Applied Masonry, Inc.

Plain-English summary

Applied Masonry used fabricated-frame scaffolds while renovating a city courthouse. An employee climbed cross braces to reach an upper platform and walked across platforms that were not fully planked. The judge rejected the company's claim that the scaffold was being dismantled because the employee was measuring for unfinished masonry work and no dismantling activity was shown. Prior final citations for the same access and planking standards supported repeat classifications. A guardrail item was vacated because the scaffold was less than ten feet above the adjoining roof. The two affirmed repeat items carried penalties totaling $15,000.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(e)(1); 29 C.F.R. § 1926.451(g)(4)(i); 29 C.F.R. § 1926.451(b)(1)
• Outcome: Repeat access and planking items were affirmed for $15,000 total, and the guardrail item was vacated.
• Key point: A dismantling exception requires evidence that dismantling work was actually underway, and prior final citations for the same scaffold hazards can support repeat classifications.

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. 12-2030
Applied Masonry, Inc.
Respondent.

Appearances:

      Joseph B. Luckett, Esq., U. S. Department of Labor, Office of the Solicitor,
      Nashville, Tennessee
      For Complainant

      Paul Chamblee, Pro Se, Hanceville, Alabama
      For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER
      Applied Masonry, Inc. (Applied) is in business as a masonry contractor in Hanceville,

Alabama. On July 25, 2012, a compliance safety officer with the Occupational Safety and Health
Administration (OSHA) initiated an inspection of the renovation work for the city courthouse in
Cullman, Alabama. After observing an employee walking/working on what he considered
improperly installed scaffolds, a repeat citation was issued to Applied on September 17, 2012, for
alleged violations of OSHA’s scaffold standards at 29 C.F.R. § 1926.450 et seq. Applied timely
contested the repeat citation.
The repeat citation alleges that Applied violated 29 C.F.R. § 1926.451(e)(1) (item 1) by
failing to provide employees a safe means of access to the upper level of the scaffold platform;
29 C.F.R. § 1926.451(g)(4)(i) (item 2) by failing to install guardrails on the scaffolds; and
29 C.F.R. § 1926.451(b)(1) (item 3) by failing to fully plank the scaffolds. The repeat citation
proposes total penalties of $28,800.00.
 A hearing was held on March 12, 2012, in Cullman, Alabama. Applied was represented
pro se by owner/president Mr. Paul Chamblee. Jurisdiction and coverage were stipulated by the
parties (Tr. 10). At the conclusion of the hearing, Mr. Chamblee made closing arguments. The
Secretary’s counsel opted to file a post hearing brief on April 29, 2013.
Applied denies the alleged violations, the repeat classifications, and the proposed penalties.
Applied argues that the employees were in the process of dismantling the scaffold and moving the
components to other locations. Also, Applied claims that it has provided all necessary safety
equipment and training to employees but cannot continually monitor the worksite. Applied was
permitted to assert for the first time an unpreventable employee misconduct defense after the court
explained the company’s burden of proof (Tr. 7-8).1 The defense was allowed because Mr.
Chamblee was not an attorney and appeared unfamiliar with the affirmative defense. Although
the Secretary’s counsel was given an opportunity to supplement the record after the hearing to
address the misconduct defense, counsel decided at the conclusion of the hearing that no additional
evidence was necessary (Tr. 6-9, 88-89).
For the reasons discussed, the repeat violations of § 1926.451(e)(1) (item 1) and
§ 1926.451(b)(1) (item 3) are affirmed and total penalties of $15,000.00 are assessed. The
alleged violation of § 1926.451(g)(4)(i) (item 2) is vacated.
The Inspection
Applied is a corporation engaged in business as a brick and block masonry contractor.
Mr. Chamblee is the president/owner and the company’s only full-time employee. The business
is located at Mr. Chamblee’s home/office in Hanceville, Alabama. Applied has been in business
for approximately 11 years. Employees are hired as masons when Applied has contracts to
perform (Tr. 60-61, 68, 88).
In November 2011, Applied was contracted to perform the brick masonry and decorative
tile work on the three-story city courthouse in Cullman, Alabama. The courthouse was being
renovated after a tornado struck earlier in the year. Applied hired approximately eight brick
masons to perform the masonry work. Applied used fabricated frame scaffolds which it owned. 2

1
Other issues not asserted are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713,
1991).
2
According to OSHA, a Fabricated frame scaffold (tubular welded from scaffold) is defined as “a scaffold consisting
of a platform(s) supported on fabricated end frames with integral posts, horizontal bearers, and intermediate
members.” 29 C.F.R. § 1926.450(b) Definitions.
2
Each scaffold buck was approximately 6 feet, 4 inches high, 5 feet wide, and 7 feet in length. The
courthouse project was completed in August 2012. At the time of the OSHA inspection, Applied
was also performing concrete work at a ball field approximately 1 mile from the courthouse
(Exh. C-1; Tr. 17-18, 61-64, 72).
On July 25, 2012, at approximately 9:00 a.m., an OSHA compliance safety officer (CO)
initiated an inspection of the courthouse project after observing two employees of another
contractor on the roof without fall protection. While watching the two employees on the roof, the
CO observed an Applied employee accessing and walking across the scaffold platform which
extended over a white building attached in front of the courthouse. The CO observed the
employee climb the scaffold’s cross brace to access the platform. He walked the length of the
platform which was not fully planked and lacked adequate guardrails. He then observed the
employee taking measurements at the roof line where the decorative tiles were to be installed.
Although four other employees were on site, the CO did not observe any other employees on the
scaffold platform (Exhs. C-2, C-3, C-4; Tr. 17-18, 26, 56).
After taking photographs, the CO entered the property and held an opening conference
with Mr. Chamblee when he returned from the ball field project (Tr. 20). The CO left the
courthouse project at approximately 12:30 p.m. (Tr. 64). Applied was issued the repeat citation
on September 17, 2012.
Discussion
The Secretary has the burden of proving a violation of the OSHA scaffold standards and
must establish:
(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).

   Applied does not dispute the application of OSHA’s scaffold standards to its masonry work

on the courthouse. During the hearing Applied did not present evidence disputing: (1) that the
scaffold lacked access to the upper platform level; (2) that the scaffolds failed to have an adequate
guardrail system; and (3) that the scaffolds’ platform was not fully planked.

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Applied argues that the scaffolds were being dismantled and the components were being
moved to other locations. If the cited standards are found applicable, the issue of whether the
Secretary has met her burden of proof remains.
Record Lacks Evidence of Dismantling
Applied argues that at the time of the OSHA inspection, its employees were dismantling
the scaffolds and moving the components (Tr. 65). The cited standards at issue, § 1926.451(e)(1),
§ 1926.451(g)(4)(i), and § 1926.451(b)(1), do not apply if Applied was erecting or dismantling the
scaffolds. The requirements for scaffold access, fall protection, and planking during dismantling
are covered by OSHA standards at § 1926.451(e)(9), § 1926.451(g)(2) and § 1926.451(b)(1)(ii)
and are not required unless there is a determination such requirements are feasible and do not
create a greater hazard.
The record in this case fails to show that the Applied employee on the scaffold platform
was engaged in dismantling or moving components. The employee was observed walking across
the platform and measuring at the roof line where Applied was to install the decorative tile
(Exhs. C-5, C-6). There is no evidence that he at any time was engaged in dismantling the
scaffold. The photographs support the CO’s observations of the lack of dismantling work. The
photographs show decorative tiles and bricks on the scaffold platform. Where the employee is
observed on the scaffold, a large area of the wall remained without brick or decorative tile installed
indicating that Applied still had masonry work to perform before dismantling the scaffolds
(Exhs. C-2, C-3; Tr. 82). Also, according to the CO, Mr. Chamblee never claimed Applied was
dismantling the scaffolds during the OSHA inspection which lasted more than 3 hours (Tr. 64).
Since he was on another project when OSHA initiated the inspection, Mr. Chamblee admitted that
he did not know what instructions were given to the employee by the superintendent (Tr. 78).
Neither the superintendent nor the employee testified. Applied presented no evidence through
sworn testimony or documents supporting its claim of dismantling the scaffolds.
The cited standards, § 1926.451(e)(1), § 1926.451(g)(4)(i), and § 1926.451(b)(1), applied
to the worksite.

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REPEAT CITATION
Item 1 - Alleged Violation of § 1926.451(e)(1)
The citation alleges that “On or about 07/25/2012 – 500 2nd Ave SW, Cullman, AL,
employees were not provided a safe means of access to the upper levels of the scaffolding system
they were working from.”
Section 1926.451(e)(1) provides:
When the scaffold platforms are more than 2 feet (0.6 m) above or
below a point of access, portable ladders, hook-on ladders,
attachable ladders, stair towers (scaffold stairways/towers),
stair-type ladders (such as ladder stands), ramps, walkways, integral
prefabricated scaffold access, or direct access from another scaffold,
structure, personnel hoist, or similar surface shall be used.
Crossbraces shall not be used as a means of access.

