Mast Climber Manufacturing, Inc., d/b/a American Mast Climbers

Plain-English summary

Mast Climber Manufacturing erected and serviced a mast-climbing work platform on a 21-story construction project. Four contractor employees fell when one side of the platform collapsed, and three died. The judge held that the system was a scaffold, not an aerial lift, because it was not vehicle-mounted. The load-capacity, pre-shift inspection, and damaged-component items were vacated for insufficient proof, while items involving intermixed components and employee training were affirmed as serious. The design item was affirmed as willful because the company departed from its operations manual by using practices such as fully threaded and reused bolts, inadequate torqueing, and mismatched components despite engineering concerns raised after a similar 1999 collapse. Including three settled items, the decision affirmed six items, vacated three, and assessed $17,150 in total penalties.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.178(l)(4)(iii); 29 C.F.R. § 1926.451(a)(1); 29 C.F.R. § 1926.451(b)(10); 29 C.F.R. § 1926.451(f)(3); 29 C.F.R. § 1926.451(f)(4); 29 C.F.R. § 1926.451(g)(1)(vii); 29 C.F.R. § 1926.451(g)(3); 29 C.F.R. § 1926.454(b); 29 C.F.R. § 1926.451(a)(6)
• Outcome: Six items were affirmed, including one willful design item and three settled items; three items were vacated; total penalties were $17,150.
• Key point: A mast climber that is not vehicle-mounted is governed by the scaffold rules, and knowingly departing from its approved design after prior engineering warnings supported willfulness.

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. 09-2112
Mast Climber Manufacturing, Inc. d/b/a
American Mast Climbers
Respondent.

Appearances:
John Bernstein, Esq., U. S. Department of Labor, Office of the Solicitor, Dallas, Texas
For Complainant

      William F. Mims, Jr., Pro Se, Whitney, Texas
      For Respondent

Before: Administrative Law Judge Ken S. Welsch
DECISION AND ORDER
Mast Climber Manufacturing Inc. d/b/a/ American Mast Climbers (AMC) was in the
business of manufacturing, renting/selling, erecting, and servicing the mast climber tower scaffold
system for use on construction projects from a facility near Waco, Texas. On June 10, 2009, four
employees of a contractor who were applying exterior finishing insulation (EFIS) to a 21-story
apartment/retail building under construction in Austin, Texas, fell when the work platform on
AMC’s mast climber system collapsed. Three employees died from the collapse. AMC had
contracted by the project’s general contractor to erect, disassemble, move, and service the mast
climber system at the project.
As a result of an investigation by the Occupational Safety and Health Administration
(OSHA), AMC received serious and willful citations on December 3, 2009. AMC timely
contested the citations.
Serious Citation No. 1, which proposes total penalties of $16,800.00, alleges AMC
violated:
 Item 1 - 29 C.F.R. § 1910.178(l)(4) (iii) for failing to evaluate each
powered industrial truck operator’s performance at least once every
three years;

           Item 2 - 29 C.F.R. § 1926.451(a)(1) for failing to ensure that each
           scaffold component was capable of supporting its own weight and at
           least 4 times the maximum intended load;

           Item 3 - 29 C.F.R. § 1926.451(b)(10) for intermixing scaffold
           components by different manufactures without a competent person
           determining the scaffold was structurally sound;

           Item 4 - 29 C.F.R. § 1926.451(f)(3) for failing to inspect the scaffold
           and scaffold components by a competent person before each shift;

           Item 5 - 29 C.F.R. § 1926.451(f)(4) for failing to repair or replace
           any part of a scaffold damaged or weakened;

           Item 6 - 29 C.F.R. § 1926.451(g)(1)(vii) for failing to protect each
           employee on a scaffold by use of a personal fall arrest system or
           guardrail system;

           Item 7 - 29 C.F.R. § 1926.451(g)(3) for failing to attach a personal
           fall arrest system by lifeline to a vertical lifeline, horizontal lifeline
           or scaffold structure member; and,

           Item 8 - 29 C.F.R. § 1926.454(b) for failing to train each employee
           involved in erecting, moving, operating, repairing/maintaining, or
           inspecting a scaffold by a competent person to recognize associated
           hazards.
   Willful Citation No. 2, which proposes a penalty of $70,000.00, alleges AMC violated:
           Item 1 - 29 C.F.R. § 1926.451(a)(6) for failing to design scaffolds
           by a qualified person and construct and load them in accordance
           with that design.

   The hearing was held on September 10-11, 2012, in Austin, Texas. The parties stipulated

jurisdiction and coverage (Tr. 11). AMC was represented by its owner, William Sims, pro se
after dismissing its attorney (Tr. 7). At the hearing, the parties settled Citation No. 1, items 1, 6
and 7 and their agreement is approved and incorporated into this decision (Tr. 10-11). The delay
in scheduling the hearing occurred because of the parties’ attempt at mandatory settlement;
AMC’s filing for bankruptcy; and the withdrawal of two attorneys representing AMC. The
Secretary and AMC filed post-hearing briefs on or before December 17, 2012.

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AMC denies the remaining alleged violations, the willful classification, and the proposed
penalties. AMC argues that the scaffold standards at §1926.451, “General Requirements,” do not
apply to its mast climber system. It insists that the requirements at § 1926.453, “Aerial Lift,”
apply. AMC claims no affirmative defense.
For the reasons discussed, Citation No. 1, items 3, and 8 are affirmed as serious. Citation
No. 2, item 1 is affirmed as willful. Items 2, 4, and 5 of Citation No. 1 are vacated. A total
penalty, including the parties’ settled items, of $17,150.00 is assessed.
The Collapse
AMC, a small company in Waco, Texas, employed approximately 10 employees and was
engaged in manufacturing, erecting, servicing, and disassembling of mast climber systems. AMC
was formed in 2000 and was closed by January 2010, after the collapse. AMC’s owner and
president was Mr. William Mims who has worked with the mast climbing system since 1983
(Tr. 96, 337, 338).
The Millennium mast climber at issue consisted of work platforms attached to either side
of a motorized unit which traveled up and down a tower attached to the exterior of the building.
The tower was made of sections (modules) that were stacked on top of each other. As described
in the AMC’s Operations Manual, “The Millennium system is capable of working in a large
combination of platform widths and tower heights able to cover most applications encountered in
scaffolding access situations” (Exh. C-2, section 2.4; Tr. 60, 339-340).
In 2008 AMC was contracted by the general contractor to erect, disassemble, move, and
service the Millennium mast climber on the exterior of a 21-story apartment/condominium
building under construction on top of a 7-story parking garage in Austin, Texas. The mast
climber was taken in sections to the project by truck where AMC erected it. To move the system
to other locations around the building, the mast climber system was broken down into sections and
moved to the appropriate location where it was reassembled. When there was a problem with the
system, AMC was contacted to perform the necessary repair/maintenance work (Exh. C-1;
Tr. 24-25, 29-30, 71, 342).
In May 2009 AMC moved the mast climber to the location where the accident occurred.
The AMC employees erected the tower with the motorized unit, installed the work platforms on
either side of the unit, and placed the system into operation. Three AMC employees were on site

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on June 10, 2009, when the right side work platform collapsed, fatally injuring three employees
applying exterior insulation (Tr. 348).
After the platform collapsed and based on a referral from the police department, OSHA
compliance safety officers initiated an investigation. The compliance officers took photographs
of the site, interviewed AMC’s employees including Mr. Mims, and contracted a metallurgist
(Exh. C-8; Tr. 22-24).
As a result of the investigation, OSHA issued the citations at issue to AMC on December 3,
2009.
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).
Application of § 1926.451
As the first element of the Secretary’s burden of proof, the standards at § 1926.451 must be
shown applicable to AMC’s mast climber. The citations at issue allege violations under
§ 1926.451.
AMC argues that the scaffold standards at § 1926.451, General Requirements, applicable
to all scaffolds do not apply to the mast climber system. AMC claims that the mast climber is an
aerial lift covered by § 1926.453. Neither standard makes specific reference to mast climbers.
Subpart L, Scaffold at § 1926.450 et. seq. contains the requirements for the use of scaffolds
and aerial lifts in construction. The standards set performance-based criteria to protect employees
from scaffold-related hazards such as falls, structural instability, and overloading.
Section 1926.451 covers the general requirements for scaffolds, including load capacity,
construction, access, and use. A “scaffold” is defined as “any temporary elevated platform
(supported or suspended) and its supporting structure (including points of anchorage), used for
supporting employees or materials or both.” § 1926.450(b). AMC’s Millennium mast climber at
issue satisfied this definition. The mast climber consisted of a temporary tower erected on the
exterior of a building upon which work platforms were mounted to the motorized unit which

