United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., 9th Floor

Washington, DC 20036-3457

Secretary of Labor,

Complainant, 

v. OSHRC Docket No. 19-0611

Guaranteed Home Improvements, LLC, 

Respondent. 

Appearances: 

Brooke E. Worden, Esq., U.S. Department of Labor, Office of the Solicitor, Chicago, Illinois, for 

Complainant 

Todd Farnham, Guaranteed Home Improvements, LLC for Respondent 

JUDGE: Administrative Law Judge Heather A. Joys 

DECISION AND ORDER 

This case involves an accident in which an employee of Guaranteed Home 

Improvements, LLC (Guaranteed Home) fell from a ladder and was seriously injured. Following 

the accident, Compliance Safety and Health Officer (CSHO) Joel Nyenhuis of the Madison Area 

Office of the Occupational Safety and Health Administration (OSHA) conducted an inspection 

of Guaranteed Home’s worksite and found fault with the manner in which Guaranteed Home had 

set up the ladder from which the employee fell. As a result of the inspection, the Secretary of 

Labor issued a Citation and Notification of Penalty to Guaranteed Home alleging two serious 

violations and one other than serious violation of the Occupational Safety and Health Act of 

1970, 29 U.S.C. § 651- 678 (the Act) and the standards thereunder addressing ladder safety. 

The Secretary proposes a total penalty of $5684.00 for the Citation. Guaranteed Home filed a 

timely notice of contest. 

A hearing was held in this matter on September 20, 2019, in Milwaukee, Wisconsin. The 

proceedings were conducted pursuant to the Commission’s Simplified Proceedings. 29 CFR 
2

§§2200.200-211. At the outset of the hearing, Guaranteed Home withdrew its notice of contest 

with regard to Item 1, Citation 2, alleging an other than serious violation of 29 C.F.R. § 

1926.503(b)(1).1

 Remaining at issue are Items 1 and 2, Citation 1, alleging violations of the 

standards at 29 C.F.R. §§ 1926.1052(b)(1) and 1926.1053(b)(7), respectively. The parties gave 

oral closing statements at the conclusion of the presentation of evidence. The undersigned 

allowed, and the Secretary filed, post-hearing written arguments. 

The parties stipulated that jurisdiction of this action is conferred upon the Commission (Tr. 

9). Based upon the record evidence and the stipulations of the parties, the Commission has 

jurisdiction over this proceeding pursuant to § 10(c) of the Act. 

For the reasons that follow, Item 1, Citation 1, is VACATED; and Item 2, Citation 1, is 

AFFIRMED and a penalty of $2,800.00 assessed. 

BACKGROUND

 Guaranteed Home is a Wisconsin construction company owned by Todd Farnham (Tr. 

21, 94). It employs four people (Tr. 22). In at least 2019, Guaranteed Home had a contract with 

KwikTrip convenience stores to perform construction work on those stores (Tr. 94). 

 In February 2019, the KwikTrip store at 4402 East Buckeye Road in Madison, 

Wisconsin, needed repairs to its roof due to ice damage (Tr. 22). Guaranteed Home was 

dispatched to do the repairs on the 13th of that month (Tr. 94). It was cold that day. The 

temperature was below freezing and there was snow on the ground, including areas of the 

KwikTrip parking lot and sidewalk (Tr. 24). 

 The KwikTrip store has surveillance cameras on the outside of the building. As a result, 

the accident and the conditions leading to it were caught on tape. Relevant excerpts of that video 

were presented at the hearing and admitted into the record (See Exhs. C-15 and C-16). Much of 

the factual background herein is based on it. 

The Guaranteed Home crew arrived at the KwikTrip with a truck and trailer carrying 

their equipment. Among the crew members were the injured employee and Mr. Farnham. 

According to Mr. Farnham, the injured employee was the foreman of the crew (Tr. 23, 94). As 

with every job, Mr. Farnham worked alongside his crew on the roof (Tr. 98). 

1 Under Commission Rule 102, an employer may withdraw its notice of contest at any time. As a result of 

Guaranteed Home’s withdrawal of its notice of contest and pursuant to § 10(a) of the Act, Citation 2 became a final 

order of the Commission by operation of law. See also Weldship Corp., 8 BNA OSHC 2044, 2045 n. 5 (No. 77-

3769, 1980) ("A notice of contest withdrawal constitutes an agreement to affirmance of the citations.").
3

Upon arrival and after parking the truck, the crew began to set up their equipment. The 

equipment included an extension ladder and the personal fall arrest system the crew would use 

while working on the roof. Mr. Farnham set up the ladder to access the roof. He placed the 

ladder at an angle against the gutter along the edge of the roof and adjusted it (Exh. C-15). In the 

video, the ground upon which Mr. Farnham placed the foot of the ladder appears snowy and wet 

(Exhs. C-15 and C-17a). 

The crew climbed the ladder and began their work by removing the snow from the roof 

and throwing it to the ground below. At 11:07 a.m., the injured employee is seen in the video 

beginning to descend from the roof via the ladder (Exh. C-16). As he does so, the ladder slips 

forward, falling to the ground. The injured employee falls with it. An excerpt from the 

surveillance video shows the ladder slide forward as the crew works on the roof, a few minutes 

before the injured employee’s attempt to climb down the ladder. (Tr. 42; Exh. C-16 at min. 

0.41). 

As a result of his fall, the injured employee sustained multiple injuries. He was rushed to 

the hospital where he was treated and sedated (Tr. 55). His injuries included a broken femur, 

ribs, and pelvis (Tr. 55; Exh. C-19). He also sustained a head trauma. He was released from the 

hospital on February 18, 2019 (Exh. C-20). 

The responding police department notified the Madison Area OSHA office of the 

accident (Tr. 17). CSHO Nyenhuis was dispatched to investigate. CSHO Nyenhuis arrived at 

the KwikTrip at approximately 12:15 p.m. (Tr. 18). He first checked in with the KwikTrip 

manager and then spoke to Mr. Farnham (Tr. 18, 21). He took photographs and measurements of 

the ladder and the distance to the gutter along the roof’s edge (Tr. 24, 32). He later obtained the 

surveillance video from KwikTrip showing the area of the accident prior to and at the time of the 

accident (Tr. 34). 

Based on his investigation, CSHO Nyenhuis concluded the manner in which Mr. 

Farnham had set up the ladder violated the standards addressing ladder safety. CSHO Nyenhuis 

recommended the Secretary issue a citation alleging a serious violation of 29 C.F.R. § 

1926.1053(b)(1) for failure to extend the side rails of the ladder at least 3 feet above the upper 

landing surface of the roof. He concluded the ladder was not set up to meet this requirement 

from calculations based on the height of the ladder and the landing surface of the roof, as well as 

the angle at which the ladder was placed. His supervisor, Area Director Chad Greenwood, 
4

assisted CSHO Nyenhuis in making these calculations. CSHO Nyenhuis recommended a 

citation alleging a serious violation of 29 C.F.R. § 1926.1063(b)(7) be issued based on his 

observation of the snowy condition of the surface on which Mr. Farnham had placed the ladder 

and because the ladder slipped by itself as the crew worked on the roof and again as the injured 

employee stepped on it. CSHO Nyenhuis concluded the ladder had not been secured against 

accidental displacement.

DISCUSSION

COVERAGE

Only an “employer” may be cited for a violation of the Act. Vergona Crane Co., 15 

BNA OSHC 1782, 1783 (No. 88-1745, 1992). Section 3 of the Act defines an “employer” as “a 

person engaged in a business affecting commerce who has employees” and defines “employee” 

as “an employee of an employer who is employed in a business of his employer which affects 

commerce.” 29 U.S.C. § 652. Guaranteed Home does not dispute it has employees, but 

contends it is not engaged in a business affecting interstate commerce because it does not do 

business outside the State of Wisconsin. 

The use of the term “affecting commerce” indicates a congressional intent to “exercise 

fully its constitutional authority under the commerce clause.” Godwin v. OSHRC, 540 F.2d 1013 

(9th Cir. 1976); U.S. v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975); Brennan v. OSHRC, 

492 F.2d 1027 (2nd Cir. 1974); see also Piping of Ohio, Inc., 16 BNA OSHC 1236 (No. 91-3481, 

1993). Commerce, according to § 3(3) of the Act, “means trade, traffic, commerce, 

transportation, or communication among the several States, or between a State and any place 

outside thereof....” Following the Ninth Circuit in Usery v. Franklin R. Lacy, 628 F.2d 1226 (9th

Cir. 1980), the Commission has held a business may be found to engage in interstate commerce 

where it “is in a class of activity that as a whole affects commerce.” Clarence M. Jones d/b/a 

Jones Co., 11 BNA OSHC 1529, 1530 (No. 77-3676, 1983). In that case, the Commission went 

on to find “[t]here is an interstate market in construction materials and services and therefore 

construction work affects interstate commerce.” Id., citing NLRB v. Int’l Union of Operating 

Engineers, Local 571, 317 F.2d 638, 643 n. 5 (8th Cir. 1963) (judicial notice taken that 

construction industry affects interstate commerce). Because Guaranteed Home is engaged in

construction work, the undersigned finds it is engaged in a business affecting interstate 

commerce. Guaranteed Home uses cell phones (Tr. 94). It owns ladders, safety equipment, and 
5

a truck and trailer, all of which would have moved in interstate commerce (Tr. 96). Based upon 

the record, Guaranteed Home is a business affecting interstate commerce within the meaning of 

§ 3(5) of the Act. 

THE CITATIONS

The Secretary has the burden of establishing the employer violated the cited standard. 

To prove a violation of an OSHA standard, the Secretary must show by a preponderance of the 

evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of 

the cited standard; (3) employees had access to the violative condition; and (4) the cited employer 

either knew or could have known with the exercise of reasonable diligence of the violative 

condition. JPC Group, Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009). 

The Secretary must prove his case by a preponderance of the evidence. See Hartford 

Roofing Co., 17 BNA OSHC 1361 (No. 92-3855, 1995). “Preponderance of the evidence” has 

been defined as:

the greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact, but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free the 

mind wholly of all reasonable doubt, is still sufficient to incline a fair and impartial 

mind to one side of the issue rather than the other.

Black’s Law Dictionary, “Preponderance of the Evidence” (10th ed. 2014). 

Item 1, Citation 1: Alleged Violation of 29 C.F.R. § 1926.1053(b)(1)

 In Item 1, Citation 1, the Secretary alleges a violation of § 1926.1053(b)(1). The 

standard requires 

When portable ladders are used for access to an upper landing surface, the ladder 

side rails shall extend at least 3 feet (.9 m) above the upper landing surface to 

which the ladder is used to gain access; or, when such an extension is not possible 

because of the ladder's length, then the ladder shall be secured at its top to a rigid 

support that will not deflect, and a grasping device, such as a grabrail, shall be 

provided to assist employees in mounting and dismounting the ladder. In no case 

shall the extension be such that ladder deflection under a load would, by itself, 

cause the ladder to slip off its support. 

29 C.F.R. § 1926.1053(b)(1). The Secretary contends Guaranteed Home violated the standard 

when it failed to set up the extension ladder such that it extended 3 feet above the landing surface 

of the roof. 

 There is no dispute Guaranteed Home employees were using a Vulcan multi-use 

extension ladder to access the roof of the KwikTrip (Tr. 48). Nor is there any dispute this ladder 
6

was one that could be “readily moved or carried” such that it met the definition of a portable 

ladder found in 29 C.F.R. § 1926.1050(b). The Secretary has met his burden to establish the 

standard applied to the cited conditions and Guaranteed Home employees were exposed to the 

hazard posed by non-compliance with the standard. In dispute is whether the setup of the ladder 

violated the standard. 