   Section 1926.451(e)(1) requires a safe means of access such as a ladder to a scaffold

platform when the platform is 2 feet or more above or below the point of access. The CO
observed the employee climbing the cross brace at the end of the scaffold frame approximately 6
feet to access the next level platform. The ladder from the ground accessed only the first level of
the platform. There was no ladder to the upper platform. The employee was exposed to a fall
hazard of 6 feet to the lower platform level or approximately 16 feet to the ground. The
employee’s exposure to the hazard was approximately 5 minutes (Exh. C-2; Tr. 22, 24, 26).
As discussed, the record fails to show that the scaffold was being dismantled/erected where
the employee was accessing the platform. Therefore, § 1926.451(e)(9)(i) does not apply and
there was no evidence presented by Applied that “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.” Regardless, both standards prohibit the use of cross braces as a means of access. See
§ 1926.451(e)(9)(iv).
The record shows without dispute that the terms of § 1926.451(e)(1) were violated and an
employee was exposed to a fall hazard because of the lack of safe access. The issue of employer
knowledge is addressed subsequently.
Item 2 - Alleged Violation of § 1926.451(g)(4)(i)
The citation alleges that “On or about 07/25/2012 – 500 2nd Ave SW, Cullman, AL,
employees were working from scaffolding near the end without protection.”
Section 1926.452(g)(4)(i) provides:
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 Guardrail systems shall be installed along all open sides and ends of
platforms. Guardrail systems shall be installed before the scaffold
is released for use by employees other than erecting/dismantling
crews.

   As a means of fall protection, a Guardrail system is defined by OSHA as “a vertical barrier,

consisting of, but not limited to, toprails, midrails, and posts, erected to prevent employees from
falling off a scaffold platform or walkway to lower levels. See § 1926.450(b), Definitions. The
record, as discussed, fails to show that the scaffold was being dismantled/erected where the
employee was walking/working on the platform. Therefore, § 1926.451(g)(2) does not apply and
Applied presented no evidence that “a competent person determined the feasibility and safety of
providing fall protection for employees erecting or dismantling supported scaffolds.”
The CO did not observe guardrails (top rail or midrail) at the end of the scaffolding where
the employee was standing and measuring at the roof line. There were cross braces along the
length of the platform, which was approximately five bucks long. According to the CO, the cross
braces constituted a top rail or midrail but not both (Exhs. C-3, C-4; Tr. 28-29).
However, since the scaffold was located on top of the white building connected in front of
the courthouse, there was no fall hazard of 10 feet or more as required by § 1926.451(g)(1). The
platform was only one scaffold buck high or less than 7 feet. The employee was exposed to a fall
of less than 7 feet to the roof of the white building. This was also the situation at the end of the
scaffold. The CO’s claim of a 16-foot fall hazard to the ground is rejected as not supported by the
record (Exh. C-5; Tr. 31, 38). The standard requires guardrails (or other fall protection) if the
scaffold platform is “more than 10 feet (3.1 m) above the lower level” which in this case was the
roof of the white building. See § 1926.451(g)(1). The scaffold was less than 7 feet above the
lower roof level. There is no showing the employee at the end of the scaffold would fall to the
ground as opposed to the roof (Tr. 31-32). The CO acknowledges that there is no guardrail
requirement for scaffolds if the fall hazard is less than 10 feet (Tr. 84).
A violation of § 1926.451(g)(4)(i) is not established.
Item 3 - Alleged Violation of § 1926.451(b)(1)
The citation alleges that “On or about 07/25/2012 – 500 2nd Ave SW, Cullman, AL,
employees were working from fabricated frame scaffolding that was not fully planked.”
Section 1926.451(b)(1) provides:

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Each platform unit (e.g., scaffold plank, fabricated plank, fabricated
deck, or fabricated platform) shall be installed so that the space
between adjacent units and the space between the platform and the
uprights is no more than 1 inch (2.5 cm) wide, except where the
employer can demonstrate that a wider space is necessary (for
example, to fit around uprights when side brackets are used to
extend the width of the platform).

