Hechinger Investment Company of Delaware, Inc., d/b/a Builders Square

Plain-English summary

OSHA inspected a Builders Square store after the manager failed to respond to a complaint about ladder-stand wheels. Six of about twelve rolling ladder stands moved when tested because their automatic caster locks did not hold them firmly in place. An employee was using a wobbly ten-step stand with a platform at least six feet high. Chief Judge Irving Sommer held that the prior complaint put management on notice to inspect the equipment and that regular equipment checks would have discovered the defective locks. He affirmed the serious violation and assessed $1,500.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.29(a)(4)(ii).
• Outcome: Serious ladder-stand caster-lock violation affirmed with a $1,500 penalty.
• Key point: A complaint that ladder-stand wheels do not function properly creates a duty to investigate, and defective positive locks establish a fall hazard when the stands move during use.

Full text (OSHRC public release)

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 99-0382
:
HECHINGER INVESTMENT :
COMPANY OF DELAWARE, INC., :
d/b/a BUILDERS SQUARE, :
:
Respondent. :

APPEARANCES:

             Helen J. Schuitmaker, Esquire                Michael J. Scotti, III, Esquire
             Chicago, Illinois                            Chicago, Illinois
             For the Complainant.                         For the Respondent.

Before: Chief Judge Irving Sommer

                                DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) inspected
a Builders Square store in Elgin, Illinois, on December 4, 1998. As a result of the inspection, OSHA
issued Respondent a serious citation alleging a violation of 29 C.F.R. 1910.29(a)(4)(ii). Respondent
contested the citation, and this matter was designated for E-Z Trial pursuant to Commission Rule
203(a). The hearing in this case was held on June 23, 1999, in Chicago, Illinois.
The OSHA Inspection
Sharon Hillhouse, the OSHA compliance officer (“CO”) who conducted the inspection,
testified that her office had received a complaint about the facility. Her office called the store and
spoke with John Pollack, the manager, and then faxed him a letter setting out the complaint and
requesting a response within a week; when no response was received, she was assigned to go to the
store. Hillhouse further testified that she began her inspection after meeting with Mike Blocker, a
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department supervisor, and that he accompanied her during the inspection. According to the CO,
there were about 12 ladder stands at the store that employees used for stocking shelves and other
tasks. The stands were of various sizes, having from five to ten 6 to 8-inch-high steps, but they all
had handrails, a top platform, and four caster wheels with locks on the front two wheels. Hillhouse
tested each stand by climbing up two to four steps, holding onto the handrails, and jiggling the stand
to see if it would move, and six of the stands moved when she tested them. She said the front wheel
locks should lock automatically when someone steps onto the first step and that the locks should
hold the stand firmly in place and keep it from moving; she also said the condition of the defective
stands presented a fall hazard that could have resulted in serious injury. The CO noted that she saw
an employee standing on the platform of a ten-step stand putting up decorations when she was there,
that the stand was wobbly and not level on the floor, and that a fall from the platform, which was at
least 6 feet high, could have resulted in broken bones, lacerations, contusions or a concussion. The
CO further noted that she discussed the stands with Blocker and Dave Reconnu, the acting store
manager, who agreed to have them repaired; in a later telephone closing conference she had with
Pollack, he also told her the stands would be repaired.1 (Tr. 8-24; 32-49; 72-77).
Discussion
The cited standard provides as follows:
All scaffold casters shall be provided with a positive wheel and/or swivel lock to
prevent movement. Ladder stands shall have at least two (2) of the four (4) casters
and shall be of the swivel type.
Respondent contends that the CO had limited knowledge in regard to ladders, that some
movement in ladder stands is permissible, and that the Secretary in any case did not establish that
it had knowledge of the cited condition. (Tr. 85-87). I disagree. CO Hillhouse testified that she had
been an OSHA CO for 20 years, that she had had ladder safety training that included wheel locks on
ladder stands, and that she had conducted over 800 inspections and had inspected many ladders. (Tr.
8-10; 28-30; 64). The CO further testified that C-2 and C-3 were written specifications she had
obtained pertaining to various types of mobile ladders. She marked on C-2 and C-3 the type of
mobile ladder she had seen at Respondent’s store and noted that both documents indicated that the

   1
       The record indicates that the stands were, in fact, repaired. (Tr. 24; 67; 77-79).

3

ladders complied with 29 C.F.R. 1929; she also marked on C-3 the information relating to the locks
on that kind of mobile ladder. (Tr. 15-20; 50-51). That information states as follows:
Step on ladder and leg tips automatically lock to the floor. Lock prevents any
movement while ladder is in use and cannot be accidentally released. (Emphasis
in original).
Based on the CO’s testimony and the information in C-3, which Respondent did not rebut,
I conclude that the ladder stands violated the terms of 29 C.F.R. 1910.29(a)(4)(ii).2 I also conclude
that the record establishes employee exposure to the ladder stands and Respondent’s knowledge of
the violative condition. The record shows that OSHA contacted John Pollack on October 19, 1998,
and faxed him C-4, a letter in regard to the complaint, the following day. (Tr. 10-11; 32-34). C-4
states, in item number 2, that:
The casters/wheels on the ladder stands do not function properly. The ladder stands
are very hard to move around. Applicable OSHA Standard: 29 CFR 1910.29.
Respondent suggests that it did not know that the wheel locks were not working because the
complaint did not specify this fact. However, this assertion is rejected. As the CO indicated, the
complaint in this case put Pollack on notice that the wheels were not functioning properly, and had
Pollack checked the wheels on the ladder stands after receiving the complaint, he would have
discovered the problem with the locks. Moreover, employers have a responsibility to ensure the
safety of the equipment their employees use, and if Respondent had had a program requiring regular
inspections of its equipment the defective locks on the wheels would have been detected. In view
of the record, it is clear that Pollack knew or should have known well before the date of the
inspection that the locks on the cited ladder stands were not working. It is also clear that the
knowledge of Pollack, the store’s manager, is imputable to Respondent. This citation is therefore
affirmed as a serious violation. The Secretary’s proposed penalty of $1,500.00 is appropriate, in light
of the CO’s testimony with respect to the gravity of the violation and the employer’s size, history
and good faith. (Tr. 25-26). The proposed penalty of $1,500.00 is accordingly assessed.

   2
     Respondent indicated that it had intended to present the testimony of either Pollack or

Blocker, but neither appeared at the hearing. Respondent’s request for the admission of Pollack’s
affidavit was rejected due to the Secretary’s lack of opportunity for cross-examination of this
individual. (Tr. 5-7; 61; 81-84).
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                                   Conclusions of Law
    1. Respondent, Hechinger Investment Company of Delaware, Inc., d/b/a Builders Square,

is engaged in a business affecting commerce and has employees within the meaning of section 3(5)
of the Act. The Commission has jurisdiction of the parties and of the subject matter of the
proceeding.
2. Respondent was in serious violation of 29 C.F.R. 1910.29(a)(4)(ii).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. Item 1 of Citation 1 is AFFIRMED, and a penalty of $1,500.00 is assessed.

                                                  Irving Sommer
                                                  Chief Judge

Date: