Anderson Masonry, Inc.

Plain-English summary

Employees erecting Anderson Masonry's scaffold climbed cross bracing because no ladder or other safe access had been provided, and scaffold frames lacked locking pins despite repeated forklift deliveries that could cause uplift. Those serious violations were affirmed with penalties totaling $3,000. A scaffold fall-protection item was vacated because the competent person made a reasonable site-specific determination that adequate anchorage was unavailable. Two interior-stairway items were also vacated because the Secretary did not prove that Anderson knew or should have known employees occasionally used the stairs.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.451(e)(9)(i), 1926.451(g)(2), 1926.452(c)(4), and 1926.1052(b)(1), (c)(1)
• Outcome: Two scaffold items were affirmed, three items were vacated, and total penalties of $3,000 were assessed.
• Key point: A competent person's reasonable, site-specific determination can satisfy the performance-based scaffold fall-protection rule when the record does not establish adequate anchorage.

Full text (OSHRC public release)

Secretary of Labor,
Complainant,
v. OSHRC Docket No. 02-2193
Anderson Masonry, Inc.,
Respondent.

Appearances:

And rea C hristensen Lub y, Esq., Office o f the Solicitor, U . S. De partm ent of Labo r, Kansas C ity, Missouri
For Com plainant

Scott A. Harrison and Zachary Anderson, Anderson M asonry, Inc., Bigfork, Montana
For Respond ent

Before: Administrative Law Judge Ken S. Welsch

                                         DECISION AND ORDER
       Anderson Masonry, Inc. (AMI), was erecting scaffolds for its exterior brick masonry work

on the American Bank building in Whitefish, Montana, on October 24, 2002, when the worksite was
inspected by the Occupational Safety and Health Administration (OSHA). As a result of OSHA’s
inspection, AMI received serious and “other” than serious citations on November 13, 2002. AMI
timely contested the citations.
Serious citation no. 1 alleges that AMI violated 29 C.F.R. § 1926.451(e)(9)(i) (item 1) for
failing to provide a safe means of access for the employees erecting scaffolds; 29 C.F.R.
§ 1926.451(g)(2) (item 2) for failing to provide fall protection for employees erecting scaffolds; and
29 C.F.R. § 1926.452(c)(4) (item 3) for failing to lock together vertically the end frames or panels
of scaffolds by pins or equivalent means. The serious citation proposes total penalties of $5,950.
The “other” than serious citation no. 2 alleges that AMI violated 29 C.F.R. § 1926.1052(c)(1)
(item 1) for failing to equip stairways having four or more risers with handrails and stairrails along
each unprotected side or edge; and 29 C.F.R. § 1926.1052(b)(1) (item 2) for failing to prohibit foot
traffic where the treads or landings of pan stairs were to be filled in with concrete or other material
at a later date. No penalties are proposed for the “other” than serious citation.
The case was designated for EZ trial proceedings pursuant to 29 C.F.R. § 2200.200, et. seq.
The hearing was held in Kalispell, Montana, on March 10 and 11, 2003. AMI was represented pro
se by its safety director and project manager. The parties stipulated jurisdiction and coverage
(Exh. J-1; Tr. A-61). The parties filed post-hearing statements of position.
AMI denies the violations. AMI asserts that it complied with the standards and the
procedures designated by its competent person in erecting scaffolds. AMI argues that its competent
person determined that the erecting procedures provided maximum feasible fall protection and that
personal fall arrest systems were infeasible and would pose a greater hazard. AMI also contends that
a failure to provide safe means of access does not include employees climbing on cross bracing,
which is covered by another standard.
For the reasons discussed, serious violations of § 1926.451(e)(9)(i) (item 1) and
§ 1926.452(c)(4) (item 3) are affirmed and total penalty of $3,000 is assessed. The remaining
violations cited are vacated.
The Inspection
AMI is a masonry contractor. Its principal place of business is in Bigfork, Montana. AMI
employs approximately 80 employees in Montana and 11 employees at an office in Spokane,
Washington (Exh. J-1).
In March 2002 Schlauch-Bottcher Construction (SBC), a general contractor, initiated
construction work for an American Bank building in Whitefish, Montana (Exh. C-1; Tr. A-16). AMI
contracted to perform the exterior brick work. AMI’s brick work began in September 2002 and was
almost completed by March 2003 (Tr. A-20; B-224).
AMI used approximately 8 employees on the bank project, including masons and helpers
(Exh. J-1). Mike Stodtbeck was the AMI’s job foreman and competent person on the project (Tr. B-
203, 223). Strodtbeck’s duties included on-site supervision, including safety checks (Tr. A-103; B-
35, 207-208, 226). Strodtbeck has been employed by AMI since 1987 and a foreman for 7 years
(Tr. B-223-224).
The day prior to OSHA’s inspection, AMI employees Christopher McMichael and Jeffrey
Eberle, who assisted the brick masons, used an interior stairway on the north side of the building to
access the third level of AMI’s scaffold on the south side (Tr. A-74-75, 116-117). Also, brick mason

1
Reference to transcript volume and page numb er. “A” refers to hearing date March 10, 200 3. “B” refers to hearing
date March 11, 2003.

                                                    -2-

Robert Brockman testified that he used an interior stairway because his access off the scaffold was
blocked by a forklift (Tr. B-37). The two interior stairways did not have handrails or stairrails, and
the pan stairs were not completely filled with material (Exh. C-2; Tr. B-104).
On the morning of October 24, 2002 (date of OSHA’s inspection), employees McMichael
and Eberle,2 began erecting scaffold along the west side of the building (Exh. C-2; Tr. A-95; B-15).
The job was assigned by foreman Strodtbeck (Tr. A-72, 102; B-203). The scaffold was tubular
welded frame scaffold for masons (Tr. A-46, 83; B-106). The scaffold was approximately 70 feet
long and at the time of OSHA’s inspection was 2 frames high, approximately 12 feet, 8 inches above
the ground (Tr. B-6, 16). The scaffold was eventually to reach 4 frames high (Tr. B-16).
When OSHA arrived on site, employees McMichael and Eberle were laying 4 x 8 feet sheets
of plywood over three, 2 x 10 inch planks. The plywood sheets were used to deck the second level
of the scaffold before installing the uprights and cross bracing for the third level (Exhs. J-1, C-2;
Tr. B-16, 87-88, 117, 155). The plywood sheets were lifted to the employees on the second level
by a forklift (Tr. B-6, 88, 101). While erecting the scaffold and placing the plywood, the employees
were not tied off or protected from falls by any fall protection (Tr. A-72, 103; B-86, 203). To access
the scaffold, the employees climbed the cross bracing or end frames (Tr. A-52, 73, 109-110).
After observing the employees laying the plywood deck, OSHA safety compliance officers
Trina Mailloux and Christopher Dickey initiated an inspection of the worksite at approximately
1:00 p.m. on October 24, 2002 (Tr. A-33, 41; B-148, 156). The inspection was made pursuant to
an OSHA local emphasis program (Tr. A-34). In addition to the lack of fall protection, CO Mailloux
observed the employees climb down the cross bracing of the scaffold from the second level to the
first level and then use the end frames (Tr. A-52). When she inspected the scaffold, Mailloux saw
that most of the frames were not locked together by pins or equivalent means (Tr. A-57). She made
the same observation on AMI’s scaffolds on the east and south sides of the building (Tr. A-56-58).
As a result of the inspection, the serious and “other” than serious citations were issued to AMI.
Discussion

2
Eberle had worked for AM I for approximately 4 months as a laborer (Tr. A-70, 89). M cMichael, also a competent
p erso n, was th e ho d carrier, w ho tend ed th e masons a nd ere cte d sc affolding. M cM ic ha el ha d w orked for A M I
app roxim ately 1 year (T r. A-10 1; B-19-2 0).

                                                        -3-

The Secretary has the burden of proving a violation.
In order to establish a violation of an occupational safety or health
standard, the Secretary has the burden of proving: (a) the applicability
of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation
(i.e., the employer either knew or, with the exercise of reasonable
diligence could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
AMI does not dispute that scaffold standards at § 1926.451 and § 1926.452 and the stairway
standards at § 1926.1052 were applicable to the bank building worksite. AMI employees’ exposure
to the conditions also is uncontested. Further, the record is uncontradicted that there was no ladder
for the scaffold on the west side; the employees were not using fall protection while erecting the
scaffold; AMI’s scaffolds did not have locking pins to prevent uplifts; the building interior stairways
did not have handrails or stairrails; and the pan stairs were not filled completely with material.
Alleged Violations
Serious Citation No. 1
Item 1 - Alleged Violation of § 1926.451(e)(9)(i)
The citation alleges that employees were exposed to a fall in excess of 12 feet because AMI
failed to provide safe means of access to employees erecting scaffolds. Section 1926.451(e)(9)(i)
provides:
The employer shall provide safe means of access for each employee
erecting or dismantling a scaffold where the provision of safe access
is feasible and does not create a greater hazard. The employer shall
have a competent person determine whether it is feasible or would
pose a greater hazard to provide, and have employees use a safe
means of access. This determination shall be based on site conditions
and the type of scaffold being erected or dismantled.