    The CO observed that the platform where the employee was walking/working was not fully

planked. The scaffold platform contained only one to four planks. The width between scaffold
uprights was approximately 60 inches or 5 feet. The planks used by Applied were “two by tens”
which are 10 inches wide. None of the platforms on the approximate five scaffold bucks were
fully planked (Exhs. C-3, C-7; Tr. 35-36, 72).
As discussed, the record fails to show that the scaffold was being dismantled/erected where
the employee was walking/working on the platform. Therefore, § 1926.451(b)(1)(ii) does not
apply and Applied offered no evidence that “only the planking the employer establishes is
necessary to provide safe working conditions is required.”
The record shows the terms of § 1926.451(b)(1) were violated and an employee was
exposed to the lack of a fully planked platform. The issue of employer knowledge is addressed
next.
Employer Knowledge
In order to show employer knowledge of violations of § 1926.451(e)(1) (item 1) and
§ 1926.451(b)(1) (item 3), the Secretary must show that the employer knew, or with the exercise of
reasonable diligence could have known of the hazardous conditions. Dun Par Engd Form Co., 12
BNA OSHC 1962, 1965-66 (No. 82-928, 1986). An employer has constructive knowledge of a
violation if the employer fails to exercise 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).
The employer is expected to 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).
Mr. Chamblee testified that the employee observed on the scaffold platform was not a
supervisor but a brick mason who had worked for Applied for less than one year “on and off.” He

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claimed the employee lacked any supervisory responsibility (Tr. 63-64). When he and the
superintendent were away from the site, he testified that no one was placed in charge (Tr. 67).
Applied’s knowledge of the unsafe conditions addressed by 29 C.F.R. § 1926.451(e)(1),
and § 1926.451(b)(1) is established. During the OSHA inspection, the CO understood that the
employee on the scaffold platform was in charge. The employee told the CO that he was in
charge (Tr. 19). Also, according to the CO, Mr. Chamblee said the employee was in charge
(Tr. 27). The CO further testified that nothing was mentioned by Mr. Chamblee about a
superintendent (Tr. 82). Neither Mr. Chamblee nor a superintendent was at the courthouse when
the CO initiated the OSHA inspection. Even Mr. Chamblee acknowledged that his
superintendent may have placed the employee in charge when he left to pick up a saw (Tr. 64-65,
67). As a supervisor, even if temporarily, the employee’s knowledge of the conditions is imputed
to Applied. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (Nos 86-360 86-469, 1992).
However, even if the employee was not a supervisor, Applied still should have known of
the unsafe conditions. The lack of a safe means of access and full planking were obvious and in
plain view to anyone on the worksite. There is no showing that the employee was trained on safe
access and full planking and that the company ensured such requirements were followed. Mr.
Chamblee conceded that his superintendent may have instructed the employee to obtain the
measurements before leaving the worksite. Based on the lack of reasonable diligence, Applied’s
constructive knowledge of the violative conditions is also established.
Employee Misconduct Defense
Applied was allowed to assert the employee misconduct defense for the first time at the
hearing. However, Applied offered no evidence to the support the defense (Tr. 7-8). As
explained to Applied, in order to establish the affirmative defense of unpreventable employee
misconduct, Applied was required to prove that it has (1) established work rules designed to
prevent the violation, (2) adequately communicated the rules to its employees, (3) taken steps to
discover violations of the safety rules, and (4) effectively enforced the rules when violations are
discovered. American Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).
The record fails to show (1) that Applied had safety rules addressing safe means of
access or full planking of scaffold platforms; (2) that such rules regarding safe means of access and
full planking were communicated to its employees; (3) that Applied took steps to discover or

