      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

POTELCO, INC.,
                                                  DIVISION ONE


                      Appellant,                  No. 73226-9-1


                 v.                               PUBLISHED OPINION

WASHINGTON STATE
DEPARTMENT OF LABOR AND
INDUSTRIES,

                      Respondent.                 FILED: June 13, 2016



      Dwyer, J. — Poteico, Inc., appeals two citations issued by the Department

of Labor and Industries pursuant to the Washington Industrial Safety and Health

Act of 19731 (WISHA). Because substantial evidence supports the Board of

Industrial Insurance Appeals' findings that Poteico failed to establish an

equipotential zone, that this failure was not the result of unpreventable employee

misconduct, and that Poteico failed to enforce its accident prevention program in

a manner that was effective in practice, we affirm.

                                          I


       Poteico is a utility contractor that installs and maintains high voltage

transmission lines. In March 2011, Poteico was working on a de-energized high

voltage line in the Sedro-Woolley area. For approximately 25 miles, a second


       1Ch. 49.17 RCW.
No. 73226-9-1/2



high voltage line, about 30 feet away, ran parallel to the de-energized line. The
proximity of the lines made it possible for the de-energized line to become
charged by electricity from the live line by induction. The induction hazard was

especially great because the lines ran parallel for such a great distance.
      To reduce the induction hazard, Poteico planned to "cut air" into the de-

energized line before work began. This would involve breaking the de-energized
line into sections to reduce the length of line that could become energized

through induction.

       The Department's safety standards for electrical workers require the
creation ofan equipotential zone (EPZ) before working on de-energized
transmission lines. WAC 296-45-345(3). An EPZ protects workers from

hazardous differences in electrical potential, thereby protecting them from

electrocution and death. Potelco's accident prevention program also required

that workers establish an EPZ.

       Gavin Williams was the foreperson ofthe Sedro-Woolley project crew. As
the foreperson, Williams was responsible for enforcing safety rules at the work
site. Poteico authorized him to stop work and to discipline employees who broke
safety rules. In fact, Williams had the authority to terminate employees for safety
violations.

       On the first day of the project, Poteico assigned the crew to work on a
section of the line near two transmission poles. Poteico made no arrangements

to notify the crew when air had been cut into the de-energized line. The crew
 was not told to await notification before beginning work.

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No. 73226-9-1/3



       The crew did not create an EPZ before beginning work on the line.

Williams knew that the crew had not established an EPZ. Wanting to impress his

superiors and feeling pressured to work quickly, Williams nevertheless allowed

work to begin.

        Poteico did not cut air into the de-energized transmission line before work

began. The line became charged with dangerous electrical energy. As crew
members began to lower the line to the ground, Williams tried, but failed, to
secure the line. When he could not capture it, Brent Murphy, a crew member,

tried to grab it. Upon touching the line, Murphy suffered serious electrical shock
injuries.

        The Department cited Poteico for failing to create an EPZ and for failing to
effectively enforce its accident prevention program.2 The Department classified
these violations as serious. Poteico appealed to the Board. Poteico argued that
its failure to create an EPZ resulted from unpreventable employee misconduct,

that it effectively enforced its safety program in practice, and that the cited
violations were not serious because it could not have known of the violations,

even in the exercise of reasonable diligence.

        At the subsequent hearing, crew members from the Sedro-Woolley project
testified about Potelco's safety program. They explained that a foreperson or
general foreperson would usually warn workers of impending site inspections,
which allowed employees to avoid being caught breaking safety rules. Poteico

         2The citation for failure to establish an EPZ was issued as citation 1-2, a violation of
 WAC 296-45-345(3). The citation for failure to effectively enforce an accident prevention program
 was issued as citation 1-1b, a violation of WAC 296-800-14025.
No. 73226-9-1/4



workers routinely violated safety regulations, but the company rarely disciplined

employees, even when a foreperson observed the violations. A Poteico safety
coordinator also testified that Poteico did not usually document verbal warnings

issued to employees, even though failure to do so violated Potelco's written

disciplinary policy and undermined the prescribed progressive discipline scheme.
       The Board rejected Potelco's unpreventable employee misconduct

defense to the EPZ violation. It found that Poteico did not take adequate steps to

discover and correct safety violations. The Board also found that Poteico did not
effectively enforce its written safety program in practice. Likewise, relative to the
second citation, the Board found that Poteico did not effectively enforce its

accident prevention program. Finally, the Board determined that the violations
were properly classified as serious, thereby rejecting Potelco's assertion that it
did not know (and could not have known) of the violations.
        Poteico appealed to the superior court. The superior court affirmed,
finding that substantial evidence supported the Board's decision.
                                           II


       Poteico contends that the citation it received for failing to establish an EPZ

should be vacated because the violation was the result of unpreventable and

 unforeseeable employee misconduct. This is so, Poteico asserts, because
 Williams and his crew ignored specific instructions from Poteico when they began
 work without first establishing an EPZ. We disagree.

