International Masonry, Inc.

Plain-English summary

Three International Masonry employees fell about 37 feet when a scaffold platform supported by a modified corner bracket collapsed. One employee died and another was seriously injured. The Secretary withdrew four items, and the judge vacated allegations involving a damaged bracket, ladder clearance, and missing scaffold ties or braces. He affirmed a serious item for using personnel brackets to support a hoist without a qualified engineer's design, an other-than-serious item for improper access using stacked pallets, and a serious item because the modified corner bracket was not shown to have been designed by a qualified person. The modified-bracket item was reduced from willful to serious because the company had used the design for decades without incident and had not shown intentional disregard or plain indifference. The total assessed penalty was $4,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(l)(2)(iii); 29 C.F.R. § 1910.178(l)(4)(iii); 29 C.F.R. § 1926.451(f)(4); 29 C.F.R. § 1926.451(g)(4)(i); 29 C.F.R. § 1926.452(c)(5)(iii); 29 C.F.R. § 1926.1051(a); 29 C.F.R. § 1926.1053(b)(9); 29 C.F.R. § 1926.451(a)(6); 29 C.F.R. § 1926.451(c)(1)(ii); 29 C.F.R. § 1926.451(c)(1)(iii); 29 C.F.R. § 1904.29(b)(1)
• Outcome: Three items were affirmed, four were vacated, four were withdrawn, and $4,000 in penalties was assessed.
• Key point: Modified scaffold components and brackets carrying non-personnel loads require the qualified design or engineering support specified by the applicable standards.

Full text (OSHRC public release)

                                         UNITED STATES OF AMERICA
             OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                1924 Building – Room 2R90, 100 Alabama Street, S.W.
                                            Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant
v. OSHRC Docket No. 10-0148
International Masonry, Inc.
Respondent.

Appearances:

      Patrick L. DePace, Esquire, Office of the Solicitor, Cleveland, Ohio
               For Complainant

      Timothy T. Tullis, Esquire and Eric B. Travers, Esquire, Kegler, Brown, Hill & Ritter, LPA, Columbus, Ohio
              For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                       DECISION AND ORDER
      International Masonry, Inc. (IMI) is a masonry contractor in Columbus, Ohio. On July 1,

2009, three IMI masons fell from a tubular welded frame scaffold, approximately 37 feet, on the
east side of the IGS Energy headquarters building, under construction, in Dublin, Ohio. The
masons were standing on a platform, supported by a modified outrigger corner bracket, when it
collapsed. One mason died and another was seriously injured. As a result of an investigation by
safety compliance officers with the Occupational Safety and Health Administration (OSHA), IMI
received serious, willful, and other than serious citations on December 28, 2009. IMI timely
contested the citations.
Serious Citation No. 1 alleges IMI violated 29 C.F.R. § 1910.178(l)(2) (iii) (item 1a) for
failing to properly train employees to operate forklifts; 29 C.F.R. § 1910.178(l)(4)(iii) (item 1b)
for failing to provide refresher forklift training; 29 C.F.R. § 1926.451(f)(4) (item 2) for installing a
damaged corner bracket on the scaffold; 29 C.F.R. § 1926.451(g)(4)(i) (item 3) for installing the

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top rail of the guardrail system at 30 inches; 29 C.F.R. § 1926.452(c)(5)(iii) (item 4) for utilizing
scaffold brackets to support a hoist used to lift concrete headers; 29 C.F.R. § 1926.1051(a) (item
5a) for failing to provide a stairway or ladder for employees’ access to the scaffold platform; and
29 C.F.R. § 1926.1053(b)(9) (item 5b) for failing to keep clear the area around the top and bottom
of a ladder. The serious citation proposes total penalties of $ 28,000.00.
Willful Citation No. 2 alleges IMI violated 29 C.F.R. § 1926.451(a)(6) (item 1) for
modifying and using a side bracket contrary to the manufacturer’s design; 29 C.F.R. §
1926.451(c)(1)(ii) (item 2a) for failing to secure the tubular welded frame scaffold; 29 C.F.R. §
1926.451(c)(1)(iii) (item 2b) for failing to use ties, guys, or braces, where outriggers applied
eccentric loads to the scaffold. The willful citation proposes total penalties of $ 112,000.00.
Other than serious Citation No. 3 alleges IMI violated 29 C.F.R. § 1904.29(b)(1) (item 1)
for failing to complete the OSHA Form 300 Log or equivalent for calendar years 2008 and 2009.
The other-than-serious citation proposes a penalty of $ 800.00.
The hearing was held on October 3 thru 6, 2011, in Columbus, Ohio. The parties
stipulated jurisdiction and coverage (Tr. 4). The Secretary withdrew Citation No. 1, items 1a and
1b (Tr. 5). By Amended Notice of Withdrawal dated December 20, 2011, the Secretary also
withdrew Citation No. 1, item 3, and Citation No. 3, item 1. The parties filed post hearing briefs
on April 23, 2012.
IMI denies the alleged violations, the willful classifications, and the proposed penalties.
Also, IMI argues that the OSHA inspection was “a rush to cite” and that the three employees who
fell were engaged in unpreventable employee misconduct (Tr. 33-34).1
For the reasons discussed, Citation No. 1, items 2 and 5b, and Citation No. 2, items 2a and
2b are vacated. Citation No. 1, items 4 and 5a and Citation No. 2, item 1 are affirmed. Citation
No. 1, item 5a is affirmed as other than serious and Citation No. 2, items 1 and 2a are affirmed as
serious. A total penalty of $ 4,000.00 is assessed.
The Accident
IMI is one of the largest masonry contractors for commercial projects in central Ohio. It is
a family owned business started by Mr. John Casey and a former partner over thirty-six years ago.

   1
     Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No.

89-2713, 1991).

                                             2

IMI is currently managed by Mr. Casey’s three sons. The company’s office is located in
Columbus, Ohio. In 2009, the company employed approximately 70 employees. It currently
employs 47 employees. IMI takes pride that many of its employees are related and the average
length of employment is 17 years (Tr. 263, 265, 310-311, 572).
IMI’s masonry work is generally performed from scaffolds which it purchased from
scaffold manufacturers such as Waco. The scaffold components are stored at its yard in
Columbus, Ohio. IMI employees deliver, erect, and dismantle the scaffolds for each project.
The scaffold components include outrigger side brackets used to support additional planking off
the main scaffold as well as a modified outrigger corner bracket used to support planking in the
inside corner of a building (Tr. 312, 322).
A side bracket is a right triangular-shaped piece of angle iron. The vertical side,
approximately 2 feet in length, has a hook and u-bracket (ears) at the ends to attach to the main
scaffold. The horizontal side of the bracket, also 2 feet long, supports two 10-inch wood planks
(platform). The third side approximately 34 inches long, provides support for the end of the
horizontal side and transfers the weight of the platform and other loads to the main scaffold’s
vertical support (Exh. C-10; Tr. 190-191).
IMI constructed the corner bracket by welding together two outrigger side brackets at a 90
degree angle. Since 1977, IMI has used a “modified” outrigger corner bracket when working at
the inside corner of a building and when the outrigger scaffold is turned.2 The side bracket with
the hook and u-bracket is placed against the main scaffold to support the weight of the platform
and other loads. The other side bracket (without the hook and u-bracket), referred as the safety
catch, is meant to prevent the planks from becoming unsecure and tipping. It does not directly
support the weight of the platform and other loads. There are left and right modified corner
brackets depending on the inside corner (Exh. C-18, Tr. 139, 213, 315, 531).
In 2009, Messer Construction contracted IMI to install brick and stone veneers on the new
IGS Energy headquarters building in Dublin, Ohio. The project began in November 2008. IMI

    2
      During the hearing, the modified corner bracket was also referred to as an “outrigger bracket,” “corner

outrigger,” “modified outrigger bracket,” and “modified bracket.” Since the accident, IMI has ceased using the
modified outrigger brackets (Tr. 146, 556).

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began its veneer work on March 16, 2009. IMI’s approximate 30 employees, masons and
laborers, were supervised by the project supervisor (Exh. C-4; Tr. 61-62, 171, 222).
On July 1, 2009, IMI’s welded frame scaffold was approximately 120 feet long and 45 feet
high along the east side and in the northeast inside corner of the building. 3 Waco had
manufactured the scaffold components. The scaffold in the northeast corner (north tower) was
one scaffold section long (7 feet long) and began at Column 5. It was connected at a 90 degree
angle to the east scaffold. The north tower scaffold was incomplete and not secured to the
building (Exhs. C-5, C-6, C-7; Tr. 72, 171, 173, 175).
The project supervisor assigned seven masons to install stone veneer on Columns (piers)
5.5 through 8.5 on the building’s east side. Before starting work, the project supervisor had
inspected the east side scaffold and placed numbers on the columns to assist the masons. He did
not inspect the north tower scaffold at Column 5. A barricade was placed across the east side
main scaffold’s platform before Column 5. The masons worked on an outrigger platform which
extended along the main scaffold to the north tower scaffold. The outrigger platform was not
barricaded (Tr. 148-149, 151-152, 192).
After finishing the veneer work, three masons began installing flashing. The masons
continued working from the outrigger platform. The flashing work took the masons to Column 5
at the north tower scaffold where IMI’s modified corner bracket had been installed (Exh. C-9; Tr.
595).
At approximately 10:00 a.m., the platform supported by the modified corner bracket at
Column 5 collapsed, causing the three masons to fall from the scaffold. The platform was
approximately 37 feet above the first floor concrete slab. The masons were experienced and had
worked for IMI more than 20 years. The project supervisor, who was working on the north side of
the building, did not see the accident (Tr. 79, 91, 161, 300).
IMI’s investigation concluded that the modified corner bracket was a factor in causing the
accident. Three possibilities for the collapse were identified: (1) the corner bracket was
improperly installed, (2) the corner bracket was damaged when used, or (3) the planks bounced
causing the corner bracket to loosen (Tr. 332-333, 878-879). IMI denies the corner bracket was

    3
   Although the scaffold has been identified as located on the northeast or west, the parties agree the alleged

OSHA violations occurred on the east side of the IGS building (Tr. 518).

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damaged when installed.
As a result of the accident, OSHA compliance officers initiated an investigation. An
OSHA engineer concluded that the modified corner bracket collapsed because it was not correctly
installed and the weight of the platform load was transferred against the u-bracket (ears) as
opposed to the main scaffold, causing the load to slide off the scaffold’s upright. He stated that
the u-bracket was designed to keep the bracket from moving left or right but not to bear direct
loads (Exh. C-23; Tr. 363, 369).
OSHA’s investigation concluded that the modified bracket was bent and cracked and that it
was not designed by a qualified person. OSHA also found that the north tower scaffold was not
braced and tied to the building and that an improperly supported hoist at the other end of the east
side scaffold was used to lift concrete headers (precast panels). Inside the building, on the sixth
floor, the inspectors observed stacked wooden pallets used by employees to access the east side
scaffold through the window opening (Exhs. C-12, C-13, C-15, C-16; Tr. 372, 374).
IMI received the OSHA citations at issue on December 28, 2009 and timely filed its notice
of contest.
DISCUSSION
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).
IMI does not dispute the application of OSHA’s scaffold standards to its project. The
scaffold along the east side of the building was a tubular welded frame scaffold.
Reasonableness of OSHA Inspection
IMI alleges OSHA’s issuance of the citations was “a blind rush to cite” because the
compliance officers were “getting heat” from their supervisors due to the media coverage of the
accident (Tr. 296-297, 735-736). As evidence, IMI points to the Secretary’s withdrawal of
Citation no. 1, items 1a and 1b at the hearing and Citation no. 1, item 3 and Citation no. 3, item 1
two months later. IMI claims there have been 59 prior OSHA inspections; none of which