Was the Standard Violated? 

Guaranteed Home does not contend, nor could it establish, the exception to the strict 

requirement of the standard applies in this instance.2 At issue is whether the ladder was set up 

such that it extended 3 feet above the landing surface of the roof. The Secretary bases his case 

on calculations made from measurements taken by CSHO Nyenhuis after the accident. 

Guaranteed Home argues these measurements were not accurate and, given the small margin for 

error, are insufficient to meet the Secretary’s burden of proof.3

CSHO Nyenhuis took his measurements using a standard tape measure and trench rod. 

CSHO Nyenhuis testified the ladder used by the injured employee was in the same condition at 

the time of the accident as when he measured it. He measured the ladder by placing the tape 

measure along the side of the ladder as it lay on the ground (Tr. 32; Exhs. C-8 and C-9). He 

found the ladder to have been extended to 14 feet, 10 inches or 178 inches (Exh. C-9). He 

measured the height of the roof using a rigid trench rod. Mr. Farnham held the trench rod for 

CSHO Nyenhuis while he took photographs (Exhs. C-10 and C-11). CSHO Nyenhuis found the 

distance from the ground to the landing surface of the roof to be 11.8 feet, or 11 feet, 9.6 inches 

(Exh. C-11).4 

CSHO Nyenhuis and Area Director Greenwood testified because the difference between 

the length of the extended ladder and the height of the landing surface is just over 3 feet, the only 

way the ladder could extend the required 3 feet above the landing surface of the roof is if it was 

placed nearly vertical (Tr. 49-50, 85). As seen in the surveillance video, Mr. Farnham placed the 

2 Mr. Farnham admitted the ladder could have been extended another 5 feet (Tr. 97).

3 Mr. Farnham represented his company at the hearing. He is not an attorney. In his closing statement, he stated the 

Secretary had not proven his case “beyond a reasonable doubt.” The undersigned explained to Mr. Farnham the 

Secretary’s burden in this proceeding is to establish his case by a preponderance of the evidence – a lesser burden. 

Despite this misunderstanding of the burdens of proof, Mr. Farnham’s point regarding the importance of the 

accuracy of CSHO Nyenhuis’s measurements has merit.

4 CSHO Nyenhuis explained trench rods do not indicate inches but divide feet into tenths (Tr. 33).
7

ladder at a steep angle (Exhs. C-15 and C-16). Area Director Greenwood testified a portable 

ladder is required to be placed at a slope of four to one or approximately a 15-degree angle (Tr. 

85).5 Based upon the assumption Mr. Farnham had placed the ladder at this required angle, Area 

Director Greenwood calculated the length the ladder would need to be to extend 3 feet above the 

landing surface of the roof. He testified if it had been placed at that angle, Guaranteed Home’s 

178-inch ladder would have been 4.3 inches too short (Tr. 85-86).6

It is not possible to tell from the photographs or video at what angle Mr. Farnham placed 

the ladder or how far above the edge of the roof the rails of the ladder extend. Neither of CSHO 

Nyenhuis’s measurements, taken after the fact, are precise. With regard to the roof height 

measurement, Mr. Farnham is holding the trench rod at a slight angle (Exh. C-10) and the 

photograph of the measurement is taken at an angle from below (Tr. 33; Exh. C-11). Both these 

circumstances would distort the measurement. To make his calculations, Area Director 

Greenwood had to assume the angle at which the ladder was placed and use CSHO Nyenhuis’s 

imperfect measurements. This is problematic for the Secretary’s case. 

Despite disagreeing with the rationale for the standard, Mr. Farnham testified he placed 

the ladder “to the very minimum of what it was required.” (Tr. 97) In the video, Mr. Farnham is 

seen leaning the ladder against the gutter at the roof’s edge and adjusting its length (Exh. C-15). 

