Dave's Plumbing, Inc.

Plain-English summary

Dave's Plumbing used an extension ladder to reach a roof at a construction site. The ladder extended only a few inches above the landing, was unsecured near an active doorway, and was climbed by an employee carrying an acetylene tank. The judge also found that the employee had not received ladder-safety training, despite having signed safety-meeting attendance sheets that he had not read. The foreman stood at the ladder and knew of the visible conditions, so his knowledge was imputed to the company. All four serious items were affirmed, but the proposed total penalty was reduced from $8,000 to $3,200 because only one employee was exposed for a very short time.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.1053(b)(1); 29 C.F.R. § 1926.1053(b)(8); 29 C.F.R. § 1926.1053(b)(22); 29 C.F.R. § 1926.1060(a)
• Outcome: Four serious ladder items affirmed; $3,200 total penalty assessed.
• Key point: A foreman's presence at plainly visible ladder hazards established employer knowledge, and signed attendance sheets did not prove that meaningful training occurred.

Full text (OSHRC public release)

                        United States of America
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                            1924 Building – Room 2R90, 100 Alabama Street SW
                                       Atlanta, Georgia 30303-3104

Secretary of Labor,
Complainant,

              v.                                                           OSHRC Docket No. 14-0526

Dave’s Plumbing, Inc.
Respondent.

Appearances:
Leslie Paul Brody, Esquire, U. S. Department of Labor, Office of the Solicitor, Atlanta, Georgia
For the Complainant

     David E. Husnander, Pro Se, Dave’s Plumbing, Inc., Stuart, Florida
             For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

                                         DECISION AND ORDER
     Dave’s Plumbing, Inc., (Dave’s Plumbing) contests a four-item Citation and Notification

of Penalty issued to it by the Secretary of Labor (Secretary) on February 18, 2014. The Secretary
issued the Citation and Notification of Penalty following an inspection conducted by the
Occupational Safety and Health Administration (OSHA) on January 22, 2014, at a worksite
located at 1960 SE Federal Highway, Stuart, Florida. The Citation and Notification of Penalty
(Citation) alleges serious violations of 29 C.F.R. §§ 1926.1053(b)(1), 1926.1053(b)(8),
1926.1053(b)(22), and 1926.1060(a). The Secretary proposed penalties in the total amount of
$8,000.00 for the alleged violations. Dave’s Plumbing timely contested the Citation.
A hearing was held in this matter on May 30, 2014, in Port St. Lucie, Florida. The
proceedings were conducted pursuant to the Commission’s Simplified Proceedings. 1 Dave’s

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Commission Rule of Procedure, 29 C.F.R. §2200.209(f) provides that decisions in cases designated for Simplified
Proceedings are to be issued within 45 days of the date of the hearing. At the hearing, the Court allowed the parties the
opportunity, if desired, to file written post-hearing arguments within 20 days of receipt of the transcript by the Court.
Due to a clerical error, the Notice of Receipt of Transcript providing the deadline for written post-hearing submissions
was not issued to the parties until July 7, 2014. That Notice allowed the parties until July 28, 2014, to file post-hearing
written submissions. In accordance with Commission Rule of Procedure 29 C.F.R. §2200.209(f), the Chief Judge
was informed of these circumstances, and an extension of the time for issuing the decision in this matter was granted.
Plumbing filed a written post-hearing brief. The Secretary did not, advising the Court on July 30,
2014, that he would not file a post-hearing brief.
For the reasons that follow, Citation 1, Items 1, 2, 3, and 4 are affirmed and a penalty in the
total amount of $3,200.00 is assessed, as set forth herein.
Jurisdiction
At the hearing, the parties stipulated that jurisdiction of this action is conferred upon the
Commission pursuant to Section 10(c) of the Act (Tr. 11). Dave’s Plumbing also admits that at
all times relevant to this action, it was an employer engaged in a business affecting interstate
commerce within the meaning of section 3(5) of the Act, 29 U.S.C. § 652(5) (Tr. 10).
Background
Dave’s Plumbing is a plumbing company which engages in repair and residential plumbing
activities (Tr. 139-141; Prehearing Conference Order, May 22, 2014). It has been in existence for
approximately 45 years (Tr. 139). At the time of this proceeding David Husnander was owner of
Dave’s Plumbing. He testified he is retiring and his sons will be taking over the business (Tr.
142).
While driving his vehicle on the morning of January 22, 2014, an OSHA Safety and Health
Compliance Officer (CSHO) observed a ladder leaning against a building. Two employees were
standing at the base of the ladder (Tr. 18). The ladder and employees were at a jobsite where
Dave’s Plumbing was working. The conditions observed prompted the CSHO to initiate an
inspection pursuant to OSHA’s Local Emphasis Program (LEP) (Tr. 17). At the time of the
inspection at the jobsite, Dave’s Plumbing was working on converting a BlockBuster Video Store
building into an Auto Zone Store (Tr. 18). The CSHO took photographs from the vehicle once he
stopped at the jobsite. While on the jobsite, the CSHO observed that the side rails of the portable
ladder were approximately 1 to 3 inches above the upper landing surface (Tr. 21-22, 26; Exh. S-1).
After exiting the vehicle, the CSHO walked up to the fence on the jobsite, and observed
employee Brian Brower climbing the ladder with an acetylene tank in his hand. Foreman/Lead
Plumber Kenneth Black was standing at the base of the ladder with his left foot leaning on the first
rung of the ladder (Tr. 23-25; Exh. S-2). There were no barricades protecting the ladder from
accidental contact (Tr. 55; Exh. S-5). The CSHO interviewed Black who informed the CSHO he
was in charge on the jobsite and supervised Brower (Tr. 19; Exh. S-7). These were the only

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employees of Dave’s Plumbing at the site (Tr. 18-19). They were on the jobsite to install a hose
bib on the roof (Tr. 109, 123; Exh. S-7). The CSHO also interviewed Brower, who told the
CSHO he was employed as a helper, had been employed for two months, and had not received any
training regarding ladder safety (Tr. 30; Exh. S-7).
In addition to observing the ladder not extending the proper distance above the upper
landing surface, the CSHO observed the ladder was set up backwards when the employee climbed
the ladder, i.e. the climbing side of the ladder was towards the wall and not towards the outside as
it should have been (Tr. 47, 48-49, 50; Exh. S-4). The CSHO testified that after telling Black the
ladder was backwards, Black flipped it over (Tr. 50). 2
As a result of the CSHO’s inspection, on February 18, 2014, the Secretary issued to Dave’s
Plumbing one serious four-item Citation for alleged violations of the Occupational Safety and
Health Act of 1970 (Act), which gave rise to these proceedings.
The Citation
The Secretary alleges Dave’s Plumbing violated four of the OSHA standards in Subpart
X-Stairways and Ladders, of 29 C.F.R. Part 1926. The Secretary has the burden of establishing the
employer violated each 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).
Applicability of the standards, employee exposure, and employer knowledge are not
disputed. Dave’s Plumbing was onsite to install a hose bib on the roof of the building which was
under construction being converted from a Blockbuster Video Store to an Auto Zone Store (Tr. 18,
123; Exh. S-7). The standard applies to the work performed by Dave’s Plumbing at the jobsite.
Forman Black and employee Brower were working on the jobsite at the time of the
inspection (Tr. 19; Exhs. S-1, S-2, S-5). The CSHO photographed employee Brower climbing
the ladder at the time of the inspection (Tr. 25; Exhs. S-2, S-3). Employee exposure is
established.

2
The CSHO did not propose a citation for the ladder being set up backwards.
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 To establish employer knowledge of a violation the Secretary must show 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).
The testimony reveals that Black was the foreman on the jobsite (Tr. 19). As such, his
knowledge can be imputed to Dave’s Plumbing. An employer is chargeable with knowledge of
conditions which are plainly visible to its supervisory personnel. A.L. Baumgartner Construction
Inc., 16 BNA OSHC 1995, 1998 (No 92-1022, 1994). 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 that 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). Actual knowledge refers
to an awareness of the existence of the conditions allegedly in noncompliance. Omaha Paper Stock
Co., 19 OSHC 2039 (No. 01-3968, 2002).
Foreman Black was at the jobsite with his foot on the base of the ladder as employee
Brower climbed the ladder (Tr. 25; Exh. S-2). Black’s knowledge of the violative conditions is
imputed to Dave’s Plumbing.
The only element left for determination is whether the terms of the cited standards were
violated. As set forth below, the undersigned finds that they were.
Item 1: Alleged Serious Violation of § 1926.1053(b)(1)
The Secretary cited Dave’s Plumbing for a serious violation of §1926.1053(b)(1), alleging,
“On January 22, 2014, at the above addressed site, an employee was exposed to a fall hazard of
approximately 20 feet 6 inches while using an extension ladder which was not extended at least 3
feet above the upper landing surface.” (Citation). The Citation addresses the protection of
employees using a portable ladder on the jobsite. The cited standard, § 1926.1053(b)(1) provides:
(b) Use. The following requirements apply to the use of all ladders, including
job-made ladders, except as otherwise indicated:
(1) When portable ladders are used for access to an upper landing surface, the
ladder side rails shall extend at least 3 feet (.9m) 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 ladders length, then the ladder shall be secured at its top to a rigid
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 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.
The evidence adduced at the hearing shows that the ladder was a portable ladder (Tr. 22,
23; Exh. S-1, S-4). At the time of the inspection, the ladder was being used to access the roof of
the building so that employee Brower could install a hose bib on the roof (Tr. 109, 123; Exh. S-7).
Dave’s Plumbing contends the ladder was 3 feet above the upper landing surface which
was below the parapet wall at the top of the ladder (Prehearing Conference Order). The CSHO
used a measuring tape to measure the height of the ladder as it approached the top of the wall, and
determined the ladder was approximately 20 feet, 6 inches in length (Tr. 27). The CSHO
estimated that the ladder side rails extended only 1 to 3 inches above the upper landing surface (Tr.
21-22, 26). According to the CSHO, the 8 inch wide top of the parapet wall was the upper landing
surface (Tr. 80). Both Foreman Black and Brower told the CSHO the ladder did not extend 3 feet
above the upper landing surface (Tr. 31-32; Exh. S-7). Further, photographs of the ladder,
confirm that the ladder side rails did not extend at least 3 feet above the upper landing surface as
required by the standard (Exhs. S-1, S-2, S-3, S-5).
Black and Brower also testified the ladder was not secured (Tr. 37; Exh. S-7). Dave’s
Plumbing asserts the ladder was protected from displacement by Black’s foot holding it on the
bottom rung. Although it appears that Black may have been attempting to prevent the ladder from
movement, the standard requires the ladder to be secured at the top. The Secretary has established
the terms of the standard were violated in that the side rails of the ladder did not extend at least 3
feet above the upper landing surface, nor was the ladder secured at the top from displacement.
The CSHO testified that failing to place a ladder so it extends at least 3 feet above the upper
landing surface or failing to secure it properly is a serious violation because if an employee were to
fall from a ladder not properly positioned or secured, the employee could sustain bodily harm such
as multiple fractures and or death (Tr. 28). This testimony was uncontroverted. The
undersigned finds the Secretary has established Dave’s Plumbing violated the specific terms
of §1926.1053(b)(1). Therefore, Item 1, alleging a serious violation of § 1926.1053(b)(1) is
affirmed.