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identified a problem with the modified corner bracket. Also, OSHA’s news release after the
accident caused “great damage to IMI’s reputation and financial stability.” Since the accident,
IMI has lost business and approximately one-third of its work force. During the informal
conference which took approximately “two minutes”, IMI claims OSHA acted in bad faith by
“flatly” refusing to discuss any of the citations (IMI Post-Hearing Brief, pp. 10-12).
Section 8(a) of the Occupational Safety and Health Act (Act) provides that an OSHA
inspection of an employer’s worksite would be conducted in a reasonable manner, at reasonable
times, and within reasonable limits. To establish the defense to the issuance of citations, an
employer must present evidence of unreasonable conduct by OSHA in substantially failing to
comply with the provisions of § 8(a), and such noncompliance substantially prejudiced the
employer. Gem Industrial, Inc., 17 BNA OSHC 1185 (No. 93-1122, 1995).
IMI’s claim of unreasonable conduct by OSHA is rejected. The Secretary has broad
prosecutorial discretion in deciding the prosecution of violations of the Act. DeKalb Forge Co.,
13 BNA OSHC 1146, 1153 (No. 83-299, 1987). The length of the inspection, the issuance or
withdrawal of citations, and the refusal to settle citations at the informal conference are within her
discretion and are not shown to have been motivated for harassment purposes nor have a harassing
effect. While sympathetic to IMI’s loss of reputation, financial stability, business and employees,
OSHA is not responsible for the media coverage of a fatality and the effect of that coverage on an
employer’s business. It was a tragic accident with the death of one employee without an obvious
cause. Also, it is noted the country has been in a severe depression, particularly in the
construction industry.
Although IMI disagrees with the citations at issue and the fact that several of the alleged
violations were later withdrawn or vacated as a result of the hearing, there is no showing that
OSHA lacked reasonable justification for their issuance. The Secretary’s withdrawal of citation
items may reflect the evaluation of the available evidence and is not necessarily a showing of bad
faith. Also, there is no showing that the modified bracket was the subject of any of the 59 prior
OSHA inspections or that the compliance officers even saw the modified brackets on site. Such
brackets are only used in inside corners.
The record lacks evidence of animus or prejudice. OSHA’s inspection took almost six
months and the citations were issued barely within the Act’s six-month statute of limitations.

                                              6

Clearly, it was not a “rush to cite.” Also, there is no showing IMI would not have otherwise
received the same citations at issue.
SERIOUS CITATION NO. 1
Item 2 - Alleged Serious Violation of § 1926.451(f)(4)
The citation alleges that “On or about July 1, 2009, at the above addressed jobsite, on the
northeast building face of the scaffold at approximately 37 feet above the 1st floor slab, employees
were performing masonry operations from a modified outrigger bracket that was cracked and bent
prior to erection, thus contributing to the subsequent collapse.”
Section 1926.451(f)(4) which applies to the use of scaffold components, provides:
Any part of a scaffold damaged or weakened such that its strength is less than that
required by paragraph (a) of this section shall be immediately repaired or replaced,
braced to meet those provisions, or removed from service until repaired.

     The three masons were on the platform supported by the modified corner bracket when it

collapsed on July 1, 2009. The bracket was found, after the accident, bent and cracked (Exh.
C-18). The Secretary alleges the corner bracket was installed on the scaffold in the damaged
condition. The OSHA engineer testified the damage to the bracket pre-existed the collapse based
on observing rust and mortar powder inside the cracked metal (Tr. 372-373).4
The bracket was found bent and cracked after falling 37 feet onto concrete. The Secretary
has alleged that it collapsed because of the inappropriate transfer of the platform load against the
bracket’s hook and u-bracket (ears). Such load transfer could have contributed to damaging the
bracket in the manner observed by the engineer. None of the witnesses testified the bracket was
damaged prior to its installation on the scaffold.
The engineer’s opinion regarding the pre-existing condition of the bracket is given little
weight. He even testified, “the U shaped/ear at bottom of the mod bracket was bent at some point
in time, and in my opinion, it’s impossible to state to a reasonable degree of engineering certainty
how much of the U shape was bent prior to the fall – I agree that 99% of the bend could have
occurred during the fall” (Tr. 503). Also, because of the amount of time that passed before he was

     4
      The Secretary’s second contention that “the modification of the bracket done by IMI rendered the bracket

weakened to such a degree that it could not bear the intended load, even if there was no pre-existing damage” is
rejected as not properly plead by the Secretary and beyond the scope of the citation. The citation alleges the cracked
and bent condition of the modified bracket existed when installed on the scaffold. The issue regarding the design of
the modified bracket is alleged in Citation 2, item 1 which is discussed later.