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travels up and down the tower (Tr. 35, 339). AMC’s own literature describes the mast climber as
a scaffold (Exhs. C-2, C-9, C-10, Tr. 388). Section 1926.451 specifically “does not apply to
aerial lifts, the criteria for which are set out exclusively in § 1926.453."
Section 1926.453 which exclusively covers aerial lifts, does not define an aerial lift.
However, § 1926.453(a) provides that aerial lifts “shall be designed and constructed in
conformance with the applicable requirements of the American National Standards of ‘Vehicle
Mounted Elevating and Rotating Work Platforms’ ANSI A92.2-1969.” The standard than
identifies various types of vehicle-mounted aerial devices used to elevate employees to jobsites
above ground. There is no dispute that the mast climber at issue was not vehicle mounted.
The requirement that an aerial device be vehicle mounted to qualify as an aerial lift is more
explicitly set forth in the 2001 OSHA Letter of Interpretation (Exh. C-5). The Letter provides in
pertinent part that the requirements covered by § 1926.453 apply to vehicle-mounted aerial
devices are identified in ANSI A92.2-1969, under 1.1.1 Equipment Covered. It states that “to be
within the coverage of the ANSI standard, and thus the requirements of §1926.453, the aerial
device can be powered or manually operated, but it must be vehicle-mounted – and the vehicle
must be a carrier that is not manually propelled.” The Letter of Interpretation concludes that a
scissor lift is not covered by § 1926.453 but by § 1926.451.
OSHA had cited Mr. Mims’ previous company, Texas Mobile Scaffolding, in April 2000
as a result of another platform collapse in 1999 under the § 1926.451 standards (Exh. C-4; Tr. 42,
306-307, 337).
AMC’s Millennium mast climber at issue is not an aerial lift because it was not mounted on
a vehicle. The mast climber scaffold was constructed on top of the parking garage and was
assembled by stacking the sections of the tower on top of each other. The mast climber was
disassembled in sections and moved to a new location where it was reassembled (Exh. C-1;
Tr. 41, 64).
In support of its position that the mast climber was an aerial lift, AMC offered an
October 10, 2010, letter drafted by DH Glade & Associates, Inc., an engineering company
(Exh. R-1). The letter asserted that the scaffold standards do not apply to mast climbers but are
considered “aerial lifts by ANSI and OSHA.”
Despite the assertion, AMC’s letter is not afforded weight because there is no basis shown
supporting the opinion or the author’s knowledge of ANSI coverage or OSHA standards. Neither

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the author of the letter nor AMC offered an explanation or other evidence supporting the
conclusion. The letter also fails to describe the author’s background, education, experience or
credentials which might support his opinion. Therefore, the letter lacks reliability and
trustworthiness.
In light of the plain language of the standard and deference given to the Secretary’s
interpretation, OSHA properly cited AMC’s mast climber system under the § 1926.451 general
requirements applicable to scaffolds.
SERIOUS CITATION NO. 1
The remaining elements of the Secretary’s burden of proof, is discussed as to each citation
remaining in dispute.
Item 2 - Alleged Serious Violation of § 1926.451(a)(1)
The citation alleges:
The employer does not ensure that each scaffold and scaffold
component is capable of supporting without failure, its own weight
and at least 4 times the maximum load applied or transmitted to it.
On or about June 4, 2009, and in times prior thereto and thereafter,
employees were exposed to the hazards of catastrophic failure on
Millennium mast climber scaffolds in that they were equipped with
extensions, which applied a torsion load to the scaffold platform
support bolts, and the scaffold structure had other defects including,
but not limited to being constructed in a manner which permitted
excessive lateral movement of platforms.

       Section 1926.451(a)(1) provides:
                Except as provided in paragraphs (a)(2), (a)(3), (a)(4), (a)(5) and (g)
                of this section, each scaffold and scaffold component shall be
                capable of supporting, without failure, its own weight and at least 4
                times the maximum intended load applied or transmitted to it.1

       The record establishes that the mast climber scaffold used at the Austin project contained

or lacked components different than stated in AMC’s Millennium 2000 Operations Manual
(Exh. C-2). AMC’s Operation Manual, under Technical Data, specifically provides for installing
the platform that:
Particular attention must be paid to the 4 bolts which mount the first
pair of deck modules through the twin ears at each end of the
platform. These bolts are 3½ x ¾ in dia. Grade 8 with a 1½ shank