        WISHA governs our review of a Board decision. RCW 49.17.150(1). We
 review the Board's decision based on the record that was before the Board.

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No. 73226-9-1/5



Mowat Constr. Co. v. Dep't of Labor & Indus.. 148 Wn. App. 920, 925, 201 P.3d

407 (2009). The Board's findings of fact are conclusive if they are supported by

substantial evidence when viewed in light of the record as a whole. RCW

49.17.150(1); Mowat Constr., 148 Wn. App. at 925. Substantial evidence is

evidence sufficient to persuade a fair-minded person of the truth of the matter

asserted. Mowat Constr., 148 Wn. App. at 925. We do not reweigh the evidence

on appeal. Zavala v. Twin City Foods. 185 Wn. App. 838, 867, 343 P.3d 761
(2015). Instead, we view this evidence in the light most favorable to the party
that prevailed before the Board—here, the Department. Frank Coluccio Constr.
Co. v. Dep't of Labor &Indus., 181 Wn. App. 25, 35, 329 P.3d 91 (2014). If we

determine that substantial evidence supports the Board's factual findings, we

then decide if those findings support the Board's conclusions of law. J.E. Dunn
Nw.v. Dep't of Labor & Indus., 139 Wn. App. 35, 42, 156 P.3d 250 (2007).

        WAC 296-45-345(3) requires that workers create an EPZ before
grounding and performing work on transmission and distribution lines.3
        The Department may not issue a citation if unpreventable employee
misconduct caused the violation. RCW 49.17.120(5)(a). To establish the

affirmative defense of unpreventable employee misconduct, an employer must

show:

                (i) Athorough safety program, including work rules, training,
        and equipment designed to prevent the violation;
                (ii) Adequate communication ofthese rules to employees;

        3"Temporary protective grounds shall be placed atsuch locations and arranged in such a
 manner as to prevent each employee from being exposed to hazardous differences in electrical
 potential." WAC 296-45-345(3).

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No. 73226-9-1/6



               (iii) Steps to discover and correct violations of its safety
       rules; and
               (iv) Effective enforcement of its safety program as written in
       practice and not just in theory.


RCW 49.17.120(5)(a). An employer asserting the defense must prove each

element. Wash. Cedar & Supply Co. v. Dep't of Labor & Indus., 119 Wn. App.

906, 911, 83 P.3d 1012 (2004). Furthermore, the "evidence must support the

employer's assertion that the employees' misconduct was an isolated occurrence
and was not foreseeable." BD Roofing. Inc. v. Dep't of Labor & Indus.. 139 Wn.

App. 98, 111, 161 P.3d 387 (2007).

       Potelco's argument on appeal focuses on the third and fourth elements of
the defense. Poteico first asserts that, contrary to the Board's finding, it took

adequate steps to discover and correct safety violations.
       An employer's steps to discover and correct safety violations are
inadequate when unannounced inspections are infrequent and workers caught
violating the rules are not consistently disciplined or penalized, because such
steps are insufficient to deter future violations. See Legacy Roofing Inc. v. Dep't
of Labor& Indus., 129 Wn. App. 356, 365, 119 P.3d 366 (2005).

       Surprise inspections by Poteico safety inspectors were infrequent. Crews
were forewarned of the overwhelming majority—up to 80 percent—of Potelco's

"unannounced" safety inspections.4 With advance warning, employees were


       4 Poteico contends that, if work crews appear to have been forewarned about impending
inspections, inspectors respond by conducting inspections in different areas. However, Poteico
cites no company policy mandating such a response, nor does it cite any data or reports
documenting such changes. Rather, Poteico relies solely on the testimony ofcompany safety
No. 73226-9-1/7



often able to correct safety violations before inspectors arrived. Consequently,

inspectors did not detect, and did not impose discipline for, these violations.

