Nicole Blissenbach, Commissioner, Department of Labor and Industry, State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1272

Nicole Blissenbach, Commissioner, Department of Labor
and Industry, State of Minnesota,
Respondent,

vs.

Mindak Commercial Construction, LLC,
Relator.

Filed July 7, 2025
Affirmed
Bentley, Judge

Occupational Safety and Health Review Board
File No. 82-1901-37716

Keith Ellison, Attorney General, Bradley D. Simon, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Aaron A. Dean, Madeline E. Davis, Spencer Fane LLP, Minneapolis, Minnesota (for
relator)

Considered and decided by Larson, Presiding Judge; Bentley, Judge; and Kirk,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BENTLEY, Judge
Relator Mindak Commercial Construction LLC challenges a citation it received for
violating regulations requiring employees to use fall protection at a construction site. An
administrative-law judge (ALJ) upheld the citation, and the Minnesota Occupational Safety
and Health Review Board (the board) affirmed the ALJ’s decision. On a petition for a writ
of certiorari to this court, Mindak maintains that (1) substantial evidence does not support
the board’s determination that Mindak had constructive knowledge of the violation;
(2) substantial evidence does not support the board’s determination that Mindak did not
establish an employee misconduct defense; and (3) the board erred in concluding that the
two “citation items” included in the citation are not duplicative citations. We affirm.
FACTS
Mindak is a framing contractor that manufactures and installs panels for multi-
family residential construction projects. In January 2021, Mindak was working as a
subcontractor on a project in Woodbury (the Woodbury Project), which involved the
construction of two new apartment buildings on a 40-acre site. Mindak had about 25
employees working at the site.
The Minnesota Department of Labor and Industry (MnOSHA)
1 received an
anonymous complaint regarding fall protection concerns at the Woodbury Project site. In
response to the complaint, MnOSHA assigned a safety investigator to initiate an inspection.

1 The respondent on appeal is the commissioner of labor and industry. We refer to the
respondent as MnOSHA throughout the opinion for the sake of clarity.
3
At the inspection on January 8, 2021, the investigator photographed Mindak employees
working on the roof of a five-story building. The roof had a partial guardrail that did not
surround the entire working area. One photograph showed that a Mindak employee,
identified as Contact 3 in the inspection report, was not using a personal fall arrest system
(i.e., a harness), nor any other fall protection, near an unprotected edge of the roof.
During the inspection, the investigator spoke with Contact 3 and two Mindak
supervisors, identified as Contact 2 and Contact 6. Contact 3 spoke only Spanish, so
Contact 2, who spoke both Spanish and English, translated between Contact 3 and the
investigator. According to the inspection report, Contact 3 stated that he had been on the
roof for seven hours that day and he “did not wear fall protection due to the railings being
up.” Contact 2 and Contact 6 told the investigator that they believed that Contact 3 was not
required to wear fall protection because the railings sufficed. Contact 6 also stated that he
was on the roof an hour prior to the investigator’s arrival and that the railing system had
not changed in that time.
MnOSHA issued a citation to Mindak on February 5, 2021. The citation contained
two items— items 001a and 001b—both of which were classified as a “serious” violation.
Item 001a was issued for a violation of a regulation which provides that “[e]ach employee
on a walking/working surface . . . with an unprotected side or edge which is 6 feet (1.8 m)
or more above a lower level shall be protected from falling by the use of guardrail systems,
safety net systems, or personal fall arrest systems.” 29 C.F.R. § 1926.501(b)(1) (2024).
Item 001b was issued for a violation of a regulation which provides that “[e]ach employee
engaged in residential construction activities 6 feet (1.8 m) or more above lower levels
4
shall be protected by guardrail systems, safety net system, or personal fall arrest system[.]”
29 C.F.R. § 1926.501(b)(13) (2024). The citation calculated a $1,400 penalty for item
001a, which was later corrected to $700. 2 There was no penalty for item 001b. Neither
citation item required abatement.
The parties appeared for a hearing on the citation before an ALJ. MnOSHA’s
exhibits included the inspection report and the investigator’s handwritten notes from the
inspection. MnOSHA also called its compliance supervisor to testify to the investigator’s
inspection and the bases for the citation issued to Mindak. Neither the safety investigator
who performed the inspection nor the employees he interviewed testified at the hearing.
Mindak presented evidence on its training and safety initiatives. Mindak called its
head of human resources, who is also tasked with overseeing safety at Mindak. She testified
to Mindak’s extensive safety training, including new-hire training, site-specific training at
the Woodbury Project, a weeklong campaign focused on fall protection, weekly “toolbox
talks,” annual safety meetings, surprise audits of job sites, and a Workplace Accident and
Injury Reduction Program. She also testified that Mindak achieved Level 2 status in the
ABC/MnOSHA Partnership Program.