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monitor employees for violations of rules involving safe means of access and full planking; or (4)
that Applied enforced rules of safe means of access or full planking when violations were
discovered. There was no showing that Applied has a disciplinary program. Applied offered no
evidence of written or verbal work rules which addressed the hazards. Although Mr. Chamblee
testified that employees received training consisting of safety meetings every Monday which
lasted approximately 30 minutes, the record fails to show the employees on the courthouse project
had received training on the requirements for safe means of access and that the scaffold platform
needed to be fully planked (Tr. 74-75). Applied made no showing of monitoring its worksites,
including the courthouse project to ensure safe access and full planking were maintained. Despite
claiming that he purchased safety equipment for employees and provided employees training,
there is no showing of enforcement by Applied through a disciplinary program if employees failed
to comply.
Applied’s employee misconduct defense is not established.
Repeat Classification
The Secretary classified Applied’s violations of § 1926.451(e)(1) (item 1) and
§ 1926.451(b)(1) (item 3) as “repeated” under § 17 of the Occupational Safety and Health Act
(Act). A violation is deemed repeated if, at the time of the alleged repeated violation, there was a
Commission final order against the same employer for a substantially similar violation. Potlatch
Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). The Secretary establishes substantial
similarity in several ways including showing the violations are of the same standard or if different
standards by showing similar hazards and means of abatement. Monitor Construction Co., 16
BNA OSHC 1589, 1594 (No. 91-1807, 1994).
Applied was previously cited for violations of the same standards as in this case as a result
of an OSHA inspection at a worksite in Trussville, Alabama on September 15, 2009. The serious
and repeat citations were issued to Applied on October 16, 2009 (Exh. C-8). The same standards,
§ 1926.451(e)(1) and § 1926.451(b)(1), under similar conditions were cited in 2009 as repeat
citations (Citation no. 2, items 2 and 3). Applied settled the previous citations by informal
settlement agreement with only a reduction in penalties on December 2, 2009 (Exh. C-9;
Tr. 43-44). The settlement agreement was signed by Mr. Chamblee and became a final order of
the Commission in January 2010.

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Applied was also inspected on November 5, 2007, at a worksite in Alabaster, Alabama.
After the inspection, OSHA issued to Applied serious and repeat citations on December 27, 2007
(Exh. C-10). The same standards, § 1926.451(e)(1) and § 1926.451(b)(1), cited in this case were
cited in 2007 (Citation no. 2, item 2, and Citation no. 1, item 3). The parties resolved the citations
by informal settlement agreement on January 24, 2008 (Exh. C-11). The settlement agreement
was signed by Mr. Chamblee and became a final order in February 2008.
The prior citations show substantially the same unsafe conditions as found by the CO
during the present inspection. Applied’s violations of 29 C.F.R. § 1926.451(e)(1) (item 1) and
§ 1926.451(b)(1) (item 3) were properly classified as repeat. Applied offered no evidence
disputing the repeat classifications.
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.
Applied is entitled to credit for size because it is a small employer with one full-time
employee and other employees hired as needed for specific projects (Tr. 68). Only one employee
was shown exposed to the scaffold violations at issue. Applied is not entitled to credit for history
because it has received prior OSHA citations which have become final orders. Applied is entitled
to partial credit for good faith based on his attempts, although inadequate, in providing safety
equipment and safety meetings to employees. Mr. Chamblee indicated a desire to comply with
the OSHA standards but his methods are deficient by relying too much on the employees to
comply. Applied needs to take responsibility to ensure that employees are complying through
having clear safety rules, monitoring, and enforcement of its safety program.
A penalty of $8,500.00 is reasonable for Applied’s repeat violation of § 1926.451(e)(1)
(item 1). There was no safe access to one platform level and one employee was exposed. The
time of exposure was approximately 5 minutes. This was a second repeat violation. It is noted
that in 2009, this violation was resolved by OSHA with a reduction in penalty to $6,000.00
(Exh. C-9).

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A penalty of $6,500.00 is reasonable for Applied’s repeat violation § 1926.451(b)(1)
(item 3). The scaffold platform was not fully planked and one employee was exposed. The time
of exposure was approximately 15 minutes. This was a second repeat violation of this standard.
It is noted that in 2009, this violation was resolved by OSHA with a reduction in penalty to
$2,500.00 (Exh. C-9).
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 repeat Citation:
1. Citation No. 1, Item 1, alleged repeat violation of § 1926.451(e)(1), is affirmed and a
penalty of $8,500.00 is assessed.
2. Citation No. 1, Item 2, alleged repeat violation of § 1926.451(g)(4)(i), is vacated and
no penalty is assessed.
3. Citation No. 1, Item 3, alleged repeat violation of § 1926.451(b)(1), is affirmed and a
penalty of $6,500,00 is assessed.

    SO ORDERED.
                                                        Ken S. Welsch
                                                        Judge Ken S. Welsch
                                                        1924 Building, Suite 2R90
                                                        100 Alabama Street, S.W.
                                                        Atlanta, Georgia 30303-3104
                                                        Phone (404) 562-1640

Dated: May 20, 2013
Atlanta, Georgia

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