   There is no dispute that two employees were erecting the scaffold when laying plywood

sheets to complete the deck on the second level. The scaffolding along the west side was
approximately 70 feet long, and the employees were in excess of 12 feet above the ground.
The record in this case also establishes that when the employees were asked by the job
foreman to exit the scaffold, the two employees climbed down the cross bracing to the first level and

                                             -4-

then the end frame to the ground (Exh. R-1; Tr. A-52, 73, 88, 109-110; B-118-119). The 2x10
planks extended approximately 6 to 12 inches past the end frame at two points, which made it
difficult to climb down the end frame (Tr. A-109-110; B-222-223). There was no ladder for the
scaffold on the west side (Exh. C-2; Tr. B-81).
Employee Eberle testified that he would “usually climb up the scaffolding itself or use the
X-braces to get up” (Tr. A-73). No one had told him not to climb the cross-bracing prior to OSHA’s
inspection (Tr. A-74). Employee McMichael testified that he used the cross bracing because the
extended planks prevented him from using the end frame. He had to climb around the planks to
access the second level (Tr. A-109, 115). However, he did not believe the extended planking
hindered his use of the end frame (Tr. B-13). McMichael said that usually a ladder is tied to the
scaffold. Otherwise, he used a window or the end frames (Tr. A-110, 114; B-25).
CO Mailloux observed that the extension of the planks obstructed the use of the end frames
to access the scaffold (Tr. B-82-83). Regardless, according to Strodtbeck, Safeway, the manufacturer
of the scaffold, did not recommend the use of the end frames as a means of access (Tr. B-205-206).
Despite the manufacturer’s recommendation and the obstruction caused by the planks
extending beyond the end frame, foreman Strodtbeck thought that the employees could use the end
frames for access (Tr. B-204-205). However, Strodtbeck also testified that ladders are used
“whenever we’re erecting scaffolding” (Tr. B-207). It is undisputed that there was no ladder for the
scaffold on the west side (Tr. B-147).
AMI does not dispute that employees should not climb on the cross bracing. In fact, both
employees testified that after climbing down the cross bracing, foreman Strodtbeck told them that
they should not use the cross bracing (Tr. A-73, 111; B-25).
AMI does not assert unpreventable employee misconduct nor does the record support such
an affirmative defense. There is no showing of an AMI work rule or AMI enforcement of such a
rule. During his four months with AMI, no one told Eberle not to use the cross bracing (Tr. A-74).
The employees were not disciplined for using the cross bracing (Tr. A-113).
AMI argues that the cited standard does not apply because climbing on the cross bracing is
covered by another standard (Tr. A-111). This argument is rejected. Safe means of access during
erection or dismantling of scaffold includes a prohibition against climbing on the cross bracing. See

                                              -5-

§ 1926.451(e)(9)(iv).3 In this case, the hazard addressed by the citation is broader than using the
cross bracing. The unsafe condition cited involves the lack of any safe means of access provided to
the employees. There was no ladder on the west side, and the record shows that the end frames were
obstructed by the extension of planks used to support the plywood deck.
Also, although the standards permit the use of end frames, it requires that the horizontal
members be parallel and no more than 22 inches apart. See § 1926.541(e)(9)(iii).4 The record in this
case does not establish that the end frames, even if there was no obstruction caused by the planks,
met the standard’s requirements for a safe means of access. The end frames on the west side of the
building were not shown to be equivalent to a ladder. Further, the manufacturer of the scaffold does
not recommend the use of the end frames (Tr. B-205-206).
Additionally, the record fails to show that AMI’s competent person Strodtbeck made a
determination regarding the safe means of access as required by the standard. It was not established
that he considered the obstruction to using the end frames caused by the extension of the planks.
Also, he made no determination that a portable ladder was infeasible or posed a greater hazard to the
employees erecting the scaffold or while laying the plywood decking for the second level. In Brand
Scaffold Rental and Erection, Inc., 19 BNA OSHC 1741, 1743 (No. 00-1668, 2001)(ALJ), cited by
AMI (AMI Brief, p. 1), the judge found that a competent person made a determination that a ladder
was infeasible and would pose a greater hazard. In this case, it was not shown that Strodtbeck made
any determination prior to OSHA’s inspection regarding safe access.
With regard to AMI’s knowledge of the condition, foreman Strodtbeck was present when the
two employees climbed down the cross bracing. He also repeatedly inspected the scaffold’s progress
on the west side. He should have known that no ladder was present and the end frames were
obstructed by the extension of the planks (Tr. B-207-208, 222). Strodtbeck agreed that the planks

3
Section 1926.451(e)(9)(iv) provides that “[c]ross braces on tubular welded scaffolds shall not be used as a means of
access or egress” .