Area Director Greenwood testified a standard ladder’s rungs are 1 foot apart (Tr. 87). He 

explained, when placing a ladder, one can use this as a guide to determine whether the 3-foot 

requirement is met (Tr. 87). This appears to be what Mr. Farnham is doing in the surveillance 

video (Exh. C-15 at min. 0.48-0.57). After climbing the ladder, Mr. Farnham is seen transferring 

to the roof while holding the side rail at a point above the landing surface of the roof (Exh. C-15 

at min. 3.44-3.51). 

Considering the record as a whole, the Secretary has not met his burden. The Secretary’s 

5 The undersigned takes judicial notice placing the bottom of the ladder on the ground and leaning the upper part of 

it against the gutter creates a right triangle and the sum of the two acute angles of a right triangle must equal 90 

degrees. Warnings on the ladder require the angle created by the ladder’s placement on the ground to be 75 degrees 

which would make the opposing angle created by the ladder and the building 15 degrees (Exhs. C-3 and C-4).

6 The undersigned takes judicial notice the hypotenuse of a right triangle is calculated using the Pythagorean 

Theorem (a2 + b2 = c2

, where c=the hypotenuse). The hypotenuse of the triangle created by placing the ladder 

against the gutter is the length of the ladder from the ground to the top of the gutter. Taking the height of the gutter 

as 141.6 inches and placing the ladder at a four to one slope, the length of the hypotenuse would be 145.96 inches. 

The difference between the extended ladder and 145.96 inches is 32.04 inches – approximately 4 inches short of 3 

feet.
8

conclusion the ladder did not extend the required 3 feet above the landing surface of the roof by a 

matter of inches assumes the angle of the ladder placement and the accuracy of CSHO 

Nyenhuis’s measurements. The record establishes neither. Mr. Farnham testified he placed the 

ladder at the minimum required distance.7 It is not implausible he did so. He is seen in the video 

adjusting the rails of the ladder sufficiently above the landing surface of the roof to create a hand 

hold. Under the circumstances, the Secretary’s evidence is simply not enough. 

Because the Secretary failed to establish Guaranteed Home violated the cited standard, 

Item 1, Citation 1, is vacated. 

Item 2, Citation 1: Alleged Violation of 29 C.F.R. § 1926.1053(b)(7) 

 In Item 2, Citation 1, the Secretary alleges a violation of § 1926.1053(b)(7). This 

standard prohibits the use of ladders 

on slippery surfaces unless secured or provided with slip-resistant feet to prevent 

accidental displacement. Slip-resistant feet shall not be used as a substitute for 

care in placing, lashing, or holding a ladder that is used upon slippery surfaces 

including, but not limited to, flat metal or concrete surfaces that are constructed so 

they cannot be prevented from becoming slippery. 

29 C.F.R. § 1926.1053(b)(7). The citation alleges on February 13, 2019, Guaranteed Home 

employees used a ladder to access the roof of the KwikTrip “with the footing of the ladder set up 

on icy/slippery conditions.” 

 As with Item 1, there is no dispute regarding applicability of the standard and employee 

exposure to a hazard. The ladder being used by Guaranteed Home was a portable ladder as that 

term is defined in the standard. Guaranteed Home’s employees used that ladder to access the 

roof. At issue is whether Guaranteed Home violated the requirements of the standard and 

whether it had knowledge of the violative conditions. 

Was the Standard Violated? 

 The Secretary contends the surface upon which Mr. Farnham placed the ladder was 

slippery because it was wet, snow-covered, and icy. The Secretary further contends the ladder 

did not have slip-resistant feet nor was it secured to prevent accidental displacement. As 

evidence the ground on which the ladder was placed was slippery, the Secretary points to the 

video showing the ladder slide forward minutes before the injured employee begins his decent 

7 As will be discussed herein, I did not find Mr. Farnham a credible witness. Nevertheless, his testimony on this 

issue is consistent with video evidence. Even discounting Mr. Farnham’s statement, the Secretary’s evidence falls 

short of his burden.
9

(Exh. C-16 at minute 0.41) as well as when the employee descended, resulting in his fall. 

