Superior Masonry Builders, Inc.

Plain-English summary

A tower scaffold fitted with a winter enclosure collapsed during high winds while seven Superior Masonry employees were installing brick veneer, injuring all seven. The Commission vacated the item alleging that the scaffold was not adequately braced to the building because the version of the standard then in effect defined bracing as connecting scaffold members to one another, not tying the scaffold to a separate structure. A later rule expanding that definition could not be applied retroactively. The Commission affirmed the training item because employees had not been instructed about the additional wind hazards created by the enclosure. It also affirmed the competent-person item because the designated lead laborer's experience did not substitute for training that would enable him to identify those enclosure-specific hazards, and assessed $14,000 for the two serious violations.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.21(b)(2), 1926.451(a)(3), and 1926.451(a)(15)
• Outcome: The scaffold-bracing item was vacated, while the training and competent-person items were affirmed with $14,000 in penalties.
• Key point: A later expansion of a standard cannot be applied retroactively, and experience alone does not make an employee competent to recognize a hazard for which the employee was never trained.

Full text (OSHRC public release)

United States of America

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SECRETARY OF LABOR,  

Complainant,

v.

OSHRC Docket No. 96-1043

SUPERIOR MASONRY BUILDERS, INC.,

Respondent.

DECISION

Before:
RAILTON, Chairman; STEPHENS, Commissioner.

BY
THE COMMISSION:

This
case arises out of an inspection by a compliance officer of the Occupational
Safety and Health Administration (“OSHA”) of a scaffold collapse at a worksite
in Brookfield, Wisconsin. The scaffold, which was fitted with a canopy-like
covering called a winter enclosure, collapsed during a period of high wind
while employees of Superior Masonry Builders, Inc. (“Superior”) were working on
it. As a result of the inspection, OSHA issued two citations to Superior
alleging willful and serious violations of scaffolding and training standards.
Superior contested the citations, and a hearing was held before Administrative
Law Judge Sidney J. Goldstein. In his decision, the judge affirmed the two
items in the serious citation, and he affirmed as serious the one item in the
willful citation. He assessed a penalty of $7,000 for each violation.

For the reasons that follow, we vacate the willful
citation and affirm the two violations in the serious citation, for which we
assess a penalty of $7,000 each.

Background

At
the time of the collapse, seven of Superior’s employees were working from the
scaffold installing brick veneer on the exterior wall of a building under
construction. The building was approximately twenty feet high with a flat roof.
The tower scaffolds in use, made by Morgen Manufacturing Company (“Morgen”),
were comprised of sixteen towers that ran about 112 feet from north to south
along the east side of the building. Each of the towers was made up of three
nine-foot sections placed on a two-foot base. The towers were 7-1/2 feet apart
and were joined by cross-braces or “X-braces,” horizontal braces, and stringer
braces. In addition, for the first thirteen towers, wall anchors were placed
into the wall at about 15 feet vertically and every other tower was connected
to a wall anchor with a tie. The last three towers – two of which were to be
moved around the corner of the building to another work area – were not
connected to the building, but they were still connected to the line of towers
by braces. The employees were working from a “carriage,” or steel platform
covered by wooden planks that were suspended between the towers. The platform
was periodically raised as the work progressed.

The winter enclosure, which was also manufactured by
Morgen, was designed to allow work to continue in inclement weather. It
consists of a large plastic cover draped over a frame attached to the towers.
At the time of the accident, the enclosure had just been raised level with or
slightly above the roofline at the north end of the scaffold. Apparently, a
gust of wind caught the plastic and tore the scaffolds away from the wall,
causing each set of towers to pull down the next set. All seven Superior
employees on the scaffold fell and were injured.

Willful Citation 2, Item 1

The
Secretary charges that Superior did not adequately connect the tower scaffolds
to the building as required by 29 C.F.R. § 1926.451(a)(15). She alleges that:

0.  “Stiff Arm
Braces” and wall anchors were not provided at each of the sixteen (16) Morg[e]n
towers at least at nine (9) foot vertical intervals;

(a) “Stiff
Arm Braces” were not installed at the two northernmost wall anchor points
permitting the last six (6) Morg[e]n towers to become unstable and initiate a
chain reaction which toppled all but two of the remaining ten (10) towers;

(b)“Stiff
Arm Braces” and wall anchors were not provided at each of the sixteen (16)
[Morgen Towers at] least at eighteen (18) foot vertical intervals.

The
threshold issue before us on review is whether section 1926.451(a)(15) requires
that the scaffold be attached to the wall of the building as the Secretary
charges. Superior argues that the language “securely and rigidly braced” in the
standard refers to connecting the scaffold members to each other, not to the
building wall, and therefore the standard does not apply here. The Secretary
argues that her interpretation of “brace” to include attachment to the building
is reasonable and consistent with the standard’s meaning and purpose, and thus
it should be accorded substantial deference. The judge affirmed the citation
without addressing the issue of the applicability of the cited standard.

We first consider the text and structure of the
standard at issue. See, e.g. , Unarco Commercial Products , 16 BNA
OSHC 1499, 1502-03, 1993-95 CCH OSHD ¶ 30,294, p. 41,732 (No. 89-1555, 1993); see
generally Chevron U.S.A., Inc. v. NRDC , 467 U.S. 837, 842-43 (1984). If the
meaning of the language is not ambiguous, the inquiry ends there. See Unarco ,
16 BNA OSHC at 1503, 1993-95 CCH OSHD at p. 41,732. If the meaning is
ambiguous, consideration should be given to any contemporaneous legislative history,
and then to the Secretary’s interpretation so long as it is reasonable. Id. , 16 BNA OSHC at 1502, 1993-95 CCH OSHD at 41,732.