4
Section 19 26.5 41(e)(9)(iii) provides :
When erecting or d isman tling tubular w elded fram e scaffolds, (en d) fram es,
with horizontal members that are parallel, level and are not more than 22 inches
apart vertically may be used as climbing d evices for access, provided they are
erected in a ma nne r that creates a usab le ladd er and provid es go od h and hold
and foot space.

                                                          -6-

extended into the employees’ climbing space at two points (Tr. B-223). The lack of a safe means
of access was in plain view.
As foreman, Strodtbeck’s knowledge of the unsafe conditions on site are imputed to AMI.
See Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993) (when a supervisory
employee has actual or constructive knowledge of the violative condition, knowledge is imputed to
the employer). Strodtbeck should have known of the lack of a safe means of access based on his on-
site supervision of the project (Tr. A-103; B-35-36, 207-208, 225, 226).
A violation of § 1926.451(e)(9)(i) is established.
Item 2 - Alleged Violation of § 1926.451(g)(2)
The citation alleges that AMI failed to provide fall protection for employees exposed to a fall
in excess of 12 feet to the ground while erecting scaffold. Section 1926.451(g)(2) provides:
Effective September 2, 1997, the employer shall have a competent
person determine the feasibility and safety of providing fall protection
for employees erecting or dismantling supported scaffolds.
Employers are required to provide fall protection for employees
erecting or dismantling supported scaffolds where the installation and
use of such protection is feasible and does not create a greater hazard.

     While erecting scaffold, AMI claims that it does not require its employees to tie off because

of the lack of anchorage points and the potential tripping and entanglement hazards (Exhs. J-1, C-5;
Tr. B-204, 207).5 Employee Eberle testified that he has never worn fall protection while erecting
scaffold during his approximate 4 months with AMI (Tr. A-71-72). Similarly, McMichael has never
used fall protection during scaffold erection (Tr. B-13, 22, 24). In fact, it appears that no one at AMI
has used fall protection while erecting or dismantling scaffolds since 1996 (Tr. B-49, 54).
As required by the standard, the record in this case shows, however, that AMI’s competent
person on site made a determination regarding the feasibility of providing fall protection to
employees erecting the scaffold on the west side of the building. Job foreman Strodtbeck, the
designated competent person, testified that he determined that fall protection was not feasible and

5
AM I’s argument that employees’ fall exposure was minimized because uprights, cross bracing, and guardrails are
immediately installed after the decking is irrelevant. Although the process may take less than 45 minutes (Tr. B-16,
18, 3 8-39 ), the Co mmission has considered eve n brief exposures to a haza rd as sufficient to establish exposure. See
Walke r Towing Co rp., 14 BNA OSH C 207 2, 2074 (N o. 87-1359, 19 91).

                                                      -7-

would pose a greater hazard to employees. He stated that the employees could not utilize fall
protection, including personal fall arrest because (1) fall protection in his experience has never been
provided during the erection and dismantling of scaffolds; (2) he did not consider the 2 x 6 inch
wood roof frame of the building as adequate anchorage for fall protection; and (3) the use of lanyards
and lifelines posed tripping and entanglement hazards to employees6 (Tr. B-203-204, 206, 209, 211,
234). Strodtbeck testified that AMI had fall protection equipment on site and used it during other
phases of the masonry work (Tr. B-215, 217-218). AMI owns portable roof anchors, lifelines,
lanyards, and harnesses (Tr. B-209, 220). Strodtbeck stated that “[f]all protection was being used
at the bank building project. It was sporadic when we went on the roof a few times” (Tr. B-224).
Also, there were guardrails on the scaffold after erection.
The Secretary does not dispute that Strodtbeck is qualified as a competent person. See
§ 1926.450(b).7 The Secretary, however, doubts that Strodtbeck actually made a site-specific
analysis regarding the scaffold being erected on the west side because of AMI’s practice of never
providing fall protection. The Secretary asserts that it is a matter of AMI policy not to utilize fall
protection as opposed to a site-specific determination. Despite the Secretary’s doubts, the failure
to use fall protection in the past does not mean that a site-specific determination was not made at the
bank building project. Strodtbeck’s testimony that he made a determination is uncontroverted.
The record, therefore, shows that AMI has made a prima facie showing of compliance with
§ 1926.451(g)(2). As required by the standard, AMI’s competent person made a determination that
fall protection was not feasible and was not safe for employees erecting the scaffold on the west side
of the building.

6
AM I also argues that Strodtbeck de termined that the scaffolding was too far away from the build ing for fall
protection (AMI Brief, p. 2). However, the record is unclear as to whether this was a concern other than for vertical
lifelines (Tr. B-204). Regardless, it was not further explored by the parties and it was not shown why it prevented
the use of fall protection.