There is little guidance as to what constitutes a “slippery surface” as that term is used in 

the standard. The Merriam-Webster Dictionary defines “slippery” as “causing or tending to 

cause something to slide or fall.” https://www.merriam-webster.com/dictionary/slippery. The 

documentary evidence consistently shows the parking lot and sidewalk around the KwikTrip was 

wet with patches of snow and slush. Such conditions would create a surface on which something 

would tend to slide. Mr. Farnham placed the ladder in an area that appeared in the video to be 

snow or slush covered. Video showing the bottom of the ladder slide twice under these 

conditions further supports the conclusion Guaranteed Home set the ladder on a slippery surface 

in violation of the standard. 

 Guaranteed Home contends the Secretary cannot meet his burden because photographs 

upon which the Secretary relies do not depict the conditions at the time the ladder was in use and 

because the Secretary cannot show the ladder was not secured, either by a bungee cord or with 

slip resistant feet. With regard to evidence of the worksite conditions while the ladder was in 

use, Guaranteed Home focuses only on CSHO Nyenhuis’s photos and ignores the Secretary’s 

other evidence. The video evidence establishes the conditions while the ladder was in use were 

slippery 

Whether Guaranteed Home secured the ladder is a question of fact.8 CSHO Nyenhuis 

testified Mr. Farnham told him during the inspection he had used a bungee cord to secure the 

ladder to the gutter on the roof’s edge (Tr. 23). Mr. Farnham did not affirmatively testify to this 

fact at the hearing. Mr. Farnham also suggested the ladder had slip resistant feet but did not 

definitively testify to this at the hearing (Tr. 96). CSHO Nyenhuis testified he observed no 

bungee cord at the worksite but conceded he did not ask Mr. Farnham to produce the bungee 

cord. He testified he inspected the ladder and it did not have slip resistant feet (Tr. 53). 

8 The cited standard was derived from ANSI A14.1-1982. Safety Standards for Stairways and Ladders Used in the 

Construction Industry. 55 FR 47660-01, 47678 (November 14, 1990). The second sentence of the standard was 

originally an explanatory note. The drafters chose to incorporate that language into the text of the final rule. Id. 

The undersigned finds this explanatory language somewhat contradictory to the language of the first sentence which 

states a ladder cannot be used on slippery surfaces unless it is either secured or has slip resistant feet. The 

explanatory note suggests, to the contrary, slip resistant feet alone cannot be used as a substitute for securing the 

ladder. In this case, it is not necessary to resolve this conflict because credible evidence establishes the ladder was 

neither secured nor had slip resistant feet.
10

The preponderance of the evidence establishes the ladder was neither secured nor did it 

have slip resistant feet.9

 The undersigned found CSHO Nyenhuis’s testimony he inspected the 

ladder and found it did not have slip resistant feet credible and, importantly, consistent with the 

photographic evidence. Mr. Farnham’s testimony on this issue was noncommittal and lacked 

credibility.10 

Nor was the ladder secured. The dictionary defines the verb “secure” as “to relieve from 

exposure to danger” or “act to make safe against adverse consequences.”11 

https://www.merriam-webster.com/dictionary/secure. The preponderance of the credible 

evidence establishes Guaranteed Home did not act to make its ladder safe from the adverse 

consequence of falling. The most compelling evidence is that the ladder slid from its original 

placement twice. The only evidence Guaranteed Home made some effort to secure the ladder is 

Mr. Farnham’s out of court statement he attached the ladder to the gutter with a bungee cord (Tr. 

23). The record contains no similar in-court testimony or other corroborating evidence. Mr. 

Farnham is seen in the video positioning the ladder and then climbing it to place equipment on 

the roof. He is never seen securing it. Mr. Farnham had the entire one-hour video available to 

him but chose not to show any part that might have substantiated this statement. In the video of 

the fall, nothing appears to be resisting the ladder’s slide. The credible evidence establishes the 

ladder was not secured.