At the time of both the accident and the citation,
“brace” was defined under the scaffold standard as “[a] tie that holds one
scaffold member in a fixed position with respect to another member .” 29
C.F.R. § 1926.452(b)(3) (July 1996) (emphasis added). Because a scaffold “member” cannot be read to include the adjoining
building, “bracing” can occur only within the
scaffold structure itself. Thus, when the definition is read into the language
of the cited standard – “[t]he poles, legs, or uprights of scaffolds shall be
plumb, and securely and rigidly braced to prevent swaying and displacement” –
we find no basis whatsoever for reading section 1926.451(a)(15) as requiring a
scaffold to be attached to the wall of an adjoining building.

A review of other OSHA scaffold requirements in effect
at the time the citation was issued demonstrates that when the Secretary wanted
to require attachment to a building or structure, she used express language to
do so and did not use the word “brace.” For example, section 1926.451(b)(4),
dealing with wood pole scaffolds, stated that the scaffold “shall be securely
guyed or tied to the building .” (Emphasis added). The tubular welded
frame scaffold standard at section 1926.451(d)(7) stated that “[t]o prevent
movement, the scaffold shall be secured to the building or structure at
intervals not to exceed 30 feet horizontally and 26 feet vertically.” (Emphasis added).

By contrast, when a scaffold standard required
that scaffold members be “braced,” it was always in the context of connecting
them to another part of the scaffold, not a separate structure. For example,
the wood pole scaffolds standard at section 1926.451(b)(8) referred to
“[d]iagonal bracing”; (b)(9) spoke of “[c]ross-bracing”; and (b)(10) concerned
“[f]ull diagonal face bracing[.]” The tube and coupler scaffolds provision at
section 1926.451(c)(10) required “[c]ross bracing[.]” Section 1926.451(c)(11)
referred to “[l]ongitudinal diagonal bracing[.]” The tubular welded frame
scaffold provisions at section 1926.451(d)(3) stated that “[s]caffolds shall be
properly braced by cross bracing or diagonal braces, or both.” The provision
for manually propelled mobile scaffolds, which by their very nature would not
be secured to a wall, refers in section 1926.453(b)(3) to “[b]racing” as
connecting the scaffolding members to each other.

Our reading of section 1926.451(a)(15) is borne out by
construction industry safety literature in the record of this case. The
American National Standards Institute (ANSI) standard in effect at the time of
the accident and the citation, ANSI A10.8-1988 “Safety Requirements for
Scaffolding”(“ANSI 10.8-1988”), defines “brace” as “[a] device that holds one
scaffold member in a fixed position with respect to another member” and “tie”
as “[a] device used between scaffold component and the building or structure to
enhance lateral stability.” ANSI A10.8-1988, Section 3. The Scaffolding, Shoring & Forming
Institute, Inc. (“SSFI”) makes similar distinctions in its “Scaffold Safety
Guidelines” for erection and use of scaffolds. Under these guidelines, the
paragraph entitled “BRACING” (emphasis in original) states: “Each frame or
panel shall be braced by horizontal bracing, cross bracing, diagonal bracing or
any combination thereof for securing vertical members together laterally.” In
contrast, a subsequent paragraph states: “TIE RUNNING SCAFFOLD TO WALL or
structure when the height exceeds four (4) times the minimum scaffold base
dimension…. Ties must prevent scaffold from tipping into or away from the wall
or structure.” (Emphasis in original). In the SSFI’s “Guide to Scaffolding
Erection and Dismantling Procedures,” “[c]ross-bracing” is defined as a
“[s]ystem of members connecting frames or panels of scaffolding to make a tower
structure,” and “[t]ies” are defined as “[a] tension compression member used to
securely attach scaffold to a structure.”

Another industry document in the record, Morgen’s
“Here’s How to Assemble and Use” manual for tower scaffolding, also supports
the plain meaning of the cited standard and definition of the term “brace” as
not including wall connections. Unlike the citation, Morgen’s manual does not
refer to the “Morgen stiff arm” as a “brace” or the tower scaffold as needing
to be “braced.” Rather, the manual refers to how to “tie” the scaffold to the
wall with the “stiff arms,” which is done by placing the hook at the end of the
stiff arm into the hole of the stiff arm anchor. A U-bolt attaches the other
end of the adjustable rod-like stiff arm to the scaffold tower. Both versions
of the manual in evidence require that for scaffolds “[o]ver 20 ft. high each
tower must be tied to the wall at intervals not to exceed 18 ft. (9 feet when
winter enclosure is being used).” By contrast, the text and diagrams in both
versions of the manual refer to “bracing” in terms of attaching scaffold
members to each other. Another document in the record, Morgen’s Tower
Scaffolding Specifications, likewise does not refer to Morgen’s “stiff arms” as
braces, or attachment to the wall as bracing. The specifications require that
the stiff arm be “tied to the wall” every 9 feet when an enclosure is used and
every 18 feet when the scaffolding is not enclosed but over 20 feet high. As in
the manual, “braces” are mentioned only in the context of connecting parts of the
scaffold together. Both the ANSI standard and the Morgen documents represent
that the term “brace” as understood by the industry does not include “tying”
the scaffold to the building. This reading is consistent with the plain meaning
of the standard.