7
Section 1926.451 (b) defines “competent person” to mean:
[O]ne who is capable of identifying existing and predictable hazards in the
surroundings or working conditions which are unsanitary, hazardous, or
dangerous, or dangerous to employees, and who has authorization to take prompt
corrective measures to eliminate them.

                                                     -8-

The Secretary challenges Stodtbeck’s determination as without foundation. The Secretary
relies on the testimony of OSHA director of compliance assistance Raymond Nellor. Nellor opined
that horizontal lifelines could have been extended between safe anchor points on the corners of the
roof. The building was made of 2x6 inch wood frame construction (Tr. B-188, 194-195). Nellor
recommended using a Safe-T-Strap horizontal lifeline connected to the building by a Rough-It
anchor (Exh. C-13; Tr. B-195). From the horizontal lifeline, the employees could attach vertical
lifelines and their lanyards (Exhs. C-8, C-9; Tr. B-194-195). CO Mailloux and Nellor testified that
they have observed such fall protection systems provided by other employers, including masonry
contractors engaged in erecting or dismantling scaffolds (Tr. B-90, 93-94, 191).
The wording of § 1926.451(g)(2) contemplates that the determination is site-specific.
Otherwise, there would be no purpose in requiring a determination by a competent person and
mandating that fall protection be provided during scaffold erection activities unless it is infeasible
or poses a greater hazard. However, as long as a reasonable determination is made by a competent
person, an employer complies with the requirements of the standard. To permit the Secretary to
second guess the determination, unless it is shown to be unreasonable, is contrary to the intent and
meaning of this performance-based standard. The Secretary, unlike the other fall protection
standards for scaffolds, leaves the determination during scaffold erection and dismantling to the
competent person. Fall protection is required for all other work activities on a scaffold without
regard to a competent person’s determination. See § 1926.451(g)(1).
It is noted that § 1926.451(g)(2) does not identify factors or criteria to be used by the
competent person in making the determination. In the safe access standard at § 1926.451(e)(9)(i),
the competent person’s determination “shall be based on site conditions and the type of scaffold
being erected or dismantled.” The fall protection standard, on the other hand, states that fall
protection is required during the erection of scaffolding unless it is infeasible or poses a greater
hazard which determination is made by the competent person.
With regard to the reasonableness of Strodtbeck’s determination not to provide fall protection
during scaffold erection on the west side of the building, his reliance on company policy and past
practice is irrelevant, except as historical perspective and experience. The standard presumes that
fall protection will be provided unless determined to be infeasible or a greater hazard. Instead of

                                             -9-

policy and past experience, in order for his determination to have meaning, it must be based on the
conditions and circumstances of each project.
Similarly, Strodtbeck’s concerns regarding possible tripping and entanglement hazards from
the use of lanyards and lifelines also appears to be without merit (Tr. B-204). Such hazards can be
resolved through planning, the use of retractables, and overhead lifelines. Strodtbeck conceded that
the use of retractable lanyards and connecting the lanyard to an overhead lifeline prevented any
potential tripping hazard (Tr. B-209-211). With the lanyard typically attached in the middle of an
employee’s back, the lanyard would not drag on the ground (Tr. B-192-193). Also, through pre-
planning of work procedures, if one employee remained on the north side of the scaffold and the
other employee stayed on the south side, their lifelines would not get entangled (Tr. B-212-213).
Pre-planning would allow employees to avoid entangling the lines and prevent tripping hazards
(Tr. B-192-193). Also, on a mason’s scaffold similar to the one at the bank building, employees
could get around uprights or other employees by walking on a planked outrigger between the scaffold
platform and the building (Exh. C-6; Tr. B-95, 98, 191-192). CO Mailloux testified that she has
observed scaffolds erected by other employers safely using these methods (Tr. B-99).
Strodtbeck’s determination regarding the inadequacy of anchor points for horizontal and
vertical lifelines was not shown to be unreasonable. Competent person Strodtbeck testified that, in
his opinion, there were no adequate anchor points on the corners of the building to attach fall
protection. He had no idea whether the 2 x 6 inch wood frame structure was able to withstand the
required 5,000 pounds per employee attached (Tr. B-206, 218; also see § 1926.502(d)(15) as
incorporated by § 1926.451(g)(3)).
Although it is likely that such wood frame may provide adequate anchorage support, the
record in this case fails to show that Strodtbeck’s determination was unreasonable. OSHA manager
Nellor, who had not visited the bank project, agreed that he did not know if 2 x 6 inch wood frame
was strong enough to support a fall arrest system. He testified that the determination “would be
made by the competent person” (Tr. B-193). CO Mailloux offered no opinion regarding the
adequacy of anchorage points.
Strodtbeck made the determination. He testified that he “did not feel that the existing
building provided adequate anchorage point. I would just be guessing” and “judging from where we