1
The exceptions involving rope suspensions and fall protection are not applicable.

                                                       6

and are fitted with a single flat GB washer under both bolt head and
the GB nut which should be torqued down to 376 ft. lb. when
installed. As a key load bearing component, these bolts must be
carefully examined and any found damaged, discarded. THESE
FOUR BOLTS, WHICH MOUNT THE DECK MODULES
ADJACENT TO EACH SIDE OF THE MAINFRAME, SHOULD
BE INSTALLED NEW AT EACH JOB – Bolts with fully threaded
body should not be used. (Exh. C-2, section 2.5.2).
The changes made to the mast climber used at the Austin project included using fully
threaded bolts to support the first set of work platforms, reusing the bolts, having single ears at the
end of the platform to secure the bolts, not adequately torqueing the nuts on the bolts, lacking
washers for the bolts, and mismatching tower sections with rounded or squared corners which
affected the wear of the rollers travelling up and down the tower (Exh. C-1).
Because of these changes from its manual which are undisputed, OSHA argues that AMC
was unable to ensure that the mast climber system on site was capable of supporting at least 4 times
the maximum intended load (Tr. 89). As evidence, the work platform on the right side of the
tower collapsed on June 10, 2009, causing the death of three employees.
The metallurgist hired by OSHA investigated the bolts and determined, among other
things, that that two threaded bolts where the right side work platform attached to the motorized
unit sheared off at the treads at the time of the collapse (Exh. C-8). The rated capacity of the
scaffold was 5,000 pounds (Tr. 88).
The metallurgist, however, was unable to identify that the mast climber or any component
was not capable of supporting four times its anticipated weight. He concluded that the accident
was the result of overloading the platform but could not specifically identify the “load source
which caused the accident.” It “could have resulted from any number of human errors, assembly
errors and/or equipment malfunctions” (Exh. C-8, p 7). His testing of the failed bolts showed that
the bolts surpassed the Grade 8 hardness/strength requirement of SAEN J429 (Exh. C-8, p. 9).
According to Cook Consultants, Inc. (Cook), an engineering firm, contracted by Mr. Mims
after a similar collapse in 1999, the shear capacity of a Grade 8 bolt drops approximately
30 percent if its threads are included in a shear plane (Exh. C-3; Tr. 95). However, the ¾ inch
diameter Grade 8 bolt has the shear strength of 42,000 pounds. Even with a 30 percent drop in
shear capacity, the bolts still met the 4 to 1 safety factor.

                                                7

Similarly, the other changes to the mast climber from AMC’s Operations Manual found by
OSHA were not shown to have reduced the support capability of the scaffold or components below
the 4 to 1 safety factor of the component. Although the numerous changes from AMC’s
Operations Manual are troubling and Mr. Mims failed to identify justifications for the changes, the
Secretary’s evidence fails to establish that the mast climber or its components failed to support the
4 to 1 safety factor required by § 1926.451(a)(1).
A alleged violation of § 1926.451(a)(1) is not established.
Item 3 - Alleged Serious Violation of § 1926.451(b)(10)
The citation alleges:
The employer does not ensure that scaffold components
manufactured by different manufacturers are not modified in order
to intermix them without a competent person determining the
resulting scaffold is structurally sound. On or about June 4, 2009,
and in times prior thereto and thereafter, employees accessed
Millennium Mast climbing scaffolds which had adjoining mast
tower sections of differing dimensions and manufacture, one of
which had been modified in order to be joined with the other. The
combination was not structurally sound.

   Section 1926.451(b)(10) provides:
           Scaffold components manufactured by different manufacturers shall
           not be intermixed unless the components fit together without force
           and the scaffold’s structural integrity is maintained by the user.
           Scaffold components manufactured by different manufacturers shall
           not be modified in order to intermix them unless a competent person
           determined the resulting scaffold is structurally sound.

   There is no dispute that the tower contained components from England with round edges

and components manufactured by AMC with squared edges (Tr. 26-27). Because of the
intermixing of these components, the tower sections were not properly aligned which according to
OSHA caused defections and displacements sometimes as much as ½ inch where the tower
sections were joined. The tower sections did not fit together properly and failed to provide a
smooth, continuous track for the rollers of the motorized unit to move up and down the tower.
The displacements caused excessive wear and deterioration of the rollers (Exh. C-1, pp. 8 and 30;
Tr. 34, 36-37, 92-93).

