaminR. Loye
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 250
1244 North Speer Boulevard
Denver, CO 80204-3582
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

SECRETARY OF UBOR
Complainant,
v. OSHRC DOCKET
NO. 93-0606
BAKER CONCRETE CONSTRUCTION
Respondent.

                  NOTICE OF DOCKETING
           OF ADMINISTRATIVE LAW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 14, 1994. The decision of the Judge
will become a final order of the Commission on March 16, 1994 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
March 7, P994 in order to ermit sufficient time for its review. See
Commission Rule 91, 29 cp.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:

                   Executive Secretary
                   Occupational Safety and Health
                    Revlew Commission
                   1120 20th St. N.W., Suite 980
                   Washington, D.C. 20036-3419

Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Co-:rnsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO5
Fkoom S4004
ZOOConstitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
havmg questions about review rights may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: February 14, 1994
DOCKET NO. 93-0606
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

John H. Secaras
Re ‘onal Solicitor
O&e of the Solicitor U S DOL
Federal Office Build&g, kbom 881
1240 East Ninth Street
Cleveland, OH 44199

Michael S. Holman, Esq.
Sylvia Lynn Gills, Esq.
Bricker & Eckler
100South Third Street
Columbus, OH 43215

Benjamin R. Lo e
Administrative IL w Jud e
Occupational Safety an f Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO if0204 3582

00010259253 :05
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1244 N. SPEER BOULEVARD
ROOM 250
DENVER, COLORADO 80204-3582

PHONE: FAX:
COM (303) 844-2281 COM (303) 844-3759
FTS (303) 844-2281 FTS (303) 844-3759

SECRETARY OF LABOR,
Complainant,

       v.                                                        OSHRC DOCKET
                                                                 NO. 93-0606

BAKER CONCRETE
CONSTRUCTION CO.,
Respondent.

APPEARANCES:

                        Betty Klaric, Esq., Office of the Solicitor, U.S. Department of Labor,
                         Cleveland, Ohio

                        Michael S. Holman, Esq., Sylvia Lynn Gillis, Esq., Bricker & Eckler,
                         Columbus, Ohio

Before: Administrative Law Judge Benjamin R. Loye

                                     DECISION       AND ORDER


        This proceeding     arises under the Occupational        Safety and Health Act of 1970 (29

U.S.C. Section 651 et seq.; hereafter called the “Act”).
Respondent, Baker Concrete Construction Co. (Baker), at all times rele-
vant to this action maintained a place of business at the Northgate (Lazarus) Mall,
Cincinnati, Ohio, where it was engaged in concrete construction. Respondent admits it is
an employer engaged in a business affecting commerce and is subject to the requirements
of the Act.
On January 6-7, 1993 the Occupational Safety and Health Administration (OSHA)
conducted an inspection of Baker’s Lazarus worksite (Tr. 35). As a result of the
inspection, Baker was issued a “serious” citation alleging violation of 0 1926.451(a)( 13) of
the Act, together with proposed penalties. By filing a timely notice of contest Baker
brought this proceeding before the Occupational Safety and Health Review Commission
(Commission).
Prior to the hearing Complainant moved to amend the complaint to allege, in the
alternative, violations of @S(a)( 1) or 1926.1051(a) of the Act. On October 21, 1993, a
hearing was held in Cincinnati, Ohio, on the contested issues. The parties have
submitted briefs and this matter is ready for disposition.
Alleged Violation of 81926,451(a)(13)
Serious citation 1, item 1 alleges:
29 CFR 1926.451(a)(13): An access ladder or equivalent safe access to scaffold(s) was
not provided:

      (a) Along the east central area of the structure employee(s) were observed
      climbing the Symons Forms to gain access to the formwork scaffold and
      were exposed to a fall potential in excess of 10’.

      The cited standard provides:

      Scaffolding. (a) General requirements.
                                             * * *
      (13) An access ladder or equivalent safe access shall be provided.

Facts
On January 6, 1993 Baker was engaged in forming a 10 foot concrete foundation
planter box wall on the east side of the steel structure at the Lazarus site (Tr. 62, 138).
Scaffolding encircling the planter was erected prior to pouring; access to the scaffolding
from the exterior of the planter was provided by means of a job ladder on the west side
of the planter (Tr. 54, 152, 198). Baker had begun disassembling the formwork and had
removed the scaffolding on the north and south ends of the planter prior to the OSHA
inspection; the scaffolding remaining on the east was, at that time, inaccessible by means
of the ladder (Tr. 58, 90, 106-8).
During the course of his inspection, OSHA Compliance Officer (CO), Steven
Medlock, observed no portion of the scaffold being dismantled, but saw Baker employees