2 The ALJ determined that Mindak should have received good-faith credit because of its
status as a Level 2 ABC/MnOSHA partner, and both parties agreed the penalty should be
corrected to $700. Through the ABC/MnOSHA Partnership, businesses can earn incentives
if they demonstrate “implementation of effective safety and health programs.” To become
a member, a business must first be reviewed by MnOSHA to ensure that they meet certain
safety requirements. A Level 2 partner has good-faith credits that may be applied to reduce
any penalties it receives from MnOSHA.
5
Following the hearing, the ALJ issued its findings of fact, conclusions of law, and
order. The ALJ concluded that MnOSHA proved, by a preponderance of the evidence, all
the elements to establish that Mindak violated an OSHA standard.3 The ALJ also concluded
that Mindak had not proven its affirmative defense that the violation was the result of
unpreventable employee misconduct. The ALJ affirmed the citation.
Mindak appealed the ALJ’s decision to the board. In its appeal, Mindak challenged
the ALJ’s findings and conclusions that Mindak had constructive knowledge of the
violative condition, that Mindak failed to prove an employee-misconduct defense, and that
the citation items were not duplicative. The board, in a 14-page decision containing its own
findings of fact and conclusions of law, affirmed the decision of the ALJ.
This certiorari appeal follows.
DECISION
When reviewing agency decisions before this court on a writ of certiorari, we will
reverse “only when they reflect an error of law, the findings are arbitrary and capricious,
or the findings are unsupported by substantial evidence.” Cable Commc’ns Bd. v. Nor-West
Cable Commc’ns P’ship, 356 N.W.2d 658 , 668 (Minn. 1984); see also Minn. Stat.
§§ 14.63, .69 (2024) (describing our review on certiorari appeal from a decision in a
contested case). “[T]he party challenging the agency’s decision has the burden of proof on
appeal.” West McDonald Lake Ass’n v. Minn. Dep’t of Nat. Res., 899 N.W.2d 832, 837
(Minn. App. 2017) (quotation omitted), rev. denied (Minn. Sep. 19, 2017).

3 MnOSHA has incorporated and adopted by reference the federal OSHA standards. See
Minn. R. 5205.0010, subp. 1 (2023).
6
Minnesota caselaw has defined substantial evidence as: “(1) such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion; (2) more than a
scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the
evidence considered in its entirety.” Cannon v. Minneapolis Police Dep’t, 783 N.W.2d
182, 189 (Minn. App. 2010) (quotation omitted). We examine the entire record when
reviewing whether an agency decision is supported by substantial evidence. Nor-West
Cable, 365 N.W.2d at 668-69. “If an administrative agency engages in reasoned
decisionmaking, the court will affirm, even though it may have reached a different
conclusion had it been the factfinder.” Id. at 669.
The Minnesota Occupational Safety and Health Act of 1973 (the Act) is contained
in Minnesota Statutes section 182.65 to 182.678 (2024). The purpose of the Act is “to
assure so far as possible every worker in the state of Minnesota safe and healthful working
conditions and to preserve our human resources.” Minn. Stat. § 182.65, subd. 2(b). Under
the Act, the commissioner of labor and industry is authorized to “promulgate and enforce
mandatory occupational safety and health standards applicable to employers and
employees in the state of Minnesota.” Id., subd. 2(b)(1). Minnesota’s rules are “amended
by incorporating and adopting by reference, and thereby making a part thereof, Title 29 of
the Code of Federal Regulations as listed in subparts 1a to 7.” Minn. R. 5205.0010, subp. 1
(2023).
Both the board and the parties rely on nonprecedential administrative decisions that
are not binding on this court to establish the legal standards applicable to this case. Because
7
neither party challenges the legal standards set forth by the board, we apply those standards
on appeal.
I
Mindak first argues that the board’s decision that Mindak had constructive
knowledge of the violative condition is unsupported by substantial evidence.
The board explained in its order that,
“[t]o establish that an employer has violated an OSHA
standard, the Department must prove by a preponderance of the
evidence that: (1) the cited standard applies; (2) the
requirements of the cited standard were not met; (3) an
employee had access to or was exposed to the violative
condition; and (4) the employer [a] knew, or [b] with the
exercise of reasonable diligence, could have known of the
violative condition.”

