OSHRC ALJ decision
Docket 93-2968
Decided November 25, 1994
Citations vacated
Judge Robert A. Yetman
Turner Construction Company
Defective-ladder citation vacated on summary judgment
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This order from 1994 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Final order, not Commission precedent
This decision by an OSHRC
Administrative Law Judge became a final order of the Commission
because no Commissioner directed review (29 U.S.C. § 661(j)). It
binds the parties but is not binding precedent in other cases. 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
Turner Construction was the general contractor at a worksite in Akron, Ohio. After a September 1993 inspection, OSHA cited two serious items, then dropped the first and pursued only a claim that Turner used a portable wood ladder with a structural defect (a cracked step) in violation of 29 C.F.R. § 1926.1053(b)(16). The parties filed cross-motions for summary judgment on a joint stipulation of facts. Administrative Law Judge Robert A. Yetman held that not every crack in a wooden ladder step is a "structural defect." The crack here was small and ran a short, shallow distance along the front edge of a step that was supported by nails, dado construction, and a metal rod, and the photograph the parties submitted did not even show it. Because the Secretary offered no evidence that the crack reduced the ladder's load-carrying capacity or otherwise created a hazard, the judge vacated the citation.
Decision snapshot
- Cited standard(s): 29 C.F.R. § 1926.404(f)(6); § 1926.1053(b)(16)
- Outcome: The contested ladder item (§ 1926.1053(b)(16)) vacated on summary judgment; the other item (§ 1926.404(f)(6)) had been withdrawn by the Secretary before the merits.
- Key point: A crack in a wooden ladder step is a "structural defect" only if it is an obvious defect that makes the ladder unsafe, or the Secretary proves it reduces load capacity or creates a hazard. A small crack, without such proof, is not enough.
Full text (OSHRC public release)
UNiTED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centm
11202OthStreet, N.W.-9th floor
Washington, DC 200364419
SECRETARY OF LABOR
Complainant
v. OSHRC DOCKET
NO. 93-2968
TURNER CONSTRUCTION
Respondent.
NOTICE OF DOCKETING
OF ADMINISTIWITVE L4W JUDGE’S DECISION
The Administrative Law Judge’s Re rt in the above referenced case was
docketed with the Conimission on Otto e r 25,1994. The decision of the Judge
will become a final order of the Commissi on on November 25,1994 unlessa
Commission memf directs review of the decision on or before that date. ANY
PARTY DESIRING REVEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FEE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received by the Executive Secretaryon or before
November 14, 1994in order to permit sufficient time for its review. See
Commission Rule 91,29 Cl7.R 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
112020th St. N.W., Suite 980
Washingtm, D.C. 200364419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial I&i ation
Office of the Solicitor, U.S. DOc
Room S4004
200 Constitution Avenue,N.W.
Washington, D.C 20210
If a Direction for Review is issued bv the Commission. then the Counsel for
Re@onal Trial titigatian will represkt the Departme&of Labor.
havmgquestionsaboutreview nghts may contact the Commission%
Secretary or call (202) 6063400.
FOR THE COMMISSION
Date: October 25, 1994
DOCKET NO. 93-2968
NOTICE IS GIVEN TO THE FOLLOWINti
Daniel J. Mick, Esq. ’
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO%
Room S4004
200 ConstitutionAve., N.W.
Washington, DC. 20210
Benjamin T. Chinni
Assochte Regional Solicitor
Oflice of the Solicitor, U.S. DOL
Federal Oflice Buihimg, Room 881
1240 East Ninth Street
Cleveland, OH 44199
KeithkAshmus,
ThO n,Hine& % bry
llOii?i!&oti City BarnkBuilding
629 Euclid Avenue
Cleveland, OH 44114
Robert A, Yetman
Administrative bw Jud e
Occupational safety anf Health
ReMew Commission
McCorma& Post Of&e and
Courthouse, Room 420
Bostoq MA 02109 4501
00103508750:05
UNITED STATESOF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
JOHN W. McCORMACK POST OFFICE AND COURTHOUSE
ROOM 420
BOSTDN. MASSACHUSE-I-E 02109-4501
PHONE: FAX:
COM (617) 223-9746 COM (617) 223-4004
FTS 223-9746 Fls 223-4004
..