                                                2

walk on the east scaffold to access other work areas (Tr. 77). Upon his arrival at the
Lazarus site, Medlock observed a Baker employee climb the north face of vertical con-
crete formwork onto the scaffolding on the east, over the formwork, and out of sight (Tr.
36-37, 45-47). Later Medlock saw employee Kelly Wood accessing the scaffolding by
climbing the formwork on the south (Tr. 68, 105). Other employees, including Joe
Tellup, were observed climbing the formwork on the interior of the planter out onto the
scaffolding (Tr. 68).
Tellup testified that he generally used a Symons handles hook attached to 18 inch
safety chain to lock into the rib of the formwork to climb the planter wall (Tr. 146-47,
155-56). However, Tellup testified that when disassembling the scaffolding on the mom-
ing of January 6, he climbed up to and down from the scaffolding without the Symons
hook, using only the formwork webbing (Tr. 168-69). Tellup stated that the Symons
webbing includes welded square handle brackets designed for carrying the panels, spaced
every three feet or so, which can be used to climb the panels (Tr. 169-70). Respondent’s
photographs indicate handle brackets located irregularly about the webbing (Exh. R-1
through R-4).
Wood testified that when dismantling formwork he generally climbs the forms,
tying off with a Symons hook (Tr. 181-82), but admitted that on the day of the inspection
he climbed the south end of the Symons formwork to access the east side of the
scaffolding without tying off (Tr. 177, 183).
Baker’s safety rules prohibit climbing formwork (Tr. 125; Exh. R-5). However, it
is common practice, and employees are not disciplined for climbing forms one level or
less, i.e. up to approximately 10 feet (Tr. 139, 178, 203, 225-227, 244).
The formwork consists of webs two inches deep over a plywood backing. CO
Medlock testified that an employee climbing the formwork webbing would not have
handholds or foot purchases equivalent to those furnished by a ladder, which under
OSHA standards must have equally spaced skid resistant rungs with a seven inch clear-
ance behind each rung to ensure a secure hand or foothold (Tr. 64-65, 72-73). More-
over, the webs are not uniformly spaced, which could cause a climber to misstep
(Tr. 64,71). Finally, a ladder must extend 36” beyond the landing point to provide the

                                               3

climber safe access to the landing; formwork webbing provides no such safe access (Tr.
73-74).
Discussion
In order to prove a violation of section 5(a)(2) of the Act, the Secretary must’
show by a preponderance of the evidence that (1) the cited standard applies, (2) there
was a failure to comply with the cited standard, (3) employees had access to the violative
condition and (4) the cited employer either knew or could have known of the condition
with the exercise of reasonable diligence. See, e.g., Walker Towing Cop., 14 BNA OSHC
2072,2074, 1991 CCH OSHD 729239, p. 39,157 (No. 87-1359, 1991).
Baker maintains that Complainant failed to prove the cited standard’s applica-
bility. According to Baker industry practice does not require the use of ladders on scaf-
folding which is being dismantled. In addition, Baker maintains that the Secretary has
admitted that “[i]t is not practical or intended that employers provide ladder access at all
times for employees assembling or dismantling scaffold components” (Exh. R-6) and that
the standard is, therefore, inapplicable where scaffolding is being dismantled.
It is clear that industry practice cannot be relied upon to determine the
applicability of standards formulated to regulate that industry. Such an approach would
lead to absurd results.
Rather, the Secretary’s reasonable interpretation as to the reach of a standard is
generally controlling. Martirtv. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171, 1179 (1991).
Complainant’s assertion that the standard is applicable to the scaffolding cited here in no
way conflicts with the Secretary’s general observation that it is not always practical to
provide ladder access to scaffolds being dismantled. Infeasibility, or impracticality of
compliance, however, is not an element of applicability, but is an affirmative defense
which must be raised and proved by the employer. Wyman-Gordon Company, 15 BNA
OSHC 1433, 1991 CCH OSHD 729,550 (No. 84-785, 1991). Because the defense has
been raised neither in the pleadings nor in Baker’s brief, the feasibility of providing
ladder access cannot be considered here.
The evidence establishes that at the time of the inspection no ladder was available
to access the scaffolding on the east side of the planter box under construction at Baker’s

                                                      4

Baker’s Lazarus worksite. With management’s tacit approval, employees dismantling the
scaffold or using it to access the planter’s interior climbed formwork webbing without fall
protection. Because its members are unevenly spaced, and are backed with plywood,

formwork webbing does not provide hand or footholds as safe as that provided to an
a

employee using a properly constructed ladder. Baker, therefore, was in violation of
$1926.451(a)(13) on January 6, 1993. See, H.E. Wiese, Inc. and Ihdustrial Electrical
Constmction Co., 10 BNA OSHC 1499, 1982 CCH OSHD 1125,985 (Nos. 78-204 & 789
205, 1982).
Because the Secretary has shown the cited violation, violations alleged in the
alternative need not be discussed here.
Penalty
The violation was properly classified as serious. The scaffolding was 10 feet 4
inches high (Tr. 100). The CO testified that falls from 10 feet or less can result in
serious physical harm (Tr. 91). Although Complainant’s evidence attributing 3% of
fatalities in concrete erection to falls under 10 feet (Tr. 95, 123) is insufficient to demon-
strate that the probable result of a fall here would be death, the undersigned finds that
the probability of broken bones establishes that the violation was serious.
Baker is a large company, with over 1,200 employees nationwide. Twelve workers
were employed on the Lazarus site (Tr. 41). Baker has a history of prior OSHA citations
(Exh. C-4). No evidence of bad faith was adduced at the hearing.
The gravity of the violation is moderate. As noted the hazard was one of broken
bones; employee exposure to the hazard was brief. A ladder was provided for employee
access prior to the day of the inspection; only after part of the scaffolding was removed
did the east side become inaccessible, necessitating an additional means of access.
Taking into account the relevant factors, the undersigned finds that the gravity of
the violation was overstated. The proposed penalty of $5,000.00 is deemed excessive. A
penalty of $2,500.00 will be assessed.
Findings of Fact and Conclusions of Law
All findings of fact and conclusions of law relevant and necessary to a deter-
mination of the contested issues have been found specially and appear in the decision
above. See Rule 52(a) of the Federal Rules of Civil Procedure.

                                         ORDER

1. Serious citation 1, item 1, alleging viola tion of §1926.451(a)(13) is AFFIR
   and a penalty of $2,500.00 will be ASSESS ED .

Dated: wtruaxy 4, 1994