                                                      7

able to observe the bracket, its condition could have changed. The engineer first saw the damaged
corner bracket on July 21, 2009 (three weeks after the accident) (Exh. C-23; Tr. 397-398). Also,
it is noted that the corner bracket was the only component OSHA identified as damaged or bent in
the extensive scaffold system along the building’s east side.
The bracket, according to IMI’s protocol, would have been inspected for damage
numerous times before installation. It was inspected at the shop when loaded on the truck, at the
job when unloaded from the truck, and on the scaffold when installed. The project supervisor also
inspected the scaffold each morning before employees were permitted on the scaffold (Tr. 66, 148,
301, 334-335, 526). Moreover, the employee who erected the scaffold and the employee who
delivered the components to the project, testified that the corner bracket at issue was in good
condition when delivered and installed (Tr. 644, 674). Also, there was no reason to use a
damaged component because other modified corner brackets were available for use at the project
on July 1, 2009 (Tr. 302).
The record also fails to show the strength of the modified bracket, damaged or bent, was
not “capable of supporting, without failure, its own weight and at least 4 times the maximum
intended load applied or transmitted to it.” See § 1926.451(a). OSHA performed no strength test
on the bracket because according to the engineer, it was a stability problem with the way the
bracket was located. IMI tested the bracket by adding cinder blocks on a plank supported by the
bracket without a failure (Tr. 392-393, 491, 740-741).
The alleged violation of §1926.451(f)(4) is not established.
Item 4 - Alleged Serious Violation of § 1926.452(c)(5)(iii)
The citation alleges that “On the Dublin, Ohio IGS site, the south end lower scaffold the
employer used a chain hoist to lift concrete headers weighing up to 346 pounds. The chain hoist
was supported on two outrigger brackets with a nylon sling supported by two scaffold planks.
The concrete headers were being lifted to the upper section of the scaffolding, about 15 feet off the
ground. These scaffold brackets were designed for supporting personnel and not materials.”
Section 1926.452(c)(5)(iii) which applies to brackets used to support cantilevered loads,
requires that the brackets:
Be used only to support personnel, unless the scaffold has been designed for other
loads by a qualified engineer and built to withstand the tipping forces caused by
those other loads being placed on the bracket-supported section of the scaffold.

                                             8

The suspended chain hoist, observed during the OSHA inspection, was held by a nylon
sling wrapped around two planks. The planks were supported by two outrigger side brackets.
The IMI employees were using the hoist to lift concrete headers onto a scaffold platform,
approximately 15 feet above the ground. Each header weighed 346 pounds. The hoist had been
set up the day prior to the accident. The project supervisor was aware of the hoist but testified that
he did not know it was being used (Exhs. C-12, C-13, C-14, C-30; Tr. 123-125, 210).
There is no dispute the side brackets were not used to support personnel. The use of the
brackets to support the weight of the hoist and concrete headers is a violation of
§1926.452(c)(5)(iii) unless the scaffold was designed for other loads by a qualified engineer. As
an exception, the burden is on IMI to show the scaffold was designed by a qualified engineer “and
built to withstand the tipping forces caused by the other loads.” Kasper Wire Works, Inc.,18 BNA
OSHC 2178, 2194 (No. 90-2775, 2000), aff’d 268 F.3d 1123 (D.C. Cir. 2001).
The brackets at issue were manufactured by Waco. Waco, in its publication, instructs
purchasers that brackets “are to be used as work platforms only and shall not be used for storage of
materials or equipment” (Exh. C-3, p.15). IMI was using the brackets to support a hoist for lifting
346-pound concrete headers. The brackets were designed to support a work platform for
personnel. The record fails to show that the brackets were designed to support loads lifted by a
suspended hoist. There is no showing that a “qualified engineer” approved the bracket’s use in
lifting suspended loads. There were no tests performed as to the tipping forces caused by
suspending such loads from the brackets. Although each bracket was rated by the Waco for 800
pounds, the tipping forces caused by the suspended loads were not shown considered by a
qualified engineer. Such suspended loads held by a hoist needed further analysis.
IMI’s project supervisor claims he did not see the hoist in use. However, he knew it was
in place and should have known, with reasonable diligence, the employees were using the hoist to
lift loads and the hoist was supported by two side brackets. The hoist was in plain view and
subject to the project supervisor’s morning inspections of the scaffold (Tr. 691-692, 726, 773).
The project supervisor’s knowledge is imputed to IMI. Tampa Shipyards, Inc., 15 BNA OSHC
1533, 1537 (Nos. 86-360 and 86-469, 1992). Two employees were observed using the hoist and
exposed to the unsafe condition.

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IMI’s violation of § 1926.452(c)(5)(iii) is established as serious.5 An employee could
have been seriously injured if the brackets supporting the hoist and concrete header collapsed.
IMI, through its project supervisor, should have known the hoist was used to lift concrete headers
and not support personnel.
Items 5a and 5b -
Alleged Serious Violations of §§ 1926.1051(a) and 1926.1053(b)(9)

     Item 5a alleges that “On the sixth level of the Dublin, Ohio IGS building where the

employer set up an access to the scaffold employees had to step up onto three pallets, 15 inches
high, then step up over a wire rope guardrail, 26 inches high above the pallets, then step out 15
inches then down nine inches onto a window ledge that was 31 ½ inches high from the floor to gain
access to a portable ladder used to access/egress the tubular welded frame scaffold.”
Section 1926.1051(a) provides:
A stairway or ladder shall be provided at all personnel points of access where there
is a break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped
embankment, or personnel hoist is provided.