       Furthermore, even when Poteico employees were caught violating safety

rules, they were not consistently disciplined or penalized. Potelco's progressive

disciplinary policy required that all discipline—including verbal warnings—be

documented in writing. Nevertheless, Poteico safety coordinators admitted that

Poteico rarely documented verbal warnings. Thus, an employee could receive
numerous verbal warnings, yet incur no progressive discipline for repeating the

same violation.

       Potelco's steps to discover and correctviolations of its safety rules were

insufficient to deter future violations. Its practices "created an environmentwhere

Potelco's employees readily ignored some safety rules to perform work faster."
Indeed, Poteico employees testified that they routinely saw coworkers break
safety rules, yet never be disciplined. In the two years prior to March 2011,
Poteico conducted over 1,000 safety audits, yet there is no evidence that a single

audit resulted in employee discipline. Such an atmosphere renders future

violations foreseeable.

        Because Poteico employees were forewarned ofthe majority of safety
inspections and Poteico failed to enforce its disciplinary policy, substantial
evidence supports the Board's finding that Poteico failed to take adequate steps

to discover and correct violations of its safety rules.

coordinator George Bellos, who explained that, if he hears crews are forewarned that he is in the
area, he might choose to move to a new area. Bellos referenced no company policy compelling
him to make such an adjustment, nor did he state that othersafety inspectors act similarly.

                                              -7
No. 73226-9-1/8



       Poteico next asserts that, contrary to the Board's finding, it effectively

enforced its written safety program in practice.

        It is not enough for an employer to show the existence of "a good paper

program." BD Roofing, 139 Wn. App. at 113. Rather, the employer must prove

the "'[ejffective enforcement of its safety program . . . in practice and not just in
theory.'" BD Roofing, 139 Wn. App. at 113 (alterations in original) (quoting RCW
49.17.120(5)).

        When a supervisor is involved in a violation, "the proof of unpreventable
employee misconduct is more rigorous and the defense is more difficult to
establish since it is the supervisor's duty to protect the safety of employees under
his supervision." Sec'v of Labor v. Archer-W. Contractors Ltd., 15 BNA OSHC
1013, at *5 (No. 87-1067, 1991). "[I]n cases involving negligent behavior by a
supervisor or foreman which results in dangerous risks to employees under his or
her supervision, such fact raises an inference of lax enforcement and/or
communication ofthe employer's safety policy." Brock v. L.E. Myers Co., 818
F.2d 1270, 1277 (6th Cir. 1987). Supervisor participation in orfailure to enforce
a safety rule weighs against the defense of unpreventable employee misconduct.
See, e.g., In re Jornada Roofing 1. Inc., 2010 WL 1170616 (Wash. Bd. Ind. Ins.

App.); In re C. Walter Smith Roofing Contractors. Inc., 1998 WL 718189 (Wash.
 Bd. Ind. Ins. App.).5


         5We consider the Board's significant, published decisions as nonbinding, persuasive
 authority. Srr rtep't of Labor &Indus, v. Shirley. 171 Wn. App. 870, 887-88, 288 P.3d 390
 (2012) (discussing two published Board decisions in support of legal analysis). Because we find
 the cited principles sound, we apply them herein.

                                               -8-
No. 73226-9-1/9



       The same evidence that supports the Board's finding that Poteico failed to

take adequate steps to discover and correct safety violations also supports its

finding that Poteico failed to effectively enforce its written safety program in

practice. This finding is further supported by evidence of Williams' participation

in the violation. Williams was empowered with supervisory authority.

Specifically, he had the power to stop work, as well as to discipline—and even

terminate—employees who violated safety rules. Despite his authoritative

position, Williams failed to ensure that his crew established an EPZ before
beginning work on the transmission line. Indeed, knowing that no EPZ had been
established, Williams himself actively participated in the work. Williams'

involvement raises an inference of "lax enforcement and/or communication" of

Potelco's safety policy. Moreover, the combination of Potelco's lax enforcement
of its safety rules and Williams' perception of pressure to work quickly made this
violation foreseeable.

       Substantial evidence supports the Board's findings that Poteico did not

take adequate steps to discover and correct violations of its safety rules and that
it did not effectively enforce its written safety program in practice. These findings
support the Board's determination that Potelco's failure to establish an EPZ was
not the result of unpreventable employee misconduct, and that Poteico therefore
violated WAC 296-45-345(3).