The Secretary has met his burden to establish Guaranteed Home was in violation of the 

requirements of the cited standard. 

Did Guaranteed Home Have Knowledge of the Violative Conditions? 

9 The standard can be read such that securing or using slip resistant feet are exceptions to the strict prohibition 

against ladder use on a slippery surface. If read as exceptions, Guaranteed Home would have the burden to establish 

the ladder was secured or had slip resistant feet. C.J. Hughes Construction, Inc., 17 BNA OSHC 1753, 1756 (No. 

93-3177, 1996) (It is well settled the party seeking the benefit of an exception to a legal requirement has the burden 

of proof to show that it qualifies for that exception.). Even if Guaranteed Home did not have the burden of proof on 

this issue, it did not present sufficient credible evidence to rebut the Secretary’s case.

10 The undersigned found Mr. Farnham’s demeanor was not that of a credible witness. He was excitable and 

argumentative (see, e.g., Tr. 97). His responses were often evasive or cagey. He made several contradictory 

statements. The most glaring of these was his statement the injured employee had set up the ladder (Tr. 12). Video 

evidence shows Mr. Farnham setting up the ladder (Exh. C-15 at min. 0.43). His testimony on these issues is given 

little weight.

11 Given this definition of the verb “secure”, it is not necessary to parse the punctuation of the standard to determine 

whether the phrase “to prevent accidental displacement” is intended to modify both the securing of the ladder and 

the quality of the slip resistant feet, or only the latter.
11

Because the Act does not impose strict liability on employers for violations, it is not 

enough for the Secretary to establish the existence of the violative conditions. The Secretary 

must establish the employer knew, or with the exercise of reasonable diligence could have 

known of a hazardous condition. Dun Par Engineered Form Co., 12 BNA OSHC 1962, 1965-66 

(No. 82-928, 1986). Because corporate employers can only obtain knowledge through their 

agents, the actions and knowledge of supervisory personnel are generally imputed to their 

employers, and the Secretary can make a prima facie showing of knowledge by proving a 

supervisory employee knew of or was responsible for the violation. Todd Shipyards Corp., 11 

BNA OSHC 2177, 2179 (No. 77-1598, 1984); see also Dun Par Engineered Form Co., 12 BNA 

OSHC 1962 (No. 82-928, 1986) (the actual or constructive knowledge of an employer’s foreman 

can be imputed to the employer). 

 Constructive knowledge is shown where the Secretary establishes the employer could 

have known of the cited condition with the exercise of reasonable diligence. Par Electrical 

Contractors, Inc., 20 BNA OSHC 1624, 1627 (No. 99-1520). 

Whether an employer was reasonably diligent involves a consideration of several 

factors, including the employer’s obligation to have adequate work rules and 

training programs, to adequately supervise employees, to anticipate hazards to 

which employees may be exposed, and to take measures to prevent the occurrence 

of violations. 

Id. citing Precision Concrete Constr. 19 BNA OSHC 1404, 1407 (No. 99-707, 2001). Mr. 

Farnham set up the ladder and was aware of its placement. It was readily apparent to anyone 

observing the area it was wet and snow covered. Wet, snow-covered pavement has the potential 

to be slippery. A reasonably diligent employer would have been aware of the conditions and 

taken some type of precautions to ensure the ladder was secure. Mr. Farnham did not. His 

actions and knowledge are imputed to Guaranteed Home. The Secretary has established 

Guaranteed Home had constructive knowledge of the violative condition. 

Characterization 

A violation is serious when “there is a substantial probability that death or serious 

physical harm could result” from the hazardous condition at issue. 29 U.S.C. § 666(k). The 

Secretary need not show that there was a substantial probability that an accident would occur; 

only that if an accident did occur, death or serious physical harm would result. As the Third 

Circuit has explained: 

It is well-settled that, pursuant to § 666(k), when the violation of a regulation 
12

makes the occurrence of an accident with a substantial probability of death or 

serious physical harm possible, the employer has committed a serious violation of 

the regulation. The “substantial probability” portion of the statute refers not to the 

probability that an accident will occur but to the probability that, an accident 

having occurred, death or serious injury could result, even in those cases in which 

an accident has not occurred or, in fact, is not likely to occur. 