     Item 5b alleges that “On the fourth level of the building where the employer set up access

to the tubular welded frame scaffold, employees were stepping over the top of a wire rope
guardrail and stepping down onto a ladder to gain access/egress to the ladder on the scaffold.”
Section 1926.1053(b)(9) provides:
The area around the top and bottom of ladders shall be kept clear.
On the sixth floor of the IGS building, IMI employees used three stacked pallets, 15 inches
high, to access a ledge (window sill), 16.5 inches above the pallets in order to reach a ladder
outside which accessed the east scaffold platform below. The window ledge was 31.5 inches
above the floor. The project supervisor knew employees were using the pallets to access the
ledge (Exhs. C-15, C-16, C-17; Tr. 126, 777).
IMI’s argument that there was no break in elevation greater than 19 inches is rejected.
The height of the window ledge from the floor was 31.5 inches. The standard requires “a ladder
or stairway” where there is a break in elevation of more than 19 inches. The stacked pallets do not

     5
      A violation is serious under § 17(k) of the Act, if there is a substantial probability of death or serious

physical harm that could result from the cited condition and the employer knew or should have known with the
exercise reasonable diligence of the presence of the violation. 29 U.S.C. § 666(k).

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meet the requirements of a ladder or stairway as described in 29 C.F.R. § 1926.1052 and §
1926.1053. The pallets do not provide a suitable platform because of the gaps between the slats
(Exh. C-15).
IMI’s violation of § 1926.1051(a) (item 5a) is established as other than serious. Although
the stacked pallets do not meet the requirements of a ladder or stairway, the pallets were laid flat on
the cement floor and provided a large surface for employees to stand while accessing the ledge.
There was no showing of employees’ injuries or that employees were exposed to possible serious
injury or death.
With regard to item 5b, after accessing the window ledge on the sixth floor, employees
were required to step over a wire rope (guardrail) that ran above the window ledge. The
employees had to step over the wire to access the ladder to the scaffold platform outside (Exhs.
C-15, C-16; Tr. 779). The wire rope was approximately 9 inches above the window ledge and
functioned as the top guardrail.
The requirement of keeping clear the area around the top and bottom of the ladder as
addressed by § 1926.1053(b)(9) was not shown to apply to part of a guardrail system. A guardrail
is not comparable to construction debris and material which the standard attempts to prevent. As
noted by IMI, OSHA Directive CPL 2-1.23 states “that the construction scaffolding standard does
not prohibit climbing through guardrails as a means of access to the scaffold.” The compliance
officer conceded no violation (Tr. 782).
The violation of § 1926.1053(b)(9) (item 5b) is not established.
WILLFUL CITATION NO. 2
Item 1 - Alleged Willful Violation of § 1926.451(a)(6)
The citation alleges that “On or about July 1, 2009, at the above addressed jobsite, on the
northeast building face of the scaffold at approximately 37 feet above the 1st floor slab, employees
were performing masonry operations from a tubular welded frame scaffold that included an
outrigger side bracket that was modified and used contrary to its original manufacturer design.”
Section 1926.451(a)(6) provides:
Scaffolds shall be designed by a qualified person and shall be constructed and
loaded in accordance with that design. Non-mandatory Appendix A to this
subpart contains examples of criteria that will enable an employer to comply with
paragraph (a) of this section.

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The modified outrigger corner bracket was constructed by IMI consists of two side
brackets welded together at a 90-degree angle. The bracket is only used in inside corners where
the ends of the platform planks meet from two directions. The side brackets were purchased from
Waco, a well-known scaffold manufacturer.
In IMI’s design, one side bracket is intended to support the load (platform and personnel)
and the other bracket, referred to as the “safety catch” is intended to prevent the platform from
tipping off the scaffold. According to IMI, employees are trained to place the wood planks on the
support bracket and not the safety catch bracket.
The modified bracket has been used by IMI for 35 years without incident. IMI’s vice
president testified that he “has no specific knowledge who designed this bracket (Tr. 498, 529). It
is unknown who designed the modified corner bracket (Tr. 118, 343). According to IMI, other
masonry contractors use similar modified corner brackets (Exh. R-8; Tr. 244-245).
There is no dispute the modified bracket is covered by the cited standard. The platform
supported by the outriggers is a scaffold within the standard. See § 1926.450(b) Definitions. It is
not known who designed the corner bracket for IMI or his qualifications. A “qualified person” is
defined at 29 C.F.R. § 1926.450(b), Definitions, as;
One who, by possession of a recognized degree, certificate or professional
standing, or who by extensive knowledge, training, and experience, has
successfully demonstrated his/her ability to solve or resolve problems related to the
subject matter, the work, or the project.

   IMI argues that the standard does not prohibit modification of a scaffold component.

OSHA agrees (Exh. R-1, p. 79; Tr. 785). Also, IMI contends that the intended use of the modified
bracket did not change the designed function or use of the Waco side bracket. When the corner
bracket is used as intended there is no weight placed against the ears. The safety catch is only
necessary to prevent a plank from tipping. IMI claims the project supervisor based on his
experience in erecting scaffolds, was a qualified scaffold person.
IMI’s argument regarding the qualification of its project supervisor as a qualified person is
immaterial. The project supervisor did not design the modified bracket. The issue is not the
erection of the scaffold. The corner bracket was already in use when he was hired by IMI (Tr.
137-138). There is no showing that Waco or other manufacturers of the side bracket has