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Item 2: Alleged Serious Violation of § 1926.1053(b)(8)
The Secretary alleges in Item 2, “On January 22, 2014, at the above addressed site, an
employee was exposed to a fall hazard of approximately 20 feet 6 inches while using an extension
ladder set up in an active construction site that was not secured to prevent accidental
displacement.” (Citation). The cited standard, § 1926.1053(b)(8) provides:
(b) Use. The following requirements apply to the use of all ladders, including
job-made ladders, except as otherwise indicated:
(8) Ladders placed in any location where they can be displaced by work-place
activities or traffic, such as in passageways, doorways, or driveways, shall be
secured to prevent accidental displacement, or a barricade shall be used to keep the
activities or traffic away from the ladder.
The CSHO observed there was no barricade erected around the ladder, and verified that the
ladder was not secured by any means by pushing it (Tr. 34, 36; Exhs. S-1, S-2, S-5, S-7). Dave’s
Plumbing contends Black was holding the ladder and watching it (Dave’s Plumbing’s Brief, p. 1;
Prehearing Conference Order).
The jobsite was a construction site. A stucco company was on the jobsite engaged in
removing a framed scaffold erected on the north side of the building (Tr. 34). The evidence also
reveals that a doorway used by employees of the scaffolding company to enter and exit was located
approximately two to three feet from the ladder at issue here (Tr. 39; Exh. S-1, S-2, S-5). There
was no barricade between the doorway and the ladder to prevent the ladder from being hit or
otherwise displaced (Tr. 39; Exh. S-1, S-2, S-5). The CSHO testified the only thing securing the
ladder was Black’s left foot which was resting on the first rung of the ladder, with nothing securing
the top of the ladder (Tr. 35, 36). Foreman Black, when questioned by the CSHO, admitted the
ladder was not secured (Tr. 37; S-7). Although Dave’s Plumbing asserts Black was watching the
ladder and had placed his left foot on the bottom rung of the ladder to protect it from accidental
displacement, the Court does not find this argument compelling. Black did not testify this was the
purpose for his actions.
According to the CSHO, an employee climbing a ladder while it is unsecured could fall 20
feet 6 inches, sustaining bodily harm such as multiple fractures and or death, which would be
serious (Tr. 28, 37-38). This testimony was not disputed. The undersigned finds the Secretary
has established Dave’s Plumbing violated the specific terms of §1926.1053(b)(8). Therefore,
Item 2 alleging a serious violation of §1926.1053(b)(8) is affirmed.
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 Item 3: Alleged Serious Violation of § 1926.1053(b)(22)
The Secretary alleges in Item 3, “On January 22, 2014, at the above addressed site, an
employee was exposed to a fall hazard of approximately 20 feet 6 inches while using an extension
ladder and carrying an acetylene tank that could cause him to lose his balance and fall.”
(Citation). The cited standard, § 1926.1053(b)(22) provides:
(b) Use. The following requirements apply to the use of all ladders, including
job-made ladders, except as otherwise indicated:
(22) An employee shall not carry any object or load that could cause the employee
to lose balance and fall.
The CSHO observed employee Brower carrying an acetylene tank up the ladder in his left
hand (Tr. 42, 44; Exh. S-3). Brower’s left hand was not holding any part of the ladder (Tr. 42-42;
Exh. S-2, S-3). According to the CSHO, an employee carrying something up a ladder could lose
his balance and fall. The CSHO testified employees should have three points of contact (i.e. both
feet and one hand, or both hands and one foot) with the ladder at all times (Tr. 40, 44). Dave’s
Plumbing admits its employee carried the tank up the ladder, but contends the CSHO told the
employee to come down the ladder and bring the tank with him (Tr. 143; Dave’s Plumbing’s Brief,
p.1). The CSHO denies telling Brower to come down the ladder with the acetylene tank (Tr. 43,
44, 45). Black and Brower each testified the CSHO told Brower to bring the acetylene tank with
him down the ladder (Tr. 119, 126). Brower testified the CSHO asked him to bring it down
because he wanted to see what was in the tank (Tr. 119). In addition, he testified the ladder was
not secured when he came down (Tr. 120).
Regardless of whether the CSHO told Brower to bring the acetylene tank down the ladder,
the standard was violated when Brower went up the ladder carrying the acetylene tank which could
cause him to lose his balance and fall. It is not necessary for the Court to make a finding on the
CSHO’s actions as alleged by Dave’s Plumbing. Because Dave’s Plumbing admits its employee
climbed the ladder with the acetylene tank in hand, the Court must find the Secretary has
established the terms of the standard were violated. As this was the one remaining element to be
proven, the Secretary has established a violation of this standard.
According to the CSHO, an employee climbing a ladder while it is unsecured could fall 20
feet 6 inches, sustaining serious bodily harm such as multiple fractures and or death (Tr. 28,
37-38). The undersigned finds the Secretary has established Dave’s Plumbing violated the

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specific terms of §1926.1053(b)(22). Therefore, Item 3 alleging a serious violation of §
1926.1053(b)(22) is affirmed.
Item 4: Alleged Serious Violation of § 1926.1060(a)
The Secretary alleges in Item 4, “On January 22, 2014, at the above addressed site,
employees using ladders to perform their work were not provided with a training program for them
to recognize the hazards associated with ladders.” (Citation and Notification of Penalty). The
standard found at § 1926.1060(a) provides:
The employer shall provide a training program for each employee using ladders
and stairways, as necessary. The program shall enable each employee to
recognize hazards related to ladders and stairways, and shall train each employee in
the procedures to be followed to minimize these hazards.