Our finding that the language is unambiguous is not
affected by the Secretary’s rulemaking activities in 1986 and 1996. She points
to a proposed rule she published in 1986 that proposed adding to the definition
of “brace” applicable here — “[a] tie that holds one scaffold member in a fixed
position with respect to another member” — the language, “[b]race also means a
rigid type connection holding a scaffold to a building or structure.” 51 Fed.
Reg. 42,680, 42,703 (November 25, 1986). According to the Secretary, OSHA
considered this change to the definition to be a “reword[ing] for uniformity or
clarity,” not a “major definitional change.” Id. at 42,682. She further
claims that the publication of the proposed rule provided construction
employers with knowledge of her interpretation of the term “brace.” When OSHA
published the final rule nearly ten years later, one month after the citations
were issued in this case, it did so with what it described as “only minor
editorial revisions” because no comments were received. 61 Fed. Reg. 46,025
(August 30, 1996). The definition now states that a brace “means a rigid
connection that holds one scaffold member to another member, or to a building
or structure.” 29 C.F.R. § 1926.450(b)(3).

We reject the Secretary’s argument that would require
us to retroactively apply a regulation prior to the effective date of the final
rulemaking – particularly where it resulted in a significant definitional
change to the term “brace” as it is used in the standard. Despite the
Secretary’s contention to the contrary, we see nothing in this record to suggest
that the proposed change was merely a clarification of a definition that
already encompassed the Secretary’s suggested meaning of the term “brace.”
Rather, the entire rulemaking activity supports the proposition that it was
conducted to substantively change the standard by amending it to require tying
to the building.

The way the Secretary describes her rulemaking actions
is not dispositive. See Chamber of Commerce v. OSHA , 636 F.2d 464, 468
(D.C. Cir. 1980) (in determining agency’s intent in adopting rule, agency’s own
label indicative but not dispositive). “Proposed regulations are suggestions
made for comment; they modify nothing.” LeCroy Research Sys. Corp. v . Commissioner ,
751 F.2d 123, 127 (2d Cir. 1984). See also Sweet v. Sheahan , 235 F.3d
80, 87 (2d Cir. 2000) (proposed regulations have no legal effect); Public
Service Co. v. Federal Energy Regulatory Com’n. , 584 F.2d
1084, 1087 (D.C. Cir. 1978) (notice of proposed rulemaking has no effect on
existing regulations; many proposed rules are never adopted or are amended
substantially). It was not until ten years later, one month after this
citation issued, that the Secretary published her final rule that modified the
language in question, thereby changing the definition of “brace.” Thus, as the
definition of “brace” did not change on the date of publication of the
Secretary’s proposed rulemaking, we cannot find that Superior was provided with
notice of her interpretation of the term “brace” at that time.

Because Superior was cited for violating the scaffold
standard in effect in July 1996, the term “brace” should be construed by the
term’s definition then in effect, which did not include “tying” the scaffold to
the building as its successor standard does. Thus, we need not address the
Secretary’s allegations here that Superior violated the standard because it did
not tie off to a wall or structure. See Sweet v. Sheahan, supra. We find
therefore that the Secretary has not proven that the cited standard applies,
and we vacate the citation.

Serious
Citation 1, Item 1

The
Secretary charges a serious violation of section 1926.21(b)(2) because “[e]mployees were not instructed on how to assemble a Morg[e]n
tower scaffold to assure that the upright members were rightly braced to
prevent swaying or displacement when it was enclosed.” As the judge noted, this
was the first time the Superior employees had used a winter enclosure, and wind
gusts of up to 32 miles per hour occurred the morning of the accident. As the
Secretary’s expert opined and other evidence suggests, use of an enclosure on
scaffolding poses particular hazards that can occur during high winds by
substantially increasing the load on the scaffold.

The Commission has held that section 1926.21(b)(2)
requires an employer to “instruct its employees in the recognition and
avoidance of those hazards of which a reasonably prudent employer would have
been aware.” Pressure Concrete Constr. Co. , 15 BNA OSHC 2011, 2015,
1991-93 CCH OSHD ¶ 29,902, p. 40,810 (No. 90-2668, 1992). See also El Paso
Crane & Rigging Co. , 16 BNA OSHC 1419, 1424, 1993-95 CCH OSHD ¶ 30,231,
p. 41,620 (No. 90-1106, 1993) (to establish a section 1926.21(b)(2) violation,
Secretary must show that cited employer “failed to provide the instruction
which a reasonably prudent employer would have given in the same
circumstances”). Here, there is abundant evidence in the record that Superior
did not instruct its employees in the particular hazards of adding a winter
enclosure to the tower scaffolding. Although both the lead laborer who erected
the scaffolding and the mason tender who assisted him had many years of
construction experience and had been given a copy of Morgen’s manual years ago,
each man testified that they received no instruction as to the hazards
associated with the use of an enclosure. In addition, three masons/bricklayers
testified that they had not received any instructions on enclosures. Superior’s
field superintendent involved in overseeing safety at the site acknowledged
that he was not aware of any training on scaffolding enclosures given to the
three employees charged with erecting the scaffolding.

