OCCUPATIONAL SAFETY AND HEALTH
APPEALS BOARD

Summary of Closets Unlimited - DAR

Employer failed to plead in its appeal that a stairway landing was not subject to section 3231(f)[landing must be as deep as it is wide] because the stairway and the building were 30 yrs old and, thus, exempt under the section 3202(b)(1) grandfather clause. The Board held that it is an exception for which Employer had the burden of proof. Under Owl Rock Products Co., 83-0082 there are 2 elements of proof: (1) The installation antedated the cited safety order; and, (2) The installation was in compliance with the safety orders or variations in effect when it was built. If Employer shows it cannot find the earlier safety orders with reasonable diligence, there is a rebuttable presumption of compliance. Since section 3202(b)(1) is an affirmative defense, Employer has to plead it to assert it. That was not done. The landing was 4' wide and only 2½' deep. A general violation of section 3231(f) was upheld.

CLOSETS UNLIMITED 97-2887
March 27, 2001