                                            -10-

could hook off and all the anchorage was on the top of the roof, I thought, no – I didn’t think it was
adequate enough” (Tr. B-234). Strodtbeck said that he would need an engineer (Tr. B-206).
SBC job superintendent Gary Witt’s testimony is given little weight regarding the adequacy
of the anchorage points. Witt testified that he would have permitted AMI to nail or screw in portable
anchors to the wood frame of the building (Tr. B-17). He described that on the day of OSHA’s
inspection, the entire perimeter was framed and sheeted in ½-inch plywood. The roof was flat with
a parapet wall (Tr. A-16, 21). However, Witt did not testify or show any knowledge regarding the
adequacy of the wooden frame to support anchorage for fall protection with the capacity to hold
5,000 pounds for each employee attached. Also, it is noted that in his experience, Witt did not
consider it standard practice for masonry contractors to use fall protection while erecting scaffolding
(Tr. A-25).
A violation of § 1926.451(g)(2) is not established.
Item 3 - Alleged Violation of § 1926.452(c)(4)
The citation alleges that scaffolds on the south, east, and west side of the building were not
equipped with pins to lock together vertically the end frames or panels of scaffolds. Section
1926.452(c)(4) provides:
Where uplift can occur which would displace scaffold end frames or
panels, the frames or panels shall be locked together vertically by pins
or equivalent means.

   AMI does not dispute that the scaffolds in the south, east, and west sides of the bank building

did not, for the most part, have locking pins which prevented the upper frame from lifting off the
lower frame (Exh. C-3; Tr. A-191; B-31, 101, 128). AMI stipulates employee exposure and its
knowledge regarding the lack of locking pins on the scaffold on the west side of the building (Exh. J-
1). The scaffold on the west side was being erected and, at the time of the OSHA inspection, was
two frames high and approximately 70 feet long. The two employees were laying the deck on top
of the second level before attaching the uprights and cross bracing for the third level (Exh. C-2;
Tr. A-39, 46). Instead of locking pins, CO Mailloux observed that the bottom frames were tack

                                             -11-

welded to the connector pins8 which join the upper frame with the bottom frame. The tack welding
prevented loss of the connector pins (Tr. A-67; B-152-153). The parties agree that such tack welding
did not prevent the upper frame from being lifted off the lower frame (Tr. B-152).
On the south side and east side of the building, CO Mailloux observed some locking pins and
tack welding on the bottom frames. However, for the most part, the locking pins were lacking from
the upper frames (Tr. A-56-57; B-154-155). The scaffolds on the south side or east side were at least
3 frames high (Tr. A-75, 116).
Locking pins are required by the standard “where uplift can occur which could displace
scaffold end frames or panels.” AMI claims that its competent person determined that the scaffold
was not subjected to possible uplifts; however, the testimony of competent person Strodtbeck fails
to reflect that he made any determinations regarding uplift potential of the scaffolds. He was not
asked about the lack of locking pins.
The potential for uplift occurring is based on the forklift’s repeated lifting scaffold
components to the two employees standing on the second level of the scaffold on the west side
(Exh. C-2). On the east and south side scaffolds, the forklift had placed the “mud buddy” and pallets
of brick (Tr. A-119; B-31, 102). Because of the continuous lifting of materials to the scaffolds, CO
Mailloux, who has prior forklift experience,9 opined that the forklift could accidentally collapse the
scaffolding by lifting the upper scaffold frame off the lower scaffold frame (Tr. B-31, 101, 167, 170).
A collapse of the scaffold could occur if the top frame was lifted more than 3 ½ inches above the
lower frame (Tr. A-59; B-142, 170-171). Eberle testified that the forks of the forklift came “right
above” the scaffold decking (Tr. A-76-77). If an operator made a slight misjudgment regarding the
height of the scaffold, the forks could come up beneath the scaffold frame and lift it up. CO

8
Connector pins are approximately 2 inches in diameter and 8 inches long with a band around the center. The
connector pins fit inside the frame tubing. On the ends the connector pins have holes which are to match holes in the
frame tubing through which the locking pins are placed to prevent the upper and lower frames from separating (Exh.
C-3; Tr. A-54; B-171-172) .

9
CO M ailloux operated a forklift for four years prior to her job with OSHA. In fact, she testified that she operated a
Gradall forklift similar to the Gradall forklift at the bank building project (Tr. B-107 ).