Although Superior disputes the point, we find nothing
in the record to indicate that Superior lacked fair notice that attaching the
Morgen winter enclosure to the scaffolds presented a hazard. Both of the
documents Superior received from Morgen and the two industry standards that
Superior itself introduced at the hearing make it clear that the use of winter
enclosures presented particular hazards. Morgen’s “Here’s How” Manual, which
Superior acknowledges it gave to many of its employees, states that, “[b]ecause
the enclosure provides additional wind resistance, each tower must be secured
to the wall every 9’ vertically, starting at the 9’ elevation.” In addition, the
Tower Scaffolding Specifications Morgen distributes to its customers provide:
“Because of the tremendous force which wind can put on any enclosure, the
scaffolding must be completely braced according to specifications and tied to
the wall with a Morgen stiff arm in the top third of each 9 ft. (2.7 m) insert,
starting with the first.” Morgen also notes that the enclosure is usually
assembled and covered at ground level, thus “eliminat[ing] the dangers of
handling canvas and heaters on elevated scaffolding, where a strong gust of
wind can be disastrous.”

The scaffolding industry documents in the record, on
which Superior also relies, make these same points. The SSFI’s “Scaffold Safety
Guidelines” provide: “WHEN SCAFFOLDS ARE TO BE PARTIALLY OR FULLY ENCLOSED,
specific precautions must be taken to assure frequency and adequacy of ties
attaching the scaffolding to the building due to increased load conditions
resulting from effects of wind and weather.” (Emphasis in original). Similarly
ANSI A10.8–1988, section 4.30, provides: “When scaffolds are to be partially or
fully enclosed, precautions shall be taken to assure the adequacy of the
number, placement, and strength of ties attaching the scaffold to the building
because of increased load conditions resulting from the effects of wind and
weather. The scaffolding components to which the ties are attached shall be
strong enough to sustain, without failure, the additional loads imposed upon
them.”

Based on the above, we find a violation of section
1926.21(b)(2). See, e.g., J.A. Jones Constr. Co. , 15 BNA OSHC 2201,
2206, 1991-93 CCH OSHD ¶ 29,964, p. 41,025 (No. 87-2059, 1993) (industry
practice relevant but not dispositive in determining whether under section
1926.20(b)(1) a reasonable person familiar with the industry would recognize
that safety program must address known hazards). Cf. Farrens Tree Surgeons
Inc. , 15 BNA OSHC 1793, 1794, 1991-93 CCH OSHD ¶ 29,770, p. 40,489 (No.
90-998, 1992) (industry practice relevant but not dispositive to determining
whether under section 1910.132(a) a reasonable person familiar with the
industry would recognize hazard warranting use of personal protective
equipment).

Superior has not taken issue with the “serious”
characterization of the violation, which we find is supported by the record. We
therefore affirm serious citation 1, item 1. The judge assessed the proposed
penalty of $7,000 for this item, and Superior has not challenged the
appropriateness of this amount on review. Upon review of the factors set forth
in section 17(j) of the Occupational Safety and Health Act of 1970 (“the Act”),
29 U.S.C. § 666(j), we find $7,000 to be an appropriate penalty.

Serious Citation 1, Item 2

The
Secretary charges a serious violation of section 1926.451(a)(3) because “Morg[e]n Tower Scaffolding
which was in use [o]n February 7, 1996 [at the inspected site] was not erected
under the supervision of a Competent Person.” The term “competent person” was
not defined in the scaffolding standard that was in effect at the time, but was
defined in the general construction standards 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.” 29 C.F.R.
§ 1926.32(f).

Superior designated a lead laborer as its competent
person for erecting the scaffolding at issue. The lead laborer testified that
approximately 30 years ago he erected some of the first Morgen tower scaffolds
used in the Milwaukee area, but he had never worked with an enclosure. In
addition, he testified that he read the entire Morgen manual approximately 30
years ago and referred to the manual over the years, but he did not review the
manual before erecting the scaffold at issue here. Moreover, he received no
safety training from Superior about erecting Morgen tower scaffolding with or
without an enclosure. He also stated that there were no warnings on the
enclosures themselves. When he erected these towers, he was not aware that
Morgen recommends attaching every tower to the wall, tying in every 18 feet if
a scaffold is more than 20 feet high, and tying each tower to the wall every 9
feet when a winter enclosure is used. He testified that tying every other tower
to the wall has been his practice all his working life.

Under Commission precedent a person is found to be
competent when he makes an inspection in a competent manner and makes a
reasonable determination that the condition is safe. C.J. Hughes Constr. ,
17 BNA OSHC 1753, 1757, 1995-97 CCH OSHD ¶ 31,129, p.43, 477 (No. 93-3177,
1996). Superior argues that the lead laborer designated as its competent person
was an experienced skilled tradesman who exercised his judgment based on his
training and experience. However, experience alone does not qualify the
designated employee as a “competent person.” See, e.g., E.L. Davis
Contracting Co. , 16 BNA OSHC 2046, 2050-51, 1993-95 CCH OSHD ¶ 30,580,
p.42,341 (No. 92-35, 1994).

We find that the lead laborer was not properly trained
and therefore was not a competent person. The evidence shows that he was not
instructed about the specific hazards presented by attaching enclosures to
scaffolding and thus was not capable of identifying the hazard . See, e.g.,
Ed Taylor Constr. Co. , 15 BNA OSHC 1711, 1717, 1991-93 CCH OSHD ¶
29,764, 40,481 (No. 88-2463, 1992). His decision to proceed with the erection
of the scaffold and enclosure as he did, under the conditions that day, was not
reasonable. For these reasons, we conclude that the scaffolding was not erected
under the supervision of a competent person.