                                            12

approved IMI’s modified bracket (Tr. 118, 530). IMI agrees there were no engineering analysis
performed on the modified bracket (Tr. 529).
The modified bracket used by IMI was not purchased in that modified condition from
Waco (Tr. 118, 250, 529, 784, 865). Rather, the modified bracket was changed from the way it
was purchased. The Secretary’s experts testified that the modification by IMI changed the
bracket in significant way (Exh. C-19; Tr. 363-364, 471). By welding two side brackets together
and assigning different functions, IMI changed the nature of the side bracket. The corner bracket
was not shown to have been designed by a qualified person and loaded in accordance with the
design.
The purpose of IMI’s corner bracket to prevent tipping planks is not necessary if IMI
complied with the Secretary’s standards which address the same concerns. Compliance with
§196.451(b)(5)(i) and (ii) is intended to prevent planks from tipping by restricting the planks’ size
and overhang. The standard limits the overhang of the planks unless secured from movement and
tipping (Tr. 470).
At the time of the accident, the corner bracket may not have been installed as intended with
the weight of the platform directly on the safety catch. IMI’s expert admitted that proper
installation of the modified bracket was critical for it to function as intended (Tr. 918). If
improperly installed, clearly the platform loads are directly placed on the safety catch bracket and
the weight is transferred against the u-bracket (ears) and not to the main scaffold. The purpose of
the u-bracket attachment is to keep the bracket from moving left or right and not to support loads
(Exh. C-23; Tr. 410, 413). The safe use of IMI’s corner bracket requires careful attention to its
installation. Unlike IMI’s corner bracket, manufacturers generally design a scaffold component
so that it cannot be improperly installed (Tr. 383). The proper design of a component should
minimize its misuse (Tr. 362).
The Secretary’s expert, a licensed civil engineer with experience in the scaffold
manufacture’s industry, opined that the characteristics of the side bracket changed when the
second bracket (safety catch) was welded to the support bracket.6 He testified that the design
created a “fatal flaw” (Tr. 469, 475). If installed incorrectly with the platform sitting directly on
6
Despite two state disciplinary actions for practicing engineering without a license, the court is not persuaded
the expert’s testimony lacks credibility and the actions have no effect on his opinions (Exhs. R-17, R-18; Tr. 485-496).
The disciplines were the result of a misunderstanding and the fines paid.

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the safety catch bracket or even if correctly installed and the platform tipped onto the bracket, the
platform loads are transferred against the u-bracket and not the main scaffold. It fails to transfer
the load to the main scaffold as intended by the manufacturer (Tr. 470-471). He testified that
modifications of components are discouraged by the industry to ensure that the components
perform as designed (Tr. 460-461). It is noted that scaffold manufacturers sell their own corner
brackets for interior corners (Exh. C-26).
The scaffold in use by IMI was manufactured by Waco. The brochures produced by
Waco provide warnings to customers about the proper installation of scaffold and components
(Exhs. C-2, C-3). Any reasonable reading of the documents would caution very strongly against
modifying the scaffold bracket. Waco warns purchasers to “NEVER USE EQUIPMENT FOR
PURPOSES OR IN WAYS FOR WHICH IT WAS NOT INTENDED” (Exh. C-3, under “Safety
Guidelines”). Under paragraph N, Waco states “ALL SCAFFOLDING ACCESSORIES shall be
used and installed in accordance with the manufacturers’ recommended procedure. Accessories
shall not be altered in the field. Scaffold, frames and their components of various manufacturers
shall not be intermixed.” In paragraph M, Waco states that “ALL BRACKETS shall be seated
correctly with side brackets parallel to the frames and end brackets at 90 degrees to the frames.”
(See also, Exh. C-2, similar warning by the same manufacturer).
There is no showing who designed IMI’s modified corner bracket or if any engineering
analysis was performed. A violation §1926.451(a)(6) is established.
Items 2a and 2b -
Alleged Willful Violations of § 1926.451(c)(1)(ii) and § 1926.451(c)(1)(iii)

    Item 2a alleges that “On or about July 1, 2009, at the above addressed jobsite, on the

northeast building face of the scaffold at approximately 37 feet above the 1st floor slab, employees
were performing masonry operations from an unsecured tubular welded frame scaffold that was
positioned at the northeast building face scaffold system, thereby exposing employees to the
hazards associated with falls and scaffold collapse.”
Section 1926.451(c)(1)(ii) which applies to a “supported scaffold,”7 provides:

    7
      There is no dispute the north tower scaffold was a supported scaffold with a height to base width ratio of

more than four to one (4:1). A “supported scaffold” means “one or more platforms supported by outrigger beams,
brackets, poles, legs, uprights, posts, frames, or similar rigid support.” §1926.450(b) Definitions.

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Guys, ties, and braces shall be installed according to the scaffold manufacturer’s
recommendations or at the closest horizontal member to the 4:1 height and be
repeated vertically at locations of horizontal members every 20 feet (6.1 m) or less
thereafter for scaffolds 3 feet (0.91 m) wide or less, and every 26 feet (7.9 m) or less
thereafter for scaffolds greater than 3 feet (0.91 m) wide. The top guy, tie or brace
of completed scaffolds shall be placed no further than the 4:1 height from the top.
Such guys, ties and braces shall be installed at each end of the scaffold and at
horizontal intervals not to exceed 30 feet (9.1 m) (measured from one end [not
both] towards the other).

   Item 2b alleges that “On or about July 1, 2009, at the above addressed jobsite, on the

northeast building face of the scaffold at approximately 37 feet above the 1ST floor slab, employees
were performing masonry operations from a tubular welded frame scaffold that was positioned at
the end of the northeast building face scaffold system, that did not have ties, guys, or braces where
outriggers loaded with personnel and materials were applying an eccentric load to the scaffold,
thereby exposing employees to the hazards associated with falls and scaffold collapse.”
Section 1926.451(c)(1)(iii) provides:
Ties, guys, braces, or outriggers shall be used to prevent the tipping of supported
scaffolds in all circumstances where an eccentric load, such as a cantilevered work
platform, is applied or is transmitted to the scaffold.