                                                        -12-

Mailloux explained that accidents commonly occur with forklifts due to operator error (Tr. B-161-
162).10
AMI had received an earlier citation for failing to provide pins for scaffolds. In accordance
with a stipulation by the parties, the citation, however, was withdrawn by the Secretary (Tr. B-237-
239). Although AMI may read some agreement by OSHA in the withdrawal of the citation, it has
long been recognized that the Secretary has broad discretion in settling citations and the reasons for
withdrawing a citation may involve the lack of evidence or other considerations as opposed to an
agreement of compliance. Erie Coke Corp., 15 BNA OSHC 1561, 1568-1570 (No. 88-611, 1992).
The withdrawal of a citation does not protect an employer against a future citation. Trinity Marine
Nashville, Inc., 19 BNA OSHC 1015, 1019 (No. 98-0144, 2000), rev’d. on other grounds, 275 F.3d
423 (5th Cir. 2001).
A violation of § 1926.452(c)(4) is established.
Serious Classification for Citation No. 1
OSHA classified the violations of § 1926.451(e)(9)(i) (item 1) and § 1926.452(c)(4) (item
3) as serious. A violation is serious under § 17(k) of the Occupational Safety and Health Act (Act),
29 U.S.C. § 666(k), if it creates a substantial probability of death or serious physical harm and the
employer knew or should have known of the violative condition. In determining whether a violation
is serious, the issue is not whether an accident is likely to occur; it is rather, whether the result would
likely be death or serious harm if an accident should occur. Whiting-Turner Contracting Co., 13
BNA OSHC 2155, 2157 (No. 87-1238, 1989).
The lack of a safe means of access and locking pins on scaffolds were properly classified as
serious. Two employees were working on the scaffold’s second level, in excess of 12 feet above the
ground, without a ladder or other safe means to access the scaffold. Because of the lack of safe
access, the employees were observed using the cross bracing. Also, a forklift was continuously
observed lifting plywood sheets up to the employees on the scaffold. The scaffold did not have

10
AM I’s reliance on the decision in Pyramid Masonry Constructors, Inc., 16 BNA OSHC 2103 (No. 93-1972, 1994)
is misplaced. An unreviewed ALJ d ecision is not binding. Also, the judge found that an uplift could not occur
because the scaffold was double braced on the inside and outside, attached to the building, and other facts relevant to
that case. These elements were not shown in this case.

                                                     -13-

locking pins to prevent it from uplift if struck by the forklift. Thus, there was a potential for the
scaffold to collapse.
Other than Serious Citation No. 2
Items 1 and 2 - Alleged Violations of § 1926.1052(c)(1) and § 1926.1052(b)(1)
The citation alleges that AMI employees were exposed to a fall or tripping hazard because
interior stairways were not equipped with a handrail or stairrail system along each unprotected side
or edge. Also, it is alleged that AMI failed to prohibit foot traffic on the pan stairs which were to
be filled in with concrete or other material at a later date.
Section 1926.1052(c)(1) provides:
Stairways having four or more risers or rising more than 30 inches
(76 cm), whichever is less, shall be equipped with:
(i) At least one handrail; and
(ii) One stairrail system along each unprotected side or edge.

            Note: W hen the top edge of a stairrail system also serves as a handrail, paragraph
            (c)(7) of this section applies.

    Section 1926.1052(b)(1) provides:
            Except during stairway construction, foot traffic is prohibited on
            stairways with pan stairs where the treads and/or landings are to be
            filled in with concrete or other material at a later date, unless the
            stairs are temporarily fitted with wood or other solid material at least
            to the top edge of each pan. Such temporary treads and landings shall
            be replaced when worn below the level of the top edge of the pan.

    There is no dispute that the interior stairways in the north and south portions of the building

did not have handrails and stairrails, exposing employees to a possible fall hazard of approximately
14 feet (Exhs. C-1, C-2; Tr. A-60, 64-65; B-104). Also, it is not disputed that the stair pans were
not completely filled (Exh. C-2; Tr. A-60). The 2-inch pans were filled with approximately 1 inch
of material (Tr. A-61, 104). The record shows that employees Brockman, Eberle, and McMichael
had used the stairways prior to the OSHA inspection to access the erected scaffolds on the south side
(Tr. A-63-64, 74-75, 116-118; B-37, 47).
Because AMI lacked knowledge of the conditions, the alleged violations are not established.
The general contractor, not AMI, was responsible for installing the handrails and stairrails on the
stairways. The general contractor was also responsible for placing and filling the stair pans (Tr. B-