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Also, OSHA argues that Mr. Mims or his foreman who erected the mast climber scaffold
were not competent persons under the scaffold standards. A “competent person” is defined at
§ 1926.450(b) as:
One who is capable of identifying existing and predictable hazards
in the surroundings or working conditions which are unsanitary,
hazardous, or dangerous to employees, and who has authorization to
take prompt corrective measures to eliminate them.
Mr. Mims admitted that he did not consult an engineer for impact or authorization to
intermix the different tower components (Tr. 57, 63, 394-395). He alone decided and authorized
the intermixing of the components (Tr. 413).
Although as owner he had the authority to take corrective measure, Mr. Mims failed to
show that he was capable of identifying existing and predictable hazards. He lacks any formal
qualifications other than 30 years working with the mast climber system. He is not an engineer
nor does he have any education or other certification that would qualify him as a person with
specialized or technical knowledge regarding the structural integrity of the system (Tr. 102). He
has not received any safety training or education from OSHA in recognizing hazards (Tr. 410).
Mr. Mims’ lack of judgment was shown by his conduct in contradiction to the
recommendations made by Cook following the 1999 collapse of a platform owned by Texas
Scaffolding LLC, a predecessor company owned by Mr. Mims (Exh. C-3). Mr. Mims hired Cook
to analyze the failure (Tr. 58). Cook’s report concluded that the possible reasons for the bolt
failure was (1) improper loading, (2) the use of threaded bolts as opposed to shank bolts, and (3)
untightened connections (Tr. 59-60). Despite having the problems pointed out by a certified
engineering firm, Mr. Mims terminated Cook after the report and continued the same problems at
the Austin project in 2009 (Exh. C-8; Tr. 72).
Further, when OSHA questioned Mr. Mims after the 2009 collapse, he was unable to
recognize the potential hazards created by the changes form the Operations Manual (Tr. 102). He
acknowledged that he did not have the knowledge or experience to address technical matters. He
stated that he would “have to talk to an engineer.” (Tr. 104, 393).
Mr. Mims’ reliance on his lengthy experience with mast climbers was not shown to have
adequately equipped him with the knowledge to identify potential hazards and the requirements of
the OSHA standards. The standard specifically prohibits mismatching components when as here
9
the components are forced together and it potentially affects the integrity of the rollers moving he
work platform up and down the tower. Mr. Mims failed to identify any basis or justification that
the use of intermixed components was acceptable.
AMC employees were exposed to the fall hazard during the employees’ erection and
servicing of the mast climbers (Tr. 98). Also, AMC as the creating contractor was responsible for
the safety of the contractor employees applying the installation on the building’s exterior.
With regard to knowledge, AMC’s general foreman was onsite when the mast climber was
erected and during servicing. Mr. Mims admitted that the mast climber tower was constructed
from two differently constructed sections (Tr. 26-27).
In order to establish that a violation is “serious” under § 17(k) of the Occupational Safety
and Health Act (Act), the Secretary must establish that 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. In this case,
as evident by the collapse on June 10, 2009, the failure of a platform is death or serious injury and
AMC knew of the conditions through its erection and repair of the mast climber.
AMC’s serious violation of § 1926.451(b)(19) is established.
Item 4 - Alleged Serious Violations of § 1926.451(f)(3)
The citation alleges:
The employer does not ensure that scaffolds are inspected for visible
defects by a competent person before each work shift and after any
occurrence which could affect a scaffold’s structural integrity. On
or about June 4, 2009, and in times prior thereto, employees were
replacing rollers on Millennium mast climbers on the west side of
the building under construction without the scaffolds being
inspected for defects by a competent person, exposing the
employees to the hazards associated with working on scaffolding.
Section 1926.451(f)(3) provides:
Scaffolds and scaffold components shall be inspected for visible
defects by a competent person before each work shift, and after any
occurrence which could affect a scaffold’s structural integrity.
Based on OSHA’s interviews, AMC’s crew members including the foreman
acknowledged that AMC did not perform pre-shift inspections of the mast climber and
components for visible defects (Tr. 117). The crew performed the repairs and service to the mast
10
climber when notified of problems by the contractor. OSHA received copies of AMC’s repair
reports.
The record, however, is undisputed that daily inspections for visible defects were
performed by the foreman of the contractor (Tr. 109, 118-119). Copies of the contractor’s daily
inspection reports were provided to OSHA.
Although OSHA questions whether AMC was competent to provide training, the record
fails to establish that the contractor’s foreman who performed the daily inspections was not a
competent person under the standard. There is no showing that he was not capable of identifying
hazards or lacked the authority to correct the hazards. His daily inspection reports were not found
inadequate by OSHA. If defects were detected, the contractor foreman notified AMC to perform
the repairs. Many of the problems OSHA found such as reusing threaded bolts and the lack of
torqueing and washers were not visible defects subject to inspection.
Since the mast climber system was rented by AMC to the contractor, it is impractical to
require AMC to perform the daily inspections. The AMC facility was approximately 2 hours
from the project (Tr. 269). AMC’s contract required it erect, disassemble, move, service and
repair the mast climber.
The alleged violation of § 1926.451(f)(3) is not established.
Item 5 - Alleged Serious Violation of § 1926.451(f)(4)
The citation alleges:
The employer does not ensure that any part of a scaffold, damaged
or weakened, such that its strength is less than that required, is not
immediately repaired or replaced, braced to meet those provisions,
or removed from service until repaired. On or about June 4, 2009,
and in times prior thereto and thereafter, critical parts of the
Millennium Mast Climbers on site including, but not limited to
connector bolts, extension rails, rollers and mast section were not
removed from service or repaired on site, exposing employees
working on the mast climbers to a fall hazards.
Section 1926.451(f)(4) 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.