   The CSHO interviewed both the foreman and the employee who were onsite. Foreman

Black told the CSHO he had been trained on ladder safety (Tr. 61; S-7). Brower told the CSHO
he had not received ladder training or attended safety meetings (Tr. 61; S-7). At the time of the
inspection, Brower had been working for the company only two months (Tr. 61; S-7). He
testified he did not understand what he was being asked when asked about safety meetings, and he
had never really been to a safety meeting (Tr. 109). Despite Brower’s statement that he had not
received ladder training or attended safety meetings, he signed safety meeting attendance forms
(Tr. 62; Exh. S-6). According to Brower, he never read the papers and thought he had to sign the
papers for his checks (Tr. 111). Having observed Brower’s forthright demeanor during the
hearing, the Court finds Brower’s testimony credible.
The CSHO testified that Dave’s Plumbing’s owner, Husnander, told him Dave’s Plumbing
employees had received some training, but since Brower was a new employee he had not received
all of the training, and no training for ladders specifically (Tr. 64). Husnander did not dispute this
at the hearing. However, evidence of what Dave’s Plumbing purports to be its ladder training
program was admitted into evidence at the hearing as exhibits R-2, R-3 and S-6. The Court
reviewed these exhibits and finds they fail to establish a ladder safety training program for the time
period of the inspection, and fail to establish ladder training for Brower. The purported evidence
relating to ladder safety consists of Weekly Safety Meetings held on June 14, 2010, April 25, 2011,
and March 12, 2012, on Ladder Safety (Exh. R-4); a Weekly Safety Meeting held on January 6,
2014, on Fall Protection which included the safety reminder “Don’t stretch and overreach from a
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ladder. Climb down and reposition the ladder so you can reach safely.” (Exhs. R-3, S-6); and a
Weekly Safety Meeting on April 14, 2014, on Ladder Safety (Exh. R-3).
The Court finds Brower’s testimony he received no ladder safety and he did not read the
sign-in sheets he signed when he received his paychecks to be credible. The Court further finds
the CSHO’s uncontroverted testimony that owner Husnander admitted Brower had not received
ladder training, also to be credible. Therefore, the Secretary has established Dave’s Plumbing
failed to comply with the terms of this standard.
According to the CSHO the failure to train Dave’s Plumbing’s employees regarding ladder
safety exposes them to the risk of serious injury or death should an employee fall 20 feet 6 inches
from the ladder, and as such is a serious violation (Tr. 55-56). The Court finds the Secretary has
established Dave’s Plumbing violated the specific terms of §1926.1060(a). Therefore, Item 4
alleging a serious violation of §1926.1060(a) is affirmed as serious.
Penalty Determination
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 [OSH] 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. OSH Act § 17(j), 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 OSH Act,
29 U. S. C. § 666(j), 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).
Dave’s Plumbing has fewer than 25 employees (Tr. 29). Due to its small size the CSHO
applied a 60% reduction to the proposed penalty. Because Dave’s Plumbing had not been
inspected within the last five years, no reduction for history was applied (Tr. 29-30). The CSHO

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did not apply a reduction in the penalty for good faith because Dave’s Plumbing did not have a
comprehensive safety and health program, and did not train Brower (Tr. 30). As to the gravity of
the violations, the CSHO testified that the violations were rated as high in severity because falling
20 feet 6 inches to the ground could cause serious injuries resulting in multiple fractures and/or
death (Tr. 28). The violations were rated as lesser probability because only one employee was
exposed for less than one minute (Tr. 28-29). The Court agrees that a high gravity is appropriate.
However, the extremely short duration of exposure for only one employee mitigates a high
penalty. Considering all of the statutory factors, it is determined that a penalty of $800.00 each is
appropriate for Items 1, 2, 3, and 4. The Court therefore assesses a penalty in the total amount of
$3,200.00 for the Citation issued to Dave’s Plumbing.
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. Citation 1, Item 1, alleging a violation of § 1926.1053(b)(1) is affirmed; and a penalty
of $800.00 is assessed;
2. Citation 1, Item 2, alleging a violation of § 1926.1053(b)(8) is affirmed; and a penalty
of $800.00 is assessed;
3. Citation 1, Item 3, alleging a violation of § 1926.1053(b)(22) is affirmed; and a penalty
of $800.00 is assessed; and
4. Citation 1, Item 4, alleging a violation of § 1926.1060(a) is affirmed; and a penalty of
$800.00 is assessed.

SO ORDERED.
/s/

                                          SHARON D. CALHOUN
                                          Judge

Date: August 15, 2014
Atlanta, Georgia

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