                                                  -14-

156). There is no showing that AMI, through its job foreman, knew or should have known with the
exercise reasonable diligence that the stairways lacked handrails, stairrails, and the pans were not
filled.
The record fails to show that the foreman knew the employees were using the stairways
inside the building to access the scaffolds. There were already ladders for accessing the scaffolds
on the east and south sides of the building. The use of the interior stairways was not necessary
(Tr. B-146-147). Employee Brockman acknowledged that there was a ladder for the scaffold but he
used the stairway because access to the ladder was blocked temporarily by a forklift (Tr. B-37, 48).
He only used the stairway once (Tr. B-48). Other than the day prior to OSHA’s inspection, there is
no showing Eberle and McMichael had previously used the interior stairways. According to
employee Eberle, foreman Strodtbeck did not instruct him to use the stairways or that the stairways
could not be used (Tr. A-86). He testified that he used the stairway because it was easier to reach
the top of the scaffold on east side to stack bricks (Tr. A-93). He did not have to use the stairway.
Also, the record fails to show that job foreman Strodtbeck was ever inside the building or that
AMI’s work required him to be inside the building. AMI’s brick work was on the exterior of the
building. The stairways were inside the building. Also, the lack of handrails, stairrails, or filled stair
pans was not shown to be readily visible inside or outside of the building.
Strodtbeck was the AMI’s job foreman and competent person for the bank building project
(Tr. B-223). He supervised the employees and was responsible for recognizing unsafe conditions
(Tr. B-36). Throughout the day, Strodtbeck traveled between the AMI’s work areas outside the east,
west, and south sides of the building (Tr. B-208). Strodtbeck’s job was not shown to require him
to be inside the building or use the interior stairways. He was not shown to have been aware or
should have been aware that AMI employees on occasion used the interior stairways.
The reasonable diligence obligations of an employer to establish constructive knowledge
includes adequate supervision of employees, implementation of training programs, work rules
designed to ensure that employees perform their work safely, and the ability to anticipate hazards to
which employees may be exposed and to take measures to prevent the occurrence of unsafe
conditions. Precision Concrete Constr., 19 BNA OSHC 1404, 1407 (No. 99-707, 2001), Stahl
Roofing, Inc., 19 BNA OSHC 2179, 2181 (Nos. 00-1268, 00-1637, 2003). There is no showing that

                                               -15-

AMI failed to exercise reasonable diligence regarding its job at the bank building project. Violations
of § 1926.1052(c)(1) and § 1926.1052(b)(1) are not established.
Penalty Consideration
The Commission is the final arbiter of penalties in all contested cases. In determining an
appropriate penalty, the Commission is required to consider the size of the employer’s business,
history of previous violations, the employer’s good faith, and the gravity of the violation. Gravity
is the principal factor to be considered.
AMI is a medium size employer with approximately 91 employees (Exh. J-1). There is no
evidence that AMI has received OSHA citations within the preceding three years (Tr. B-85). AMI
is entitled to credit for good faith. AMI utilizes a competent person to make determinations
regarding the scaffold erection. AMI has safety meetings and participated in a forklift certification
training program while on the bank building project. AMI had fall protection equipment on site
which is used to perform some jobs (Tr. B-215, 218). The general contractor’s job superintendent
considered AMI a very safe company (Tr. A-26-27; B-230).
A penalty of $1,000 is reasonable for violation of § 1926.451(e)(9)(i) (citation no. 1, item
1). Two employees were observed climbing down the cross bracing. There was no ladder or other
safe means of access. The end frame was obstructed by planks which extended approximately 12
inches beyond the end frame. The competent person failed to make a determination regarding the
use of a ladder during scaffold erection.
A penalty of $2,000 is reasonable for violation of § 1926.452(c)(4) (citation no. 1, item 3).
AMI’s scaffolds throughout the project did not have locking pins. The tack welding did not prevent
the upper scaffold frame from lifting off the lower frame. Forklifts were continuously placing
material or masonry products on the scaffold. The forklift could have caused an uplift of the scaffold
and a possible collapse.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER

                                            -16-

Based upon the foregoing decision, it is ORDERED that:
1. Citation no. 1, item 1, serious violation of § 1926.451(e)(9)(i), is affirmed and a
penalty of $1,000 is assessed.
2. Citation no. 1, item 2, serious violation of § 1926.451(g)(2), is vacated and no penalty
is assessed.
3. Citation no. 1, item 3, serious violation of § 1926.452(c)(4), is affirmed and a penalty
of $2,000 is assessed.
4. Citation no. 2, item 1, other than serious violation of § 1926.1052(c)(1), is vacated
and no penalty is assessed.
4. Citation no. 2, item 2, other than serious violation of § 1926.1052(b)(1), is vacated
and no penalty is assessed.

                                          /s/
                                          KEN S. WELSCH
                                          Judge

Date: April 16, 2003

                                            -17-