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The OSHA inspectors detected numerous cracks in welds on various sections of the tower.
These cracks are shown in OSHA’s photographs of the mast climber (Exh. C-1 p. 31; Tr. 105).
Also, the OSHA compliance officer observed that the rollers on the motorized unit were
excessively worn, including some rollers that were completely worn down and stripped of their
polymer coating (Exh. C-1, p 10; Tr. 107). The Secretary argues that the defects were visible and
could have affected the scaffold structural integrity.
The record fails to establish that the defects reported or otherwise known by AMC were not
immediately repaired. There is no showing how long the cracked welds or worn rollers existed or
that AMC should have known of the conditions. Also, the Secretary failed to establish that these
conditions did not meet the 4 to 1 safety factor required by § 1926.451(a)(1).
A alleged violation of § 1926.451(f)(4) is not established.
Item 8 - Alleged Serious Violations of § 1926.454(b)
The citation alleges:
The employer does not ensure that each employee involved in
erecting, disassembling, moving, operating, repairing, maintaining,
or inspecting a scaffold trained by a competent person to recognize
any hazards associated with the work in question. On or about
June 4, 2009, and in times prior thereto and thereafter, employees
were operating, performing maintenance on, repairs to, and
disassembling the mast climbers erected on the west side of the
building under construction without being trained by a competent
person to recognize the hazards, exposing the employees to a fall
hazard.
Section 1926.454(b) provides:
The employer shall have each employee who is involved in erecting,
disassembling, moving, operating, repairing, maintaining, or
inspecting a scaffold trained by a competent person to recognize any
hazards associated with the work in question. The training shall
include the following topics, as applicable.
The training topics required by the standard include the nature of scaffold hazards, the
correct procedures in erecting and maintaining the type of scaffold in question, the design criteria,
maximum intended load-carrying capacity and any other pertinent requirements of this subpart.
The record establishes that AMC’s general foreman was responsible for training the AMC
crew members in erecting and servicing the mast climber. However, the foreman was not shown
to be a competent person. He was not aware of the existence of AMC’s Operations Manual for

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the Millennium mast climber. His lack of competence is also shown by the crew members who
were unaware of the proper Mast Climber erection techniques, what tools to use, or any other
criteria set forth in AMC’s manual. AMC produced no documents showing that any AMC
employee received training in the erection of the mast climber system (Exh. C-2; Tr. 122-123).
AMC argument that the foreman had in excess of 15 years of experience in erecting the
mast climber system without incident does not establish that he was capable of recognizing and
correcting hazards. It was not shown the nature or extent of his training in recognizing hazards.
There were a number of changes in the mast climber system at the Austin project which were
contrary to AMC’s Operations Manual including the re-use of threaded bolts, the lack of torsion,
the use mismatched components, and cracked welds. AMC failed to show the industry standard
or the justification for such changes from the manual’s criteria.
AMC knew of the lack of training and such lack of training can cause serious injury or
death from an improperly erected scaffold.
AMC’s serious violation of § 1926.454(b) is established.
WILLFUL CITATION NO. 2
Item 1 - Alleged Willful Violation of § 1926.451(a)(6)
The citation alleges:
The employer does not ensure that scaffolds are designed by
a qualified person and are constructed and loaded in accordance
with that design. On or about June 4, 2009, and in times prior
thereto and thereafter, employees were performing maintenance and
disassembly from the platforms of the mast climbers on the west
side of the building that were not erected in accordance with their
design, exposing the employees to a fall hazard.
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.
It is undisputed that AMC’s Millennium mast climber at the Austin project was not
constructed in accordance with an engineer’s approved design or AMC’s Operations Manual
(Exh. C-2; Tr. 45). AMC failed to show the basis or justification for not complying with its