(Quoting Dirt Merch., Inc., OAH Docket No. 68-1901-32482, 2016 WL 1399599, at *10
(Mar. 3, 2016)). The parties do not dispute that the first three elements are supported by
substantial evidence. On appeal, Mindak challenges only the fourth element— Mindak’s
knowledge of the violative condition.
The board further explained that “whether an employer with the exercise of
reasonable diligence could have known of the violative condition, is known as
‘constructive knowledge.’” And one way that “constructive knowledge can be established”
is by showing that the violative condition was “readily apparent to anyone who looked.”
The board determined that Mindak had constructive knowledge of the violative
condition because the failure to use appropriate fall protection was “readily apparent.” This
determination is supported by the record. The inspection report noted that Contact 3 stated
8
he was on the roof for seven hours by the time the investigator arrived at the Woodbury
Project site and that he did not wear fall protection. Contact 3’s supervisor, Contact 6,
stated that he had also been on the roof an hour prior to the investigator’s arrival. The board
reasoned that this meant the supervisor was on the roof with Contact 3 while he was not
wearing fall protection and could have noticed. Additionally, the inspector took several
photos of Contact 3 on the roof without adequate fall protection, showing that the violation
could be seen by anyone looking up on the roof. A Mindak witness testified that she could
see by viewing the photos that Contact 3 was not wearing adequate fall protection while
on the roof. MnOSHA’s compliance supervisor also testified that the inspection was
prompted by an anonymous complaint about fall protection concerns at the Woodbury
Project site.
Mindak argues that the board should not have relied on the statements contained in
the MnOSHA inspection report in making its decision because they are hearsay. We note
that Mindak did not object to the admissibility of hearsay evidence at the hearing before
the ALJ. But in any event, hearsay is not per se inadmissible in a hearing before an ALJ.
“The [ALJ] may admit all evidence which possesses probative value, including hearsay, if
it is the type of evidence on which reasonable, prudent persons are accustomed to rely in
the conduct of their serious affairs.” Minn. R. 1400.7300, subp. 1 (2023) (emphasis added).
Mindak argues that, even if they are admissible, the employee statements are
unreliable because they constitute two levels of hearsay, and the b oard should not have
based its decision solely on hearsay. “The general rule is that in the absence of a special
statute, an administrative agency cannot, at least over objection, rest its findings of fact
9
solely upon hearsay evidence which is inadmissible in a judicial proceeding.” See State ex
rel. Indep. Sch. Dist. No. 276 v. Dep’t of Ed., 256 N.W.2d 619, 627 (Minn. 1977) (emphasis
added) (quotation omitted). With respect to the readily apparent inquiry, however, the
board did not solely rely on the challenged hearsay statements in the inspection report. It
also relied on the photographs taken during the inspection and the anonymous complaint.
These pieces of evidence corroborate the employees’ statements. Together, they are
sufficient to satisfy us that substantial evidence supports the board’s decision that the
violation was readily apparent. We discern no basis to disturb the board’s decision that
Mindak had constructive knowledge of the violative condition.4
II
Mindak next argues that the board’s decision on the employee-misconduct defense
is unsupported by substantial evidence. We disagree.
The board explained that the “unpreventable employee misconduct defense” shields
an employer from liability for workplace safety violations “if the employer: (a) established
a work rule to prevent the reckless behavior or unsafe condition from occurring;
(b) adequately communicated the rule to its employees; (c) took steps to discover incidents