Secretary of Labor v. Trinity Industries, 504 F.3d 397, 401 (3d Cir. 2007) (internal quotation 

marks and citations omitted); See also, Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th

Cir. 1984); Mosser Construction, 23 BNA OSHC 1044, 1046 (No. 08-0631, 2010); Dec-Tam 

Corp., 15 BNA OSHC 2072, 2087-2088 (No. 88-0523, 1993). The likelihood of an accident goes 

to the gravity of the violation, which is a factor in determining an appropriate penalty. J.A. Jones 

Constr. Co., 15 BNA OSHC at 2214.

 The hazardous condition at issue is the one realized – a fall from a height. The likelihood 

of injury from a fall of 12 feet is high. As evidenced by the serious injuries sustained by the 

injured employee, the potential harm from such a fall is severe. The violation is serious. 

PENALTY 

The Commission is the final arbiter of penalties. Hern Iron Works, Inc., 16 BNA OSHC 

1619, 1622, (No. 88-1962, 1994), aff’d, 937 F.2d 612 (9th Cir. 1991) (table); see Valdak Corp., 

17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (“The Act places limits for penalty amounts 

but places no restrictions on the Commission’s authority to raise or lower penalties within those 

limits.”), aff’d, 73 F.3d 1466 (8th Cir. 1996). In assessing a penalty, the Commission gives due 

consideration to all of the statutory factors with the gravity of the violation being the most 

significant. 29 U.S.C. § 666(j); Capform Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), 

aff’d, 34 F. App’x 152 (5th Cir. 2002) (unpublished). “Gravity is a principal factor in a penalty 

determination and is based on the number of employees exposed, duration of exposure, 

likelihood of injury, and precautions taken against injury.” Siemens Energy and Automation, 

Inc., 20 BNA OSHC 2196, 2201 (No. 00-1052, 2005). Section 17(j) of the Act requires the 

Commission to give due consideration to the gravity of the violation and the employer’s size, 

history of violation, and good faith. Burkes Mechanical Inc., 21 BNA OSHC 2136, 2142 (No. 

04-0475, 2007). 

The evidence establishes the gravity of the violation was moderate. Although it was 

highly likely, should a fall occur, the employee would sustain severe injury, only three 

employees were exposed to a potential fall, and only for the brief period when they used the 
13

ladder. Other than its placement on the slippery pavement, the ladder was set up in a safe 

manner. Guaranteed Home supplied its employees with fall protection to be used when working 

on the roof. Although cited for failing to document its employee safety training, the Secretary 

did not allege Guaranteed Home failed to train its employees. 

The additional statutory penalty factors weigh in favor of a reduced penalty. Guaranteed 

Home is a small employer with four employees. There was no evidence presented it received 

citations in the past. As to good faith, the record contains some evidence Mr. Farnham does not 

agree compliance with certain regulations leads to improved safety. Guaranteed Home’s use of 

fall protection while working on the roof shows concern for employee safety. The record is 

insufficient to conclude Guaranteed Home displayed a lack of good faith. 

Considering these factors, a penalty of $2800.00 for Item 2, Citation 1, is appropriate. 

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: 

1. Item 1, Citation 1, alleging a violation of 29 C.F.R. § 1926.1052(b)(1) is vacated; and 

Item 2, Citation 1, alleging a violation of 29 C.F.R. § 1926.1053(b)(7) is affirmed and a penalty 

of $2800.00 assessed. 

SO ORDERED.

 

 /s/___________________________ 

 Heather A. Joys 

Dated: November 13, 2019 Administrative Law Judge, OSHRC

 Washington, DC