SECRETARY OF LABOR, ..
.*
Complainant, .. OSHRC
.. Docket No. 93-2968
v. l
.
.
.
TURNER CONSTRUCTION COMPANY, ..
..
Respondent. ..
..
Appearances:
Betty Klaric, Esq. Keith Ashmus, Esq.
Office of the Solicitor Thompson, Hine & Rory
U.S. Department of Labor Clewelan&Ohio
For Complainant For Respondent
Before: Administrative Law Judge Robert A Yetman
DECISION AND ORDER .
This proceeding arise under 0 10(c) of the Occupational Safety and Health Act of
1970, 29 U.S.C. 6 651, et seq., (“Act”) to review a citation issued by the Secretary of Labor
pursuant to 6 9(a) of the Act and a proposed assessment of penalty thereon issued pursuant
to 6 10(a) of the Act. The matter has been presented upon cross motions for summary
judgment pursuant to Rule 56, Federal Rules of Civil Procedure.
On October 13,1993, the Secretary issued a citation to Turner Construction Company
(hereinafter “Turner”) alleging that two serious violations occurred at Turner’s worksite
located at Akron Ohio during September 28, 1993 and proposed a total penalty in the
amount of $1,950 for the violations. A timely notice of contest was filed by Turner and on
November 22, 1993 a complaint was filed by the Secretary with this Commission
incorporating Item No. 2 of the citation. The Secretary “vacated” Item No. 1 of the citation
(alleging a violation of 29 C.F.R. 0 1926404(f)(6)) in the complaint. Respondent answered
the complaint by admitting the jurisdictional allegations and denying that it had violated the
Act as alleged. The remaining disputed allegation asserts that respondent violated 29 C.F.R.
6 1926.1053(b)( 16) at the time and place set forth in the complaint with a proposed penalty
in the amount of $975.00.
The cross motions for summary judgment are based upon the following joint
stipulation of facts:
1 Respondent is and was a corporation with an office and
place of business at 1301 East Ninth Street, Cleveland, Ohio
44114 where it was engaged in general contracting.
. 2 Respondent on or about September 28, 1993 had a
workplace at 281 Locust, Akron, Ohio 44307 where it was the
general contractor.
3. Respondent was engaged in handling goods or materials
which have been moved in interstate commerce.
4 Respondent at all times hereinafter mentioned was an
employer employing employees in the above-referenced business
at the aforesaid workplace.
5 On September 28, 1993, Respondent had in use at its
above-referenced worksite a portable wood ladder.
6 l The ladder was in use on the third floor west of the
worksite.
7 l A The steps or treads on the ladder
were 194 inches across, 34 inches
wide, with rounded outside edges.
B0 Each tread was attached to the rail
by nails and a dado construction.
C l Each tread had a metal rod
running beneath it from one rail to
the other.
D0 The fourth tread from the bottom
had a crack in it.
2
E l The crack was at the left front edge
of the tread and extended from the
end of the tread for a distance of
approximately 1-N inches
horizontally towards the right. The
crack ran along the front edge of
the tread and extended
approximately %” deep from the
front edge of the tread toward the
back, at its deepest point.
F. The photograph was taken at the
date of the inspection, at which
time the ladder was removed from
service. The view in the
photograph is of the tops of the
The cracked
one from the
rail.
80 The ladder had not been removed from service.
9 The ladder was not tagged with a notice saying “do not
I&’ or similar language.
10 The ladder with the cracked step was used by Eric
Johnson, 825 Leonard Street, Akron, Ohio.
11 The ladder with the cracked step was used by Roy
W&er, 447 Fuller Street, Akron, Ohio.