                                            13

manual. The disparities between AMC’s manual and the mast climber at the Austin project
included:
(1) AMC’s manual specified the use of Grade 8 bolts with 1½ inch
shank to ensure the threads were not within the shear plan
(Exh. C-2, section 2.5.2). The bolts actually used were fully
threaded (Tr. 51). The failed bolt on the outer side of the work
platform had ¼ inch threads in the shear plane (Exh. C-8). The
bolts in the bin at AMC shop provided for the scaffold erectors did
not contain the specified bolts (Tr. 68);
(2) The manual required support bolts to be new each time the
mast climber was erected (Exh. C-2, section 2.5.2). In bold, capital
print, the manual states that “THESE FOUR BOLTS, WHICH
MOUNT THE DECK MODULES ADJACENT TO EACH
SIDE OF THE MAINFRAME, SHOULD BE INSTALLED
NEW AT EACH JOB – Bolts with full threaded body should
not be used.” In practice at Austin, the bolts were reused.
AMC’s purchased of new bolts were commingled with used bolts
(Tr. 53-54, 68);
(3) The manual required a torque of 376 ft-lb for the support bolts
(Exh. C-2, section 2.5.2). The erectors did not have a torque
wrench. Bolts were tightened using an impact wrench with an
unknown torque setting (Tr. 52-53, 63). The employees who
erected the mast climber did not know the torque requirements.
Testing performed by the Secretary’s metallurgist of several bolts
which had not failed indicated torques ranging from 30 to 90 ft-lb
(Exh. C-8; Tr. 62);
(4) The manual’s design did not show that the use of tower
sections from different manufactures was permitted (Exh. C-2).
The tower sections with rounded corners were attached to sections
with square corners causing mismatched frames which were not
properly aligned at their junction (Tr. 26-27, 34);
(5) The manual’s design requires two ears on each attachment
point on the elevating unit at which the working platform was
attached (Exh. C-2, section 2.5.2). The actual scaffold in use had a
single ear attachment (Exh. C-1 p 2, 4); and
(6) The manual required that the bolts be fitted with a flat G8
washer (Exh. C-2, section 2.5.2). The OSHA compliance officer
found no washers on the bolts. The only washers observed were
used as a shim or help level the mast sections (Tr. 52).
The Secretary argues that the mast climber at the Austin project with these changes from
the manual was not designed by qualified person. Mr. Mims created the Millennium Mast

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Climber Operations Manual (Tr. 43). Cook was hired to consult with him on the design and
approved the manual in 2000-2001(Tr. 48, 60).
Mr. Mims argues that he was a qualified person to make the changes from the manual. He
has worked with mast climbers since 1983 (Tr. 263, 393). He has manufactured the mast climber
equipment and for three decades has sold, rented, erected, serviced and repaired the equipment.
A “qualified person” is defined by OSHA 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.
The record establishes that AMC failed to comply with its manual when it erected the
scaffold at the Austin project. The compliance officer’s lack of experience in inspecting a mast
climber system does not mean he was unable to identify hazards and noncompliance with AMC’s
manual (Tr. 45).
Mr. Mims does not dispute the changes were made. The changes from the Operations
Manual were not reviewed or approved by a degreed professional. Mr. Mims lacked an
engineering background (Tr. 410). Mr. Mims failed to show the basis and justification for the
changes from the requirements in the Operations Manual. He did not ensure that the changes did
not affect the structural integrity of the mast climber or employee safety. There is no showing that
he or an engineer made the appropriate analysis or calculations created by the changes (Tr. 395,
398, 414).
Mr. Mims, even if qualified, did not show support for the changes. To be qualified, he
must have successfully demonstrated the ability to recognize problems and resolve problems
related to changes to the design of the scaffold. § 1926.450(b). He failed to meet this test. He
provided no evidence for the changes or their justification.
In 1999 Mr. Mims, while president of Texas Scaffolding, experienced the failure of
another mast climber scaffold which had such changes. Based on test reports and observation
Cook advised Mr. Mims that the possible reasons which caused these bolts failure are (a) improper
loading; (b) threaded bolts in the connection; and (c) un-tightened connections (Exh. C-3, sheet 2;
Tr. 58-59). Cook’s report also stated that “the bolts failed from fatigue brought on partially by the
load coupled with lack of proper tightening or torqueing of the bolts, allowing the bolt-actual load