Based on the above, we find a violation of section
1926.451(a)(3). Superior has not taken issue with the “serious”
characterization of the violation, which we find is supported by the record. We
therefore affirm serious citation 1, item 2. The judge assessed the proposed
penalty of $7,000 for this item, and Superior has not challenged the
appropriateness of this amount on review. Upon review of the factors set forth
in section 17(j) of the Act, we find $7,000 to be an appropriate penalty.

Accordingly, we
vacate item 1 of Citation 2 and affirm items 1 and 2 of Citation 1 as serious,
for which we assess a total penalty of $14,000. 

SO ORDERED.

/s/

W.
Scott Railton

Chairman

/s/

James
M. Stephens

Commissioner

Dated: July 3, 2003

SECRETARY OF LABOR,

Complainant,  

v.         

OSHRC DOCKET NO. 96-1043

SUPERIOR MASONRY BUILDERS, INC.,

Respondent.    

APPEARANCES: 

Lisa
R. Williams, Esq., Office of the Solicitor, U.S. Department of Labor,

Chicago,
Illinois 

W.
Wayne Siesennop, Esq., Hannon, Siesennop & Sullivan, Milwaukee, Wisconsin

Before:            Administrative
Law Judge Sidney J. Goldstein

DECISION AND ORDER

This
is an action by the Secretary of Labor against Superior Masonry Builders to affirm
two items of a serious citation and one item of a willful citation issued by
the Occupational Safety and Health Administration for the alleged violation of
safety violations relating to the construction industry. The controversy arose
after a compliance officer for the Administration investigated a scaffold
collapse at a Respondent’s worksite, concluded that the company violated three
safety regulations, and recommended that the citations be issued. The
Respondent disagreed with this determination and filed a notice of contest.
After a complaint and answer were filed with the Commission, hearings were held
in Milwaukee, Wisconsin, and Chicago, Illinois.

The
two serious items of the citation are shown below:

Citation 1 Item 1 Type of Violation:
Serious

The
employer did not instruct each employee in the recognition and avoidance of
unsafe condition(s) and the regulation(s) applicable to his work environment to
control or eliminate any hazard(s) or other exposure to illness or injury:

(a)       Employees
were not aware of the mandatory erection stability specifications contained in
the Morgen Tower Scaffolding “assemble and use” manual with regard to wall
anchorage of tower inserts under Morgen tower scaffold enclosure and also
unenclosed conditions.

in violation of the regulation found at 29 CFR
§1926.21(b)(2) reading as follows:

(2)The employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations applicable
to his work environment to control or eliminate any hazards or other exposure
to illness or injury.

Citation 1 Item 2 Type of Violation:
Serious

Scaffolding was not erected under the supervision
of a competent person:

(a)       Morgen
Tower Scaffolding which was in use on February 7, 1996 at 16220 West Bluemound
Road Brookfield, Wisconsin at the “Democracy Square” construction site, was not
erected per the manufacturer’s “assemble & use” specifications in that the
required wall anchoring was not provided to ensure stability under scaffold
enclosure conditions.

(b)       Wall
“stiff arm” scaffold anchors were improperly installed with “10d common” double
headed “form” nails instead of hardened cut nails as specified in the Morgen
Tower Scaffolding manufacturer’s “assemble and use” instructions.

(c)       Number
6 wire veneer wall ties were substituted and used in place of the Morgen Tower
Scaffolding “stiff arm” anchors as specified in the manufacturer’s assemble and
use instructions.

in violation of the regulation appearing at 29
CFR §1926.451(a)(3), stating:

(3)No scaffold shall be erected, moved, dismantled, or
altered except under the supervision of competent persons.

The
willful citation reads as follows:

Citation 2 Item 1 Type of Violations:
Willful

Upright
members of scaffold(s) were not securely and rigidly braced to prevent swaying
and displacement:

(a)       “Stiff
Arm Braces” and wall anchors were not provided at each of the sixteen (16)
Morgen towers at nine (9) foot vertical intervals in accordance with the
manufacturer’s mandatory stability specifications, whenever Morgen Tower
Scaffolding is enclosed.

(b)       “Stiff
Arm Braces” were not installed at the two (2) northernmost wall anchor points
permitting the last six (6) Morgen Towers to become unstable and initiate the
chain reaction which toppled all but two of the remaining ten (10) towers.

(c)       “Stiff
Arm Braces: and wall anchors were not provided at each of the sixteen (16)
Morgen Towers at eighteen (18) foot vertical intervals in accordance with the
manufacturer’s mandatory stability specifications, whenever Morgen Tower
Scaffolding is erected.

in violation of the regulation appearing at 29
CFR §1926.451(a)(15) as shown below:

(15)     The
poles, legs, or uprights of scaffolds shall be plumb, and securely and rigidly
braced to prevent swaying and displacement.

BACKGROUND

The
record contains an accident report from David E. powers, Chief Investigator to
Paul E. Bucher, District Attorney, Waukesha, Wisconsin. He reviewed the reports
of the Brookfield Police Department and the Occupational Safety and Health
Administration and was also familiar with the crash scene because he responded
to that location on the day of the event. It was apparent to him that the
Respondent did not adhere to certain standards for enclosed scaffolding. There
was negligence in erecting the scaffolding, but not criminal in nature.