120 Respondent’s foreman worked on the job.
13* Respondent’s foreman made regular inspections.
14l Respondent had more than 100 employees.
15 Respondent had approximately 15 employees at the
above-referenced worksite.
3
16 The inspection of the worksite by the Occupational
Safety and Health Administration was conducted by compliance
office Thomas Henry.
17 Mr. Henry presented his credentials to Chuck Heming
anh Dave Snyder, superintendents for Respondent.
18 Chuck Heming and Dave Snyder, superintendents for
Respondent, attended the opening conference.
19 Mr. Snyder attended the closing conference with Mr.
HdNy .
20 Mr. Henry observed an employee of Respondent using
the ladder with the cracked step.
21 The employee was of average size, weighing an estimate
2Ob pounds.
22 As a result of Mr. Henry’s inspection, Item 2 of Citation
No. 1 was issued on October 13, 1993.
23 The citation alleged a violation of 29 C.F.R.
1&6.1053@)( 16).
24. A penalty of $975.00 was assessed.
25 The factors considered in assessing the penalty were the
grbity of the violation, the good faith of the employer, the size
of the business of the employer, and the history of its previous
violations.
26. Respondent timely contested the citation and the penalty.
27 The employer had all required notices posted,
mkained all required safety records, and had in place
adequate and properly enforced safety programs to protect its
employees from workplace safety hazards.
28 The enclosed photograph may be admitted without
objection as Complainant’s Exhiiit A
4
29 While the parties disagree as to the issue of whether the
step’s structural integrity was impaired by the crack and
therefore whether there was any increased likelihood of failure
of the step; the parties agree that the consequences of failure
of a step on a ladder could include the substantial probability
of serious physical harm.
In its brief at footnote 2, Respondent asserts that stipulation 7A above should also
state that the ladder step at issue was %”thick in addition to the other dimensions listed.
This fact, according to Respondent, was omitted from the stipulation due to a typing error
and Complainant agrees that this information should be included. Since there is nothing in
the record indicating that the Secretary disagrees with the additional dimension, the
amendment is accepted as part of the joint stipulation of facts. As noted in the stipulation,
the parties submitted a photograph taken by the Compliance Officer at the time of the
inspection which purports to show the defect in the ladder.
Based upon the evidence submitted, the Secretary asserts that Respondent violated
the provisions of 29 C.F.R. 8 1926.1053(b)(16). That standard reads as follows:
Portable ladders with structural defects such as, but not limited
to broken or missing rungs, cleats or steps, broken or split rails,
corroded components, or other faulty or defective components,
shall either be immediately marked in a manner that readily
identifies them as defective, or be tagged with “Do Not Use” or
similar language, and shall be withdrawn from service until
repaired. (Emphasis supplied)
In order to establish that Respondent ftied to comply with the standard, the
Secretary must prove that (1) the standard applies; (2) the employer failed to comply with
the terms of the standard; (3) employees had access to the cited condition; and (4) the
employer knew, or with the exercise of reasonable diligence, could have known of the
violative condition. &a PhmaceutikaLproducb; Zm. 1981 CCH OSHD 125,578, afd 681
F.2d 69 (1st Cir 1982); Gary Concrete Prouds.,15 BNA OSHC 1051, 1052, 1991-B CCH
OSHD ll 29,344, P. 39,449 (1991). Respondent does not dispute the applicability of the
standard to its work activity and the ladder in question. Respondent vigorously argues,
however, that the ladder was not structurally defective. In Respondent’s view the crack in
the ladder step was a tiny flaw in the wood which did not impair the strength of the step.