                                           Ill


        Poteico next contends that the citation it received for failing to effectively

establish, supervise, and enforce its accident prevention program in practice

                                          -9-
No. 73226-9-1/10



should be vacated. This is so, Poteico asserts, because there is no substantial

evidence that its accident prevention program is deficient, and because the

evidence it offered as proof of its unpreventable employee misconduct defense

also supports a finding that it effectively enforces its accident prevention program

in practice. We disagree.

         Employers must "[establish, supervise, and enforce [an] accident

prevention program in a manner that is effective in practice." WAC 296-800-
14025.

         In support of their respective positions regarding this violation, both parties
repeat the arguments they advanced concerning the unpreventable employee
misconduct defense. As discussed previously, substantial evidence supports the
Board's finding that Potelco's failure to establish an EPZ was not the result of
unpreventable employee misconduct—partially because Poteico failed to
effectively enforce its written safety program in practice.
         Given that Poteico again advances the same unpersuasive arguments, we

conclude that substantial evidence supports the Board's finding that Poteico

failed to effectively enforce its accident prevention program in practice. This
finding supports the Board's determination that Poteico violated WAC 296-800-
14025.

                                            IV


         Poteico next contends that both citations were inappropriately designated

 as serious. This is so, Poteico asserts, because Williams and his crew acted

 unforeseeably when they disregarded Potelco's repeated warnings regarding
                                          -10-
No. 73226-9-1/11



induced voltage hazards and instructions to build an EPZ. We disagree.

       To sustain a serious violation of a WISHA safety regulation, there must be

"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

workplace, unless the employer did not, andcould not with the exercise of

reasonable diligence, know of the presence of the violation." RCW 49.17.180(6)
(emphasis added). Constructive knowledge may be proved through evidence
that a violation was in plain view. See BD Roofing. 139 Wn. App. at 109-10.

Such knowledge is established where the violation was "readily observable or in
a conspicuous location in the area of the employer's crews." Erection Co. v.
Dep't of Labor & Indus., 160 Wn. App. 194, 207, 248 P.3d 1085 (2011).

Moreover, when a supervisor has actual or constructive knowledge of a safety
violation, such knowledge can be imputed to the employer. Danis-Shook Joint
Venture XXV v. Sec'v of Labor, 319 F.3d 805, 812 (6th Cir. 2003); N.Y. State

Elec. & Gas Corp. v. Sec'v of Labor, 88 F.3d 98, 105 (2d Cir. 1996); Ga. Elec.

Co. v. Marshall, 595 F.2d 309, 312 (5th Cir. 1979).6

       Poteico asserts that Williams and his crew acted unforeseeably when they

disregarded Potelco's repeated warnings and instructions. However, the
applicable standard here is whether Poteico knew or should have known of the
violative condition—not whether the behavior that led to the violation was

       6We need not announce the perimeters of this rule in order to apply it herein. Williams
was a supervisor with the authority to terminate a worker's employment based on a violation ofa
safety rule. Under all versions of the case law, he was a supervisor to whom the rule applied.

                                             -11 -
No. 73226-9-1/12



foreseeable—and Poteico presents no evidence that it did not or could not have

known of the violation.

           Potelco's failure to establish an EPZ was appropriately characterized as a

serious violation. Here, the entire work site was "in the open." Because the work

site was exposed, any bystander—but especially the project foreperson—could

have observed that an EPZ had not been created. On this basis alone, Poteico

had sufficient knowledge of the violative condition. In addition, Poteico does not

dispute that Williams actually knew about the EPZ violation. Because of his
status as a supervisor with authority to terminate the employment of an employee

who violated safety rules, the Board could rightly treat his knowledge as being
imputed to Poteico. Thus, substantial evidence supports the Board's finding that
Poteico knew that an EPZ had not been established. This finding supports the

Board's designation ofthis violation as serious under RCW 49.17.180(6).
           Potelco's failure to effectively enforce its accident prevention program in

practice was also properly characterized as a serious violation. As previously
explained, Poteico knew that Williams' crew failed to establish an EPZ, even
though its accident prevention program mandates the creation of an EPZ before
beginning work. Substantial evidence therefore supports the Board's finding that
Poteico knew that its accident prevention program was not effectively enforced in
practice.7 This finding supports the Board's designation ofthis violation as
serious under RCW 49.17.180(6).


           7The other previously discussed violations of Potelco's safety program also support this
finding.

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No. 73226-9-1/13



      Affirmed.


                        L^k=5f*V

We concur:




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