   There is no dispute the north tower scaffold was not braced and tied to restrain the scaffold

from tripping or collapsing (Tr. 94-95). The north scaffold was approximately 5 feet in width, 7
feet in length, and 37 feet high (Tr. 843). The east side scaffold was properly braced and tied.
The masons were working from a cantilevered platform supported by outriggers. The platform
was attached to main east scaffold and the north tower scaffold. At the time of the accident, the
three masons were working at Column 5, where the east side scaffold connected to the north tower
scaffold (Exh. C-23; Tr. 371-372, 381, 424, 542). The modified corner bracket was located on the
north tower scaffold (Exh. C-8: Tr. 535). To install the bracket, an employee had to stand on the
north tower platform (Tr. 538).
There is also no dispute the north tower scaffold was not complete because Messer
Construction had not released the area to IMI for work (Tr. 175). The three masons performing
masonry work were not engaged in scaffold erection work. IMI safety program requires that “All
scaffold frames will be adequately braced” (Exh. R-7). Waco warns users to ensure that the
scaffold is properly tied. “Tie Scaffolds to Building. Scaffolding should be tied to the structure,

                                             15

using push-pull ties, every 26 feet or less of rise, and every 30 feet or less of length” (Exh. C-2).
The standards cited by Secretary were not complied with and the three masons were exposed to the
lack of bracing and ties.
The record fails, however, to establish IMI’s knowledge that the three masons were
working on the north tower scaffold and exposed to the lack of bracing and ties. There is no
evidence that other employees were on the north scaffold except the employee engaged in erecting
the scaffold. The three masons had been assigned a specific task (installing stone veneer) in
different area to work (Columns 5.5 to 8 on the east scaffold) (Tr. 149-150). The masons were
long-time trusted employees who had not been disciplined for past violations of company safety
rules (Tr. 237, 324). The three masons were experienced and did not require constant
supervision. According to one mason, they were only on the north scaffold for less than 5
minutes before the platform collapsed (Tr. 629).
At the time of the accident, the project supervisor was working on another side of the
building, not in view of the north tower scaffold. He did not see and could not see the masons
working on the north scaffold (Tr. 833). He did not see the masons before the accident (Tr.
90-91). There is no showing the project supervisor or any IMI employee saw the masons on the
north tower scaffold. The project supervisor was not aware the north tower needed to be braced
and tied because the employee erecting the scaffold had not released it as completed (Tr. 665, 673).
The masons were not assigned to work on the north tower scaffold (Tr. 149-150). They
were instructed to install the stone veneer on specific columns on the east scaffold and no columns
north of column 5.5 (Tr. 150). Without direction, the masons on their own decided to install
flashing and work past column 5.5 (Tr. 625). The masons were on the north tower scaffold for no
more than 5 minutes before the accident (Tr. 629).
There is no showing that IMI should have known the masons were working on the north
tower scaffold. An employer has constructive knowledge of a violation if the employer fails to
use reasonable diligence to discern the presence of the violative condition. Pride Oil Well Serv.,
15 BNA OSHC 1809, 1814 (No. 87-692, Aug 17, 1992). An employer must make a reasonable
effort to anticipate the particular hazards to which its employees may be exposed during the course
of their scheduled work. Automatic Sprinkler Corporation of America, 8 BNA OSHC 1384, 1387
(No 76-5089, 1980).

                                             16

The project supervisor’s instruction only involved work on the east scaffold. There is no
evidence he should have anticipated the masons would start any work involving the north tower
scaffold. The supervisor inspected the east scaffold and made the work assignments to the
masons in the morning prior to work based on where he anticipated them to work. The masons
after completing their assigned work, voluntarily began the flashing work without informing the
project supervisor or receiving a new assignment.
The Secretary’s argument that the project supervisor failed to give a specific instruction is
rejected. He gave a specific instruction – finish installing the stone veneer between column 5.5
and column 8. There was no reason for him to instruct the masons not to perform another task at
column 5 because such conduct was not foreseeable (Tr. 595, 601, 606, 618-619). There is no
showing that the supervisor should have reasonably anticipated the masons would engage in other
work (installing flashing) which would take them to column 5, beyond where they were assigned.
The masons were only at column 5 on the north scaffold for a very brief period of time (5
minutes). No evidence that any IMI employee saw them or knew the masons were working on the
north tower scaffold (Tr. 625). There was a barricade on the main scaffold to prevent or warn
employees from going onto the north scaffold. However, there was no barricade on the outrigger
scaffold. The record fails to show whether or not the masons knew the north tower was not
complete.
The three masons were experienced masons with at least 20 years with IMI (Tr. 161, 162,
300). The three masons had not been previously disciplined for safety violations or failing to
comply with instructions. IMI considered them safe workers. They were verbally disciplined as
a result of their activities on July 1, 2009 (Tr. 343).
IMI has a written scaffold safety program and fall protection plan (Exhs. R-6, R-7). The
safety program was prepared by a former OSHA area director and given to every IMI employee.
The program requires that scaffolds must be tied. Test answer 6 provides that “Only employees
who have received training and permission from IMI/SMC foreman may access a scaffold” (Exh.
R-5). According to IMI, it has invested significant time and money on employees’ safety training
(Tr. 276-278).
The masons’ decision to engage in a job not assigned and proceed to the north tower
without permission was not foreseeable. Failure to discover a safety violation that occurs in five