5
Moreover, according to Respondent, it is not unusual for wood to contain “all sorts of
discontinuities that do not impair in any way the strength of the wood” (Respondent’s Brief,
p.4). The crack in the step was, at worst, a “cosmetic defect” which did not adversely affect
the weight carrying capacity of the ladder step. id
Complainant, on the other hand, asserts that crack in the ladder step necessarily leads
to the conclusion that the step was “broken” within the meaning of the standard and,
therefor, constitutes a structural defect. Complainant relies upon the stipulation of the
parties and the photograph of the ladder as sufficient proof that the crack constituted a
structural defect. The photograph depicts the ladder lying flat on the ground with the steps
facing the camera. Stipulation 7E states that the crack is at the left front edge of the tread
while stipulation 7F states that the crack is at the top r&ht edge of the step, as depicted in
the photograph. Although the parties agree that a crack existed in one of the steps of the
ladder, the photograph, after a close and careful examination, fails to show anything that can
be clearly discerned as a crack or split in the wood of any of the steps shown in the
photograph. Thus, the photograph is of no value to establish that a crack even existed in
the ladder.
The parties agree, however, that a crack in the wood of one step existed at the time
of the inspection. The crack was located in the front edge of a step and was approximately
1%” long and, at its deepest point, % inch deep. The step was 4 inch thick and 3%inches
wide. Each tread was attached to the rails by nails and “dado” construction which means
.
that the rails provided additional support to the steps. Each step also had a metal rod of
unknown dimensions extending along and supporting the bottom of each step. The issue is
whether the descriied crack in a wooden step of a ladder under the construction conditions
stated, constitutes a “structural defect.”
The “ladder” standard set forth at 29 C.F.R. 8 1926.1053 is divided into two major
subheadings; paragraph (a) deals with the proper construction and weight carrying capacities
of ladders and paragraph @) regulates the use of ladders. In this case Respondent was cited
under subparagraph (b) for using a ladder which allegedly had a structural defect and,
therefor, did not conform to the requirements of subparagraph (a) in terms of weight
carrying capacity, see genmall’y29 C.F.R. 0 1926.1053 (a)( 1). It is apparent that Complainant
6
is concerned that the step containing the crack will fail when used by Respondent’s
employees with a likely result of injury to employees (joint stipulation No. 29) There is no
evidence, however, that the step was less capable of carrying loads as required under
subparagraph (a) of the standard, particularly when the crack in the wood ran longitudinally
along the Eront edge of the step for a short and shallow distance. The crack, as described,
was the equivalent of one board placed on top of another and placed in the interior of the
side rail for support. There is no evidence that such a condition should be considered as a
structural defect.
This is not a case where it can be concluded that the ladder contained an obvious
defect which adversely affected its structural integrity and, therefor, a hazard to employees
may be presumed OdysseyContractingCorp. 16 BNA OSHC 1753(1994), Hamilton F&e,
16 BNA OSHC 1073, 1091, (1993). In this case the crack in the wood was small and
undetectable in the photograph submitted by the parties. It would be unreasonable to
conclude that every wooden ladder containing a crack, no matter how small and no matter
where located, should be declared defective and removed from service. Under the
circumstances of this case, it is necessary that the Secretary present evidence that the crack
in the step constituted a “structural defect.” In other words, where the defect is not an
obvious defect rendering the ladder unsafe, the Secretary must present evidence that the
condition cited creates a hazard to employees. Astra Phamaceutical Pkxikct~, Inc., supra.
Because that evidence was not presented in this case, the citation must be vacated.
FINDINGS OF FACT
Findings of fact relevant and necessary to a determination of all issues have been
made above. Federal Rules of Civil Procedure 52(a). All proposed findings of fact
inconsistent with this decision are hereby denied.
CONCLUSIONS OF LAW
1l Respondent is engaged in a business affecting commerce and
has employees within the meaning of Section 3(5) of the Act.
2l Respondent, at all times material to this proceeding, was subject
to the requirements of the Act and the standards promulgated
thereunder. The Commission has jurisdiction of the parties and
of the subject matter of this proceeding. _
3. At the time and place alleged, Respondent was not is serious
violation of 29 C.F.R. 0 1926.1053(b)( 16).
Serious Citation No. 1, Item 2 alleging a violation of 6 1926.1053(b)( 16) is vacated.
October 19, 1994
Dated:
Boston, Massachusetts
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