The
crew on the scaffold consisted of five masons and two laborers. Most of these
people were experienced in their field, but using an enclosed Morgen Tower
Scaffold was a first for them. What was fine for an open scaffold was not
adequate for an enclosed one.

It
appeared to the investigator that wall anchors were placed in the walls at
about 15 feet vertically and for every other tower. The wall anchors were
placed the day before the accident so that the cement settled. Seven anchors
were placed, but only four were regular Morgen Tower anchors. The three
northernmost anchors were fabricated from wire ties not suitable for anchoring
scaffolding. At least some of the Morgen Tower anchors were set with common
nails, not the cut nails specified for the anchor.

On
the day of the accident, stiff arms were placed between the wall anchors and
the towers. Five of the stiff arms were placed, but the northernmost two
anchors did not have stiff arms attached. The mason and laborer on that part of
the scaffold were aware of this situation and mentioned it to a laborer who
indicated that the additional stiff arms were buried in the snow. The mason
also conveyed his concern to the superintendent about the windy conditions
prevailing, but he did not feel the wind was a problem at that time. None of
the masons felt they were in danger on the scaffold. The field superintendent
was not aware that standard Morgen Tower wall anchors with cut nails were being
used.

The
constant wind velocity did not seem to be a factor. Wind gusts up to 32 mph
appeared after the north end of the scaffold was raised above the eave line on
the north end of the building, thus exposing a small portion of the scaffold to
the wind. Apparently, a gust of wind caught the plastic enclosed scaffold; the
latter, acting as a sail, pulled the unattached north towers away from the wall.
The scaffolding started to domino, pulling each next set of towers down. The
wire wall anchors left in the wall seem to be where the stiff arms were not
attached. At least one wire wall anchor pulled out of the wall. Some Morgen
Tower anchors that were set with common nails, not cut nails, also were pulled
out of the wall. The scaffold came down, causing injury to the workers on it.

According
to the report the Respondent had the ultimate responsibility to properly train
its employees, especially while doing something new, such as an enclosure. The
company relied upon experienced employees, but the latter did not take into
consideration the difference between open and enclosed scaffolding. These
employees had in their possession Morgen Tower manuals, but they either failed
to read or to understand them.

On
the day of the accident there was new snow on the ground. The pallet with
additional stiff arms of the correct size was plowed under and looked for. One
mason thought the scaffold was too far from the wall, and a request for
additional cross bracing was carried through. Unfortunately, the scaffolding
was raised above the north eave where the wind gust caught it before the stiff
arms were found and placed.

There
remained the question of the placement of less than adequate wall anchors.
Correct anchors set with common nails by the masons appeared to have pulled
out. The investigator did not understand the use of the wire anchors when there
appeared to be Morgen Tower anchors on the jobsite. Reports allude to normal
anchors found in a mason tool box in the rubble. The superintendent stated that
not only were correct anchors on site, but also he carried additional ones in
his truck. He visited the building site each day.

The
chief investigator concluded that negligence was present on the part of
numerous individuals but did not rise to criminality. He felt the accident was
caused by a combination of lack of specific understanding of a new system and
lack of training in that system. Some portions of the negligence were beyond
the control of the employer.

SUMMARY OF THE
TESTIMONY

In
general, testimony at the hearing confirmed much that was contained in the
investigative report. Thus, two laborers stated that they had no instructions
or safety training with respect to Morgen Towers. They were not aware that
these towers were to be tied every nine feet to the wall if an enclosure was
utilized. Stiff arms were not supplied when needed. One laborer noticed that
masons were inserting ordinary nails and wire ties instead of the recommended
material in the Morgen Tower manual. Another laborer, still with the
Respondent, heard no complaints and was not aware of a shortage of stiff arms.
He regarded the Respondent as a safe employer.

Bricklayers
also received no safety training or instructions regarding enclosures during
high winds. They were concerned about the lack of stiff arms and made
complaints to management representatives. One mason mentioned that the plastic
enclosure could act as a sail in the strong wind and pull scaffolding down.
Stiff arms helped stability, but a sufficient number was never supplied. In
addition, wire ties were substituted for Morgen flat anchors. One mason added
that he did not notice any wind problem.

Two
mason tenders also testified. One was troubled by the lack of stiff arms. He
requested more of them but was informed that none were available because they
were buried in the snow. In his opinion stiff arms should have been placed
every nine feet.

Another
mason tender who was employed by Respondent for about 21 years did not hear any
employee complain about the scaffolding. He considered the respondent to be a
safe employer. No training was received with respect to Morgen Towers. He was
not aware of any shortage of stiff arm braces. Morgen Tower enclosures did not
come with installation instructions.

Respondent’s
field supervisor shared safety responsibility with a foreman and conducted tool
box safety sessions weekly. He recalled that one bricklayer was concerned about
the high winds but was not aware that employees were substituting Morgen Tower
anchors with wire ties and that stiff arms were missing. Admittedly he did not
give Morgen Tower training to some employees. However, it was not company
practice to substitute wire wall ties for Morgen wall ties. To prevent a
recurrence of the mishap stiff arms are used in each tower; they are placed
every nine feet when scaffolding enclosures are used.