4 The board also explained in its order that construct ive knowledge can be established by
showing that an employer did not “implement an adequate safety program.” The board
found that Mindak’s safety program was inadequate as it relates to the fall protection rules
violated in this case and thus identified a second ground for constructive knowledge here.
Because we conclude that Mindak had constructive knowledge on the basis that the
violative condition was readily apparent, we do not consider whether the board’s safety-
program conclusion is supported by substantial evidence.
10
of noncompliance; and (d) effectively enforced the rules whenever employees transgressed
them.”
The board determined that Mindak failed to establish its employee-misconduct
defense because the record did not show Mindak satisfied the second element —that it
adequately communicated the violated rule to its employees. The violated rules in this case
require each employee working on “an unprotected side or edge which is 6 feet (1.8 m) or
more above a lower level” to be “protected from falling by the use of guardrail systems,
safety net systems, or personal fall arrest systems.” 29 C.F.R. § 1926.501(b)(1); see also
29 C.F.R. § 1926.501(b)(13). Contact 3 was more than six feet above the ground without
a harness or other personal arrest system and, although the roof had a partial guardrail,
Contact 3 was in an area without a guardrail covering the edge.
Mindak points to the extensive record evidence of training materials on these rules
to support its argument that it adequately communicate d the rules to its employees. But
Mindak does not point us to any evidence of training materials that addressed situations,
like this one, where guardrails only partially protect employees from falls, such that the
employees must also wear a harness. Our search of the record revealed none. Instead,
Mindak’s training materials largely describe fall protection as guardrails or harnesses. We
therefore conclude that Mindak’s argument is not supported by the record.
Additionally, the record supports the ALJ’s finding, as adopted by the board, that
the high volume of training materials supports the conclusion that Mindak did not
adequately communicate the violated rules to its employees. The Mindak employee
handbook requires employees to report any violations they see and provides that employees
11
will be disciplined if they fail to do so. The record does not contain evidence that any
employee reported Contact 3’s violation. The board found that the trainings on the
reporting requirement support the conclusion that the employees were not adequately
trained on the violated rule because, if they were, they likely would have reported Contact 3
for not wearing adequate fall protection. Moreover, two Mindak supervisors told the
investigator that Contact 3 was not required to wear fall protection because they thought
the guardrails were sufficient. That further supports the board’s conclusion that the training
materials did not adequately communicate the violated rules to Mindak employees,
including supervisors.
Because substantial evidence in the record supports the board’s determination that
Mindak did not establish that it adequately communicated the violated rule to its
employees, Mindak’s challenge to the board’s determination on this issue fails.
III
Finally, Mindak challenges the board’s determination that citation items 001a and
001b are not duplicative.
The parties agree that MnOSHA violations may be found to be duplicative where
they “require the same abatement measures, or where abatement of one citation item will
necessarily result in abatement of the other item as well, ” and that this may result in a
vacation of the duplicative citation in some cases. Mindak cites no legal authority for the
position that vacation of a second citation item is required where there is no abatement
ordered on either citation item and where no penalty was imposed on the second citation
item. We therefore construe Mindak’s argument as a substantial-evidence challenge. “[A]
12
substantial-evidence analysis requires us to determine whether the agency has adequately
explained how it derived its conclusion and whether that conclusion is reasonable on the
basis of the record.” In re NorthMet Project Permit to Mine Application, 959 N.W.2d 731,
749 (Minn. 2021).
Here, MnOSHA issued one citation to Mindak, which was made up of two citation
items grouped together. The first item, 001a, cited Mindak for an employee working on a
surface with an unprotected edge six or more feet above the ground without fall protection.
See 29 C.F.R. § 1926.501(b)(1). The second item, 001b, related to a similar requirement
that is specific to residential construction. See id. (b)(13). The board explained that “[i]tem
001b is not itself a citation, but rather merely identifies that the violation for item 001a
occurred on residential construction.” The record supports the board’s explanation.
Although it may logically follow that abatement of item 001a would necessarily result in
abatement of item 001b, neither of the grouped citation items issued to Mindak in this case
required abatement, and MnOSHA did not impose a separate penalty for citation item 001b.
Because the board explained its reasons for determining that the citations were not
duplicative, and that explanation is “reasonable on the basis of the record,” see In re
NorthMet, 959 N.W.2d at 749, we see no grounds for reversal.
Affirmed.