far removed from the extremes of the
tails. The pallet for access is smack dab
in the middle of any definition of unsafe. No quibble here! This device for
ascending or descending between the
ground and railcar floor is unquestionably unsafe. Is the device in the picture
a ladder, ramp, stair or trash?
If it is a ladder, the space between
the surviving rungs is about an inch
and a half – too small for a steel-toed
shoe to enter. That makes it useless as a
ladder. The broken and missing rungs
show their own inadequacy. If it is a
ramp, it is too steep for walking. If it
is a stair, the tread and riser are missing and therefore useless. There is no
handrail. Unsafe access is established.
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Inspection photo showing a pallet used
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Often, when cases are read for
review for use in a new case, the situations in the decided cases and the
case at hand have useful similarities
but sometimes have inconvenient
differences. Not surprisingly, pallets
have been before the ALJs and the
commission. Judge Morris wrote at
13 FMSHRC 1919, a case directly on
point, “It is apparent that an unsupported pallet leaning against a trailer
for support is not safe.” In this case, a
prudent operator and an ALJ would
agree on the nature of the condition.
The commission wrote at 24 FMSHRC 445, “There were no handrails,
steps or ladder provided for miners
accessing the trimmer. ... The judge
found that the pallets, without steps
or handrails, failed to provide a safe
means of access to the trimmer. ... the
judge’s conclusion that, in the absence
of steps or handrails, the pallets were
an unsafe means of access is both reasonable and amply supported by the
record.” Sounds related, but in this
case the pallets were stacked on each
other. The pile made a work platform,
and the openings in the pallets up the
sides were used as a ladder. A pallet is
a tempting modular convenience that
can smooth the way into noncompliance for safe means of access.
But there is a next step in the re-