A
former official with the Morgen Tower organization, a twenty-year veteran and
active in its instruction work, testified that scaffolding with an enclosure
requires double the amount of stiff arms because wind loads are greater with
enclosures. There was no competent person on site at the time of the mishap
because towers were not tied off with stiff arms. He did not believe that
employees were sufficiently trained. Concrete nails should have been used
because they are more resistant to pullouts. Thus, scaffolding was not properly
braced. He added that warnings and cautions accompany the braces.

The
OSHA compliance officer who investigated the collapse of the scaffolding
learned that Respondent’s employees were not aware of the mandatory erection
stability specifications contained in the Morgen Tower assembly and use
instructions. Scaffolding was not assembled according to the manufacturer’s
instructions. Stiff arms and scaffolding anchors were not properly installed
with specific nails. It appeared that other than Morgen flat wall ties were
used to anchor stiff arms to the walls. Thus, scaffolding was not completely
braced to the walls. On the day of the accident there were wind gusts of up to
49 mph , and employees expressed concern to management representatives.

Upon
more detailed examination, the compliance officer agreed that the OSHA
standards in issue did not provide that an employer must follow the
manfacturere’s or ANSI standards. He acknowledged that the Respondent gave
skilled tradesmen the “How to Do It Book.” He also recalled that twelve of the
fourteen citations issued to the Respondent took place prior to 1989.

The
compliance officer recommended the “willful” citation because the Respondent’s
superintendent had an opportunity to check the wall ties and had information
concerning the lack of proper safety equipment.

OSHA’s
Assistant Area director agreed that the Agency never issued a citation for
failure to have every Morgen Tower tied to a wall.

Respondent’s
President testified that a safety policy was instituted when he took control of
the company. This included insurance and tool box and safety talks. He also
called upon the Mason Contractors Association for help in the safety field. In
all cases of new hires employees were given hard hats and a copy of the company
safety program. There were also talks on enclosing scaffolding.
       Respondent’s safety consultant agreed
that Morgen Tower specifications call for nine-foot vertical intervals, but
there is no statement that this was mandatory. In the Milwaukee area towers
were tied to every third or fourth tower; but Respondent worked with every
other tower, an indication that it was not indifferent to safety. On the day of
the accident employees worked with wind pressure which could be three times
stronger than the recorded wind speed. In his opinion, the scaffold would have
collapsed no matter what measures Respondent could have taken.

Although
Respondent’s expert believed that the scaffolding was secured to prevent
swaying or displacement, he agreed that employees should not work during high
winds or storms. The scaffolding was stable and braced adequately for normal
conditions, but wind conditions were not normal at the time of the accident. In
his opinion the accident was isolated and unpredictable, but he added that the
structure would be more stable if all six towers were attached.

The
Respondent also called upon the Director of Field Services for Zimmerman Design
Group who stated that Respondent was an honest and safe employer.

DISCUSSION

As
previously noted, Citation 1, item 1 charges that respondent did not instruct
each employee in the recognition and avoidance of unsafe conditions and the
regulations applicable to his work environment to control or eliminate any
hazards or other exposure to illness or injury. The evidence discloses that
Respondent did not instruct each employee in the hazards associated with Morgen
Tower scaffolding and they were not aware of the Morgan Tower Scaffolding
Manual regarding anchorage of tower inserts under enclosed or unenclosed
conditions. The testimony confirms the Respondent’s failure to instruct the
laborers with regard to Morgen Tower scaffolding. Indeed, they were not aware
that towers were to be tied every nine feet if an enclosure was utilized.

Bricklayers
also testified that they received no training regarding scaffold enclosures,
one of whom added that he cautioned management that the plastic enclosure could
act as a sail in the strong wind. A mason tender employed by the respondent for
21 years also did not receive any training with regard to Morgen Towers.
Finally, Respondent’s field supervisor admitted that he did not give Morgen
Tower training to some employees.

The
regulation requires the employer to instruct each employee in the recognition
and avoidance of unsafe conditions. The Respondent failed to comply with this
regulation, and therefore Citation 1, item 1, is affirmed.

The
regulation at 29 CFR §1926.451(a)(3) provides that no scaffold shall be
erected, moved, dismantled, or altered except under the supervision of
competent persons. In item 2 of Citation 1 the Complainant enumerated three
instances wherein scaffolding was not erected under the supervision of a
competent person. The record confirms that the Respondent did not follow the
Morgen Tower manufacturer’s assemble and use instructions in three instances:
(1) required wall anchoring was not provided to ensure stability under scaffold
enclosure conditions; (2) stiff arm scaffold anchors were installed with nails
which did not meet specifications in the manufacturer’s assemble and use
instructions; and (3) number 6 wire veneer wall ties were substituted and used
in place of Morgen Tower scaffolding “stiff arm” anchors as specified in the
manufacturer’s assemble and use instructions. Thus, no competent person
supervised the installation of Morgen Tower equipment to conform with the
manufacturer’s instructions. Item 2 of Citation 1 is therefore also affirmed.

Citation
2 (designated “Willful”) item 1 alleges that upright members of scaffolding
were not securely and rigidly braced to prevent swaying and displacement. Three
examples were advanced: (1) Stiff Arm Braces and wall anchors were not provided
to each of sixteen (16) Morgen Towers at nine (9) foot vertical intervals,
according to manufacturer’s specifications whenever Morgen Tower Scaffolding is
enclosed; (2) Stiff Arm Braces were not installed at two (2) northernmost wall
anchor points, permitting the last six (6) Morgen Towers to become unstable and
initiating a chain reaction which toppled all but two of the remaining ten (10)
towers; and (3) Stiff Arm Braces and wall anchors were not provided at each of
the sixteen (16) Morgen Towers at eighteen (18) foot vertical intervals in
accordance with manufacturer’s stability specifications.