                                               17

minutes does not show inadequate monitoring. Pipeline Distribution Contractors, Inc., 16 BNA
OSHC 1293 (No. 91-3312, 1993, ALJ).
The record fails to establish IMI’s knowledge of employees’ exposure to the alleged
violations of § 1926.451(c)(1)(ii) and § 1926.451(c)(1)(iii).
Willful Classification
The Secretary classified IMI’s violation of § 1926.451(a)(6) as “willful” under § 17 of the
Act. It is well settled that a willful violation is one committed with intentional, knowing or
voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.
Continental Roof Systems, Inc., 18 BNA OSHC 1070, 1071 (No. 95-1716, 1997). To find
willfulness involves determining that the employer had a heightened awareness, rather than simple
knowledge, of the violative conditions. Williams Enterprises, Inc. 13 BNA OSHC 1249, 1256-57
(No. 85-35, 1987).
The record fails to show that IMI’s conduct demonstrated a heightened awareness the
modified corner bracket was unsafe or contrary to OSHA standards. The compliance officer
admitted that he had no evidence to support a willful violation (Exh. R-1; p. 102-103). A
modification of a scaffold component is not necessarily an OSHA violation. According to IMI,
the brackets were welded together by certified welders to increase the safety factor (Tr. 467-468,
848-849). IMI has used the modified corner brackets on a majority of its project for over 35 years
without incident (Tr. 663). IMI’s expert who tested the bracket considered it “well designed’ (Tr.
901). He opined that the modification did not change the design of Waco side brackets, did not
change how the Waco side brackets attached to the scaffold frame, did not change how the scaffold
components fit together as part of the scaffold system, and did not change the load capacity of the
side brackets (Tr. 910).
If installed properly and no load is placed on the safety catch, there is no showing of a
strength or stability problem with the modified corner bracket (Exhs. C-18, ALJ-2). The intended
use of the bracket neither changed the design function or use of the bracket (Tr. 851-852, 910).
When used as intended, the safety catch carries no load and no load is applied against the ears.
IMI trained its employees on the proper use and loading the modified bracket.
There have been many OSHA inspections (59) and the modified corner bracket’s use was
never questioned by OSHA and not the subject of an OSHA citation. IMI was familiar that other

                                            18

masonry contractors used similar modified corner brackets (Tr. 139, 284-285, 286). IMI also
engaged a former OSHA area director to prepare its safety program and conduct safety audits
which included visual inspections of all scaffold components. He raised no concern about the
corner bracket (Tr. 268-269, 293).
The record fails to show IMI’s intentional disregard or plain indifference to employee
safety. The willful classification of § 1926.451(a)(6) is not established.
Penalty Consideration
The Review Commission is the final arbiter of penalties in contested cases. In
determining an appropriate penalty, the Commission is required, pursuant to § 17(j) of the Act, 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 in considering a reasonable
penalty.
IMI is entitled to credit for size because it employed approximately 70 employees in 2009.
IMI is also entitled to good faith credit based its generally good safety program and use of the
former OSHA Area Director as a consultant. Most employees have been employed with IMI for
more than 17 years and many employees are related. IMI is not entitled to credit for history
because it has received OSHA citations within the preceding three years.
A penalty of $1,000.00 is reasonable for violation of § 1926.452(c)(5)(iii) (citation no. 1,
item 4). The improperly supported hoist exposed at least two employees if it collapsed because of
the use without analysis by a qualified engineer.
No penalty is proposed for other than serious violation of § 1926.1051(a) (citation no. 1,
item 5a). The stacked pallets provided a large flat platform for employees to use to access the
window sill. There was no showing of serious injury.
A penalty of $ 3,000.00 is reasonable for violation § 1926.451(a)(6) (citation no. 2, item 1).
IMI failed to identify who designed the modified bracket or show any engineering analysis
showing stability and capability to sustain the anticipated loads if the platform tipped which the
bracket was designed to prevent.

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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
Based upon the foregoing decision, it is ORDERED that serious Citation:
1. Citation No. 1, Items 1a and 1b, alleged serious violations of § 1910.178(l)(2)(iii)
and § 1910.178(l)(4)(iii), are withdrawn by the Secretary.

    2.     Citation No. 1, Item 2, alleged serious violation of § 1926.451(f)(4), is vacated and
    no penalty is assessed.

    3.     Citation No. 1, Item 3, alleged serious violation of § 1926.451(g)(4)(i), is
    withdrawn by the Secretary.

    4.     Citation No. 1, Item 4, alleged serious violation of § 1926.452(c)(5)(iii), is affirmed
    and a penalty of $ 1,000,00 is assessed.

    5.      Citation No. 1, Item 5a, alleged serious violation of § 1926.1051(a), is affirmed as
    other than serious and no penalty is assessed.

    6.      Citation No. 1, Item 5b, alleged serious violation of § 1926.1053(b)(9), is vacated.

    7.      Citation No. 2, Item 1, alleged willful violation of § 1926.451(a)(6), is affirmed as
    serious and a penalty of $ 3,000.00 is assessed.

    8.     Citation No. 2, Items 2a and 2b, alleged willful violations of § 1926.451(c)(1)(ii)
    and § 1926.451(c)(1)(iii), are vacated and no penalty assessed.

    9.     Citation No. 3, Item 1, alleged other than serious violation of § 1904.29(b)(1), is
    withdrawn by the Secretary.




                                                     /s/ Ken S. Welsch
                                                  KEN S. WELSCH

Date: July 2, 2012 Administrative Law Judge

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