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to exceed the preload fracturing in the threadroot.” Despite this information, Mr. Mims allowed
the changes to the mast climber at the Austin project including the use of threaded bolts and the
improper torqueing of the bolts. Mr. Mims’ experience did not qualify him to ignore the concerns
expressed by Cook which had analyzed the cause of the prior collapse (Tr. 263).
AMC’s violation of § 1926.451(a)(6) is established.
Willful Classification
The Secretary classified AMC’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).
As discussed, Cook in 2000 had expressed concerns with the use of threaded bolts and the
lack of torqueing on the mast climber system as a result of a 1999 collapse (Exh. C-3). Contrary
to its Operations Manual and the concerns raised by Cook, AMC continued the use of threaded
bolts and improper torqueing at the 2009 project.
The record establishes AMC’s conscious disregard or plain indifference. It is shown by
Mr. Mims involvement with an earlier scaffold failure under similar circumstances. AMC made
numerous changes to the design of the mast climber at issue from its Operations Manual without
providing the basis or justification and the degree, if any, such changes affected the climber’s
structural integrity and employee safety. Mr. Mims knew the scaffold was not erected in
accordance with AMC’s manual. He performed no analysis or calculations showing the impact
or effect on the mast climber.
Mr. Mims admitted that he was aware threaded bolts were used (Tr. 57). When OSHA
searched the AMC bolt inventory for shank bolts, the compliance officer did not find any such
bolts (Tr. 68). Also, Mr. Mims admitted that his crew was not provided with torque wrenches nor
did he verify the bolts were properly torqued (Tr. 63). He also knew the crew was reusing bolts
and only a single ear (Tr. 56, 67). He knew the scaffold was constructed with mix-matched
components (Tr. 389-390).

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The changes in the mast climber system from the requirements of its manual were
problematic and establish willful violation. Although the actual cause of the collapse was not
determined, the changes to the system may have contributed to the collapse. AMC had the
responsibly to erect, disassemble, move, and service the mast climber scaffold. This was Mr.
Mims’ second collapse of a mast climber platform within ten years, resulting in multiple
employees’ fatalities.
AMC’s violation of § 1926.451(a)(6) is established as willful.
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.
AMC is entitled to credit for size because it employed approximately 10 employees in
2009 (Tr. 74, 96). It also is entitled to a reduction in penalty for history because it received no
OSHA citations in the preceding three years (Tr. 97). AMC is not entitled to good faith credit
because it failed to show a written health and safety program. The employees involved in
erecting the mast climber were not aware of the AMC Operation Manual (Tr. 78, 80).
A penalty of $2,000.00 is reasonable for serious violation of § 1926.451(b)(10) (Citation
No. 1, item 3). It is undisputed that tower sections with rounded and square corners were
intermixed causing wear on the rollers moving up and down the tower. AMC employees and
contractor employees were exposed when riding the platform.
A penalty of $2,000.00 is reasonable for serious violation of § 1926.454(b) (Citation No. 1,
item 8). AMC employees involved in erecting the mast climber system were not shown properly
trained in the erection of the system. The employees were not aware of AMC’s Operations
Manual.
A penalty of $10,000.00 is reasonable for willful violation of § 1926.451(a)(6) (Citation
No. 2, item 1). AMC failed to show justification for not complying with its Operations Manual
when it made numerous changes to the erection of the mast climber system at the Austin project
(Tr. 77-78). Three contractor employees died as a result of the collapse of the work platform,

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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, Item 1, alleged serious violation of § 1910.178(l)(4)(iii), as settled
by the parties, is affirmed as other than serious and a penalty of $1,050.00 is
assessed.
2. Citation No. 1, Item 2, alleged serious violation of § 1926.451(a)(1), is vacated and
no penalty is assessed.
3. Citation No. 1, Item 3, alleged serious violation of § 1926.451(b)(10), is affirmed
and a penalty of $2,000.00 is assessed.
4. Citation No. 1, Item 4, alleged serious violation of § 1926.451(f)(3), is vacated and
no penalty is assessed.
5. Citation No. 1, Item 5, alleged serious violation of § 1926.451(f)(4), is vacated and
no penalty is assessed.
6. Citation No. 1, Item 6, alleged serious violation of § 1926.451(g)(1)(vii), is
affirmed in accordance with the parties settlement and a penalty of $1,050.00
is assessed.
7. Citation No. 1, Item 7, alleged serious violation of § 1926.451(g)(3), is affirmed in
accordance with the parties settlement and a penalty of $1,050.00 is assessed.
8. Citation No. 1, Item 8, alleged serious violation of § 1926.454(b), is affirmed and a
penalty of $2,000.00 is assessed.
9. Citation No. 2, Item 1, alleged willful violation of § 1926.451(a)(6), is affirmed and
a penalty of $10,000.00 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: January 29, 2013
Atlanta, Georgia

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