It
is not disputed that stiff arm braces were not provided at nine foot intervals
when the scaffold was erected. This resulted in a violation of the regulation
at 29 CFR §1926.451(a)(15) which provides that poles, legs, or uprights of
scaffolds should be plumb and securely and rigidly braced to prevent swaying and
displacement.

The
Complainant established that scaffolding was not securely and rigidly braced to
prevent swaying and displacement. Even after an employee complained concerning
swaying and lack of stability, the workers were not provided with the proper
protective equipment. The latter was buried in the snow, but no effort was made
to retrieve the necessary materials. However, the employees were furnished with
substitute equipment, admittedly not intended for use with Morgen Tower
scaffolding and not as effective in preventing swaying and movement between
towers and walls.

WILLFUL

As
indicated, Citation 2, item 1 was classified as “Willful.” the Commission has
held that a willful violation of the Occupational Safety and Health Act of 1970
is one committed with an “intentional knowing or voluntary disregard to the
requirements of the Act or with plain indifference to employee safety.” It is
differentiated from other types of violations by a “heightened awareness of the
illegality of the conduct or conditions - and by a state of mind-conscious
disregard or plain indifference.”

In
this case the compliance officer recommended that the infraction be treated as
willful because the superintendent had an opportunity to check the wall ties,
and employees complained about the windy conditions with the management
representative.

While
the Respondent violated the regulation, I do not believe the facts demonstrate
the company had a conscious disregard or plain indifference for the safety of
its employees. One employee stated that some stiff arm braces were attached to
the walls and heard no complaints regarding employee safety. He was unaware of
any safety problems and considered the employer to be safety minded. A
bricklayer did not notice any problem with regard to the wind. A mason tender
also considered the Respondent a safe employer and was never told there was a
problem with the scaffolding. The field supervisor was unaware that employees
were substituting Morgen Tower anchors with wire ties, and it was not the
company’s practice of replacing wire wall ties for Morgen wall ties.
Immediately after the accident stiff arms were placed every nine instead of
eighteen feet when enclosures were in use.

Other
factors considered included the fact that Respondent gave skilled tradesmen the
“How To Do It” book, and twelve of fourteen previous citations were issued
before 1989 when the current president took over the daily operations of the
business. Also, the Administration’s Assistant Area Director testified that the
Agency never issued a citation for failure to have every Morgen Tower tied to a
wall.

When
the current management took charge of the business the company adopted a safety
policy and obtained assistance in this area from its insurance carrier. It
started weekly tool box talks, sought help in the safety area from the Mason
Contractors Association, and required employees to attend safety meetings with
a contractors association. In addition it arranged for special talks regarding
enclosing scaffolding.

The
Respondent’s safety consultant testified that in the Milwaukee area towers were
tied every third or fourth post whereas the Respondent installed ties every other
tower. He calculated that the wind of approximately 45 mph should be multiplied
by three when the employees were working. In his opinion the accident would
have occurred because of the very strong wind exposure; it was an isolated
unavoidable event.

From
the facts in this case, I cannot conclude that the Respondent intended to
violate the regulation as shown in Citation 2, item 1. Nor did the Respondent
willfully disregard or exhibit plain indifference to the regulation.

While
the Respondent’s failure to comply with the regulation in Citation 2, item 1
was not willful, it does come under the definition of “serious” as with the two
items of Citation 1. Section 17(k) of the Act defines “serious” as follows:

(k)For purposes of this section,
a serious violation shall be deemed to exist in a place of employment if there
is a substantial probability that death or serious physical harm could result
from a condition which exists, or from one or more practices, means, methods,
operations, or processes which have been adopted or are in use, in such place
of employment unless the employer did not, and could not with the exercise of
reasonable diligence, know of the presence of the violation.

The
Respondent was in serious violation of the regulation found at 29 CFR
§1926.451(a)(15).

The
cases hold that to establish a prima facie case of a violation of a
standard the Secretary must show (1) that the standard applies to the
conditions cited; (2) that the standard was violated; (3) that an employee had
access to the hazard; and (4) that the employer knew or with the exercise of
reasonable diligence could have known of the violative conditions. In this case
the Secretary has satisfied each of these requirements. As previously discussed
the Respondent failed to instruct some of its employees in the proper erection
of Morgen Towers, failed to have a competent person supervise the erection of
the scaffolding, and failed to instruct employees how to assemble a Morgen
Tower scaffold to assure that upright members were rightly braced to prevent
swaying or displacement when enclosed. The responsibility in connection with
the three items of the citations belonged to the Respondent, not to the
manufacturer of the equipment.

I
find that the Respondent failed to comply with the requirements of the
standards as found in 29 CFR §1926.21(b)(2); §1926.451(a)(3); and
§1926.451(a)(15) as charged in the citations.

Citation 1,
item 1 is AFFIRMED with a penalty of $7,000.00.

Citation
1, item 2 is AFFIRMED with a penalty of $7,000.00.

Citation
2, item 1 is AFFIRMED with a penalty of $7,000.00.

/s/

Sidney
J. Goldstein

Judge,
OSHRC

Dated: February 8, 1999